ITEMID: 001-100895
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF JOVANCIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: András Sajó;Kristina Pardalos
TEXT: 5. The applicant was born in 1959 and lives in Medoševac.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. Following the applicant's arrest on 19 June 2002, on 21 May 2003 the District Court of Niš convicted the applicant of forgery and sentenced him to four years and six months in prison.
8. The Supreme Court of Serbia upheld both the conviction and the sentence on 28 January 2004.
9. On 19 November 2004 the Supreme Court dismissed the applicant's further appeal on points of law as unavailable under domestic law (odbacio kao nedozvoljen zahtev za ispitivanje zakonitosti pravnosnažne presude).
10. The applicant served his sentence in the Niš Penitentiary (Kazneno-popravni zavod u Nišu; hereinafter “the prison”).
11. The applicant's letter of 21 May 2004 to the District Court in Niš bore the prison stamp of the same date and registration number 24-6274/2004.
12. The applicant's first letter of 22 October 2004, sent to the Court on 27 October 2004, also bore the prison stamp dated 25 October 2004 and registration number 24-13588/2004.
13. In its own letter of 6 December 2004, inter alia, the Court's Registry therefore informed the applicant in Serbian of the said stamp, assuming that he may not have been aware of it.
14. In his application form submitted on 23 December 2004, the applicant stated that all his mail addressed to State bodies or his family had to be submitted opened to the prison administration, where it was read. He alleged that this was standard practice based on the provisions of the applicable prison regulations. He also submitted that, in accordance with the said practice, all incoming mail was delivered to prisoners opened, stamped and registered. This letter did not bear any prison stamp.
15. Finally, the above decision of the Supreme Court of 19 November 2004, which was subsequently sent to the applicant, also bore the prison stamp dated 4 February 2005 and registration number 713-1237/2005.
16. On 19 September 2006 the applicant was released early on parole.
17. The relevant domestic law is set out in the Court's judgment of Stojanović v. Serbia (no. 34425/04, §§ 37-43 and 48-49, 19 May 2009).
VIOLATED_ARTICLES: 8


ITEMID: 001-87775
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MARTIN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Francis Martin, is a British national who lives in County Fermanagh, Northern Ireland. He was represented before the Court by Ms W. Stewart, Fermanagh Citizen’s Advice Bureau. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 19 January 1987, leaving four children born in 1972, 1973, 1976 and 1979. On 12 May 2000 the applicant applied for widows’ benefits. On 26 May 2000 the applicant was informed that his claim had been disallowed as he was not a woman.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-88480
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SELIVERSTOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1957 and lives in the town of Sarapul in the Udmurtiya Republic.
6. On 23 April 2001 the Supreme Court of the Udmurtiya Republic delivered a judgment in a criminal case against the applicant and his co-defendants, Mr T. and Mr Z. The court established that in February-March 2000 the applicant, the then Head of the Sarapul Town Property Management Committee, had detected certain irregularities in the privatisation of a local brewery which, in his assessment, might have rendered the privatisation void. The applicant had conspired with T. and Z. to approach the director of the brewery to extort 350,000 Russian roubles (RUB) from the head of the brewery in exchange for covering up those irregularities. The head had agreed to pay RUB 200,000. On the day of payment the applicant prepared an amended assessment report on the brewery’s immovable property, signed it in his office and affixed the seal of the Property Management Committee. Z. and T. delivered the report to the brewery head and received the stipulated amount. On leaving the head’s office they were apprehended by the police.
7. The trial court found the applicant guilty of having attempted to solicit, through an intermediary, a large sum of money for performing acts in the interests of the bribe-giver that were within the applicant’s official competence. The court established that those acts were punishable under Article 290 § 4 (c) and (d) of the Criminal Code (“Bribery”) in conjunction with Article 30 § 3 (“Preparation of a criminal offence and an attempted criminal offence”). The applicant was sentenced to three years and six months’ imprisonment in a high-security colony.
8. The applicant, but not the prosecution, appealed against the first-instance judgment.
9. On 17 October 2001 the Supreme Court of the Russian Federation held an appeal hearing in the presence of the applicant’s lawyer and a prosecutor. The applicant did not attend the hearing. In his oral submissions the prosecutor asked the court to recharacterise the applicant’s acts as attempted large-scale fraud committed by an organised group (Article 159 § 3 (b) of the Criminal Code in conjunction with Article 30 § 3), without reducing the sentence. Pursuant to Article 338 of the 1960 Code of Criminal Procedure, the court then asked the applicant’s lawyer to submit “additional explanations”. The lawyer contended that the granting of the prosecutor’s request would violate the applicant’s right to prepare his defence because neither the applicant nor the lawyer himself had been informed in advance of the nature and grounds of the new charge and they had not had adequate time to prepare their position. The lawyer relied, in particular, on Article 6 § 3 (a) and (b) and Article 13 of the Convention.
10. The court then withdrew for deliberations and delivered its judgment by which it recharacterised the applicant’s acts as attempted large-scale fraud within the meaning of Article 159 § 3 (b) of the Criminal Code in conjunction with Article 30 § 3 and upheld the applicant’s imprisonment term. It reasoned as follows:
“Having correctly established the facts of the case, the [trial] court, however, groundlessly characterised [the applicant’s] acts as an attempt to solicit a bribe in conspiracy with T. and Z. As the court acknowledged in the judgment, the brewery privatisation documents had contained ‘defects’ that had been too insignificant to entail annulment of the privatisation, and [the applicant], as the court established, had been perfectly aware of it. By setting up a deception scheme designed to get hold of a large amount of money because of the defects in the documents, [the applicant], acting in collusion with T. and Z., attempted to steal another person’s property on a large scale using his official position. These acts of [the applicant] are to be characterised under Articles 30 and 159 § 3 (b) of the Criminal Code...
Notwithstanding the change in the legal characterisation of the defendants’ acts, it must be recognised that the sentence imposed by the [trial] court corresponds to [the gravity of] the offence and the information on their personalities.”
“1. Obtaining a bribe in form of money, securities, other property ... by an official -personally or through an intermediary – for acts (omissions) in the interests of the bribe-giver ... , provided such acts (omissions) are within the competence of the official or he can facilitate the performance of such acts (omissions) by virtue of his position...shall be punishable by a fine ...or up to five years’ imprisonment ...
...
4. The acts enumerated in parts one, two and three of the present Article, if they are committed...
...
c) with a solicitation of a bribe;
d) on a large scale,
shall be punishable by seven to twelve years’ imprisonment, accompanied by a confiscation of property or without such.”
“1. Fraud, notably theft of other’s property or acquisition of the right to other’s property by way of deception or abuse of confidence, shall be punishable by a fine ... or up to three years’ imprisonment...
...
3 Fraud committed:
a) by an organised group;
b) on a large scale...
...
shall be punishable by five to ten years’ imprisonment, accompanied by a confiscation of property or without such.”
“...
3. An attempted criminal offence is an intentional act (omission) of a person, directly aimed at committing an offence, if however the offence had not been completed due to circumstances beyond the will of that person.”
11. Article 254 of the 1960 Code of Criminal Procedure required the court to examine the case within the scope of the charge against the defendant(s). The charge could be amended by the court, provided that such an amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court was to remit the case for an additional investigation. It was prohibited to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment only concerned abandonment of certain counts or aggravating circumstances.
12. Articles 339 and 342 provided that the appeal court could decide to dismiss the appeal and uphold the judgment; to quash the judgment and remit the case for an additional investigation or a fresh examination by a trial court; to discontinue the criminal proceedings or to vary the judgment, in particular, if the trial court had incorrectly applied the law.
13. Article 338 described the procedure for the examination of cases before the appeal court. A judge rapporteur opened the hearing and gave a summary of the facts of the case and the grounds of appeal. The defendant first gave explanations, after which the prosecutor made oral submissions. The defendant then made additional observations and the court withdrew for deliberations and delivery of the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-58262
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF REKVÉNYI v. HUNGARY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10;No violation of Art. 11;No violation of Art. 14+10;No violation of Art. 14+11
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. At the material time, the applicant was a police officer and the Secretary General of the Police Independent Trade Union.
8. On 24 December 1993 Law no. 107 of 1993 on certain amendments to the Constitution (az Alkotmány módosításáról szóló 1993. évi CVII. törvény) was published in the Hungarian Official Gazette. This Law amended, inter alia, Article 40/B § 4 of the Constitution to the effect that, as from 1 January 1994, members of the armed forces, the police and security services were prohibited from joining any political party and from engaging in any political activity (see paragraph 13 below for the text of the Article).
9. In a circular letter dated 28 January 1994, the Head of the National Police requested, in view of the forthcoming parliamentary elections, that police officers refrain from political activities. He referred to Article 40/B § 4 of the Constitution as amended by Law no. 107 of 1993. He indicated that those who wished to pursue political activities would have to leave the police.
10. In a second circular letter dated 16 February 1994, the Head of the National Police declared that no exemption could be given from the prohibition contained in Article 40/B § 4 of the Constitution.
11. On 9 March 1994 the Police Independent Trade Union filed a constitutional complaint with the Constitutional Court claiming that Article 40/B § 4 of the Constitution, as amended by Law no. 107 of 1993, infringed constitutional rights of career members of the police, was contrary to the generally recognised rules of international law and had been adopted by Parliament unconstitutionally.
12. On 11 April 1994 the Constitutional Court dismissed the constitutional complaint, holding that it had no competence to annul a provision of the Constitution itself.
13. The relevant Articles of the Constitution of the Republic of Hungary (Law no. 20 of 1949, as amended on several occasions) provide:
“Career members of the armed forces, the police and the civil national security services shall not join any political party and shall not engage in any political activity.”
“A fegyveres erők, a rendőrség és a polgári nemzetbiztonsági szolgálatok hivatásos állományú tagjai nem lehetnek tagjai pártnak és politikai tevékenységet nem folytathatnak.”
“In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.”
“A Magyar Köztársaságban mindenkinek joga van a szabad véleménynyilvánításra, továbbá arra, hogy a közérdekű adatokat megismerje, illetőleg terjessze.”
“… [T]he Government shall ensure that the provisions of the Constitution of the Republic of Hungary are implemented.”
“A Magyar Köztársaság alkotmánya … végrehajtásáról a Kormány gondoskodik.”
“The Government shall submit to Parliament such bills as are necessary to implement the Constitution.”
“A Kormány köteles az alkotmány végrehajtásához szükséges törvényjavaslatokat az Országgyűlés elé terjeszteni.”
14. Law no. 17 of 1989 on referenda, as in force at the material time, provided:
“No signatures may be collected … from persons serving in the armed forces or armed bodies on station or while such persons are discharging their duties …”
“Nem gyűjthető aláírás … fegyveres erőknél és fegyveres testületeknél szolgálati viszonyban levő személyektől, a szolgálati helyen vagy szolgálati feladat teljesítése közben …”
“Citizens eligible to vote or stand in elections … shall have the right to participate in referenda …”
“A népszavazásban … való részvételre választójoggal rendelkező állampolgárok … jogosultak.”
15. Law no. 34 of 1989 (as amended on several occasions) on parliamentary elections, as in force at the material time, provided:
“In the Republic of Hungary every Hungarian citizen … who has attained his [or her] majority (hereinafter: “constituent”) shall have the right to vote in parliamentary elections.”
“A Magyar Köztársaságban az országgyűlési képviselők választásán választójoga van … minden nagykorú magyar állampolgárnak (a továbbiakban: választópolgár).”
“Everyone who is entitled to vote and has a permanent residence in Hungary shall be entitled to stand for election.”
“Mindenki választható, aki választójoggal rendelkezik és állandó lakóhelye Magyarországon van.”
“Constituents … of each individual constituency shall be entitled to nominate candidates [in relation to that constituency] …”
“Az egyéni választókerületben a választópolgárok … jelölhetnek.…”
“Constituents shall be entitled to collect nomination coupons, expound election programmes, promote candidates and organise election campaign meetings …”
“Bármely választópolgár gyűjthet jelöltet ajánló szelvényeket, ismertethet választási programot, népszerűsíthet jelöltet, szervezhet választási gyűlést …”
“Nomination coupons may not be collected … from persons serving in the armed forces or armed bodies … on station or while such persons are discharging their duties …”
“Nem gyűjthető jelöltet ajánló szelvény … a fegyveres erőknél, a rendőrségnél … szolgálati viszonyban lévő személytől, a szolgálati helyen vagy szolgálati feladat teljesítése közben …”
16. Law no. 55 of 1990 on the legal status of members of Parliament, as in force at the material time, provided:
“Employers of employees who are candidates in parliamentary elections … shall grant them unpaid leave on request from the moment of their registration as candidates until the end of the elections or, where they are elected, until they take up their seat.”
“Az országgyűlési képviselő … jelöltet jelöltségének nyilvántartásba vételétől a választásának befejezéséig, illetve megválasztása esetén a mandátuma igazolásáig a munkáltató – kérésére – köteles fizetés nélküli szabadságban részesíteni.”
“Paragraph 1 … [of Section 1] shall apply as appropriate to candidates … serving … in the … police …”
“A … rendőrségnél … szolgálati viszonyban … álló képviselőjelöltre az [1.§] (1) … bekezdés rendelkezéseit kell megfelelően alkalmazni.”
“A member of Parliament … shall put an end to any situation incompatible with his office within a period of thirty days from the moment he takes up his seat …”
“A képviselő a mandátuma érvényességének megállapításától … számított harminc napon belül köteles a vele szemben fennálló összeférhetetlenségi okot megszüntetni …”
17. Law no. 64 of 1990 on the election of members of local authorities and mayors, as in force at the material time, provided:
“Constituents shall be entitled to expound election programmes, canvass on behalf of candidates or organise election campaign meetings … from the thirty-fifth day prior to the date of the elections.”
“Bármely választópolgár – a szavazást megelőző 35. naptól – ismertethet választási programot, népszerűsíthet jelöltet, szervezhet választási gyűlést …”
“A constituent who exercises his right to vote in an individual constituency shall be entitled to nominate candidates [in relation to that constituency] …”
“Jelöltet ajánlhat az a választópolgár, aki a választókerületben választójogát gyakorolhatja …”
18. Law no. 34 of 1994 on the police (“the 1994 Police Act”), which entered into force on 1 October 1994, provides:
“The police shall discharge their duties in a manner free from any party influence.”
“A Rendőrség a feladatának ellátása során pártbefolyástól mentesen jár el.”
“If a police officer wishes to stand as a candidate in elections to Parliament, to a local authority or to the office of mayor, he shall in advance notify the head of the police department [concerned] of his intention to do so. In such cases his service shall be suspended from the sixtieth day preceding the elections until the day on which the results of the elections are published.”
“Ha a rendőr országgyűlési vagy helyi önkormányzati képviselői, illetőleg polgármesteri választáson jelöltként indul, köteles e szándékát a rendőri szerv vezetőjének előzetesen bejelenteni. A választás napját megelőző 60. naptól kezdődően a választás eredményének közzétételéig a szolgálati jogviszonya szünetel.”
“Police officers shall have the right to join professional or other organisations which are aimed at protecting or representing their interests and are related to their professional duties, and to hold office therein; they shall not suffer any disadvantage in their careers on account of their membership and activity. Police officers shall inform the head of the police department [concerned] of their existing or intended membership of organisations unrelated to their professional duties. The head of the police department [concerned] may prohibit the police officer in question from becoming or remaining a member of such organisation if it is incompatible with the profession or duties of a police officer, or if it interferes with or endangers the interests of the force. Such a prohibition shall take the form of a decision. An appeal against such a decision lies to the head of the superior police authority. The decision of the superior authority on the appeal may be challenged in the courts.”
“A rendőr a hivatásával összefüggő szakmai, érdekvédelmi, érdekképviseleti szervezetnek tagja lehet, abban tisztséget vállalhat, e tagsági viszonya és tevékenysége miatt szolgálati jogviszonya körében hátrányt nem szenvedhet. A rendőr köteles a hivatásával össze nem függő társadalmi szervezettel fennálló, illetőleg az újonnan létesülő tagsági viszonyt előzetesen a rendőri szerv vezetőjéhez bejelenteni. A rendőri szerv vezetője a tagsági viszony fenntartását vagy létesítését megtilthatja, ha az a rendőri hivatással vagy szolgálati beosztással nem egyeztethető össze, illetőleg a szolgálat érdekeit sérti vagy veszélyezteti. E döntést határozatba kell foglalni. A határozat ellen a felettes szerv vezetőjénél panasszal lehet élni. A felettes szervnek a panasz kivizsgálása eredményeként hozott határozata a bíróság előtt megtámadható.”
19. Decree no. 1/1990 of 10 January 1990 of the Minister of the Interior (“the 1990 Regulations”), which laid down service regulations for the police, was in force until 30 March 1995 and provided:
“… No party political activity may be carried out on police premises; no questions related to party politics shall be discussed during staff meetings.”
“… A rendőrségen pártpolitikai tevékenység nem folytatható, munkahelyi értekezleteken pártpolitikai kérdések nem tárgyalhatók.”
“With the exception of political parties, police officers shall … be entitled to form and maintain social organisations [társadalmi szervezet] (trade unions, mass movements, organisations protecting their interests, associations, etc.) provided that their aims are not contrary to the legal provisions and rules regulating police service.”
“Rendőrök önmagukból – párt kivételével – … a szolgálati viszonyra vonatkozó jogszabályokkal, rendelkezésekkel nem ellentétes célú társadalmi szervezetet létrehozhatnak és működtethetnek (szakszervezet, tömegmozgalom, érdekképviseleti szervezet, egyesület stb.).”
“Police officers shall be entitled to join any social organisation [társadalmi szervezet], including a political party, which has been lawfully founded and registered by a court. Police officers shall not enjoy any advantage or suffer any detriment in their career on account of their membership of an organisation or their party affiliation.”
“A rendőr bármely törvényesen megalakult, illetve bíróság által nyilvántartásba vett társadalmi szervezetnek – beleértve a politikai pártot is – tagja lehet. Szervezeti hovatartozása, pártállása miatt szolgálati viszonya keretében semmiféle előnyben vagy hátrányban nem részesíthető.”
“Party badges and symbols shall not be displayed on police premises. While on duty, police officers shall refrain from wearing badges showing their political preference.”
“A rendőrség hivatali helyiségeiben, körleteiben pártok jelvényei, jelképei nem helyezhetők el. A rendőr szolgálatban politikai hovatartozására utaló jelvényt nem viselhet.”
“Police officers shall not engage in activities as experts or advisers in relation to questions of police service upon request from political parties unless authorised to do so by the Minister of the Interior.”
“A rendőr pártok részére a rendőri szolgálattal összefüggő kérdésekben szakértői, szaktanácsadó feladatokat csak a belügyminiszter engedélyével végezhet.”
“On police premises the exercise of the right to freedom of assembly is subject to the approval of the common superior of all the organisers [of any assembly].”
“A rendőrség objektumaiban a gyülekezési jog csak a szervezők közös elöljáróinak engedélyével gyakorolható.”
“Police officers shall have the right to participate in lawfully organised … gatherings (such as peaceful assemblies, processions and demonstrations) in their leisure time. On such occasions they shall refrain from wearing uniform unless the aim of the gathering is the representation or protection of interests related to [police] service. They shall refrain from carrying their service gun or other firearms lawfully in their possession. Where the gathering is ordered to be dissolved, they shall immediately leave.”
“A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen (békés összejövetelen, felvonuláson, tüntetésen). Ilyen esetben egyenruhát csak akkor viselhet, ha a rendezvény célja a szolgálati viszonnyal összefüggő érdekek képviselete, védelme. Szolgálati vagy más jogszerűen tartott lőfegyverét nem tarthatja magánál. Ha a rendezvény feloszlatására kerül sor, köteles a helyszínt azonnal önként elhagyni.”
“Police officers shall … be entitled to make statements upon request from the press or radio or television stations on questions related to road safety, public safety or certain offences provided that, [in so doing,] they maintain the confidentiality of service secrets, observe the principle of the presumption of innocence, respect personality rights [személyiséghez fűződő jogok] and do not prejudice the examination and investigation of cases …”
“A rendőr, a sajtó, a rádió és a televízió megkeresése alapján a közlekedés-, a közbiztonság kérdéseiről, egyes bűncselekményekről, a szolgálati titok megőrzésével, az ügyek vizsgálatának és felderítésének veszélyeztetése nélkül, valamint az ártatlanság vélelmének figyelembe vételével és a személyiséghez fűződő jogok tiszteletben tartásával … nyilatkozhat …”
“… [Police officers] shall be entitled to give lectures on – or to participate in radio or television programmes concerning – politics, science, literature or sport without prior authorisation but on condition that no reference is made to their police service.”
“… [A rendőr] politikai, tudományos, szépirodalmi és sport témájú előadásokat, szereplést (a rádióban és a televízióban is) engedély nélkül vállalhat rendőri állására való utalás nélkül.”
“Police officers shall have the right to make statements and publish articles in Ministry of the Interior publications without permission, while observing the rules on service and official secrets.”
“A Belügyminisztérium lapjaiban a szolgálati- és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat.”
“Police officers shall not be entitled to publish textbooks and documentary literature related to police activities save with prior authorisation …”
“A rendőri vonatkozású kérdéseket tárgyaló szak- és tényirodalmi művet a rendőr csak előzetes engedéllyel jelentetheti meg …”
“Police officers shall be entitled to publish works of fiction … and works on science, politics or sport … that are unrelated to police activities without permission but on condition that no reference is made to their police service.”
“A rendőr – a rendőri állásra való utalás nélkül – szabadon közölheti, illetve kiadhatja a nem rendőri vonatkozású szépirodalmi …, tudományos, politikai kérdéseket tárgyaló, sporttal foglalkozó műveit …”
20. Decree no. 3/1995 of 1 March 1995 of the Minister of the Interior (“the 1995 Regulations”), which was adopted under the 1994 Police Act in order to implement its provisions and which laid down service regulations for the police, entered into force on 31 March 1995. It provides:
“Police officers, in their capacity as representatives of the police or experts, shall not give statements to the press or participate in radio or television programmes or in films, unless permitted to do so by the Head of the National Police or one of his deputies. No permission is needed for giving scientific or cultural lectures or for other public appearances of a similar nature (including participation in radio or television programmes) if no reference is made to police service.”
“A rendőr a rendőrség képviselőjeként, szakértőjeként a sajtóban, a rádió és televízió műsoraiban, filmekben csak az országos rendőrfőkapitány, illetve helyettesei előzetes hozzájárulásával szerepelhet. A rendőri állásra utalás nélkül tartott tudományos, kulturális előadások megtartásához, ilyen irányú egyéb közszerepléshez beleértve a rádióban és televízióban történő szereplést is) engedély nem kell.”
“Police officers shall have the right to make statements and publish articles in police publications without permission, while observing the rules on service and official secrets.”
“A rendőrség lapjaiban a szolgálati és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat.”
“Members of the police force, in their capacity as police officers, shall not make public appearances unless authorised to do so by the head of the police department. On such occasions police officers shall refrain from making political statements and shall evince a neutral attitude towards any social organisation [társadalmi szervezetek].”
“Nyilvános szerepléshez (ha az rendőrként történik) engedélyt kell kérni a rendőrfőkapitánytól. A rendőr ilyen közéleti szereplése során tartózkodjék a politikai nyilatkozatoktól, magatartása a társadalmi szervezeteket illetően semleges legyen.”
“Police officers shall have the right to participate in lawfully organised … gatherings in their leisure time. On such occasions they shall refrain from wearing uniform and carrying their service gun or other firearms lawfully in their possession. Where the gathering is ordered to be dissolved, they shall immediately leave .”
“A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen. Ilyen esetben egyenruhát nem viselhet. Szolgálati vagy más jogszerűen tartott lőfegyverét nem tarthatja magánál. Ha a rendezvény feloszlatására kerül sor, köteles a helyszínt azonnal önként elhagyni.”
NON_VIOLATED_ARTICLES: 10
11
14


ITEMID: 001-93366
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YURUKOVA AND SAMUNDZHI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. In 1987 the first applicant purchased from the Sofia municipality a three-room apartment of 102 square metres.
6. The property had become State owned by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.
7. Originally, the nationalised apartment had been bigger. Not later than 1968 it had been divided into two apartments. One of them had been sold to an individual, Mr. V., in 1968 and the second one to the first applicant in 1987.
8. In 1993, shortly after the enactment of the Restitution Law, the former pre-nationalisation owners brought proceedings under section 7 of that Law against the first applicant.
9. The proceedings ended by final judgment of the Supreme Court of Cassation of 13 January 2003.
10. The courts examined the evidence and rejected, in reasoned decisions, the first applicant’s argument that the claim under section 7 had been brought after 23 February 1993 – the date of expiry of the relevant statutory time-limit.
11. Dealing with the case on the merits, the courts declared the 1987 contract null and void and restored the plaintiffs’ ownership of the apartment on the basis of two arguments: 1) the procedure for dividing an apartment into two apartments had not been observed by Mr V. and the municipality in 1968 or earlier, and 2) a relevant document concerning the 1987 sale, a tenancy order, had not been signed by the mayor personally, as required by law, but by another official at the municipality.
12. Until April 2003, within three months of the final judgment in the case under section 7 of the Restitution Law, it was possible for the first applicant to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The first applicant did not avail herself of this opportunity.
13. As the first applicant did not vacate the apartment voluntarily, in December 2003 the owners brought rei vindicatio proceedings against her and her son, the second applicant, who apparently also lived in the flat. These proceedings ended by final judgment of the Supreme Court of Cassation of 20 February 2008 ordering the applicants to vacate the flat. In December 2008, the first applicant informed the Court that she had not vacated the property and that the second applicant did not live there.
14. In May 2008 the first applicant petitioned the regional governor with requests to provide her with a State-owned flat or, alternatively, with compensation bonds. In December 2008 the first applicant informed the Court that she had not received a reply.
15. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
16. In a judgment of 23 October 2008 (decision no. 11025 in administrative case no. 670/08), the Supreme Administrative Court held that persons who had not applied for compensation bonds within the relevant time-limit, in force since 2000, could not seek such bonds after the enactment in June 2006 of paragraphs 2 and 3 of section 7 of the Restitution law (see paragraphs 133 and 139 of the Court’s judgment in Velikovi and Others, cited above) as these provisions did not give rise to additional entitlement to compensation bonds and therefore did not affect the relevant time-limit.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58798
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CONDRON v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No separate issue under Art. 6-2;Not necessary to examine Art. 6-3-b and 6-3-c;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. Both applicants are admitted heroin addicts. Prior to their being convicted and sentenced for drug offences they lived at 51 Cubitt House, a large block of council flats in South London. Adjacent to their flat, at no. 50, lived a Mr James Curtis. Mr Curtis was also charged with the same offences as the applicants, namely being concerned with the supply of heroin and possession of heroin with intent to supply, but was acquitted.
10. The prosecution case was that the applicants would prepare wraps (individual sachets) of heroin for sale and pass them to Mr Curtis when he knocked on the back window of their flat whenever he had a purchaser. The prosecution alleged that wraps would be handed from the balcony at flat 51 to someone leaning out of the back window of flat 50. Mr Curtis would then sell the wraps to visitors to his flat.
11. The applicants and Mr Curtis were observed from 24 to 28 April 1995 by police and recorded on video from 25 April 1995 onwards. The applicants were seen to pass various items to Mr Curtis including a plastic bottle for smoking crack cocaine and silver foil for smoking heroin. The prosecution stated that on 26 April 1995 a man was seen at the back window of flat 50 handing an object which looked like a cigarette packet to the second applicant who was on her balcony. She went into her flat, then re-emerged and returned the packet to the man.
12. The applicants were arrested at 12.45 p.m. on 28 April 1995. In the flat were found sixteen wraps of heroin weighing between 0.07 and 0.09 g and a further quantity of heroin weighing 1.19 g. The prosecution also alleged that a polythene sheet in the flat had been used to make wraps.
13. At 10.40 a.m. on 29 April 1995 the applicants' solicitor, Mr Delbourgo, noted that the first applicant, who seemed to be in the early stages of withdrawal, was unfit to be interviewed. However, after a 10- to 15-minute examination, the Force Medical Examiner, Dr Youlten, stated that the applicant was fit for interview. The doctor's report notes that the first applicant was an opiates addict with symptoms and signs of withdrawal but that he was thinking clearly and able to answer questions. The second applicant was also seen to have withdrawal symptoms but again was stated by the Force Medical Examiner to be thinking clearly and able to answer questions.
14. The transcript of the interviews with the first applicant reveals that Mr Delbourgo was concerned that his clients were unfit to be interviewed and in some distress. In particular, he had found it difficult to get the second applicant to concentrate on what he was saying to her.
15. The applicants were interviewed separately in the presence of their solicitor. Both applicants were told by the police:
“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”
16. The applicants stated that they understood the warning. They were advised by the police that if during the interview they felt unwell they should say so and the interview would be stopped. At no stage during interview did either of the applicants request this, even though at one point the first applicant's solicitor specifically suggested that this might happen. However, the first applicant expressly stated that he did not want the interview to stop.
17. The applicants were asked to explain their actions in apparently passing to, and being passed items from, flat 50. Both simply responded to these questions with the words “no comment”.
18. From 16 October to 2 November 1995 the applicants were tried before a jury at Kingston Crown Court. Both applicants were legally aided and represented by counsel. In a pre-trial hearing counsel for the applicants argued that the interviews should not be put before the jury as they had been carried out whilst the applicants were suffering from drug withdrawal symptoms. Their solicitor, Mr Delbourgo, testified that he had been of the firm view that neither should embark upon what might prove to be a very lengthy interview given their condition. However, the judge noted that the doctor had considered them fit to be interviewed, that they were thinking clearly and able to answer questions, and that both applicants had stated in response to direct questions that they understood the charges against them and the possible repercussions of failing to answer questions. He therefore considered that Mr Delbourgo had been wrong in his analysis that the applicants had been unfit to be questioned and allowed their interviews to stand as evidence. The judge further observed that the interviews had been short and were not conducted in an oppressive manner. He noted that in any event the application to exclude the evidence was premature since the defendants had not given evidence, so that it was not clear what facts were going to be relied on in their defence which might reasonably have been expected to have been mentioned. Moreover, it was a matter for the jury, properly directed, to determine the issues.
19. Both applicants gave evidence at the trial and said that the heroin found in the flat had been for their own personal use and had been purchased in bulk by the first applicant the evening before their arrest. They stated that the polythene sheet had been planted there by the police after they had been brought to the police station. When asked about the incident recorded on 26 April 1995 in which the second applicant was seen receiving and then returning a packet to the occupant of flat 50, the applicants gave explanations which they had not mentioned to the police in their interviews. The first applicant stated that no drugs had ever passed between the flats and that the packet contained either cigarettes or money; whilst the second applicant stated that it was simply an exchange of a packet of cigarettes. Other items had been passed this way since it was easier than having to go along the walkway of the front of each flat.
20. The applicants' co-accused, Mr Curtis, testified at the trial that the applicants had never given him heroin. He confirmed the applicants' account of their friendship with him and his frequent borrowing, with communication being by the balcony. When he was arrested he was told that he would not get bail which made him angry and “bloody-minded” so he decided not to help the police by answering their questions.
21. When asked why they had made no comment to police questions during interview, both applicants stated that their solicitor's advice that they were not in a condition to do so, given their withdrawal from heroin, had been conclusive.
22. In his summing-up the judge made reference to the jury's ability to draw inferences from the applicants' silence:
“I turn to a new topic in our law ... It is the law that these defendants did not mention certain facts when questioned about them in interview by the police. In the past that would not have been evidence that could in any way be held against them but now it is possible that it can be though it is for you to judge whether in fact you do hold it against them.
[The first applicant] has relied in evidence on an explanation as to the passing of that cigarette packet, which is the subject of count 1. ... Firstly, it could have been cigarettes or it could have been money. He also said in evidence to you, 'There were no drugs ever passed through our hands to Curtis'. He admits that he did not mention that when questioned under caution before being charged ...
I turn now to [the second applicant] because she has relied in her own evidence on the fact that she had asked for cigarettes and was passed a packet, took a couple, and handed the packet back. She admits that she did not mention that when she was questioned under caution before being charged. ... Also in [the second applicant's] interview she was asked about another matter, and I deal with this because in her evidence she relied on the fact that on 26 April at 11.30 a.m., a little before the incident with the cigarette packet, she handed Curtis some 'sticky chewing gum' ... so the chewing gum is again not mentioned. ... She also in the course of her evidence relies on her telling you that there were only innocent, neighbourly exchanges of commonplace items from her balcony and she admits that she never mentioned those matters to the police ...
The prosecution case, members of the jury, is that (and it is for you to judge whether this assists you in your judgment to reach a verdict) in the circumstances when each of these defendants were questioned on these topics, he or she could reasonably be expected to have mentioned what they said in court. The defendants explained that their 'no comment' answers, speaking generally because of course they put it in more detail, the [applicants] said they were suffering from withdrawal symptoms and relied on Mr Delbourgo, their solicitor's advice that he could see they were suffering from withdrawal symptoms and should not answer questions because in his judgment of their appearance they were unfit for interview despite the known and expressed view of the FME, which means Force Medical Examiner and is in fact a doctor, who comes along to police stations to deal with problems of this sort ...
The law is ... that you may draw such inferences as appear proper from a defendant's failure to mention the points I have referred to in their respective interviews. In each case it is relevant only to the case against the defendant concerned. You do not have to hold it against him or her. It is for you to decide whether it is proper to do so. Failure to mention the points in interview cannot on its own prove guilt but depending on the circumstances you may hold it against him or her when deciding whether he or she is guilty. You should decide whether in the circumstances which existed at the time of the interview the matters were ones which the defendant concerned could reasonably be expected then to mention. Members of the jury that is all I have to say at this stage about the law.”
23. The applicants were each convicted by a majority of nine to one of being concerned in supplying heroin and possessing heroin with intent to supply. The first applicant was sentenced to a total of four years' imprisonment. The second applicant was sentenced to a total of three years' imprisonment. James Curtis, the co-accused, was acquitted on both charges.
24. The applicants appealed to the Court of Appeal on two primary grounds: the inclusion of the police interviews and the contents of the judge's direction.
25. The applicants' counsel contended before the Court of Appeal that the trial judge should have excluded the “no comment” interviews as they were a direct result of following their solicitor's honest advice. The Court of Appeal pointed to problems with that argument in situations where solicitors advised their clients tactically or dishonestly to refuse to answer questions; the key question was the subjective reason why the applicants had not answered the questions. The Court of Appeal went on to find that the judge, as the fact-finding tribunal in the voir dire (submissions on a point of law in the absence of the jury), had been correct in his decision to include the notes of interviews in evidence.
26. The Court of Appeal rejected the submission that the trial judge had been wrong to allow the jury to draw adverse inferences from the applicants' failure to answer questions at the interview. Lord Justice Stuart-Smith stated on this point:
“... both [applicants] knew that the Force Medical Examiner certified that they were fit to be interviewed and therefore that medical opinion differed from that of their solicitor. Both were clearly advised by their solicitor that if they failed to mention material facts at the proposed interview, they could be criticised if the matter came to trial. That advice was understood; he also made it plain that this was entirely their choice. At the beginning of the interview both were given the caution in its current form. ... Both indicated that they understood that caution. Both were told that if they felt unwell during the interview, they could let the interviewer know and it could be stopped. In these circumstances the fact-finding tribunal might well consider that if the [applicants] had an innocent explanation of the incriminating evidence about which they were specifically questioned, they would have mentioned it.”
27. The Court of Appeal then considered the applicants' criticism of the trial judge's summing-up in so far as he omitted to remind the jury that “they could only draw an adverse inference if, in spite of any evidence relied upon to explain the failure to mention the relevant matters (or indeed in the absence of such evidence) they conclude[d] that such failure [could] only sensibly be attributed to the fact that the appellants must have fabricated the evidence subsequently”. The Court of Appeal, with reference to the dicta of Lord Taylor CJ in R. v. Cowan ([1996] Queen's Bench Reports 373) (see paragraph 33 below) considered that it would have been desirable if the trial judge had directed the jury along the following lines:
“If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
28. However, the Court of Appeal did not find that this lacuna in the summing-up meant that the convictions were unsafe, having regard to the weight of the other evidence. Lord Justice Stuart-Smith explained in this connection:
“We have already referred to the substantial, almost overwhelming evidence of drug supply from what was found in the [applicants'] house. Although there were no scales, all of the other paraphernalia of supply was present. All but one of the jury must have rejected the [applicants'] explanation of the police observations, much of which was recorded on video, the presence of the matching wraps in Curtis' flat and the elaborate security arrangements at the applicants' own flat. The acquittal of Curtis shows that the jury regarded the evidence of the interviews as insignificant. Curtis also failed to answer questions in interview.”
29. The Court of Appeal dismissed the applicants' appeal in its judgment delivered on 17 October 1996.
30. Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
...
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies
...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
...”
Section 35(2) and (3) provides:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
Section 38(3) adds that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
31. Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in the instant case.
32. The Judicial Studies Board guideline direction at the time of the Court of Appeal's consideration of the applicant's appeal provided that:
“If he failed to mention ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.
The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution's case. It is for you to decide whether it is fair to do so.”
33. The dicta of Lord Taylor CJ are as follows:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
34. The current specimen direction for section 34, updated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides:
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.
The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].
The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].
If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.
Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution's case. You are not bound to do so. It is for you to decide whether it is fair to do so.
[There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant's failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]”
35. In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 Act could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression 'in the circumstances' restrictively: matters such as the time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
36. In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant's right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and/or the solicitor who gave the advice) about the contents of the advice, that is the reason why he was so advised.
37. The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823) and R. v. Fitzgerald (judgment of 6 March 1998, unreported).
38. In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 Act have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999, The Times, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated:
“Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.”
In the Government's submission the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act.
39. In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act:
“Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant's failure to give oral evidence at his trial until they have concluded that the Crown's case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed ...”
40. In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial.
41. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal
“shall allow an appeal against conviction if it thinks that the conviction is unsafe”.
In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102451
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF UDAYEVA AND YUSUPOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;No violation of Art. 2
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1963 and 1960 respectively and live in Urus-Martan. The first applicant is the mother of Ali Udayev, who was born in 1990. The second applicant is the mother of Ramzan Yusupov, who was born in 1988.
7. In October 2000 Urus-Martan was under the full control of the Russian military forces. The military troops were stationed in the town and its vicinity, in the settlement of Michurina (also spelled as Michurino). The applicants' families lived in the same neighbourhood on the outskirts of UrusMartan. Their sons, Ali Udayev and Ramzan Yusupov, attended the same school.
8. In the afternoon of 17 October 2000 Ali Udayev and Ramzan Yusupov were walking home from school down Obyezdnaya Street, which was situated between the local cemetery and a field. At about 3.45 p.m. they were seen walking by Ramzan Yusupov's brother, Mr T. Yusupov. He was next to his house when at about 4 p.m. he saw an explosion in the vicinity.
9. The applicants' neighbour Ms D.M. was at home and heard the sound of a flying projectile coming from the Michurina settlement. Then she heard an explosion, saw clouds of black smoke coming from the road next to the cemetery and rushed to the place. A number of the applicants' relatives and neighbours also rushed to the place, where they found fragments of the bodies of Ali Udayev and Ramzan Yusupov.
10. About half an hour later a group of military servicemen arrived at the scene. One of them said that it must have been an explosion of a landmine. But a number of local residents told the officers that they had heard the sound of a flying projectile, and that therefore the explosion could not have been caused by a landmine. The head of the Urus-Martan town administration also arrived at the scene. In the evening of 17 October 2000 the local TV station reported the events in a news programme.
11. On 18 October 2000 the applicants buried their sons. Many residents of Urus-Martan attended the funeral. One of them, Ms Z.G., told the second applicant that on 17 October 2000 she had been working at the wheat processing plant located next to the road from Urus-Martan to Michurina. Russian military troops were stationed nearby. At about 4 p.m. she heard a projectile being launched from a tank.
12. According to another local resident, Ms L.M., on 17 October 2000 she was walking from Michurina to Urus-Martan. About 500 metres from Michurina she saw a group of servicemen on a tank. They told her that the roads to Urus-Martan were blocked and nobody was allowed to go into the town. About 200 metres from the place she met a fellow villager. He told her that drunken soldiers were down the road and that she should return to Michurina. At about 4 p.m., when Ms L.M. was at home, she heard a projectile being launched from a tank and the sound of an explosion on the outskirts of Urus-Martan.
13. Three residents of Michurina, Ms Z.P., Ms D.A and Ms Ay.T., informed the applicants that at about 4 p.m. on 17 October 2000 they had heard a projectile being launched from the area where the Russian military troops had been stationed and they had heard it explode on the outskirts of Urus-Martan.
14. On 30 October 2000 the Urus-Martan district hospital issued two statements certifying the deaths of Ali Udayev and Ramzan Yusupov on 17 October 2000 from numerous missile wounds.
15. The Government did not challenge the facts as presented by the applicants. At the same time they pointed out that, according to the information provided by the domestic investigation, on 17 October 2000 the military unit Don-100 stationed in Urus-Martan had been subjected to shelling by an illegal armed group under the command of Mr M.Ts. and that on that date the military unit had not used large-calibre weapons. They also stated that the deaths of the applicants' sons could have been caused by the shelling opened by the illegal armed group.
16. On 17 October 2000 the Urus-Martan district prosecutor's office (the district prosecutor's office) initiated an investigation into the deaths of Ali Udayev and Ramzan Yusupov. The case file was given the number 24045. In the submitted documents it was also referred to under no. 24005.
17. On 17 October 2000 the investigators examined the crime scene. Nothing was collected from the scene. The investigators briefly examined the boys' remains on the spot. No forensic analysis of the remains was carried out by the investigation. Shortly after the events the applicants collected fragments of the explosive device which had caused the deaths of their sons and submitted them to the investigators.
18. On 30 October 2000 the applicants' relatives wrote to the UrusMartan district military commander's office (the district military commander's office) requesting the authorities to conduct an effective investigation into the deaths of Ali Udayev and Ramzan Yusupov. No reply was given to this request.
19. On 10 November 2000 the head of the Urus-Martan district department of the interior (the ROVD) provided the investigators with a statement to the effect that Ali Udayev and Ramzan Yusupov had died as a result of the explosion of a projectile of the Shmel type; that on 17 October 2000 the military units Don-100 and regiment no. 245 stationed in the vicinity of UrusMartan did not use such large-calibre projectiles, and that on 17 October 2000 the military units had been subjected to shelling by an illegal armed group under the command of Mr M.Ts.
20. On 30 November 2000 (in the submitted documents the date was also referred to as 14 December 2000) the district prosecutor's office granted the applicants victim status in the criminal case.
21. From 30 November 2000 to 11 February 2005 the applicants did not receive any information from the investigative authorities about the developments in the criminal proceedings.
22. On 11 and 15 February 2005 the applicants wrote to the district prosecutor's office requesting information about the progress in the criminal investigation and asking for access to the investigation file. On 16 February 2005 the investigators refused to grant access to the file and informed the applicants that the investigation had been resumed.
23. On 10 March 2005 the applicants requested the district prosecutor's office to inform them about the date of the reopening of the criminal investigation. No reply was given to this request.
24. On 16 March 2005 the district prosecutor's office suspended the investigation in criminal case no. 24045.
25. On 9 June 2005 the applicants requested the investigators to inform them about the progress in the criminal case. No response was given to this request.
26. On 19 June or July 2005 the supervising prosecutor overruled the decision to suspend the investigation as premature, and ordered the investigators to resume the proceedings and take a number of investigative steps. The applicants were not informed about this decision.
27. Between March and July 2005 the applicants complained about the ineffectiveness of the investigation to domestic courts (see paragraphs 4647 below).
28. On 1 June 2007 the applicants were informed orally by an investigator, Mr K., that on an unspecified date the fragments of the projectile collected by the applicants from the crime scene had been sent for an expert examination.
29. On 23 July and 7 August 2008 the Chechnya prosecutor's office informed the applicants that their office was investigating the deaths of their sons and that on 7 August 2008 the investigation had been suspended.
30. According to the applicants, throughout the investigation the authorities consistently failed to inform them about its progress and deprived them of access to the investigation file.
31. On 17 October 2000 the district prosecutor's office opened criminal case no. 24045 under Article 105 § 2 of the Criminal Code (murder) in connection with the discovery on the eastern outskirts of Urus-Martan of the bodies of minors Ramzan Yusupov and Ali Udayev.
32. On 17 October 2000 the investigators examined the crime scene and the fragments of the bodies on the spot. Nothing was collected from the scene.
33. On 17 October 2000 the investigators questioned Ms G.M., who stated that she had been in her courtyard when she had heard the sound of a flying projectile coming from the outskirts of the town and then the sound of an explosion. The witness and her sister had rushed out into the street and next to the district hospital they had seen a hole in the ground and the remains of two bodies. The witness asserted that the explosion had been caused by the projectile which had arrived from the direction of the collective farm, and not by a mine, as she had clearly heard the distinctive sound of a projectile.
34. On unspecified dates the investigators questioned witnesses Mr Kh.Kh. and Ms Kh.O., whose statements concerning the events were similar to that given by Ms G.M.
35. Between 18 October and 10 November 2000 the law-enforcement agencies conducted checks in respect of thirty-two residents of UrusMartan to find out whether they had been involved in the deaths of the applicants' sons.
36. On 10 November 2000 the head of the UrusMartan ROVD provided the investigators with a statement to the effect that the applicants' sons had died as a result of the explosion of a projectile of the Shmel type.
37. On 30 November 2000 the investigators granted both applicants victim status in the criminal case and questioned the second applicant, who stated that she had found out about the events from her neighbours and that she had been prevented by them from approaching the scene of the incident. From the eyewitnesses she had learnt that her son and Ali Yudayev had been killed by a projectile which had arrived from the eastern part of UrusMartan.
38. On an unspecified date the investigators questioned the first applicant's husband, Mr I.U., who stated that on 17 October 2000 he had been in the Urus-Martan ROVD when he had been informed that his son Ali had been killed by a projectile. He had rushed to the place of the incident and found the remains of his son and those of Ramzan Yusupov. According to the witness, it was clear that the boys had died from a projectile which had arrived from the eastern part of Urus-Martan.
39. On an unspecified date the investigators questioned Mr L.M. who stated that on 17 October 2000 he had heard a powerful explosion and rushed into the street. Next to the cemetery he had seen clouds of thick black smoke and had run to the place, where he had found a hole in the ground measuring between 1.5 and 2 metres, school textbooks and the bodies of the two boys. He found out the boys' names from their school books.
40. On an unspecified date the investigators questioned Ms Z.P., who stated that on 17 October 2000 she had been on the eastern outskirts of Urus-Martan. At about 4.15 p.m. she had heard a projectile flying from the direction of the Michurina settlement and then an explosion. She had rushed to the place, where she had found the hole in the ground and the remains of two boys next to it. The witness stated that an acquaintance of hers, Ms Liza, had seen military tanks stationed in Michurina turning towards Urus-Martan and one of them firing a projectile in the town's direction. The witness further stated that at the scene she had not seen any wires or devices which could have indicated a landmine.
41. On an unspecified date the investigators questioned Ms D.M., who stated that on 17 October 2000 she had been at home. At about 4.15 p.m. she had heard a flying projectile and then an explosion. She had run out into the street and seen Ms Z.P. running to the place of the explosion. When the witness had arrived at the scene, she had found a hole in the ground of about one metre in diameter and the remains of two boys. From the shape of the hole it had been clear that the projectile had arrived from the direction of the Michurina settlement.
42. On an unspecified date the investigators questioned the applicants' neighbour, Mr Sh.U., who stated that on 17 October 2000 he had been at home. At about 4 p.m. he had heard an explosion and seen clouds of smoke and the neighbours running to the scene. There they had found the remains of the applicants' sons. After that military servicemen had arrived at the scene. The witness had heard some people saying that the explosion had been caused by a projectile; others had thought that it must have been a landmine. He also stated that at the material time landmines quite often exploded on that street.
43. On an unspecified date the investigators questioned Ms Z.B., whose statement concerning the events of 17 October 2000 was similar to the one given by Mr Sh.U.
44. On an unspecified date the investigators obtained information to the effect that on 17 October 2000 the military unit Don-100 stationed in UrusMartan had been shelled by an illegal armed group under the command of Mr M.Ts., and that on that date the military unit had not used large-calibre weapons.
45. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 24045, stating that an investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information concerning participants in criminal proceedings.
46. On 24 March 2005 the applicants complained to the UrusMartan town court that there was no effective investigation in the criminal case. On 6 April 2005 the court allowed their complaint in part. It instructed the prosecutor's office to resume the investigation and take a number of investigative steps. The court rejected the applicants' complaint in the part concerning their request for access to the investigation file. On 11 May 2005 the Chechnya Supreme Court upheld this decision on appeal.
47. On 13 July 2005 the applicants again complained to the UrusMartan town court that the investigation in the criminal case was ineffective and requested that the suspended proceedings be resumed. On 26 July 2005 the court rejected their complaint as groundless, stating that the prosecutor's office had resumed the criminal proceedings (see paragraph 26 above).
48. For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia (no. 5108/02, §§ 105-107, 17 January 2008).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-69495
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: JACZEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jan Jączek, is a Polish national who was born in 1958 and lives in Katowice, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1993 the applicant's wife lodged a petition for divorce with the Katowice Regional Court (Sąd Wojewódzki).
The proceedings, following the applicant's appeal, are pending before the Katowice Court of Appeal (Sąd Apelacyjny).
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.