ITEMID: 001-58495
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF JASPER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney
TEXT: 4. At the time of the introduction of the application, the applicant was serving a prison sentence. The background to his conviction is as follows.
On 30 June 1993 approximately three tonnes of cannabis resin was imported into the United Kingdom concealed in a consignment of frozen meat on a lorry travelling from Zeebrugge to Dover. There had been two previous importations of meat from the same consignor in May and early June 1993, both of which had been collected by a firm of hauliers called Davidsons. On this occasion, the meat was delivered to West Kent Cold Storage at Dunton Green, near Sevenoaks in Kent.
5. On 1 July 1993 Customs and Excise officers were keeping the applicant under observation. At approximately 6 a.m. he was followed from his home in Walthamstow, East London, to a lorry park at Beckton, where he collected an articulated lorry and refrigerated trailor which he had bought the previous month. He drove the lorry to West Kent Cold Storage, where he loaded the consignment of meat onto the lorry, and then drove on to a lock-up garage in Leytonstone, East London. He backed the trailor into the garage and drove away in his car. He made two brief visits to the garage during the morning, and then returned at approximately 1 p.m.
6. The applicant remained inside the garage for about five hours and was arrested just before 6 p.m. as he was leaving. The garage was searched. Six of the ten pallets of meat were still on the lorry in a frozen state, although the refrigerator motor was not operative. Four of the pallets, containing a large quantity of cannabis resin, had been opened and left to defrost in the unrefrigerated garage. The applicant told Customs officers that he worked as a haulage contractor and had not known that the meat contained cannabis.
7. In addition, Customs officers found that the applicant's daughter had rented a safety deposit box on 19 March 1993, of which the applicant, using the name of “Eric Siggins” was an authorised signatory. Following the applicant's arrest on 5 August the box was searched and found to contain GBP 24,100 in cash and two passports bearing the applicant's photograph, the first in his true name and the second in the name of Eric Siggins. Also found in the box were two documents dated 30 June, the date of the applicant's arrest.
8. The applicant was charged with an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis, and remanded for trial in the Southwark Crown Court.
9. On 14 January 1994, shortly before the commencement of the trial, the prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity. The defence were notified that an application was to be made, but were not informed of the category of material which the prosecution sought to withhold. They were given the opportunity to outline the defence case to the trial judge, namely that the applicant had collected the consignment of meat pursuant to instructions received by telephone the previous night, and had not been aware that the meat contained cannabis, and to request the judge to order disclosure of any evidence relating to these alleged facts. The trial judge examined the material in question and ruled that it should not be disclosed. The defence were not informed of the reasons for the judge's decision.
10. On 18 January 1994 the defence served the following written request on the prosecution:
“9. The Crown are formally asked to indicate (a) in general whether there is unused material in connection with this case, apart from the subject-matter of the ex parte application to the Court on Friday 14 January 1994 ... which has not been disclosed and (b) in particular:
(i) whether any listening device or telephone intercept was used, and whether there exists any resulting recording, note, memorandum, or other record;
(ii) whether there exists any note, memorandum or other record of any interview with, or statement by any witness or potential witness in this case that has not already been disclosed;
(iii) whether there exists any evidence ... of any observations on the lorry ... or on the premises of West Kent Cold Storage, and if not, whether any such observations were in fact carried out;
(iv) whether there were any other observations carried out in connection with this enquiry that have not been disclosed;
(v) whether any enquiries were made to trace the vehicles and/or drivers used for the first two Davidson & Sons collections from West Kent Cold Store, and if so, with what result;
(vi) whether HM Customs and Excise acted in this enquiry on any 'information received' and if so, whether there exists any log, memorandum, or other record of any such information.”
11. Prosecution counsel provided the answer to questions 9(iii) and (vi), informing the defence that there had been no such observations and no “information received” from an informant, but declined to answer the remainder of the questions. The defence therefore applied to the trial judge for an order that the prosecution should provide the information requested. The application was heard on 24 January 1994, when prosecution counsel submitted:
“I have refused and still refuse to answer the questions set out in ... paragraph 9 because I contend that I am not required to reveal to any person whether there has been any interception of communications under the [Interception of Communications] Act [see paragraphs 31-34 below]. If I answer the question at 9(a) or 9(b), I shall be answering that question which I am not required to answer. ... I am confident I have done what is required of me in respect of it. ... I take the view that were there to be any matter falling under the Interception of Communications Act it should not be the subject of any ex parte application ... .”
12. That position was upheld by the trial judge who, in his ruling of 24 January 1994, stated inter alia:
“I cannot invite [prosecution counsel] ... to go behind the stand that he is taking, at this stage, where he takes the view that even an ex parte application is unnecessary, which is the way he looks at it. ... I think we have taken the matter as far as we can in that particular aspect. One is bound, because I have no power [to order] otherwise, to accept the situation as the prosecutor tells it to be.”
13. The applicant did not give evidence at his trial. The defence case was that he had no knowledge of the cannabis hidden in the consignment and was acting as an innocent haulier of the goods. He was attempting to establish a haulage business (“Ejay Couriers”) and had bought vehicles and hired the lock-up garage for that purpose. It was submitted on his behalf that in collecting the meat he had been acting pursuant to instructions from another firm of hauliers, as was shown by a note, found in the applicant's possession at the time of his arrest, on Ejay Couriers headed paper of a telephone call made by Davidsons (see paragraph 1 above) at 7.30 p.m. on 30 June 1993.
14. On 31 January 1994 the applicant was convicted of the offence charged and on 21 March 1994 he was sentenced to ten years' imprisonment.
15. The applicant appealed to the Court of Appeal, on the following grounds:
“It was clear that not all unused material had been disclosed. ... In open court it was stated on behalf of the defendant that the unused material was of potential importance to his defence that he had no knowledge that drugs were to be or were concealed in the load he carried, and that he had received his instructions for the collection by telephone, in the course of his business as a haulier, very shortly before 1 July 1993. ... Any information therefore that might have led to his being able to confirm either the source or content of those instructions, as well as to trace those who had involved him in a smuggling enterprise was of obvious importance. The Crown had declined to answer the question whether any potentially relevant material, apart from the subject-matter of the ex parte application, had not been disclosed, on the grounds that to do so would reveal whether or not there had been a telephone intercept. It was plain from the course of the argument that the ex parte application had not dealt with any telephone intercept, since the Crown argued that this was the province solely of the prosecutor, and not that of the judge, a proposition based on R. v. Preston [see paragraph 34 below]. In these circumstances the defence were entitled to know at least the category of material with which that application did not deal. ... Furthermore, the Crown should have been called upon to justify, ex parte if necessary, the stance taken in relation to the other unused material. ... Since there must have been a reason for watching the defendant, which was explained neither by the evidence adduced, nor by that served but excluded by agreement, and since it was said that there was no informant involved in the case, there is a strong likelihood that disclosable information, bearing directly upon the defendant's case, was in the possession of the prosecution.”
16. On 13 February 1995, prior to the hearing of the appeal, defence counsel applied to the Court of Appeal for an order that the defence should be given a transcript of the ex parte hearing of 14 January 1994, to enable them to argue the non-disclosure as a ground of appeal. Defence counsel outlined the applicant's case, namely that the instructions for the collection of the load had been received by telephone very shortly before 1 July 1993, and submitted that any information that might be in the Crown's possession and which could, directly or indirectly, support the defence case, should have been disclosed.
17. The Court of Appeal, which had before it the transcript of the ex parte hearing of 14 January 1994 and the material which had been its subject-matter, declined to order the disclosure of either to the defence on the following grounds:
“The application is made, correctly, on the ground that if the matters which emerged during the ex parte hearing are relevant, or likely to have been relevant, to the defence of Mr Jasper, he should be permitted to have sight of the ruling and the transcript of the proceedings which took place on that occasion. We have read the record and it seems ... that the learned judge ... knew precisely the scope of the application and listened with the greatest possible care to the matters which were placed before him. He tested those matters, and he came to the conclusion that the ruling which he made was appropriate in all the circumstances. It is abundantly clear from the transcript that he throughout was very careful to ensure and to explore whether the material was relevant, or likely to be relevant to the defence which had been indicated to him. In these circumstances, it is impossible for this court to say that the learned judge erred in principle in adopting the course that he did, or that the prosecution erred in principle and we see no ground to set aside the order that the learned judge made on that occasion.”
18. On 28 March 1995 the Court of Appeal dismissed the applicant's appeal. The first ground of appeal, namely the non-disclosure of relevant evidence, was rejected in the following terms:
“The first [ground of appeal] ... related to matters to which the label 'unused material' is commonly given in these courts. It concerned the natural and proper desire of those instructed on behalf of the appellant to make sure, in so far as they could, that no documents or leads of any other sort existed which the Crown ought, as a matter of duty, to disclose to the defence if there was a real or a possible or more than a fanciful chance that disclosure of those documents or those leads might assist the defence. ... There is no suggestion, nor any ground for a suggestion, that the Crown were in any way in dereliction of their duty of good faith in making disclosure of anything that ought properly to be disclosed.”
The court continued:
“This was a case of enormous strength so far as the prosecution were concerned. The appellant had been caught red handed with a huge amount of cannabis resin. He was exercising a proprietorial form of control over the packages. He was unloading them and opening them up. By opening them he was allowing what were ostensibly their sole contents to defreeze, with a risk (to put it no higher) of their becoming valueless. He was not the consignee of the meat. [He] neither called nor gave evidence. That, of course, was his right, as the jury were ... directed, but it had the result that the jury were without any explanation whatsoever as to what, on his case, he was about. It is difficult, if not impossible, to see what other inference than that he was indeed guilty of the offence charged any reasonable jury could have reached. We dismiss this appeal.”
19. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
20. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ((1982) 74 Cr. App. R. 302 (“the Guidelines”)). The Guidelines attempted to codify the rules of disclosure and to define the prosecution's power to withhold “unused material”. Under paragraph 1, “unused material” was defined as:
“(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.”
21. According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier - e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.
22. Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal.
In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:
“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”
The Court of Appeal described the balancing exercise to be performed by the judge as follows:
“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
23. In R. v. Trevor Douglas K (vol. 97 Criminal Appeal Reports p. 342), the Court of Appeal emphasised that in performing the balancing exercise referred to in Ward, the court must view the material itself:
“In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.”
This judgment also clarified that where an accused appeals to the Court of Appeal on the grounds that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.
24. In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted.
The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held.
The defence then had the opportunity to make representations to the court.
Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte.
The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
25. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.
26. In R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution's duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court's lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen to (i) be relevant or possibly relevant to an issue in the case; (ii) raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or to (iii) hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise.
27. In R. v. Rasheed (The Times, 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justifies overturning a conviction.
28. In R. v. Winston Brown ([1994] Criminal Appeal Reports p. 191), the Court of Appeal reviewed the operation of the Guidelines. It stated:
“The Attorney General's objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney General was not trying to make law and it was certainly beyond his power to do so ... . The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... . Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of non-disclosure ... . But if the Guidelines, judged by the standards of today, reduce the commons law duties of the Crown and thus abridge the common law rights of a defendant, they must be pro tanto unlawful ... . [T]oday, the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to discloseable materials, and on any asserted legal ground to withhold production of relevant material ... . For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... . Secondly, the guidelines are not an exhaustive statement of the Crown's common law duty of disclosure: R. v. Ward at 25 and 681D. To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity. [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor's discretion ... . Much of what is listed as 'sensitive material' is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity ... .”
29. In the case of R. v. Turner ([1995] vol. 1 Weekly Law Reports p. 264), the Court of Appeal returned to the balancing exercise, stating inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ... It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter. We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence, present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure.”
30. Subsequent to the applicant's trial, a new statutory scheme covering disclosure by the prosecution has come into force in England and Wales. Under the 1996 Act, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
31. The Interception of Communications Act 1985 (“the 1985 Act”) came into force on 10 April 1986 following the Court's judgment in Malone v. the United Kingdom (2 August 1984, Series A no. 82). Its objective, as outlined in the Home Office White Paper which preceded it, was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence (Interception of Communications in the United Kingdom (February 1985) Her Majesty's Stationary Office, Cmnd. 9438).
32. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence. Section 1 (2) and (3) provide four circumstances in which a person who intercepts communications in this way will not be guilty of the offence, for example, interception of a communication pursuant to a warrant lawfully issued by the Secretary of State under section 2 of the Act, where the Minister considers the interception necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or in order to safeguard the economic well-being of the United Kingdom. The operation of the Act is overseen by a Tribunal and a Commissioner: see further the Halford v. the United Kingdom judgment of 25 June 1997 (Reports 1997III, §§ 21-35).
33. Section 6 of the 1985 Act contains a series of provisions designed to secure that the retention and circulation of any intercepted material is “limited to the minimum ... necessary” to achieve the section 2 purpose for which it was obtained, including a provision requiring the destruction of any such material as soon as its retention “is no longer necessary” for that purpose. Section 9 provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which tends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act.
34. In R. v. Preston ([1994] vol. 2 Appeal Cases p. 130), the House of Lords decided that the fact that material intercepted pursuant to section 2 of the 1985 Act had been destroyed did not amount to a material irregularity in criminal proceedings. The basis for the House of Lords' decision was that the purpose for which such an interception might be permitted was narrowly defined in section 2 of the 1985 Act; in particular, the purpose of “preventing and detecting serious crime” did not extend to amassing evidence with a view to prosecuting offenders. One of the consequences of this construction was that, in a case of interception authorised for “preventing and detecting serious crime”, section 6 of the Act would normally require the destruction of intercepted material at a stage well before the prosecution's duty to disclose relevant material could arise in criminal proceedings. Accordingly, if the Act were to operate, as Parliament had intended, to restrict retention and dissemination of intercepted material to the minimum necessary to achieve the purpose of “preventing and detecting serious crime”, there was likely to be no intercepted material to disclose to the defence and its destruction could not be said to amount to a material irregularity.
35. Following the judgments of the Court in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) and Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed.
36. For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia,
“7. (4) The function of the special advocate is to represent the interest of the appellant by -
(a) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded;
(b) cross-examining witnesses at any such proceedings; and
(c) making written submissions to the Commission.
(5) Except in accordance with paragraph (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission.
(6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State make the material available to him.
(7) At any time after the Secretary of State has made the material available under rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative.
(8) The Commission shall notify the Secretary of State of a request for direction under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made.
(9) Where the Secretary of State makes an objection under paragraph (8) rule 11 shall apply as appropriate. ...
10.(1) If the Secretary of State intends to oppose the appeal, he must, no later than 42 days after receiving a copy of the notice of appeal -
(a) provide the Commission with a summary of the facts relating to the decision being appealed and the reasons for the decision;
(b) inform the Commission of the grounds on which he opposes the appeal; and
(c) provide the Commission with a statement of the evidence which he relies upon in support of those grounds.
(2) Where the Secretary of State objects to material referred to in paragraph (1) above being disclosed to the appellant or his representative, he must also
(a) state the reasons for the objection; and
(b) if and to the extent it is possible to do so without disclosing information contrary to the public interest, provide a statement of that material in a form that can be shown to the appellant.
(3) Where he makes an objection under paragraph (2), the Secretary of State must make available to the special advocate, as soon as it is practicable to do so, the material which he has provided to the Commission under paragraphs (1) and (2).
11.(1) Proceedings under this rule shall take place in the absence of the appellant and his representative.
(2) The Commission shall decide whether to uphold the Secretary of State's objection.
(3) Before doing so it shall invite the special advocate to make written representations.
(4) After considering representations made under paragraph (3) the Commission may -
(a) invite the special advocate to make oral representations; or
(b) uphold the Secretary of State's objections without requiring further representations from the special advocate.
(5) Where the Commission is minded to overrule the Secretary of State's objection, or to require him to provide material in different form from that in which he has provided it under rule 10(2)(b), the Commission must invite the Secretary of State and the special advocate to make oral representations.
(6) Where -
(a) the Commission overrules the Secretary of State's objection or requires him to provide material in different form from that in which he has provided it under rule 10(2)(b), and
(b) the Secretary of State wishes to oppose the appeal, he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal.”
37. In the context of fair employment proceedings in Northern Ireland, the scheme under sections 90 to 92 of the 1998 Act and the relevant Rules is identical to the mechanism adopted under the 1997 Act (above).
38. In addition, the Government has recently placed before Parliament two Bills which make provision for the appointment of “special counsel” (operating under the same conditions) in other circumstances. The Electronic Communications Bill 1999 provides for the appointment of a “special representative” in proceedings before an Electronic Communications Tribunal to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications. In the context of criminal proceedings, the Youth Justice and Criminal Evidence Bill 1999 makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in sexual offence.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4895
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: T.O. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, a Finnish citizen born in 1947, is on an early retirement pension and lives in Lahti, Finland.
The facts of the case, as submitted by the parties, may be summarised as follows:
A.
On 21 May 1993 the applicant’s insurance company refused the applicant’s request for compensation for an occupational injury (a rash). The company considered that his rash was neither an occupational illness nor a substantial aggravation of another illness within the meaning of the 1948 Accident Insurance Act (tapaturmavakuutuslaki 608/1948, lag om olycksfallsförsäkring).
In his appeal to the Board for Accident Compensation (tapaturmalautakunta, olycksfallsnämnden) on 15 June 1993 the applicant required that the decision of the insurance company be overturned and that his rash be compensated as an occupational illness.
The Board for Accident Compensation requested the insurance company to provide it with the relevant documents and an opinion. In its opinion the insurance company simply suggested that the appeal be dismissed on the grounds mentioned in the company’s decision. Without obtaining further evidence or making the opinion available to the applicant, the Board for Accident Compensation gave a decision on the matter on 2 November 1993, dismissing the applicant’s appeal. The grounds for the decision summarized section 2 of the Occupational Diseases Decree (ammattitautiasetus 1347/1988, yrkessjukdomsförordning) which explains when an illness can be considered as an occupational one. It was further noted in the decision that the applicant’s work had no causal connection with his rash and that therefore the rash was not an occupational illness. Nor had the work of the applicant aggravated his long-term chronic rash caused by an illness. It was noted in the decision that the insurance company had proposed that the appeal be dismissed.
On 16 November 1993 the applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen) repeating his claim. He argued that his rash had appeared when he had started working for the storehouse in 1975 and that it had always got worse when he had returned to work after a period of sick leave. According to the documents, no further evidence had been attached to the appeal.
The Insurance Court requested an opinion from the insurance company. In its opinion the insurance company merely stated that there was no reason to overturn the appealed decision. Without obtaining further evidence or making the opinion available to the applicant, the Insurance Court gave a decision on the matter on 20 December 1994, dismissing the appeal on the grounds mentioned in the decision of the Board for Accident Compensation. It was indicated in the decision that an opinion had been acquired from the insurance company.
On 4 July 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law and practice
According to section 53 of the Accident Insurance Act, the appeal bodies in cases concerning accident insurance are the Board for Accident Compensation, the Insurance Court and the Supreme Court. The members of the Board for Accident Compensation, which is the appeal body of first instance, include a full-time president, at least two vice-presidents, three lawyers and three doctors and six persons representing the labour market organisations. The Board is a special appeal body designed to deal with cases concerning accident insurance. According to section 8 of the Decree on the Board for Accident Compensation (asetus tapaturmalautakunnasta 839/1981, förordning om olycksfallsnämnden), the rules of procedure in civil cases are applied to the Board’s procedure.
An appeal from a decision given by the Board for Accident Compensation is made to the Insurance Court which is a special court for the consideration of cases concerning social security. According to the Insurance Court Act (laki vakuutusoikeudesta 14/1958, lag om försäkringsdomstolen), the rules of procedure of the ordinary courts are applied to the Insurance Court, save for certain exceptions.
An appeal from a decision given by the Insurance Court can be made to the Supreme Court, inter alia, in cases where the Insurance Court has given a ruling on the right to compensation for an injury, illness or death. An appeal to the Supreme Court is subject to leave to appeal granted by the Supreme Court in accordance with Chapter 30, section 3, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken).
Leave to appeal may be granted if it is necessary for the application of law in similar cases or for the uniformity of case-law to bring the case before the Supreme Court, or if there are special grounds for this due to a procedural or other fault that requires the reversal or nullification of a judgment, or if there are other weighty grounds for granting leave to appeal.
The Board for Accident Compensation and the Insurance Court apply mainly the principles derived from the rules of procedure of the courts of appeal. As in force at the relevant time, and insofar as the relevant for issues in the present case, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party shall be heard in appeal courts proceedings. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party are given to the applicant on request. According to Chapter 26, section 6, the court of appeal shall request written observations from the parties when it obtains evidence on its own initiative and such evidence may affect the decision in the case, unless this is manifestly unnecessary.
In its Kerojärvi v. Finland judgment of 19 July 1995 the Court noted that, according to what had been stated on behalf of the Government at the hearing, it was the practice both of the Insurance Court and the Supreme Court not to communicate documents of the kind in question in that case (Series A no. 322, p. 16, § 42). Following the Kerojärvi judgment the Insurance Court has instructed its members and staff to see to it that a party be heard (in writing) in respect of "new information, unless this is clearly unnecessary". In respect of "observations in reply" a party shall always be heard (instruction of 30 October 1995).


ITEMID: 001-104722
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF WŁOCH v. POLAND (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1941 and lives in Kraków.
6. Between 20 September 1994 and 11 January 1995 the applicant was detained on charges of trafficking in children on account of his suspected involvement in illicit adoptions, and incitement to false testimony. The proceedings as regards the charge of trafficking in children were discontinued on 24 November 2000 by the Tarnobrzeg Regional Court. The court found that the applicant’s actions did not fulfil the description of such an offence. The decision was upheld on 30 January 2001 by the Rzeszów Court of Appeal. The remainder of the charges against the applicant were discontinued on 26 August 2003.
7. On 16 May 2000 the applicant was charged with using a forged power of attorney authorising him to represent Mr and Mrs C. On 16 June 2005 the Tarnobrzeg District Court found him guilty on this charge and sentenced him to a fine of 2,280 Polish zlotys (PLN), calculated as 228 daily rates, each equivalent to PLN 10. At the same time the court decided, under Article 63 § 1 of the Criminal Code, to credit the period of the applicant’s pretrial detention from 20 September 1994 to 11 January 1995 towards the fine. Since, according to the Criminal Code, one day of deprivation of liberty equalled two daily rates of a fine, the period of the applicant’s detention of 114 days was credited in its entirety towards the fine. An appeal by the applicant against that judgment was dismissed on 10 October 2005 by the Tarnobrzeg Regional Court.
8. On 21 January 2002 the applicant lodged an application for compensation for unjustified detention. He sought PLN 500,000 in respect of nonpecuniary damage and PLN 150,000 for pecuniary damage (at the material time these sums amounted to 160,000 euros (EUR) in total).
9. On 15 December 2005 the Tarnobrzeg Regional Court dismissed the application. On 18 April 2006 the Rzeszow Court of Appeal quashed the judgment and remitted the case.
10. On 30 June 2006 the Tarnobrzeg Regional Court dismissed the application. The court established that the applicant’s detention between 20 September 1994 and 11 January 1995 had undoubtedly been unjustified within the meaning of Article 552 § 4 of the Code of Criminal Procedure. It relied on the Supreme Court’s interpretation to the effect that pretrial detention was undoubtedly unjustified if it had been imposed in violation of the Code of Criminal Procedure as well as if it had caused the applicant suffering to which, taking into account all the circumstances and particularly the outcome of the case, he should not have been subjected. Accordingly, the final outcome of the case was to be considered decisive for finding that the pretrial detention in a case had been “undoubtedly unjustified”. In this connection the court established that the applicant had not been convicted of any of the offences which had been the basis of his pretrial detention. Moreover, it pointed to the findings of the courts, which had discontinued the proceedings against him on the ground that the applicant’s actions did not fulfil the description of the offences he had been charged with. Taking into account all these arguments, the court concluded that the applicant’s pretrial detention had undoubtedly been unjustified.
11. However, the Regional Court dismissed the applicant’s application for compensation, reiterating that on 16 June 2005 he had been convicted of forgery, for which he had been fined PLN 2,280 (approximately EUR 550). In accordance with Article 63 § 1 of the Criminal Code, the total period of the applicant’s pretrial detention had been credited towards the fine in such a way that one day of pretrial detention had equalled two daily rates of PLN 10. The court thus considered that the State Treasury had no longer been liable for undoubtedly unjustified detention, because the damage that had been sustained by the applicant had been correctly compensated for by crediting the period of his deprivation of liberty towards the fine ordered against him.
12. The applicant appealed against the judgment, relying, inter alia, on Article 5 § 5 of the Convention. He argued that the crediting of a period of deprivation of liberty towards a fine should not be automatic and that the courts should assess the actual damage sustained by a detainee.
13. On 5 October 2006 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The court agreed with the lower court’s findings, and those expressed in the Supreme Court’s Resolution of 15 September 1999, which had stated that if the pretrial detention had been compensated for by being credited towards a fine, even one ordered in another set of proceedings, no compensation would be granted.
14. The applicant lodged an appeal on points of law against that judgment.
15. The Supreme Court applied to an extended bench of the Supreme Court for a resolution which would answer the following question:
“In the event that a period of pretrial detention ordered in another set of proceedings is credited towards a fine – under Article 417 of the Code of Criminal Procedure and Article 63 of the Criminal Code – should the claim for compensation for undoubtedly unjustified detention be considered to have already been satisfied; or, in application of Article 553 of the Code of Criminal Procedure (a contrario) and the principles on calculating compensation as encompassing both [pecuniary and nonpecuniary] damage, would there still be a claim in so far as the just amount of compensation would exceed the amount of the fine that had been ordered?”
16. On 20 September 2007 the Supreme Court, sitting as a bench of seven judges, dismissed the application for a resolution in the applicant’s case. The court considered that the law and practice were clear and that further interpretation of them in a resolution was not required. It considered that there existed two ways of compensating for damage caused by unjustified pretrial detention. The first was of nonpecuniary nature, and applied when there was a possibility to credit a period of detention towards another penalty ordered against the same person in the same or another set of proceedings. The second was of a pecuniary nature, under Article 552 of the Code of Criminal Procedure, and was applicable only if the first way was not practicable. These two methods were mutually exclusive in that making use of one excluded the possibility of using the other. The Supreme Court concluded:
“... crediting of a period of pretrial detention towards a penalty ordered in the same or in another set of proceedings precludes the possibility of subsequently bringing an effective claim for compensation [under the relevant provisions of the Code of Criminal Procedure] for the same period [of pretrial detention] ...”
17. On 15 November 2007 the Supreme Court, sitting as a panel of three judges, dismissed the applicant’s appeal on points of law following the interpretation provided by the Supreme Court in the abovementioned decision. The court considered that there were no provisions of Polish law that would allow for supplementary compensation in cases where the period of detention had been credited towards another penalty.
18. The applicant was notified of the Supreme Court decision on 2 January 2008.
19. Article 552 of the Code of Criminal Procedure provides:
“1. An accused who, as a result of the reopening of proceedings or an appeal on points of law, has been acquitted or resentenced under a more lenient provision, shall be entitled to receive from the State Treasury compensation for the pecuniary and nonpecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him.
2. The provisions of paragraph 1 shall also be applicable if, after the sentencing judgment has been reversed or declared null and void, the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings.
3. A right to compensation for pecuniary and nonpecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs 1 and 2.
4. A right to compensation for pecuniary and nonpecuniary damage shall also arise in the event of undoubtedly unjustified (niewątpliwie niesłuszne) pretrial detention or arrest.”
20. Article 63 (1) of the Criminal Code deals with the crediting of a period of actual deprivation of liberty towards other penalties ordered in the same set of proceedings. It provides:
“The period of actual deprivation of liberty in a given case, rounded to a full number of days, shall be credited towards the penalty ordered, with one day of actual deprivation of liberty equalling one day of the penalty of deprivation of liberty, or two days of the penalty of restriction of liberty, or two daily rates of a fine.”
21. On 8 February 2007 the Kraków Court of Appeal partly upheld the firstinstance court judgment and awarded compensation for unjustified detention to Mr U.M.K. in the amount of PLN 35,000 as regards nonpecuniary damage and PLN 23,500 for pecuniary damage (in total approximately EUR 15,000). The claimant was detained for a total period of twentyfour days in October 1995. The criminal proceedings against him, linked to the applicant’s case and also concerning trafficking in children, were finally discontinued in 2002.
On 5 October 2005 the Włocławek Regional Court gave a judgment in which it granted compensation for unjustified detention to Mr B.R. in the amount of PLN 50,000 as regards pecuniary damage and PLN 25,000 in respect of nonpecuniary damage (in total approximately EUR 20,000). It appears that Mr B.R. was also detained in connection with the same investigation as the applicant.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-5


ITEMID: 001-80647
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MISHKETKUL AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: Christos Rozakis
TEXT: 5. The first two applicants were born in 1977 and 1975 respectively and live in the town of Noginsk in the Moscow region. The third applicant was born in 1948 and lives in Moscow.
6. On 27 April 2001 the police were called to a flat owned by the third applicant. Upon their arrival, the police officers discovered the first applicant in the flat. He jumped out of the kitchen window and ran away trying to escape. The policemen fired several shots in the air, but the first applicant did not stop. A policeman pursued him, knocked him down to the ground and handcuffed him.
7. The first applicant was taken to the Lyublino police station, where he was allegedly beaten up for four hours. He signed a statement confessing to having broken into the flat attempting to commit theft. Mr Kostyukov, appointed to act as the first applicant's counsel, was present when he made that statement.
8. An investigator of the Lyublino District Police Department drew up the record of the first applicant's arrest. He indicated that the first applicant had been apprehended at the crime scene, that eyewitnesses, including the victims, had identified him as the perpetrator of the criminal offence, that he had tried to escape and that he had no permanent place of residence.
9. On the same day the second applicant was arrested as the first applicant's accomplice to the theft.
10. The first two applicants were charged with theft and on 30 April 2001 the Lyublino District Prosecutor, by separate decisions, authorised their placement in custody. The prosecutor noted that the first two applicants were charged with a serious criminal offence carrying a sentence of imprisonment; that they did not have a permanent place of residence in Moscow; that the second applicant was a “citizen of the Republic of Abkhazia” and the first two applicants were liable to abscond and evade justice. The decisions were amenable to appeal, but the first two applicants did not make use of this avenue.
11. On 25 June 2001 the first two applicants and their lawyers started reading the case file. An investigator drew up records in which the two applicants and their lawyers made handwritten notes confirming that they had been provided with the entire file and that no time restrictions had been imposed on them.
12. On 28 June 2001 the pre-trial investigation was closed, the first two applicants were served with the bill of indictment and the case was set down for trial in the Lyublinskiy District Court of Moscow. On the same day the District Court fixed the first trial hearing and extended the two applicants' detention. That decision was not appealed against and became final.
13. On 25 December 2001 the Lyublinskiy District Court found the first two applicants guilty as charged and sentenced the first applicant to four years and two months' imprisonment and the second applicant to four years' imprisonment. The District Court based its judgment on statements by the victims, including the third applicant, witnesses, expert opinions, documentary evidence and the confession made by the first applicant on 27 April 2001. That judgment was upheld by the Moscow City Court on 3 April 2002.
14. In March 2003 the applicants requested a review of the judgment of 25 December 2001, as upheld on appeal on 3 April 2002.
15. On 11 September 2003 the Presidium of the Moscow City Court, by way of supervisory review, quashed the judgments of 25 December 2001 and 3 April 2002 and remitted the case to the District Court for a fresh examination. The Presidium held that the first two applicants should “remain in detention”. No reason for the extension was cited.
16. On 10 October 2003 the Lyublinskiy District Court scheduled the first trial hearing, appointed Mr Vasichkin to act as counsel for the first two applicants and ordered that witnesses should be called according to lists prepared by the parties. As follows from the decision, the District Court did not determine the issue of detention. According to the Government, the District Court held that the measure of restraint to which the first two applicants were subject should “remain unchanged”.
17. On 16 March 2004 the District Court found the first two applicants guilty of aggravated theft and sentenced them to four years' imprisonment. The District Court relied, inter alia, on the statement made by the first applicant on 27 April 2001.
18. The Moscow City Court, on appeal, quashed the judgment on 27 April 2004 and remitted the case to the District Court for a fresh examination. The City Court, without indicating any reasons, held that the first two applicants should “remain in detention”.
19. The Lyublinskiy District Court received the case file on 17 May 2004. On 1 June 2004 the District Court fixed the hearing date, appointed counsel for the first two applicants and held that the preventive measure “should remain unchanged”.
20. Six days later the Lyublinskiy District Court extended the detention of the first two applicants until 30 August 2004. It held that the applicants had been charged with a serious criminal offence and “there were no grounds for changing the measure of restraint”.
21. The first two applicants appealed, arguing that there were no grounds for their continued detention and that they should be released subject to a written undertaking. They further complained that the length of their detention was excessive and that the District Court had failed to provide reasons for extending it.
22. On 1 July 2004 the Moscow City Court upheld the order of 7 June 2004, relying on the gravity of the charges and the fact that the trial proceedings were pending. It also noted that the entire period of the detention of the first two applicants had been authorised in compliance with the procedural requirements and had not been excessively long.
23. On 17 August 2004 the Lyublinskiy District Court extended the detention of the first two applicants until 30 November 2004, holding that in view of the complexity of the case it needed additional time for the trial, that the first two applicants were charged with a serious criminal offence and that there was no reason to release them.
24. On 13 September 2004 the Moscow City Court upheld the order, noting the gravity of the charges against the first two applicants and the absence of any grounds for their release.
25. On 19 October 2004 the Lyublinskiy District Court found the first two applicants guilty of aggravated theft, sentenced them to four years' imprisonment and ordered that they should jointly pay the third applicant 81,000 Russian roubles in compensation for damage. The District Court did not make any reference to the confession made by the first applicant on 27 April 2001. At the same time it noted that the prosecution authorities had examined the complaints alleging ill-treatment and had dismissed them as unfounded. The first applicant and his lawyer had not appealed against that prosecutor's decision and had therefore agreed with the prosecutor's findings.
26. On 23 December 2004 the Moscow City Court upheld the judgment. In response to the first applicant's complaint that his confession of 27 April 2001 had been obtained under duress, it noted that the District Court had not taken the confession into consideration and had not based its findings on it. The City Court once again indicated that the first applicant had not appealed against the prosecutor's decision.
27. The first two applicants were released on 27 April 2005 after having served their sentence.
28. The first applicant complained to the prosecutor that on 27 April 2001 the policemen had beaten him up and had forged evidence in his case.
29. On 1 July 2001 an assistant of the Lyublinskiy District Prosecutor refused to institute criminal proceedings in connection with the applicant's claim of ill-treatment. He studied a record of the medical examination of the first applicant on 27 April 2001, in which multiple bruises on his face, upper body and legs had been noted. The assistant prosecutor found that the first applicant could have received those injuries on 27 April 2001 as a result of falling down when trying to escape from the policemen. The reasoning of the two-page decision was founded on the statements by the police officer who had apprehended the applicant on 27 April 2001 and Mr O., a neighbour of the third applicant, who had seen the first applicant immediately after his arrest. The decision of 1 July 2001 was promptly notified to the first applicant.
30. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
31. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they were charged with. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
32. After the arrest the suspect is placed in custody during the investigation. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 of the new CCrP).
33. Before 14 March 2001 the old CCrP set no time-limit for detention during the trial proceedings. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention during the trial proceedings could not generally exceed six months from the date the court received the file. That limitation did not apply to defendants charged with particularly serious criminal offences. The new CCrP establishes that the detention during the trial proceedings may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255).
34. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
35. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-60413
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF CISSE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);No violation of Art. 11
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant was a member of (and a spokeswoman for) a group of aliens without residence permits who in 1996 decided to take collective action to draw attention to the difficulties they were having in obtaining a review of their immigration status in France.
9. Their campaign, which received widespread coverage in the press, culminated with the occupation of St Bernard's Church in Paris on 28 June 1996 by a group of some two hundred illegal immigrants, most of whom were of African origin. Ten men within the group decided to go on hunger strike. The applicant's daughter joined her mother as one of the occupiers of the church. The movement, known as the “St Bernard sans papiers” movement, was supported by several human-rights organisations, some of whose activists decided to sleep on the premises in a show of solidarity with their predicament.
10. On 22 August 1996 the Paris Commissioner of Police signed an order for the total evacuation of the premises. It was made on the grounds that the occupation of the premises was unrelated to religious worship, there had been a marked deterioration in the already unsatisfactory sanitary conditions, padlocks had been placed on the church exits and there were serious sanitary, health, peace, security and public-order risks.
11. More specifically, the order read as follows:
“The director of the Paris Mobile Emergency Medical Service (SAMU) was given responsibility on 17 July 1996 for ensuring day to day care of the hunger strikers and the parish priest has been reminded of the health hazards to which the occupants were exposed by the precarious living conditions as also of the need to allow unrestricted access to the emergency services.
The World Doctors (Médecins du Monde) organisation, which offers continuous medical assistance in the church, has made public alarming information on the very serious consequences of this hunger strike for the health of those concerned at the expiration of the medically critical period of forty days.
On the basis of the provisions of Article 223-6 of the Code of Criminal Procedure, the ten hunger strikers were evacuated on 12 August 1996, solely in order for the men to be given appropriate medical check-ups in hospitals in Paris.
The men returned to the aforementioned church of their own accord and immediately declared their intention to pursue their action. Since 28 June 1996 there has been a marked deterioration in the already unsatisfactory sanitary conditions, the available sanitary equipment being totally inadequate for the long-term use of the premises as a collective shelter.
The number of people present on the premises has grown considerably during the last few days, and this has led to incidents in the immediate vicinity and notably on the public highway.
Such incidents create a risk of behaviour that may result in public order disturbances.
The various movements concerned have erected barriers on the public highway, across rue Saint-Bruno at the junctions with rue Saint-Luc and rue Jérôme l'Ermite. The barriers obstruct the highway, hindering the passage of ordinary traffic and of emergency vehicles.
The church doors and various exits are kept closed, and in some cases padlocked, to enable a filter system to be operated at the only remaining entrance that is permanently accessible, and a barricade formed of barriers chained together has even been placed between the enclosure railings and the north entrance to the church chancel. These installations constitute a major hazard should an emergency evacuation of the persons present inside the building become necessary.
These activities and movements are totally unrelated to religious worship, which is the exclusive use to which this public building may be put under the law of 9 December 1995.
It follows from the matters noted above that the current situation represents a serious sanitary, health, peace, public-security and public-order risk...”
12. The following morning the police carried out the evacuation. The police officers arrived at the scene at 6.30 a.m. and set up a checkpoint at the church exit to verify, on the basis of Article 78-2, subparagraphs 1 and 3, of the Code of Criminal Procedure and Article 8, subparagraphs 2 and 3, of the Ordinance of 2 November 1945, whether the aliens evacuated from the church had documentation authorising them to stay and circulate in the territory. The police entered the church at 7.56 a.m.
13. All the occupants of the church were stopped and questioned. Whites were immediately released while the police assembled all the dark-skinned occupants, apart from those on hunger strike, and sent them by coach to an aliens' detention centre at Vincennes. Orders were made for the detention and deportation of almost all of those concerned. More than a hundred were subsequently released by the courts on account of certain irregularities on the part of the police, which even extended to making false reports regarding the stopping and questioning procedure.
14. At 8.20 a.m. a police officer asked the applicant as she was leaving the church for documentary evidence that she had leave to stay in France, but she was unable to produce any. The applicant had attended the Paris Police Commissioner's Office on 5 June 1996 but on 17 July 1996 had been refused leave to remain in France on the ground that she did not satisfy any of the conditions laid down by the Ordinance of 2 November 1945 for the issue of a residence permit and that there were no personal or family reasons justifying her being granted leave to remain on humanitarian grounds. She had been invited to leave French territory within one month after receipt of notification of the Commissioner of Police's decision.
15. At 9.55 a.m. the applicant was taken into custody and informed of her rights pursuant to Articles 63-2 and 63-4 of the Code of Criminal Procedure. The measure was deemed to have taken effect at 7.56 a.m., when she was stopped. The applicant refused to speak throughout her period in custody. At 8.15 p.m. on 23 August the Senior Deputy Public Prosecutor at the Eighth Division of the Paris Public Prosecutor's Office instructed the police officers to bring the applicant before him, with the case file as it stood.
16. At 1.30 p.m. on 24 August 1996 the applicant appeared before the Paris Criminal Court under the “immediate summary trial” procedure. She was accused of having “entered and stayed in France without being in possession of the documents or visas required by the rules” and was sentenced to two-months' imprisonment, suspended. The Criminal Court held:
“The occupation of a place of worship ... over a period of several weeks, ... in order to contest their immigration status and create a movement in their favour, in itself constitutes an emergency justifying the administrative authority's decision to expel them.
The presence in St Bernard's Church of several hundred people for a period of several weeks claiming, through public statements made by individuals or through spokespersons representing them, status as, in their own words, aliens without residence permits or papers, constituted grounds for suspecting that those concerned had committed offences under the immigration rules such that the verification of their identity pursuant to Article 78-2 was justified.
However, since a large number of people were stopped at the same time and refused to disclose their identities, the police were not able to carry out an immediate identity check. The fact that the identity check was not carried out when they were first stopped, but within what, given the practical contingencies inherent in an operation of that size, was a reasonable period thereafter, does not render the proceedings defective.
Regard being had to the large number of persons stopped and the circumstances in which the operation was conducted, the defendant was notified of her rights within a reasonable time...”
17. On 23 January 1997 the Paris Court of Appeal, on appeal by the applicant, upheld the sentence and added an order excluding her from French territory for three years. In addition, it held in its judgment:
“The occupation of a place of worship by approximately three hundred individuals over several weeks, in order to create a movement in their favour and to contest their immigration status, constitutes an emergency that justified the administrative authority making an expulsion order without making a prior application to the courts.
The occupiers of the premises continued their hunger strike for almost forty days and the living conditions of those concerned continued to deteriorate.
The scale of the demonstrations over several weeks, with barriers being used to obstruct the highway and hinder the passage of vehicles, constituted a risk for security, sanitation, the health of the hunger strikers and public order that justified urgent measures being taken to put an end to the disturbances.”
18. On 4 June 1998 the Court of Cassation dismissed the applicant's appeal on points of law on the following grounds:
“In the proceedings before the courts below, in which Madjiguène Ndourit, a Senegalese national, was accused of illegally entering and staying in France, the accused duly challenged the lawfulness of the order issued by the commissioner of police, without a prior court order, for the evacuation of the church occupied by the accused and several other persons, which evacuation was followed by police identity checks that revealed that the demonstrators were illegal immigrants.
In these circumstances, the reasons which the courts below relied on – unnecessarily – in dismissing her objection cannot serve as a basis for complaint by the appellant, since, even if she had proved that the administrative act referred to above was unlawful, it would have had no bearing on the outcome of the criminal proceedings.”
19. Article 111-5 of the Criminal Code provides:
“The criminal courts shall have jurisdiction to interpret general or individual administrative decisions or regulations and to determine their lawfulness if the outcome of criminal proceedings pending before them depends on their so doing.”
20. Article 78-2, subparagraph 1, of the Code of Criminal Procedure reads as follows:
“Senior police officers and ordinary police officers acting on the orders of senior police officers who are accountable for their actions,... may invite any person to prove his or her identity by any means if there are grounds for suspecting that he or she:
(i) has committed or attempted to commit an offence;
(ii) is preparing to commit a serious crime (crime) or other major offence (délit), may be able to provide information that will assist in the investigation of a serious crime or other major offence, or is wanted by a judicial authority.”
21. Article L. 2512-13 of the General Code of the Territorial Authorities reads as follows:
“In the City of Paris the Commissioner of Police shall have the powers and prerogatives conferred on him by the Ordinance of the Consuls of 12 Messidor, Year VIII, determining the functions of the Paris Commissioner of Police, by the amendments that have been made thereto, and by Articles L. 2512-7, L. 2512-14 and L. 2512-17.
However, in the circumstances set out in this Code and the Public Health Code, the Mayor of Paris shall be responsible for ensuring that public highways in the city are kept clean and tidy, for maintaining order at fairs and markets and, subject to the opinion of the Commissioner of Police, for all grants of parking permits to small traders and of permits or licences for erecting stalls on the public highway.
Further, in the circumstances set out in Article L. 2215-1, sub-paragraph 3°, and Articles L. 3221-4 and L. 3221-5 of this Code, the Mayor shall be responsible for ensuring the preservation of State property incorporated into the public property of the City of Paris. For the purposes of the application of these provisions, the power of substitution conferred on the State in the département shall be exercised, in Paris, by the Commissioner of Police.”
22. The relevant provisions of the Ordinance of the Consuls of 12 Messidor, Year VIII, which determines the functions of the Commissioner of Police of Paris, read as follows:
Section I – General provisions
“1. The Commissioner of Police shall perform the functions set out hereafter, under the immediate authority of the ministers. He shall communicate directly with them about the matters for which their departments have responsibility.
2. The Commissioner of Police may republish the administrative rules and regulations and issue orders to ensure that they are complied with.”
Section III – Maintaining law and order in the city
21. The Commissioner of Police shall have responsibility for all matters concerning minor highways, save that an appeal will lie against his or her decisions to the Minister of the Interior.
22. The Commissioner of Police shall secure liberty and security on the public highway and to that end shall have responsibility for preventing criminal damage to the public highway, for lighting, for ensuring that residents comply with their obligation to keep the area in front of their houses swept, and for arranging for squares and the perimeters of public gardens and buildings to be swept at the city's expense...”
23. The relevant provisions of the Law of 30 June 1881 on Public Meetings provides:
“1. Anyone may attend public meetings.
Public meetings may be held without prior permission subject to compliance with the conditions laid down in the following Articles...
6. Meetings may not be held on the public highway; ...
8. Every meeting shall have a board of at least three people. The board shall be responsible for maintaining order, preventing any breach of the law, ensuring that the meeting retains the character ascribed to it in the declaration, prohibiting any speech that is contrary to public order or morals or containing any incitement to commit an act constituting a serious crime (crime) or other major offence (délit)...
9. ... the right to terminate a meeting shall not be exercised by the authority's representative unless he or she is called upon to do so by the board or unless clashes or patently illegal acts occur.
10. Any breach of the provisions of this Law shall be punishable by the penalties laid down for summary offences, without prejudice to any proceedings that may be instituted in respect of any serious crime or other major offence that may have been committed at the meetings.”
24. Sections 25, 26, 32 and 35 of the Law of 9 December 1905 on the Separation of Church and State read as follows:
“Assemblies for the purposes of worship in premises belonging to or placed at the disposal of a religious association shall be open to the public. They shall be exempted from the requirements of section 8 of the Law of 30 June 1881, but shall remain under the supervision of the authorities in the interests of public order. Such assemblies may not take place until a declaration has been made, in the form required by section 2 of that Law, identifying the premises where they will be held...”
“It is prohibited to hold a public meeting in premises habitually used as a place of worship.”
“Anyone who prevents, delays or interrupts religious ceremonies by causing disturbances or disorder in the premises used for such ceremonies shall be liable to the same penalties.
“A minister of religion guilty of making a speech or posting or distributing notices publicly in a place of worship that contain direct incitement to resist compliance with the law or the lawful acts of public authorities or are aimed at stirring up or rousing one group of citizens against the others shall be liable to two years' imprisonment, without prejudice to the penalties for complicity if the incitement is followed by sedition, revolt or civil war.”
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-122240
LANGUAGEISOCODE: ENG
RESPONDENT: MDA;UKR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: SARUPICI v. THE REPUBLIC OF MOLDOVA AND UKRAINE AND GANEA AND GHERSCOVICI v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ganna Yudkivska;Ján Šikuta;Josep Casadevall;Nona Tsotsoria
TEXT: The applicant in the first case, Mr Iaroslav Şarupici, is a Moldovan national, who was born in 1969 and lives in Chişinău.
The applicants in the second case, Mr Anatolie Ganea and Ms Aurelia Gherşcovici, are Moldovan nationals, who were born in 1961 and 1967 respectively and live in Vatra and Chişinău.
All three applicants were represented before the Court by Mr V. Ţurcan, a lawyer practising in Chisinau.
1. The facts of the case, as submitted by the parties, may be summarised as follows.
2. On 27 May 2002 Ms Gherşcovici’s husband, B.G., was found dead in his house.
3. On 2 July 2002 Mr Ganea was arrested on unrelated charges. While he was in administrative detention, he was questioned about the circumstances of the death of B.G. On 10 July 2002 he made a written statement about the commission of the murder, in which he provided details of the circumstances of the murder and the identities of the persons whom he alleged were involved. A lawyer was appointed to represent him and Mr Ganea subsequently confessed to having planned the death of B.G. He later stated that Mr Şarupici had committed the murder of B.G.
4. On 15 July 2002 Ms Gherşcovici was arrested on charges of instigating, aiding and abetting the murder of B.G.
5. On 23 July 2002 an arrest warrant was issued in respect of Mr Şarupici.
6. According to Mr Şarupici, in October 2002 he was living with his uncle and aunt in Tsurupinsk, Ukraine. On 18 October 2002 he was arrested by the Ukrainian police in the presence of his uncle and aunt. He alleged that the police officers did not inform him of the reasons for his arrest or provide him with any documents attesting to its lawfulness. Despite the fact that he complied with the request of the police officers, they forcibly twisted his arms behind his back, beat him on the back and handcuffed him. He was searched without a report being drawn up and his mobile phone was seized.
7. Mr Şarupici alleged that he was then taken to Tsurupinsk police station where he was handed into the custody of the Moldovan police. The Moldovan police put the applicant in a car with Moldovan registration plates and crossed the Ukrainian-Moldovan border at the Palanca customs post. He had to sit handcuffed in the back of the car. He was not provided with any extradition request nor did the police officers present him with any document or show his identity papers to the border guards when crossing the border.
8. According to the Moldovan Government, Mr Şarupici was arrested on 19 October 2002 in Palanca, Moldova. On the same day he was brought to Chişinău and placed in the remand centre of the Ministry of Internal Affairs.
9. A lawyer was appointed to represent Mr Şarupici and on 24 October 2002 Mr Şarupici confessed that he had murdered B.G. He subsequently claimed that police officers had exerted psychological pressure on him and tortured him to make him confess.
10. Meanwhile, on 8 August 2002 Mr Ganea lodged a complaint with the prosecutor alleging that he had been ill-treated in order to make him confess and that on 2 July 2002 he had not been provided with a lawyer of his choice. His complaint was dismissed.
11. On 4 January 2003 the prosecutor registered a complaint by Mr Şarupici regarding his alleged ill-treatment by police officers while in detention. On 21 January 2003 a prosecutor informed him that his allegations of ill-treatment had not been upheld and that it had been decided not to institute criminal proceedings. Mr Şarupici challenged the decision, attaching statements from his cellmates. On 1 August 2003 the Chişinău Prosecutor informed Mr Şarupici that there were no new circumstances which could influence the lawfulness of the decision of 21 January 2003.
12. On 30 June 2003 Mr Şarupici lodged a complaint about the ban on receiving visits from his family and other persons.
13. Meanwhile, on 2 April 2003, Mr Şarupici’s lawyer requested the Prosecutor General to provide him with information concerning the circumstances of Mr Şarupici’s arrest and extradition. On 14 April 2003 the Chişinău Prosecutor informed him that there was no information to indicate that Mr Şarupici had been arrested on the territory of Ukraine.
14. On 16 May 2003 Mr Şarupici asked the Prosecutor General of Ukraine to conduct an investigation into his alleged unlawful arrest by the Ukrainian police and his abduction by the Moldovan police on 18 October 2002. He named his uncle and aunt as witnesses to the events of that date. By letter of 18 August 2003 the Kherson Regional Prosecutor’s Office informed Mr Şarupici that no violation of the law by the Ukrainian police had been established. On 13 November 2003 the Kherson Regional Prosecutor’s Office explained that on 18 October 2002 Mr Şarupici had been arrested by the Moldovan police and denied that Mr Şarupici had been brought to Tsurupinsk police station.
15. On 11 May 2005 Mr Şarupici complained in writing to the General Prosecutor’s Office of Ukraine disagreeing with the replies received from the Ukrainian law-enforcement authorities. He requested the institution of criminal proceedings. His request received no response.
16. In a statement made before a notary public on 1 December 2005, Mr Şarupici’s uncle and aunt stated that on 18 October 2002 their nephew had been arrested in the town of Tsurupinsk by Ukrainian and Moldovan police officers.
17. On an unspecified date the trial proceedings commenced at the Botanica District Court. In its judgment of 12 September 2003 the District Court found all three applicants guilty of B.G.’s murder.
18. The applicants and the prosecutor appealed the judgment.
19. The appeals were heard before the Court of Appeal. On 14 May 2004 the court dismissed the appeals lodged by the prosecutor and by Mr Ganea and Mr Şarupici. However, it upheld the appeal lodged by Ms Gherşcovici and acquitted her.
20. Mr Ganea, Mr Şarupici and the prosecutor appealed the judgment.
21. On 21 December 2004 the Supreme Court upheld all three appeals and ordered that the case against the applicants be retried by the Court of Appeal.
22. All three applicants were subsequently retried before the Court of Appeal. On 16 June 2005 the Court of Appeal found them guilty of the murder of B.G.
23. The applicants appealed the judgment.
24. On 13 December 2005 the Supreme Court upheld the applicants’ appeals and ordered that the case be retried a second time by the Court of Appeal. It found that the Court of Appeal had not complied with the instructions of the Supreme Court when retrying the case.
25. All three applicants were retried a second time before the Court of Appeal. On 18 April 2006 the court found Mr Ganea and Mr Şarupici guilty of the murder of B.G. and acquitted Ms Gherşcovici.
26. Mr Ganea, Mr Şarupici and the prosecutor appealed the judgment.
27. On 1 March 2007 the Supreme Court acquitted Mr Ganea and Mr Şarupici on the ground of lack of elements constituting an offence in their actions and upheld the judgment of the Court of Appeal of 14 May 2004 as regards Ms Gherşcovici.
28. On 19 September 2007 the Deputy Prosecutor General lodged a request for annulment of the judgment of 1 March 2007.
29. On 24 December 2007 the plenary of the Supreme Court upheld the Deputy Prosecutor General’s request for annulment and ordered that the case be retried by the Supreme Court.
30. The applicants were retried a third time, this time before the Supreme Court. On 23 December 2008 the Supreme Court delivered its judgment in the retrial and acquitted the applicants. The decision was final.
31. In particular, the court found that Mr Ganea had signed the written statement of 10 July 2002 at a time when he had not been arrested for the crime and had not been assisted by a lawyer, which was incompatible with the law. Further, he had not been advised of his right to remain silent. As regards Mr Şarupici, the court held that he had been arrested in Ukraine by the Ukrainian police on 18 October 2002, that the authorities had failed to comply with the extradition procedure set out in the relevant mutual legal assistance treaty and that Mr Şarupici had been illegally brought into Moldova. It also found that lawyers appointed to assist him did not have licences at the relevant time and that his right to a fair trial had therefore been breached. As to the allegations of ill-treatment, the court emphasised the obligation on the authorities promptly to take all reasonable steps at their disposal to investigate allegations of ill-treatment and secure relevant evidence. The court concluded that the investigation conducted by the prosecutor did not meet the requirements of the Convention. Evidence obtained as a result of the ill-treatment was therefore inadmissible.
32. On 30 December 2011 the applicants lodged a civil action at the Court of Appeal claiming damages the violation of their right to a fair hearing within a reasonable time pursuant to Law no. 87 of 21 April 2011 (see paragraph 38 below).
33. On 7 June 2012 the Court of Appeal rejected the applicants’ claim. It considered that the criminal proceedings against the applicants were particularly complex, highlighting the seriousness of the charge; the number of accused in the case; the prejudicial character of the offence; and the importance of the process.
34. On 25 October 2012 the applicants lodged an appeal. On 5 December 2012 the Supreme Court upheld the appeal. It considered that the proceedings had begun on 27 May 2002 and had terminated on 23 December 2008, when the final judgment acquitting the applicants had been handed down. It found the length of the proceedings to be excessive and attributable to the acts of the authorities. Taking into account the complexity of the case and this Court’s case-law under Article 41 of the Convention, including the Court’s award of 600 euros (EUR) for proceedings which lasted six years in Deservire SRL v. Moldova, no. 17328/04, 6 October 2009, it awarded each of the applicants 10,000 Moldovan lei (approximately EUR 625) in damages.
35. On 14 December 2011 the applicants lodged a civil action at the Botanica District Court claiming damages for violations of their Convention rights pursuant to Law no. 1545 of 25 February 1998 (see paragraph 37 below). They claimed non-pecuniary damage in respect of, inter alia, unlawful detention; unlawful arrest; unlawful subjection to criminal responsibility; unlawful conviction; unlawful search and seizure of property; and unlawful secret investigative measures.
36. On 17 December 2012 the applicants were asked by the judge rapporteur, pursuant to Rule 49 § 3 (a) of the Rules of Court, to confirm whether their claim under Law no. 1545 of 25 February 1998 sought compensation in respect of all the complaints lodged before this Court; and if not, for which alleged violations of the Convention compensation was sought. In their response, the applicants did not provide the details sought. However, they confirmed that nothwithstanding the Supreme Court’s judgment of 5 December 2012 in respect of their claim under Law no. 87 (see paragraph 34 above), it was open to them to seek compensation for moral damages suffered as a consequence of the excessive length of the proceedings in the context of their pending civil claim. They also confirmed that the claim remained pending before the Botanica District Court.
37. Law No. 1545 of 25 February 1998 provides for compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts to be paid to persons acquitted in criminal proceedings. The relevant provisions of the Law were set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005.
38. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012.
39. The Prosecution Service Act of 1 December 1991 provides a mechanism to challenge acts of authorities involved in conducting searches, inquiries and pre-trial investigations. Section 5 provides that the Public Prosecutor’s Office is entrusted with a number of functions, including supervision of the observance of laws by organs conducting operative search activities, inquiries and pre-trial investigations.
40. Section 12 of the law provides that the public prosecutor is responsible for examining applications and complaints about violations of rights of individuals and legal entities, except for those complaints which are within the competence of the court. It further stipulates that a decision taken by the public prosecutor can be appealed to a higher public prosecutor or a court.
41. Article 94 of the Code of Criminal Procedure in Ukraine, in force until 12 June 2003, allowed criminal proceedings to be instituted on the basis of, inter alia, applications or communications from individuals. Pursuant to Article 97, upon receipt of an application the prosecutor could agree or refuse to institute criminal proceedings, if necessary after a preliminary inquiry into the facts. Article 99 allowed an appeal against the prosecutor’s decision to a higher prosecutor. Refusal of that prosecutor to annul the decision could be appealed to the court under the procedure set out in Article 236-1 of the Code.
42. Article 248 of the Code of Civil Procedure of 18 July 1963 (“1963 CCP”), in force until 1 September 2005, set out the right to complain to a court about decisions, acts and omissions of public authorities. Article 2 of the Code of Administrative Justice of 6 July 2005 (“2005 CAJ”), which entered into force on 1 September 2005, provides that decisions, actions or inaction on the part of public authorities can be challenged in administrative courts. Article 1167 of the Civil Code sets out the right to payment of nonpecuniary damage for unlawful decisions, acts or omissions. Nonpecuniary damage is to be paid irrespective of guilt in cases concerning illegal imprisonment.