ITEMID: 001-101813
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LYUBOV EFIMENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (six month period, ratione temporis);Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1941 and lives in Bakhchysaray (Бахчисарай; Bağçasaray), in the Crimea. The applicant is the mother of E., who died after having received serious bodily injury in private premises.
5. During the night of 5-6 June 1993 a group of several persons were present inside the director's room of the “Kardinal” bar (hereafter “the K. bar”) when E., who was in the room, received serious head injuries from which he fainted. He died in the early morning of 6 June 1993. E. also lost his golden jewellery as a result of an incident which occurred inside the room. Two other men, D. and S., were also in the director's room.
6. According to the applicant, the events had taken place in the presence of a number of identifiable witnesses and an officer of the local police department S-v. The witnesses included E.'s former girlfriend K-va, D.'s former fiancé K., and E.'s friends W. and G.
7. On 7 June 1993 the Bakhchysaray District Prosecutor (“the District Prosecutor”) transferred the file on the investigation into E.'s death to the Bakhchysaray Police Department of the Ministry of the Interior (“the Police Department”). It contained in particular twelve cigarette butts, two fragments of wallpaper with stains resembling blood, a bedcover, a tablecloth and a disassembled pneumatic rifle. It also stated that relevant photos were available from the forensic expert.
8. On the same date an expert from the Bakhchysaray Forensic Examination Department of the Ministry of Health found that E.'s death had occurred two or three hours after he had sustained the injuries, including concussion, bruises below both eyelids and on the chin, a broken nose, bruises and bleeding of the upper lip, numerous facial scratches on the right side of the forehead, subdural haematoma and brain contusion. He stated that E.'s death had resulted from multiple injuries (no less than seven blows to the right side of the forehead, the cheekbone, the bridge of the nose, the chin, the left cheek and the left parietal part of the head) and that he had suffered knees injuries and internal bleeding, apparently from a broken nose, which had caused him difficulties in respiration.
9. On 8 June 1993 the investigator of the Police Department initiated a criminal investigation into E.'s death.
10. On 30 June 1993 he instituted criminal proceedings into allegations of theft of jewellery from E. The two investigation files were joined under no. 76662 (hereafter “case no. 76662”).
11. In a resolution of 30 June 1993 the investigator decided that D. should be detained as a suspect in connection with the premeditated infliction of bodily injuries to E. He stated that the investigation had established that E. had been beaten in the director's room following a prior conspiracy between D. and S., and that D. had had personal motives (a hostile personal attitude to E.) to commit the crime.
12. On 30 July 1993 the investigator indicted D. and S. for inflicting bodily injuries leading to death, and issued a nationwide search warrant in respect of them as they absconded. Consequently, the investigation was suspended on 30 August 1993.
13. On 13 February 1997 the Russian General Prosecutor's Office informed its Ukrainian counterpart that S. had been arrested in Russia, but released a month later, the Ukrainian authorities having failed to ask his extradition in time. The nationwide search for S. was resumed.
14. On 2 March 2000 D. was arrested in Russia. He was extradited to Ukraine on 11 July 2000 where he was kept in detention.
15. On 19 July 2000 the senior investigator of the Police Department resumed the investigation into case no. 76662. He stated that D. had inflicted multiple injuries on E. with premeditation, which had led to his death. He ordered D.'s detention in view of the gravity of the offence. D.'s detention was subsequently extended until 2 September 2000.
16. On 22 July 2000 D. was indicted for inflicting serious bodily injuries on E. He contested his guilt, stating that he had seen that E. had been beaten, having a bruise under his eye. He also said that he had left the town and gone to Russia for seven years without informing his relatives.
17. On 26 July 2000 the investigator questioned K. (see paragraph 6 above) about the events of the evening of 5-6 June 1993. She did not know whether D. and S. were involved in the death of E.
18. On 27 July 2000 D. was released from custody as he was not deemed a danger to society. On the next day he signed an obligation not to abscond.
19. On 28 July 2000 the supervising prosecutor of the Crimea Prosecutor's Office requested to complete the investigation by 2 September 2000. He mentioned that the acts of which the two suspects were accused were not classified correctly under criminal law and that the facts of the case had not been established with sufficient precision.
20. In a decision of 4 August 2000 the Police Department terminated the criminal proceedings against D. owing to the lack of evidence. The decision referred to statements by W. (see paragraph 6 above) and those by D.W. stated, inter alia, that together with G. (see paragraph 6 above), had carried unconscious E. out of the bar.
21. The applicant was informed of this decision on 18 September 2000.
22. On 8 August 2000 the Police Department charged D. with failure to report a crime against E. He was heard and delivered his version of the events. The investigation was terminated on the same day in view of the statute of limitations.
23. On 14 August 2000 the preliminary investigation in respect of S. on suspicion of his involvement in inflicting serious bodily injuries on E. was suspended as his whereabouts were not known.
24. On 4 September 2000 the Crimea Prosecutor's Office informed the applicant that the residential restriction imposed on D. by recognisance not to abscond (see paragraph 18 above) was lawful as the offence against E. had been committed with negligence. However, it found that there was enough evidence to conclude that serious bodily injuries had been inflicted on her son which had led to his death.
25. On 5 September 2000 she was informed that the criminal proceedings in respect of D. had been terminated owing to the lack of evidence corroborating his involvement in a crime and to the statute of limitations in respect of his failure to report the crime. As to the proceedings against S., they were suspended as his whereabouts were not known. Similar information was provided to her next day by the Police Department.
26. On 2 November 2000 the supervising prosecutor from the General Prosecutor's Office quashed the resolution of 4 August 2000 (see paragraph 20 above) on the ground that it had not taken into account all the relevant evidence confirming the suspicion against D. that was available in the case file. A reference was also made to inconsistencies in the evidence received from certain witnesses.
27. On 5 November 2000 the same supervising prosecutor quashed the resolution of 14 August 2000 (see paragraph 23 above) and ordered to continue the investigation. The case was remitted to the Dzhankoy District Prosecutor. On 8 November 2000 the supervising prosecutor advised the investigators to newly interview the persons who had witnessed the incident and whose statements were inconsistent, to identify any other witnesses and to establish some factual details.
28. On 21 February 2001 the Bakhchysaray District Court (“the District Court”) quashed the resolution of 8 August 2000 (see paragraph 22 above), and re-opened the investigation into the suspicion of D.'s involvement in robbery as the period for calculating the statute of limitations should have begun to run from 3 March 2000, the day after his arrest in Russia.
29. From 4 December 2000 to 14 May 2001 the investigator was receiving information clarifying the events of the night of 5-6 June 1993.
30. On 20 May 2001 S. was extradited to Ukraine where he was subsequently detained on suspicion of being involved in inflicting serious injuries on E., leading to his death.
31. From 21 to 23 May 2001 the investigators questioned S. and some other witnesses who brought further clarifications into the incident in the bar K. Furthermore, they undertook a number of other procedural steps in order to complete the investigation. However, they could not question K-va who had resided in Turkey. On 23 May 2001 S. was released on a recognisance not to abscond. The resolution stated that it was V.B. who had inflicted serious lethal injuries on E. and that he had initially left his place of residence in 1993 as he was afraid of persecution by V.B.
32. On 1 June 2001 the investigator of the Police Department terminated the criminal proceedings against S. for the offence of inflicting serious bodily injuries due to the lack of evidence. S. was immediately charged with failure to report a crime committed by V.B. Being interviewed on the same day, he pleaded guilty.
33. On 20 July 2001 the criminal proceedings against D. into suspicion of his involvement in causing lethal injury to E. were terminated owing to the lack of evidence. On the same date, the criminal proceedings against S. on suspicion of his involvement in failure to report a crime were also terminated in view of an amnesty. Proceedings against V.B. for his involvement in inflicting bodily injuries on E. were also discontinued because V.B. died. Later on the same day, the investigator issued a separate procedural resolution terminating proceedings in case no. 76662.
34. On 14 September 2001 the Crimea Prosecutor's Office quashed the aforesaid resolutions finding them unlawful and remitted the case to the District Prosecutor's Office for additional investigation referring, in particular, to procedural deficiencies in the investigation and stating that there was no investigation into the circumstances of the robbery against E.
35. In October 2001 the applicant complained to the Crimea Prosecutor's Office about the failure of the authorities to investigate the circumstances of her son's death. On 6 October 2001 the Police Department refused to give her access to the criminal case file.
36. On 5 November 2001 the Deputy Prosecutor of the Crimea again quashed as unlawful the resolutions of 1 June and 20 July 2001 (see paragraphs 32 and 33 above). He instructed the District Prosecutor to undergo complementary investigation including forensic medical examination and additional hearing of certain witnesses, including the police officer S-v.
On the same date he quashed resolution of 14 September 2001, stating that it did not comply with the law in failing to give instructions for further investigation and applying sanctions to those responsible for delays in investigating the case, including the District Prosecutor's Office, to which the case was nevertheless remitted for further investigation.
37. On 13 November 2001 the Crimea Prosecutor's Office informed the applicant that the investigation did not comply with the requirements of the national law as to the need to establish facts of the case fully, thoroughly and objectively. It also stated that the unlawful decisions had been quashed earlier and the case remitted with detailed instructions to the District Prosecutor for further investigation. The applicant was also informed of possible measures that would be applied if the investigation again failed to comply with previous investigative instructions.
38. On 4 December 2001 the Crimea Department of the Interior, following instructions by the Crimea Prosecutor's Office and District Prosecutor, instructed the Police Department in respect of further investigation into the case. Consequently, between 11 December 2001 and 25 January 2002 the investigator ordered a forensic examination which was conducted from 14 to 15 December 2001, and questioned two witnesses. The forensic examination confirmed multiple injuries on E.'s body and the cause of his death (see paragraph 8 above).
39. On 14 March 2002 the investigator drew up two resolutions terminating criminal investigation into suspicion of D.'s and S.'s involvement into infliction of serious bodily injury to E. and his robbery, as there was no corroborating evidence to prove their guilt.
40. On 26 March 2002 he remitted criminal case no. 76662 to the District Court in order to decide whether D. and S. should be exempted from criminal liability as the new Criminal Code which had entered into force on 1 October 2001 did not provide for liability for such an offence as failure to report a crime.
41. On 7 July 2002 the applicant complained to the District Prosecutor and the Crimea Prosecutor's Office that the resolutions of 14 March 2002 were unlawful.
42. On 10 July 2002 the District Court terminated the criminal investigation into the robbery allegations, as defined by the 1960 Criminal Code, against D. and S., owing to the change in the legislative situation. It remitted the case to the prosecution for further investigation insofar as it concerned charges under the provisions of the new Criminal Code, i.e. infliction of serious bodily injury and armed robbery. This ruling was not subject to appeal.
43. Subsequently, the senior investigator of the Police Department issued an undated information note in criminal case no. 76662 stating that owing to the lengthy period of time that had passed from the commission of the crime, some evidence had been lost and could no longer be recovered.
44. On 12 July and 19 August 2002 the Crimea Prosecutor's Office referred the applicant's complaints of the alleged unlawfulness and unreasonable length of the investigation to the District Prosecutor.
45. In the meantime, on 8 August 2002, the General Prosecutor's Office had remitted these complaints to the District Prosecutor for review.
46. On 8 September 2002 the latter quashed the resolution of 20 July 2001 that terminated the criminal proceedings in the case no. 76662 (see paragraph 33 above) and ordered additional investigation into the case. On 20 October 2002 he assumed responsibility over the investigation.
47. On 17 January 2003 the investigation regarding involvement of V.B. in death of E., after several investigative measures, including questioning of the police officer S-v, was again terminated, V.B. having died in 1994.
48. On the same date the District Court refused to examine the applicant's complaints against the resolution of 14 March 2002 on the charges against S., having been lodged outside the procedural time-limits. It also found that the resolution had been quashed on 10 July 2002 and the investigation into S.'s suspected involvement in a crime had been remitted to the prosecutor for additional investigation (see paragraph 42 above).
49. On 23 January 2003 the Crimea Prosecutor's Office quashed the resolution of 17 January 2003 and remitted the case to the District Prosecutor finding that the investigators had failed to comply with the investigative instructions given by the General Prosecutor's Office and the Crimea Prosecutor's Office (see paragraphs 27 and 36 above). In particular, contradictory evidence given by S. and D. had never been verified, and they had not been confronted with the witnesses. Moreover, certain witnesses had not been questioned on important matters relating to the identification of people who had been on the spot at the relevant time, including V.B.
50. On 30 January 2003 the District Prosecutor remitted the investigation to the Police Department fixing a deadline until 25 February 2003 for informing him of the investigation results.
51. On 19 March 2003 the Crimea Prosecutor's Office sent a copy of the forensic medical examination of V.B.'s body to the Crimea Police Department.
52. On 27 March 2003 the senior investigator of the Police Department ordered a further forensic examination the result of which, obtained on 2 April 2003, were to some extent imprecise.
53. On 13 May 2003 case no. 76662 was remitted to the District Court for examination of the applicant's complaints against the resolutions of 14 March 2002, closing the investigation against S. and D.
54. On 15 May 2003 the Crimea Court of Appeal quashed the resolution of 17 January 2003 (see paragraph 47 above) and remitted the applicant's complaints regarding D. for a rehearing by another judge. It found, in particular, that the applicant and her lawyer had not been informed of the time of the hearing, that the new judge hearing the case had not familiarised himself with the case file, that the applicant had lodged her complaints in time, contrary to the findings of the District Court, and that there had been serious infringements of the criminal procedural law.
55. On 26 September 2003 the District Court found that the investigation had not complied with the prosecutors' instructions (see paragraphs 36 and 38 above). It further referred to a number of procedural inaccuracies in the investigation. The court also quashed the resolution of 14 March 2002 and remitted the case to the District Prosecutor who had to identify and question the persons who had been present during the events in the bar and to identify additional witnesses in the case.
56. In a resolution of 5 July 2004 the senior investigator of the Police Department terminated the investigation in case no. 76662 finding, in particular, that there was not enough evidence to conclude that V.B. had been involved in E.'s death, and no evidence of D.'s and S.'s involvement in the murder and the robbery had been found either. He had questioned several witnesses and conducted confrontations between them and the suspects. Moreover, the proceedings on the alleged failure to report a crime had been discontinued on 10 July 2002 by the District Court. Anyhow, as the main suspect had died, criminal proceedings could no longer be pursued.
57. While the Deputy Prosecutor of the District Prosecutor's Office found the above resolution well-founded on 7 July 2004, the District Court quashed it as unfounded on 20 October 2004 stating, in particular, that there was no evidence to suggest that V.B. was guilty of inflicting bodily injuries on E. Accordingly, case no. 76662 was again remitted to the District Prosecutor for additional investigation.
58. On 9 October 2007 and 6 January 2008 respectively, the applicant informed the Court that no measures had been taken to continue the investigation into the circumstances of her son's death.
VIOLATED_ARTICLES: 2


ITEMID: 001-57583
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1980
DOCNAME: CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Costs and expenses award - Convention proceedings
TEXT: 1. The Sunday Times case was referred to the Court by the European Commission of Human Rights ("the Commission") in July 1977. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1974 by Times Newspapers Limited, the publisher of the British weekly newspaper The Sunday Times, by Mr. Harold Evans, the latter’s editor, and by The Sunday Times as a group of journalists, composed of Mr. Evans himself, Mr. Bruce Page, Mr. Philip Knightley and Ms. Elaine Potter.
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 37 of the Court’s judgment of 26 April 1979 (Series A no. 30, pp. 8-27).
2. By that judgment, the Court held, inter alia, that there had been a breach of Article 10 (art. 10) by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14) (points 1 and 2 of the operative provisions and paragraphs 42-73 of the reasons, ibid., pp. 45 and 28-43).
During the proceedings on the merits, the applicants, without quantifying their claim, had requested the Court to declare, in application of Article 50 (art. 50), that the Government of the United Kingdom ("the Government") should pay to them a sum equivalent to the costs and expenses which they, the applicants, had incurred in connection with the contempt litigation in the English courts and the proceedings before the Commission and the Court. The Court reserved the whole of the question of the application of Article 50 (art. 50). Those appearing before the Court were invited to notify it, within three months from the delivery of the judgment, of any settlement at which the Government and the applicants might have arrived (point 4 of the operative provisions and paragraphs 76-78 of the reasons, ibid., pp. 44-45).
3. By letters of 18 and 31 July 1979, the Deputy Agent of the Government and the Deputy Secretary to the Commission advised the Registrar that no settlement had been arrived at.
4. In accordance with Orders of the President (3 August, 11 October and 17 December 1979) and a decision of the Court (27 February 1980), the following documents were filed with the registry:
- on 10 October 1979, observations of the applicants, transmitted by the Commission’s Delegates;
- on 14 December 1979, memorial of the Government;
- on 21 February 1980, observations of the Delegates, together with the applicants’ observations on the Government’s memorial;
- on 18 April 1980, supplementary memorial of the Government.
5. Having consulted, through the Registrar, the Deputy Agent of the Government and the delegates of the Commission, the Court decided on 29 April 1980 that there was no call to hold oral hearings.
On 30 May 1980, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the registry some comments by the applicants on the Government’s supplementary memorial which they had sent to him on their own initiative. On 3 June, the Court decided, on the ground that the case was already ready for decision, not to take this document into account and, accordingly, not to communicate it to the Government.
6. The applicants’ claim may be summarised as follows:
(a) for the litigation in the English courts ("the English costs"): 15,809.36 pounds;
(b) for the proceedings before the Commission and the Court ("the Strasbourg costs"):
- 24,760.53 pounds up to the delivery of the judgment of 26 April 1979;
- an additional amount in respect of the Article 50 (art. 50) proceedings;
(c) interest at 10% per annum on the sums awarded.
There was appended to the applicants’ observations of 10 October 1979 a schedule with particulars of the quantified items, incurred since October 1972. For ease of reference, relevant details are included below in the section "As to the law".
7. The costs of the litigation in England had been the subject of certain "without prejudice" correspondence. On 8 June 1973 the Legal Adviser to Times Newspapers Limited had written to the Treasury Solicitor as follows:
"... I am writing to you now to see whether the matter of costs could be dealt with by agreement, thus avoiding any argument at the resumed hearing, when judgment is given.
I do not think you will be surprised to hear that we expect the House of Lords to find in favour of the Attorney-general ...
In normal circumstances it would be difficult to resist the argument that costs should follow the event, but I venture to suggest that there are a number of features about the present case which would justify a departure from the normal rule ..."
There followed a list of circumstances surrounding the litigation in the English courts, together with an assertion that The Sunday Times had acted "with great restraint and responsibility" and had "frequently subordinated its private interest to the more general public interest".
The letter concluded:
"... we ... base our suggestion that it should be agreed that, in the event of a judgment by the House of Lords in favour of the Attorney-General, there should be an agreed Order that each side pay their own costs, both in the House of Lords and in the courts below, on the ... grounds which I have outlined above."
The Deputy Treasury Solicitor had replied on 15 June 1973:
"I have obtained the instructions of the Attorney-General on your letter of the 8th June. He considers that each party should bear their own costs of all the proceedings, whatever the outcome of the appeal to the House of Lords."
8. On 25 July 1973, that is one week after giving judgment on the merits in favour of the Attorney-General, the House of Lords ordered: "That, by consent, each party do bear and pay their own costs here and below." Counsel for the Attorney-General had pointed out that "in the ordinary way the Attorney-General would have asked for costs" but that, in the circumstances, it had "been agreed that each party should pay their own costs"; no observations had been added on behalf of Times Newspapers Limited.
9. In English law, a litigant must bear his own costs unless the court otherwise orders. An award of costs lies within the discretion of the court but, as a general rule and in the absence of special factors, "costs follow the event": the unsuccessful party will be ordered to pay to his opponent the latter’s costs, although the actual amount recoverable will be assessed by the court and will very rarely cover the full expenditure. There is jurisdiction to award costs against a successful party but it is exercisable only in the most exceptional circumstances (see Knight v. Clifton [1971] 2 All England Law Reports 378).
10. An order by consent made by an English court is not a contract, but it is sufficient evidence of the contract upon which it is based. Such an order, like the contract which it evidences, is not necessarily to be read literally but is to be construed in the light of any admissible evidence of surrounding circumstances, including evidence as to the nature of the dispute compromised by the order (per Mr. Justice Plowman and, on appeal, per Lord Justice Donovan in General Accident Fire and Life Assurance Corporation v. Inland Revenue Commissioners [1963] All England Law Reports, vol. 1 at 627 and vol. 3 at 261).


ITEMID: 001-82533
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SHOILEKOV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants in application no. 61330/00 are Mr Liubomir Stanev Shoilekov and Mrs Vaskresia Petrova Shoilekova, Bulgarian nationals who were born in 1931 and 1937 respectively and live in Plovdiv. They were represented before the Court by Ms E. Nedeva and Mr M. Ekimdjiev, lawyers practising in Plovdiv.
The applicant in application no. 66840/01 is Mrs Sofka Dionisieva Semkova, a Bulgarian national who was born in 1925 and lives in Plovdiv.
The applicants in application no. 69155/01 are Ilia Georgiev Sinapov and Slavka Kostadinova Sinapova, Bulgarian nationals who were born in 1940 and 1946 respectively and live in Sofia. They were represented before the Court by Ms S. Maneva, a lawyer practising in Sofia.
The facts of the three cases under examination, as submitted by the applicants, may be summarised as follows.
The applicants acquired from the State apartments that had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years. The apartments had been nationalised without compensation.
After the adoption of the Restitution Law in 1992, in proceedings under section 7 of that law brought by the former pre-nationalisation owners, the applicants’ titles were declared null and void and they were ordered to vacate the apartments.
In 2000, it became possible for the applicants to obtain compensation from the State. Compensation was granted in the form of bonds which could be used in privatisation tenders and sold to brokers. Until the end of 2004 bonds were traded at price levels between 15 to 25% of their face value. Their price surged towards the end of 2004 and reached 100% and more of face value and then fell again. In May 2007, it became possible for persons who have not sold their bonds to obtain their full face value directly from the State.
The remaining relevant background facts have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
In the three cases under examination, the claims under section 7 of the Restitution Law were brought within the relevant one-year time limit after the adoption of that law in 1992.
The grounds on which the applicants’ titles were declared null and void and the relevant circumstances were as follows.
The courts found, in proceedings that ended by final judgment of the Supreme Court of Cassation of 14 March 2000, that the applicants had purchased the property at issue (a storey in a two-storey house) in 1981, at a time when one of the applicants owned another property which could satisfy the applicants’ housing need. It followed that the purchase had been in breach of the requirement that only persons who did not own other real property qualified to purchase State housing. In the course of the proceedings the courts also dealt with alleged irregularities in respect of tenancy orders dating from 1948 and the 1960s.
The applicants have not informed the Court whether they have received compensatory bonds or rented or purchased municipal housing.
The courts found, in proceedings that ended by final judgment of the Supreme Court of Cassation of 8 April 1998, that the apartment in question had exceeded in size the relevant limits fixed by legislation in respect of a three-member family, as the applicant’s at the time of the transaction (1960). The courts also found that in breach of the relevant law the apartment had not been offered for sale to the tenants who had been living therein, but directly to the applicant, as a former resistance fighter.
In 1999 the applicant unsuccessfully attempted to reopen the proceedings. She vacated the apartment on an unspecified date.
In October 1999 the applicant was temporarily provided with municipal housing for rent at fixed low rates. She remained there at least until October 2001.
In 2003 the applicant obtained compensatory bonds with face value 54,000 Bulgarian levs (BGN) (the equivalent of approximately EUR 27,500). The applicant has not informed the Court whether she had sold her compensatory bonds and if so at what price.
The courts, in proceedings that ended by final judgment of the Supreme Court of Cassation of 28 July 2000, found that the applicants had purchased the apartment at issue in November 1990, despite the Parliament’s decision of 17 August 1990 imposing a moratorium on sales of State and municipal property.
The applicants have not informed the Court whether they have received compensatory bonds or rented or purchased municipal housing.
The pre-nationalisation owners brought an action against the applicants on 3 June 1992. Between July and November 1992 the District Court held three hearings and admitted evidence.
The hearing listed for 17 March 1993 was adjourned as the applicants’ lawyer had been unable to attend. The next and last hearing was held on 20 April 1993.
By judgment of 2 July 1993 the District Court granted the claim against the applicants. They appealed.
The Regional Court held a hearing on 6 October 1993.
By judgment of 3 December 1993 the Regional Court quashed the lower court’s judgment and rejected the claim.
On 11 March 1994 the plaintiffs, the pre-nationalisation owners, submitted a petition for review (cassation) to the Supreme Court.
The Supreme Court held a hearing on 2 March 1995.
By judgment of 24 July 1995 the Supreme Court quashed the Regional Court’s judgment and referred the case back to that court.
In the renewed examination of the case by the Regional Court, the hearings listed for 15 November 1995 and 6 February 1996 were adjourned at the applicants’ request.
The court held three hearings - on 1 April, 24 June and 6 November 1996.
By judgment of 6 January 1997 the Regional Court quashed the District Court’s judgment of 2 August 1993 and referred the case back for renewed examination by that court.
The District Court held a hearing on 7 March, 14 May and 22 September 1997. One of the adjournments was caused by the plaintiffs’ failure to submit a relevant document.
By judgment of 7 October 1997 the District Court granted the restitution claim against the applicants. They appealed.
Before the Regional Court, the hearing listed for 9 January 1998 was adjourned owing to illness of one of the applicants.
On 6 May 1998 the Regional Court noted the applicants’ failure to amend their appeal in accordance with procedural requirements introduced in April 1998 and instructed them to do so.
At the hearing held on 5 October 1998 the court heard the parties and admitted evidence, including an expert’s report.
By judgment of 3 November 1998 the Regional Court upheld the lower court’s judgment of 7 October 1997. The applicants submitted a cassation appeal.
The Supreme Court of Cassation held a hearing on 21 September 1999.
By judgment of 14 March 2000 the Supreme Court of Cassation upheld the lower courts’ judgments of 1997 and 1998.
The relevant domestic law and practice have been set out in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, cited above.


ITEMID: 001-57429
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF BARBERÀ, MESSEGUÉ AND JABARDO v. SPAIN
IMPORTANCE: 2
CONCLUSION: Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Preliminary objection allowed (non-exhaustion of domestic remedies);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Just satisfaction reserved
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 8. The three applicants are Spanish nationals born in 1951, 1947 and 1955, respectively. Mr Francesc-Xavier Barberà Chamarro and Mr Antonino Messegué Mas are serving long sentences at Lérida Prison no. 2 (Lleida-2) and Barcelona Prison respectively and have the benefits of the open system. Mr Ferrán Jabardo García is at present living in Gironella in Barcelona Province.
At about 3 p.m. on 9 May 1977, Mr José María Bultó Marqués, a 77-year-old Catalan businessman, was at his brother-in-law’s house in Barcelona in the company of his brother-in-law and his own sister, Mrs Pilar Bultó Marqués, when two men entered the flat under the pretext of being gas-board employees. They seized and held the maid, thus enabling other persons to enter.
The latter threatened Mr Bultó with guns and shut him in a room, where they fixed an explosive device to his chest. They demanded a ransom of five hundred million pesetas from him, to be handed over within twenty-five days, and gave him instructions on how to pay it, saying that on payment he would be told how to remove the device safely. They then left the premises and departed in waiting cars.
10. Mr Bultó returned home in his car. Shortly before 5 p.m., the device exploded, killing him instantly.
11. On the same day, Barcelona investigating judge no. 13 commenced a preliminary investigation (diligencias previas - no. 1373/77) into these events. On 11 May, he placed the relevant documents in investigation file (sumario) no. 61/1977 but later relinquished jurisdiction on the ground that the crime was a terrorist act which came within the jurisdiction of the Audiencia Nacional in Madrid (see paragraph 45 below). The case was accordingly sent to central investigating judge no. 1 of that court (juez central de instrucción), who opened file no. 46/1977.
12. The police investigation led to the arrest on 1 July 1977 of four persons (not including any of the applicants) who were members of the E.PO.CA. (Catalan Peoples’ Army) and one of whom had been recognised by witnesses. On 29 July, they were charged with murder, with a terrorist act causing death and with possession of explosives.
On 10 November 1977, however, the Audiencia Nacional decided to apply the amnesty law (no. 46 of 15 October 1977) to the accused owing to the political nature of their motives. They were at once released.
13. On an appeal by the public prosecutor, the Supreme Court set this decision aside on 28 February 1978 on the ground that by that stage of the proceedings it had not been established that the crime was politically motivated and not carried out for pecuniary gain. This judgment meant that investigation file no. 46/1977 was reopened. As the four accused did not appear, however, the judge ordered them to be sought by the police, and in July 1978 he provisionally suspended the proceedings.
14. In the course of their investigations into the killing of Mr Bultó, the police arrested Mr Jaime Martínez Vendrell, aged 63, and four other persons on 4 March 1979. They were placed in police custody and held incommunicado, in accordance with the anti-terrorist legislation then in force (see paragraph 46 below).
Unassisted by a lawyer, Mr Martínez Vendrell was questioned at the police station during his custody there and on 11 March 1979 made a statement containing, in substance, the following:
Until 1974 he had been a leading member of a Catalan nationalist organisation, the "Front Nacional de Catalunya", and from 1967 on had taken part in the creation and training of armed groups, with the object of fighting for the independence of the Catalan nation.
In 1968, he had met three young men including a certain "Thomas", whom he identified as the applicant Messegué, and in late 1969 had begun their theoretical and practical military training. In 1973, he had established another group of young men, one of whom he identified as the applicant Barberà.
Subsequently, several people, including "Thomas", had purchased weapons in Germany; they had brought them into Spain via France and hidden them in dumps known to them alone.
In 1976, three groups had been established, one of which was commanded by "Thomas". The group members gave up all outside activities and were paid by the organisation. A network of flats and radio transmitters had been created later to allow contact between the groups.
In February 1977, Mr Martínez Vendrell had been informed that an explosive device had been produced, which could be attached to a person’s body and subsequently defused on payment of an agreed ransom. The mechanical part of this device could have been designed by "Thomas" (Messegué) and another activist, and the electronic part by Mr Barberà and another person. "Thomas" and someone else had later shown the device to Mr Martínez Vendrell.
In April 1977, they had revealed to him that the first victim chosen was Mr José María Bultó.
Two days after the killing, he had met the commando leaders and had learned that eleven people had taken part in the operation and that Mr Barberà and Mr Messegué had attached the device to the victim’s chest.
15. When Mr Martínez Vendrell was brought before Barcelona investigating judge no. 6, in the presence and with the assistance of counsel, he amended his statement. In particular, he said that the bomb "might have" been made by the persons stated, but that he did not know the names of those who had carried out the attack on Mr Bultó.
16. These statements were sent to central investigating judge no. 1 in Madrid, who reopened file no. 46/1977 on 15 March 1979. On the next day he charged Mr Martínez Vendrell with murder and with possession of arms and explosives, and ordered him to be held in custody on remand.
In a further decision on the same day he charged six others, including Mr Barberà and Mr Messegué, with murder, criminal damage and uttering forged documents, and issued a warrant for their arrest. As none of the six could be found, the proceedings continued solely against the co-defendants in custody.
17. During the investigation and again at the hearing, Mr Martínez Vendrell retracted his statement to the investigating judge as far as the identification of Barberà and Messegué was concerned.
On 17 June 1980, the first section of the Criminal Division of the Audiencia Nacional sentenced him to one year and three months’ imprisonment for assisting armed gangs. It set aside the original charges, however, noting among other things that he had expressed disapproval when at the end of April 1977 he had been told of the proposed operation against Mr Bultó; that the preparations had occurred without his knowledge; and that he had only learned of the victim’s death through press reports. It also ordered his immediate release because the period of the sentence had already been spent in custody on remand.
18. Following an appeal on points of law by Mr Bultó’s son, acting both as a "private prosecutor" and as a party claiming civil damages, the Supreme Court quashed the judgment of the Audiencia Nacional on 10 April 1981. On the same day, it sentenced Mr Martínez Vendrell to twelve years and one day’s imprisonment for aiding and abetting a murder and ordered him to pay five million pesetas in damages to the victim’s heirs. It held that the influence he exerted on those who committed the crime was sufficiently great to amount to aiding and abetting and went far beyond merely assisting armed gangs; admittedly, he had made it clear that he was opposed to the crime, but he had done nothing to prevent it.
A warrant was consequently issued - on 24 April 1981, according to the applicants - for Mr Martínez Vendrell’s arrest. Mr Martínez Vendrell has not so far been found by the police and has therefore not yet served his sentence.
19. The three applicants were arrested with other persons on 14 October 1980 and charged with belonging to the terrorist organisation E.PO.CA. Among items found at their homes were radio transmitters and receivers, a variety of implements, electronic equipment, publications of left-wing nationalist parties, files on leading politicians and businessmen, and books on topography, electronics and the chemistry of explosives.
Section 2 of Law no. 56 of 4 December 1978 on the suppression of terrorism, as renewed by Royal Legislative Decree no. 19 of 23 November 1979, was applied to their case (see paragraph 46 below). This authorised the police to hold suspects in custody for longer than the normal period of seventy-two hours, with leave from the investigating judge. The applicants were moreover held incommunicado and not allowed to have the assistance of a lawyer.
While in custody they signed a statement in which they admitted having taken part in Mr Bultó’s murder either as principals or as accessories; their account differed from Mr Martínez Vendrell’s, however. Furthermore, the police discovered stocks of arms and explosives at places indicated by Mr Barberà and Mr Messegué.
20. On 23 October 1980, the persons held in custody appeared before Barcelona investigating judge no. 8, who questioned them - without any defence lawyer being present in the case of Mr Barberà and Mr Jabardo. They retracted their confessions to the police and two of them - Jabardo and Messegué - complained of being subjected to physical and psychological torture while in police custody.
By an order (auto) of the same day the judge directed that they should be held in custody on remand, and they were transferred to Barcelona Prison.
21. On 24 October 1980, the resulting documents were sent to central investigating judge no. 1 for inclusion in file no. 46/1977.
On 12 January 1981, the latter judge charged the applicants and two other persons with murder and assisting armed gangs. He then sent letters rogatory to Barcelona for further inquiries to be made. Barcelona investigating judge no. 10 served the charges on the applicants and examined them on 22 January; they confirmed the statements they had made to investigating judge no. 8 and again alleged that their confessions had been obtained by means of torture.
They were not, however, confronted with the prosecution witnesses or Mr Martínez Vendrell, who was then at liberty.
Mr Barberà instructed an advocate and an attorney in Barcelona on 22 December 1980, but the central investigating judge in Madrid did not record these appointments until 20 January 1981. Mr Messegué and Mr Jabardo did not instruct lawyers until 21 February 1981; the investigation had been completed on 16 February.
22. The case was then committed for trial to the first section of the Criminal Division of the Audiencia Nacional.
By an order of 13 March 1981, the court instructed the public prosecutor and the private prosecutor to make their interim submissions. They argued that the facts amounted to murder, possession of arms and explosives and forging identity documents; as evidence they offered the examination of the defendants, the hearing of eye-witnesses and the production of the entire case-file; no mention was made of Mr Martínez Vendrell.
The file was sent to the attorney acting for Mr Jabardo on 27 May and to the ones acting for Mr Barberà and Mr Messegué on 1 June. Each of the defendants conducted his defence separately with counsel of his own choosing. All the defendants declared their innocence and offered to produce similar evidence, including, in Barberà and Messegué’s case, the statement made by Mr Martínez Vendrell retracting the one he had made to the police implicating Mr Barberà and Mr Messegué in the murder.
Mr Messegué had been transferred to Madrid but he and his counsel managed to get him returned to Barcelona in order to prepare his defence.
23. By an order made on 27 October 1981, the court - on this occasion composed of Mr de la Concha (the presiding judge), Mr Barnuevo and Mr Infante - admitted the evidence offered and set the case down for trial on 12 January 1982. It also ordered that the accused should be brought to Madrid and appointed Mr Obregón Barreda and Mr Martínez Valbuena of the third section as additional judges to bring the number in the first section to five in view of the heavy sentences being sought (Article 145 para. 2 of the Code of Criminal Procedure).
On 10 December 1981, defence counsel (all of whom were members of the Barcelona Bar) applied for the trial to take place in Barcelona on account of the needs of the defence and witnesses’ travel difficulties. Subsequently, a Catalan senator wrote to the court requesting it to at least postpone the transfer to Madrid until after Christmas. On 18 December 1981, the Audiencia Nacional, presided over by Mr Pérez Lemaur, who was sitting with Mr Barnuevo and Mr Bermúdez de la Fuente, refused the first application and confirmed that the hearing would be held in Madrid on 12 January 1982.
24. On the day before the trial, counsel for the defendants met the presiding judge of the first section of the Criminal Division (Mr de la Concha), in order to prepare for the hearing and discuss the possibility of an adjournment, as the applicants were still in prison in Barcelona. The presiding judge assured them that the defendants’ transfer was imminent and that the trial could therefore go ahead.
The applicants stated that they left Barcelona on the evening of 11 January and arrived in Madrid at four o’clock the following morning, when the hearing was due to commence at 10.30; they said that they were in very poor shape after travelling more than 600 kilometres in a prison van. According to the Government, the journey took ten hours at most.
That same morning of 12 January 1982, the presiding judge had to leave Madrid suddenly as his brother-in-law had been taken ill. As senior judge of the Division, Mr Pérez Lemaur took his place. In accordance with the legislation in force, so the Government asserted, the parties were not warned either of this substitution or of the replacement of Mr Infante - who no longer belonged to the first section - by Mr Bermúdez de la Fuente.
25. The trial was held on the appointed day in a high-security courtroom; in particular, the defendants appeared in a glass cage and were kept in handcuffs for most of the time. The record makes no mention of any protest by them, except as regards certain exhibits which were not produced in court.
The court agreed to admit in evidence a number of documents submitted by the defence. When examined by the private prosecutor in regard to matters in their statements to the police, the accused again denied any participation in the murder and again complained of being subjected to torture while they were in custody.
26. The public prosecutor offered for examination the three witnesses who had been present at the time of the crime: the sister and brother-in-law of Mr Bultó, and their housemaid. The sister and the maid were very old and could not come to Madrid but the prosecutor asked that their statements to the police on the day after the crime should be taken into account. Mr Bultó’s brother-in-law gave evidence in court but did not recognise any of the applicants. The only documentary evidence produced by the public prosecutor was a copy of the file on the investigation.
27. For its part, the defence, with the court’s leave, called ten witnesses; some of them, who were arrested at the same time as the defendants, alleged that they too had been subjected to brutality while in police custody.
All the parties agreed to treat the documentary evidence as if it had been produced (por reproducida - see paragraph 40 below).
28. The public prosecutor and the private prosecutor then confirmed their interim submissions; counsel for the defendants, on the other hand, amended theirs and submitted that the amnesty law should be applied (see paragraph 12 above).
The hearing was adjourned until 4.30 p.m. and resumed with addresses by the three parties. The presiding judge finally asked the defendants if they had anything to add, and they answered in the negative. The hearing ended in the evening.
29. On 15 January 1982, the first section of the Criminal Division of the Audiencia Nacional sentenced Mr Barberà and Mr Messegué to thirty years’ imprisonment for murdering Mr Bultó; it also sentenced Mr Barberà to six years and one day’s imprisonment for unlawful possession of arms and to three months’ imprisonment and a fine of thirty thousand pesetas for uttering forged documents, and Mr Messegué to six years and one day’s imprisonment for possessing explosives. Mr Jabardo was sentenced to twelve years and one day’s imprisonment for aiding and abetting a murder.
The court held it to have been proved that Mr Barberà and Mr Messegué had directly participated in fixing the device to the victim’s body and switching on the electric mechanism, after which they had given Mr Bultó instructions for the payment of a ransom, which was the condition on which he would be able to remove the device safely. The device had subsequently exploded for reasons that had never been properly established. Mr Jabardo had assisted the operation by gathering information about public figures in Catalonia, including Mr Bultó.
In the same judgment the court refused to apply the amnesty law of 15 October 1977 to the applicants. Even if they had been acting from a political motive, that motive was the independence (and not merely the autonomy) of the Catalan nation and so did not fall within the scope of the amnesty.
30. The applicants appealed on points of law, relying on Articles 14 (right of all Spaniards to equality before the law), 17 (right to liberty and security of person) and 24 (right to effective judicial protection) of the Constitution. They described the circumstances of their arrest and custody and pointed out that when they were questioned by the police they did not have the assistance of lawyers and had not been informed of their rights; they had made confessions only because use had been made of coercion, threats and ill-treatment (see paragraphs 19-20 above).
They also claimed that there was no evidence to rebut the presumption that they were innocent of Mr Bultó’s murder, as the physical violence to which they had been subjected rendered their confessions invalid. Moreover, there was no connection between the facts found by the Audiencia Nacional and the evidence adduced before it, and its judgment did not explain how it had arrived at its decision.
The applicants also criticised the Audiencia Nacional for not having determined all the issues raised in the defence submissions (Article 851 para. 3 of the Code of Criminal Procedure - see paragraph 43 below): it had ignored their allegations that their statements to the police were invalid and had given no indication of the evidential value it attached to those statements, having regard to the material produced during the trial. Mr Messegué submitted, moreover, that he was implicated solely by confessions extracted by force from Mr Martínez Vendrell, who had later retracted them before the judge; the Audiencia Nacional had again not expressed an opinion as to their validity.
Furthermore, the Audiencia Nacional had made an error of fact in assessing the evidence (Article 849 para. 2 of the Code of Criminal Procedure - see paragraph 42 below), because there was no conclusive evidence to refute their protestations of innocence before the judge. Referring to Article 24 para. 2 of the Constitution (see paragraph 36 below), which enshrines the principle of the presumption of innocence, and to the Supreme Court’s case-law on the subject, the applicants asserted that not only had the evidence been wrongly evaluated but no such evidence in fact existed.
They further submitted that the Audiencia Nacional had not indicated its reasons for holding that the facts had been established, as required by Supreme Court precedents, even though the main defence submission had been that there was no evidence. There could only be one explanation for this, namely that the court had allowed itself to be influenced by the defendants’ alleged confessions to the police, which had been obtained in clear breach of the fundamental rights guaranteed in Articles 3 and 17 of the Constitution.
Mr Jabardo also criticised the Audiencia Nacional for not having sought during the hearing to inquire further into the facts. He said that the only prosecution witness who had given evidence in court had not recognised the defendants and that important evidence was lacking, such as identification and the confrontation of witnesses and accused or a reconstruction of the events. Lastly, he pointed to a discrepancy between the judgment of 17 June 1980 convicting Mr Martínez Vendrell (see paragraph 17 above) and the judgment given in the instant case on 15 January 1982 (see paragraph 29 above); in his submission, this discrepancy showed that he, Mr Jabardo, could not have taken part directly in the attack on Mr Bultó.
31. On 27 December 1982, the Supreme Court dismissed the appeals of Mr Barberà and Mr Messegué.
As to the validity of the confessions obtained by the police, including Mr Martínez Vendrell’s, it noted that the alleged defects related solely to the findings of fact and accordingly did not give rise to the procedural irregularity complained of, which related only to points of law.
The court said the following about the presumption of innocence (translated from the French translation provided by the Government):
"The evidence offered by the public prosecutor, the private prosecutor and the defence includes, as written evidence, the complete file on the investigation, containing: (a) the statement made to the judge by Mr Jaime Martínez Vendrell, assisted by his lawyer (doc. no. 572 in the file), in which he confirmed the following facts from his first statement to the police: the defendants Barberà Chamarro and Messegué Mas were members of an armed group designed to be the nucleus of a revolutionary army to free the Catalan nation; they were very closely associated with Mr Martínez Vendrell, particularly Mr Messegué; they had been thoroughly trained in urban guerrilla tactics; they lived ‘freed from all external obligations’, being paid by the organisation to devote all their energies to its work, in accommodation provided by the organisation; they communicated with each other by means of transmitters and used false identity documents and assumed names; Mr Messegué was in charge of one of the direct-action groups which, together with others, formed an organised unit or brigade; both men had important positions in the organisation and had received training such that they ‘might have’ constructed the explosive device (Mr Barberà the electronic component and Mr Messegué the mechanical component) used for the ‘business operations and in particular the one of which Mr Bultó Marqués was the victim - Mr Martínez Vendrell did not know the identity of or the methods used by the persons forming the groups which took part in that operation’; (b) finding of fact in the Audiencia Nacional’s judgment of 17 June 1980 in the same case (doc. no. 138 in the file), confirmed unchanged in the Supreme Court’s judgment of 10 April 1981 convicting Mr Jaime Martínez Vendrell: ‘At an unspecified date at the beginning of that year (he is referring to 1977) three of the young men whom he saw most frequently and whom the defendant (Mr Martínez Vendrell) knew to be heads of armed groups told him they considered that the time had come to go into action and that they were contemplating operations to finance the members of the groups. They told him that they had adjustable explosive devices which could be fixed to the skin of selected victims so that the latter would be obliged to pay the money asked for in order to avoid the risk of an explosion entailed by removing a device without the instructions and equipment in the possession of those who had put it in place. At the end of April, two of these group leaders told him that they were thinking of a businessman, Mr José María Bultó Marqués, on whom to use this device for the first time’; (c) the statement made to the judge by Mr Francisco Javier Barberà Chamarro, assisted by his lawyer (doc. no. 903): he admitted being a member of the Catalan National Liberation Army, working together with Mr Martínez Vendrell, being in possession of arms and knowing of the existence of stocks of arms; (d) the statement made to the judge by Mr Antonino Messegué Mas, assisted by his lawyer (doc. no. 906): he belonged to the armed organisation, had been trained in urban guerrilla tactics by Mr Martínez Vendrell and knew of the existence of a stock of explosives; (e) the official report on a search of the flat at no. 1 Pinos Street, Hospitalet de Llobregat (doc. no. 890), and from the file on the investigation a statement by Mrs Dolores Tubau Molas (doc. no. 904) to the effect that the defendant Barberà Chamarro lived in the flat with other activists and that there were found there (inter alia) a transmitter, electronic equipment, lathes, tools and files containing press cuttings and information about a number of prominent people, and books on topography, the chemistry of explosives, and electronics; (f) the official report on a search of the flat at no. 27 Parlamento Street, Barcelona (doc. no. 892), occupied by Mr Antonino Messegué Mas and Mrs Concepción Durán Freixa (statement in doc. no. 908) and where a transmitter and receiver, medicines, wigs and stiff paper of the type used for national identity cards and for driving licences were seized; (g) the official report on the discovery of an arms dump and two radio transmitters at three places indicated by the defendant Barberà (doc. no. 882); (h) the official report on the discovery of an explosives dump indicated by Mr Messegué and the destruction of the explosives on the spot (docs. nos. 833 and 899). The mere existence of this evidence, irrespective of its implications and the way in which it is assessed, is sufficient to rebut the presumption of innocence relied on by the defendants Barberà Chamarro and Messegué Mas, and we therefore reject grounds five and four respectively of their appeals; the facts established in paragraph 1 of the recital finding that they were directly and immediately involved in the homicidal operation must consequently be confirmed in toto. The description of the facts as murder under Article 406 para. 3 of the Criminal Code with an aggravating circumstance under Article 10 para. 6, which was allegedly incorrectly applied according to Barberà’s sixth ground of appeal and Messegué’s fifth ground of appeal, was therefore correct and their appeals under section 849(1) of the Procedure Act must therefore be dismissed."
On the other hand, the Supreme Court quashed the Audiencia Nacional’s judgment in respect of Mr Jabardo, holding that the established facts amounted not to the crime of aiding and abetting murder but to the lesser offence of assisting armed gangs. It accordingly delivered another judgment on the same day acquitting him on the first charge but sentencing him to six years’ imprisonment on the second charge. Lastly, it confirmed that the applicants were not covered by the amnesty law and it ordered an inquiry into their allegations of ill-treatment.
This inquiry was begun in 1984 by investigating judge no. 13 in Barcelona and led in 1985 to a discharge order being made by the Audiencia Provincial.
32. The three convicted men appealed to the Constitutional Court alleging a violation of Articles 17 para. 3 (right of everyone arrested to be informed of the reasons for his arrest and to be assisted by a lawyer), 24 para. 2 (right to a fair trial and to be presumed innocent) and 14 (right of all Spaniards to equality before the law) of the Constitution (see paragraphs 30 above and 36 below).
As regards the factors taken into account by the Supreme Court, they made the following submissions.
1. Mr Martínez Vendrell’s statement could be regarded only as witness evidence, yet it had not been offered as such nor had it been confirmed at the hearing. If one accepted that it had been produced by means of the phrase "por reproducida", the unacceptable consequence followed that all the actions and confessions contained in the police report would likewise have to be admitted as evidence, since they too appeared in the file on the investigation. In any case, the material statement did not provide any indication that the defendants had had any involvement in the murder.
2. The Audiencia Nacional’s judgment of 17 June 1980 merely stated, in its second recital, that Mr Martínez Vendrell did not know the actual course of the relevant events.
3. Mr Barberà’s statement to the investigating judge should not have been admitted in evidence, since he had made it without counsel’s assistance; furthermore, he merely denied that he had participated in the crime.
4. Similarly, Mr Messegué had declared to the investigating judge that he was innocent.
5. The items found at the homes of Mr Barberà and Mr Messegué and the statements by their female companions had no connection with the murder. The items, moreover, had never amounted to real evidence as it did not appear from the file that they had been given to the judge or assessed by the court - one of the defence counsel had indeed protested at this during the trial; as to the documents, these had never been appended to the police report nor placed elsewhere in the file on the investigation, so the court could not take them into account.
6. The discovery of arms and explosives at the places indicated by Mr Barberà and Mr Messegué was relevant to the offences of unlawful possession of weapons and explosives but not to the murder.
In sum, none of the factors listed by the Supreme Court could rebut the presumption of innocence in respect of the main charge, the attack on Mr Bultó.
For the rest, the applicants repeated in substance the submissions they had made before the Supreme Court.
33. On 20 April 1983, the Constitutional Court declared the appeal (recurso de amparo) inadmissible as being manifestly ill-founded. As regards the presumption of innocence it gave the following reasons for its order (auto):
"As the assessment of the evidence lies within the exclusive jurisdiction of the judges and courts, the Constitutional Court cannot find a violation of this provision unless there has been a failure to produce a minimum of evidence against the accused.
In the instant case, however, this minimum of evidence was produced, namely in the statements made with the assistance of a lawyer to the investigating judge, the official reports on the searches made and on the real evidence discovered and in the facts as established in another judgment. The Constitutional Court cannot therefore review the criminal courts’ assessment of the evidence."
34. In March 1984, the applicants were transferred from Carabanchel Prison in Madrid to Lérida Prison (Lleida-2). In September, the Audiencia Nacional granted Mr Jabardo parole. Since January 1987, Mr Barberà and Mr Messegué have been held in an open prison.
35. The police rearrested two of the persons originally prosecuted (see paragraph 12 above), Mr S and Mrs T, and the investigation was resumed on 8 February 1985.
Mr S was sentenced to thirty years’ imprisonment as being responsible for Mr Bultó’s murder together with the applicants Barberà and Messegué. He appealed on points of law to the Supreme Court, which dismissed his appeal on 28 November 1986, holding that the evidence produced was sufficient to rebut the presumption of innocence. His subsequent appeal to the Constitutional Court was declared inadmissible on 1 April 1987.
As for Mrs T, she was sentenced to four years’ imprisonment for assisting armed gangs.
36. By Article 24 of the Spanish Constitution,
"1. Everyone has the right to effective protection by the judges and courts in the exercise of his legitimate rights and interests, and in no case may the right to a defence be curtailed.
2. Everyone, further, has the right to be heard by the tribunal established by law, the right to a defence and to the assistance of a lawyer, the right to be informed of any charges against him, the right to a public trial without undue delay and attended by all safeguards, the right to make use of evidence relevant to his defence, the right not to make statements against himself and not to confess himself guilty, and the right to be presumed innocent.
..."
37. In view of the Constitutional Court’s case-law in this area, the Supreme Court has extended the scope of proceedings in appeals on points of law. It has held that the presumption of innocence can be relied upon before it in respect of an infringement of the law resulting from an error made by the trial court when assessing the evidence (see paragraph 42 below), or on some other ground.
According to a judgment of 3 November 1982, the Supreme Court’s review of the evidence is directed only to the question whether or not evidence was produced and taken and not to the criminal court’s final, unappealable assessment of that evidence.
38. Article 53 para. 2 of the Constitution provides for an appeal (recurso de amparo) whereby the protection of the rights laid down in Articles 14 to 30 may be secured.
39. According to the preamble to the Code of Criminal Procedure, the file on the judicial investigation is "the corner-stone of the hearing and the judgment". It is not a substitute for the hearing but a preparation for it.
Since the reform of 4 December 1978 (Law no. 53/1978), the adversarial nature of criminal proceedings applies to the investigation stage; this enables the accused, assisted by his advocate, to intervene in respect of steps concerning him (Articles 118 and 302). In order to exercise this right, the accused must appoint an advocate (abogado) and an attorney (procurador).
The investigating judge has to build up his file under the direct supervision of the appropriate public prosecutor’s office (Article 306). He includes the evidence put forward by the public prosecutor and the other parties if he considers it relevant. He can also order evidence to be produced of his own motion, but in that case he adds to the file only such evidence as proves to be of value (Article 315).
Once the investigation is concluded, the judge forwards the documents to the relevant court (Article 622 para. 1), which takes the final decision to close the investigation after it has heard the public prosecutor and the private prosecutor (Article 627).
40. Before the hearing, the public prosecutor and the private prosecutor make their interim submissions - in writing and in numbered paragraphs - on the punishable offences disclosed by the case-file, on their classification in criminal law, on the circumstances that may affect the accused’s responsibility and on the penalty which he may incur. The defence, in its turn, presents its view of the classification in law of the facts disclosed by the case-file (which is placed at its disposal) and must reply by indicating, likewise in numbered paragraphs corresponding to the prosecution’s submissions, whether it accepts or rejects each of them; in the latter case, it makes its own alternative submissions (Articles 650, 651 and 652). The prosecution and the defence must, when making their interim submissions, indicate the evidence they propose to adduce (Articles 656 and 657), and this evidence is scrutinised by the reporting judge and admitted or rejected by the court (Articles 658 and 659).
The hearing takes place in public, failing which it will be null and void (Article 680). It cannot begin or be continued unless the accused is present. For this purpose, the law allows the accused to be transferred, if necessary, to the town in which the hearing is to be held.
Evidence is taken in the order in which the parties have offered it. The court may also take such evidence as it considers necessary for the discovery of the truth (Article 729 para. 2). Furthermore, "at the request of any of the parties, documents relating to evidence which, for reasons beyond the parties’ control, cannot be produced at the hearing may be read out" (Article 730). Where all or part of the file on the judicial investigation is adduced in evidence, there is an established practice that it will be regarded as having been produced (por reproducida) without having been read out if all those concerned so agree.
Immediately after the evidence has been taken, the parties may make written amendments to their interim submissions or else make them final. The presiding judge calls the representatives of the public prosecutor and of the private prosecutor (Article 732). In their pleadings, these representatives must set out the facts they consider proved at the hearing, their classification in criminal law, the part played in them by the accused and the civil liability flowing from them (Article 734). The presiding judge then immediately calls the defence; its pleadings must be consistent with its final written submissions (Articles 736 and 737). Lastly, the presiding judge gives the accused the opportunity of addressing the court in case he wishes to add anything in his defence (Article 739). After that, the presiding judge declares the hearing closed.
41. The judges deliberate immediately after the hearing, or at the latest on the following day (Article 149), and a reporting judge (magistrado ponente) is designated for the purposes, inter alia, of informing the court, examining the evidence and preparing a draft judgment (Articles 146-147 of the Code of Criminal Procedure). The final decision is written and signed within three days (Article 203). In drawing it up, the court has to assess in all conscience the evidence adduced during the hearing, the submissions of the prosecution and the defence, and the statements of the defendants (Article 741).
42. An ordinary appeal does not lie against judgments of the Audiencia Nacional; only the special remedy of an appeal on points of law or procedure is available.
By Article 849, the law is deemed to have been violated
(1) where, having regard to the facts declared proved in the judgment appealed against, there has been an infringement of a substantive provision of criminal law or any other legal rule of the same kind which has to be complied with when the criminal law is being applied; or
(2) where an error of fact has been made in assessing the evidence and this appears clearly from authentic documents not contradicted by other evidence.
It has been held by the Supreme Court that in the second of these two eventualities the principle of the presumption of innocence can be prayed in aid (see paragraph 37 above).
43. Non-compliance with procedural requirements includes cases in which:
(a) the judgment appealed against does not clearly state the facts deemed to have been established or discloses a manifest discrepancy between them or else mentions as proved facts "concepts" which, by their legal nature, prejudge the decision to be taken (Article 851 para. 1);
(b) the judgment does not dispose of all the issues raised by the prosecution and the defence (Article 851 para. 3); and
(c) one of the judges who participated in the judgment was challenged but without success, although the challenge was made within time, in the proper manner and for a legally valid reason (Article 851 para. 6).
44. The Audiencia Nacional and the Supreme Court both comprise several divisions with specific jurisdictions (civil, criminal, administrative), each of which is in turn divided into three-judge sections if the number of judges allows. Members of each division are always available to replace fellow members, and the president of a division can be replaced by the presiding judge of a section or by the senior judge.
Section 648 of the Judicature Act 1870 (Ley orgánica del Poder Judicial) provides that where the judges designated to complete a section do not come from the Criminal Division, the parties must be informed of their identity at least twenty-four hours before the public hearing begins.
By the same section of the Act, no challenge may normally be made after the hearing has begun. Under Article 56 of the Code of Criminal Procedure, however, a challenge may be made at any stage of the proceedings but in no circumstances after the beginning of the oral stage unless on the ground of subsequent events. A judge may be challenged on the following legal grounds among others: that he is related by blood or marriage to one of the parties; that one of the parties has either lodged a complaint or brought a prosecution against him or once did so in the past; that the judge has himself lodged a complaint or brought a private prosecution against the person making the challenge, or once did so in the past; that he is involved in litigation with the person making the challenge; that he is or has been the guardian or ward of one of the parties or has had custody of him; that he has taken part in the proceedings as advocate, legal adviser, member of the public prosecutor’s office, expert, witness or investigating judge; that he has a direct or indirect interest in the proceedings; that he is a close friend or else obviously hostile (Article 54).
45. The Audiencia Nacional was given jurisdiction in terrorist cases on 4 January 1977 (Royal Legislative Decree no. 3/77). The court, which was created by legislative decree on the same date (no. 1/77), sits at Madrid and its criminal jurisdiction also extends to organised crime, business crime and offences whose effects reach beyond the territory of a single province. The judicial investigation of such offences is carried out by specialist judges (jueces centrales de instrucción).
46. At the time the applicants and Mr Martínez Vendrell were arrested, Law no. 56 of 4 December 1978 provided for a range of measures not permitted by the ordinary law in respect of terrorist acts committed by armed groups. This Law, which was originally intended to be in force for a year, was renewed by Royal Legislative Decree no. 19 of 23 November 1979.
Section 2 of the Law makes provision for holding people in police custody for up to ten days (instead of seventy-two hours). Furthermore, the judicial authority which has ordered detention can also order that the person concerned be held incommunicado for the length of time needed to complete the judicial investigation, without prejudice to the rights of the defence (same section). There are also special provisions on searches and the monitoring of correspondence, including communications by telegraph and telephone (section 3).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68690
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: O'CARROLL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Thomas Victor O'Carroll, is a United Kingdom national, who was born in 1945 and lives in Shildon.
The applicant was convicted at the Southwark Crown Court on 17 July 2002 of three counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to Section 170(2)(b) of the Customs and Excise Management Act 1979. Each count related to a photograph in an album which had been part of a consignment from Qatar addressed to the applicant in the United Kingdom. The applicant had signed a form declaring that he was not bringing in prohibited material in that way. Each photograph was of a young naked child, engaging in normal outdoor activity such as playing on a beach. The questions put to the jury in respect of each count were:
“Considering each count separately, has the prosecution made you sure that:
1. On 5 October 2001 the defendant knowingly brought into this country the photograph of the child that is the subject of the count?
2. The child is under 14 years of age?
3. The photograph is indecent?
[A photograph is indecent if in your judgment in offends against recognised standards of propriety]
4. The defendant deliberately failed to disclose his possession of the photograph because he believed that it was or might be indecent?
If the answers to all four questions are YES, the defendant is GUILTY. If the answer to any of the above questions is NO, the defendant is NOT GUILTY.”
The applicant was sentenced to nine months' imprisonment on 9 August 2002. On 11 October 2002 a single judge granted leave to appeal against sentence as it was arguable that the sentence was too long. Leave to appeal against conviction was refused, the judge considering that the trial judge's direction to the jury had been entirely satisfactory, and that the offence was sufficiently precisely defined so as to comply with the Article 7 of the Convention. In this latter respect he referred to Müller and Others v. Switzerland (judgment of 24 May 1988, Series A no. 133) and the domestic decision of R. v. Perrin ([2002] EWCA Crim 747).
The applicant's appeal against sentence was allowed by the Court of Appeal on 26 November 2002. No alternative sentence was passed, although the applicant was still required to register as a sex offender under the Sex Offences Act 1997.
A renewed application for leave to appeal against conviction was dismissed by the Court of Appeal on 29 July 2003. The Court of Appeal noted that:
“whereas counsel's advice and grounds of appeal are set out in fourteen paragraphs over five pages, those arguments put forward by the applicant himself extend to 94 paragraphs over 27 pages. He is a dedicated enthusiastic and well-researched apologist for what he sees as innocent and non-exploitative pleasure in viewing photographs of juvenile nakedness. He raises many philosophical, social and artistic arguments about that which we regard as irrelevant to the two legal questions for us:
(1) Was the conduct of the trial and the summing up correct?
(2) Are the convictions safe?”
The Court of Appeal dealt with the various grounds of appeal as follows:
- The Court of Appeal did not accept that the concept of “indecent” material was too vague to allow a citizen to conduct himself in knowledge of what the law was. It recalled that the test of whether an article was indecent was an objective one, and that the quality of indecency was to be determined by looking at the article alleged to be indecent, and nothing else. To require absolute certainty in advance as to whether an article was or was not indecent would set an impossible task which could only be met in the rare case in which a second set of proceedings was brought in respect of specific material already found to have been indecent.
- As to the ground of appeal that the judge was alleged to have dealt wrongly with the “context” of the photographs in that he had suggested that that was relevant to whether the photographs were indecent, and that he misdirected the jury that visibility of genitalia was a relevant consideration in determining whether the material was indecent, the Court of Appeal referred to the questions which the judge had put to the jury, in which he had stated that a photograph was indecent if it offended “against recognized standards of propriety”. As to context, the trial judge had said:
“... here what you should do is to ignore context. Forget about context. Just look at the photographs of these young children, ignoring any context, and ask yourselves the question: Are they decent or indecent? The real question is ...: Are we sure they are indecent?”
The Court of Appeal added that the extent of the display of genitalia was a factor which one could expect to be considered by the jury, and the judge's reference to it was not surprising.
- As to the ground of appeal that in using the four questions put to the jury, the judge had reduced the statutory requirement of “knowingly” being concerned in importation to a belief that the photograph was or may have been indecent, the Court of Appeal considered that the statutory requirement of “knowledge” was met by the fourth question.
- As to the ground of appeal that the applicant had been denied the right to silence because the judge had instructed the jury that they could draw adverse inferences from the fact that applicant had not given evidence, the Court of Appeal noted that the judge's direction under Section 35 of the Criminal Justice and Public Order Act 1994 had been absolutely orthodox. The defence had asked the judge to rule in advance that if the applicant gave evidence he could not be cross-examined about a number of matters, in particular matters which would reveal his general attitude to the “philosophical, social and artistic arguments” referred to above, and which could colour the jury's determination of the fourth question. To this, the Court of Appeal replied that the judge was wise to refuse to make any such ruling, as if he had done so, he would have given carte blanche to the defence “to give the sort of proselytising combative assertions which we find in the grounds of appeal through the defendant's evidence”
According to Section 170(2) of the Customs and Excise Management Act:
"Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion –
...
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment;
...
he shall be guilty of an offence under this section and may be arrested."
As the House of Lords found in the case of R. v Forbes ([2001] UKHL 40):
“This provision extends to all cases involving the evasion or attempted evasion of a prohibition or restriction. It requires proof by the prosecutor of two things. First he must prove that the goods in question were the subject of a prohibition or restriction under or by virtue of any enactment which was in force at the time of the evasion or attempt at evasion. This is an essential element in any prosecution, but its proof in many cases is likely to be a formality. In the present case the fact that the video cassettes contained indecent photographs of children, which is prohibited indecent material, was agreed between the defendant and the prosecutor. The second thing which the prosecutor must prove is that the defendant was knowingly concerned in a fraudulent evasion or attempt at evasion of the prohibition or restriction.”
A number of provisions create prohibitions on indecent photographs, including Section 1 of the Obscene Publications Act 1959 (obscene publications), Section 1 of the Protection of Children Act 1978 (indecent photographs of a child under the age of sixteen) and Section 42 of the Customs Consolidation Act 1876 (indecent photographs).
Section 35 of the Criminal Justice and Public Order Act 1994 provides, so far as relevant, as follows:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
The applicant complained under Article 7 of the Convention that domestic law is not sufficiently precise to enable an individual to know in advance whether his conduct is criminal.
He also complained under Article 6 that the trial was unfair for the same grounds as made in his appeal against conviction, that his appeal was refused in an ill-considered way, in particular that his grounds of appeal entitled “misdirection on standard of proof” and “infringement of right to silence” were not properly dealt with.