ITEMID: 001-92246
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EGELAND AND HANSEID v. NORWAY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants were born in 1951 and 1943, respectively. The first applicant lives in Bekkestua, near Oslo, and the second applicant lives in Oslo. At the material time, the first applicant was the Editor in Chief of Dagbladet and the second applicant was the Editor in Chief of Aftenposten, two major national newspapers in Norway.
6. The present case has its background in the same case-complex as a previous application, P4 Radio Hele Norge ASA v. Norway ((dec.), no. 76682/01, ECHR 2003VI). Like the latter, it concerns a complaint under Article 10 of the Convention about restrictions on media coverage of a major criminal trial, in this case concerning charges against four persons of triple murder, the so-called Orderud case, which took place before the Nes District Court (herredsrett) from 18 April to 15 June 2001. This was probably the most spectacular and media-focused criminal case in Norwegian history. The trial involved a son (A) and his wife (B), the wife’s half-sister (C) and a friend of the latter (D), who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and pictures were transmitted live and shown on a television screen. On 6 May 2003 a Chamber of the former Third Section declared inadmissible as being manifestly ill-founded P4’s complaint that a refusal by the District Court, under section 131A of the Administration of Courts Act 1915 (domstolloven- hereinafter “the 1995 Act”), to grant its application for radio broadcasting directly from the court hearing room violated Article 10 of the Convention.
7. The case under consideration concerns restrictions on the publication by the press of photographs taken of B without her consent outside the court house while leaving, shortly after having attended the District Court’s delivery of its judgment of 22 June 2001, convicting A, B and C of the charges and sentencing each of them to 21 years’ imprisonment and sentencing D to 2½ years’ imprisonment.
8. The delivery of the District Court’s judgment was broadcast live on TV by two leading national broadcasting companies, the NRK and the TV2. The broadcast did not contain any pictures of B.
9. In the proceedings summarised here below, the Supreme Court (in paragraph 12 of its judgment), relying on the District Court findings, described the circumstances in which the photographing of B had taken place as follows:
"The District Court has established as a fact that during the reading out of the judgment B realised that she would be found guilty, and that she suffered a physical reaction in the form of nausea. Because of this she went to the toilet, together with one of her defence counsels, Ms Y, Advokat. Thereafter she entered a side room, where she cried and was in deep despair. Shortly afterwards she was notified that she had been rearrested, to be remanded in custody. The rumour had spread, and a large number of photojournalists were waiting outside the community hall. B left the building 20-30 minutes after the judgment had been pronounced, together with defence counsel, Ms Y, accompanied by a plain-clothes police officer who walked a few metres behind them. On the way to the unmarked police car, which was parked 20-30 metres from the exit, she was photographed a number of times...”
10. On 22 June 2001 Dagbladet published and extra edition featuring a photograph covering two thirds of a page, showing B, holding a handkerchief to her face, and her lawyer Y, taken in a side angle from behind. The picture was part of an article, entitled “The farm dispute led to homicide”. An article underneath was entitled “Tense atmosphere before verdict”. The caption stated “Arrested: [B] was this morning sentenced to 21 years of prison. Here, while crying, she is guided out of the premises by her lawyer [Y]”.
11. On 23 June 2001 Dagbladet published a smaller photograph showing B seated inside an unmarked police car. The picture is part of an article entitled “Broken”, with an accompanying text: “The heavy trip, [B] is lead out of the [court house] and taken to Lillestrøm police station.”
12. On 23 June 2001 Aftenposten published a photograph covering one fifth of a page, showing B crying outside the court house, taken from the front holding a handkerchief, while her lawyer Y walks next to her and makes a deprecating gesture toward the photographer. A person walks behind, identified as a plain clothes police officer. Underneath the caption states: “21 years. [B] has realised it now – that freedom will not be the outcome. She is supported on the way out by defence counsel Y.” The picture appeared next to an article entitled “Firm, clear – and appealed”, commenting on the judgment. Below on the same page featured another article entitled: “The words are merciless- they fall like needles against the dense silence. Twisting around”. This photograph had been purchased and published by a number of newspapers throughout the country.
13. In the above-mentioned issues Dagbladet and Aftenposten reported on the District Court’s judgment and on the arrest. The prospects of arrests in the event of conviction had been an issue of discussion in the above newspapers during the weeks before.
14. B had not given her consent for photographs to be taken of her; on the contrary her lawyer Y attempted to prevent it. The authorisation to broadcast the delivery of the judgment had only concerned the reading out of the judgment as such.
15. On 6 July 2001 B’s defence lawyer, F.S., reported the applicants and three of the photographers to the police for violation of section 131A of the 1915 Act, which led to charges being brought against them.
16. On 15 October 2003 the Nedre Romerike District Court acquitted the defendants of the charges, giving inter alia the following reasons:
“The District Court underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited, as is the publication of such images, but that the prohibition will not apply where entirely special considerations so indicate.
In the assessment of the District Court such entirely special and weighty considerations are present in this case. In this regard the District Court notes that [B] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband. As has already been noted, this crime, the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public. A further point for the Court is that [B]’s identity had since long been revealed. Photographs of her had appeared in all the country’s newspapers numerous times during the course of the investigation and in connection with the trial hearing before Nes District Court. During the period prior to the trial in the District Court, [B] had rarely consented to being photographed. Nevertheless, the press took a number of photographs of her without her knowledge. However, the situation was different during the almost eight week long trial. According to the information provided, [B] and her husband had consented to being photographed once per week during the trial. The photographs taken during these photo sessions appeared almost daily in the country’s biggest newspapers and on various television channels. The issue of protection against identification through photographs was accordingly not an argument in this case. ...
...
A key consideration underlying the prohibition against the taking of photographs in section 131A is to protect the accused or convicted person against portrayal in situations in which their self-control is reduced. In this case [B] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock. On the other hand, the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until 25-30 minutes after the end of the court hearing at which the judgment was delivered. In the meantime she had had the opportunity to compose herself in a side room to the hearing room, in the presence of her two defence counsel and members of her family.
In the assessment of the District Court it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to Article 10 § 2 of the ... Convention ... . However, the court views this in the context of the fact that an arrest situation must be said to have existed at the time. [A], [B] and [C] were all arrested by the police during the minutes following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel. Two of the photographs that formed the basis for the penalty charge notices in this case depict [B] as she crosses the 20 - 30 metres between the court premises and the police car that would take her to the police station in Lillestrøm. The third photograph depicts her seated inside the unmarked police vehicle. It is clear that the issue of arrest had been discussed in a number of mass media during the days preceding the pronouncement of judgment. There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before the High Court that most people expected would come, whatever the outcome in the District Court. As noted earlier, the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation. This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that three of the convicted persons had been rearrested. Based on the information on the case presented before the District Court it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested.
An arrest of this nature must be regarded as a new situation in terms of fact and law. This was an event that was awaited with considerable interest by the media and the general public. Interestingly, in the wake of the arrest, there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not. The District Court regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images. In the assessment of the District Court the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises. Aftenposten’s feature on 23 June 2001 states on the front page, on which [B] is shown being escorted into the prison building, that an arrest took place immediately after judgment had been pronounced. The arrest is also described in detail in the extra edition of Dagbladet on 22 June 2001. The Court’s assessment of the photographs concerned by the penalty charge notices [foreleggene] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest.
As a general rule there is no prohibition against taking photographs of arrest situations. Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain-clothes officers and unmarked police vehicles, the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion. The three defendants who, prior to the trial before Nes District Court, had been at liberty for over a year were immediately arrested and subsequently remanded in custody. As a result of subsequent developments in the case, these three have not been out of prison since their arrest on 22 June 2001.
The District Court accordingly finds having assessed the circumstances as a whole, that entirely special considerations are present such that the prohibition against the taking of photographs in section 131A of the 1915 Act cannot entail criminal liability for the journalists and editors charged in this case. All five defendants will accordingly be acquitted.”
17. The Public Prosecutor appealed against the applicants’ acquittal (not that of the photographers) directly to the Supreme Court.
18. By a judgment of 23 March 2004 the Supreme Court convicted the applicants of having published the impugned photographs in violation of sections 131A and 198 (3) of the 1915 Act and sentenced each of them to pay NOK 10,000 in fines, failing which the fines were to be converted into 15 days’ imprisonment. The Supreme Court rejected a claim by B for compensation of non-pecuniary damage. Its reasoning, stated by Mrs Justice Stabel and joined in the main by the other members of the formation, included the following:
“(13) The District Court held that B had not given her consent to being photographed. On the contrary, Y made active attempts on her behalf to prevent the taking of photographs. I find in addition that the consent that the District Court gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment. It is in any event clear that the authority of the Court to grant an exemption from the prohibition against the taking of photographs in section 131A(2) of the 1915 Act applies only during the trial itself. This provision will accordingly not apply in our case.
(14) The question in this case is whether it constituted a breach of section 131A of the 1915 Act and thus a criminal offence pursuant to its section 198 (3) to publish photographs of a weeping B, distraught and dissolved in tears, leaving the court premises having been convicted of aiding and abetting in a triple homicide. If this question were to be answered in the affirmative, a further question would arise as to whether the enforcement of the prohibition would be contrary to ... Article 10 of the Convention, cf. section 3 of the Human Rights Act. ...
(15) It is the second sentence [of section 131A(1)] that is of interest in our case. ...
(16) The question is: What restrictions will follow from the phrase ‘on his or her way to, or from, the hearing’. I agree with the District Court that the restrictions on the taking of photographs will apply only ‘in the immediate vicinity of the court premises, i.e. normally up to the car parking area, and that the special protection that follows from section 131A will not apply after the accused has driven away from the court premises’. The District Court concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle. I agree with this. I also agree with the District Court that the fact that she was under arrest at the time does not render the provision inapplicable.
(17) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section 131A .... I must therefore examine whether ... Article 10 of the Convention would nevertheless lead to a different outcome.
(18) On the subject of the general balancing of interests I refer to the discussion in Supreme Court’s judgment in the Valebrokk case (2003)... . The Supreme Court held by three votes to two that the filming by TV2 of one of the convicted persons following the pronouncement of judgment in the Baneheia case did not constitute a punishable offence. The majority found, with the support of the minority, that the general rule must be that the taking of photographs in the courtroom was prohibited, including after the court had adjourned, but that this restriction would not apply ‘where entirely special considerations suggest that the taking and publishing of photographs must be permitted’.
(19) The majority held that the purpose of the prohibition was to protect the ‘reputation or rights’ of the accused or convicted person, and that accordingly the Act pursued a legitimate aim. Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to Article 10 § 1, it ought to be considered whether the interference nevertheless was necessary in a democratic society according to Article 10 § 2. The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom, both during the hearing itself and in immediate connection with the hearings. The majority noted that most countries had prohibitions against the taking of photographs, although the scope and wording varies. By way of conclusion, paragraph 62 noted that:
‘The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned, and a prohibition against the publication of the photographs, although the prohibition will not apply if warranted by entirely special considerations. The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs. It is of course true that a rule with certain limitations will be less absolute. Even so, a rule of this nature will not give the news media a ‘free hand’ to take and publish photographs when deemed expedient. The prohibition against the taking of photographs is supported by weighty and genuine considerations, not least in the situation immediately after the pronouncement of a judgment. Accordingly, in such a situation, strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display.’
(20) The view that the prohibition against the taking of photographs does not violate Article 10 would appear to be supported by the inadmissibility decision of 6 May 2003 rendered by the European Court in P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003VI. ...
(21) The European Court found the application to be ’manifestly ill-founded’. The Court held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in Article 10 § 1. Nevertheless, the Court held that there was no common ground in the legal systems of the Contracting States with regard to radio and television transmission from court proceedings. The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways. Moreover ... the Court held:
‘Depending on the circumstances, live broadcasting of sound and pictures from a court hearing room may alter its characteristics, generate additional pressure on those involved in the trial and, even, unduly influence the manner in which they behave and hence prejudice the fair administration of justice. ...’
(22) The Court also held that the national authorities, particularly the courts, were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the ’fair administration of justice’. By way of conclusion the Court noted that on this point the Contracting States must enjoy a ’wide margin of appreciation’. Thus the general rule provided for in section 131A of the Administration of Courts Act, which applies equally to broadcasting and the taking of photographs, was not found to be problematic in relation to Article 10 of the Convention.
(23) ...It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing ‘fair administration of justice’ is relatively broad.
(24) The opinions expressed in this decision must also have a bearing in relation to section 131A(1), second sentence, of the 1915 Act. The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by the Director General of Public Prosecutions:
-Protection against identification through the taking of photographs.
- Protection against portrayal in photographs in situations in which the subject’s control is reduced.
- The safeguarding of one of the fundamental requirements for due process of law, namely that it should inspire trust and show consideration towards the persons involved. An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden.
- The need to protect the dignity and reputation of the courts. Since in general it is the courts that require the presence of the accused, which of itself may be burdensome, it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment. A failure to do so will affect not only the accused person him or herself, but also the court, which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court premises.
(25) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process. Although the need to safeguard the openness of proceedings, including satisfactory opportunities for an active and alert press, is a central consideration, this means that a balancing of interests must be conducted. The legislators conducted this balancing of interests with the introduction of section 131A of the 1915 Act, and the penal provision in section 19(3), in connection with the enactment of the Criminal Procedure Act of 22 May 1981 nr. 25. It is apparent from the legislative history that the background to this was that the existing legislation, including the Photography Act of 1960, was not found to afford the accused and convicted persons sufficient protection against being treated as ‘fair game’ by the press, particularly in cases of major interest to the public.
(26) I should add that the provision has not been regarded as a problem in relation to Article 10 of the Convention. Doubt on this point has mainly attached to other aspects of the new Article 390C of the Criminal Code, which was enacted with the legislative change of 4 June 1999 nr. 37, but which has not yet entered into force. This provision entails an extension of the prohibition against the taking of photographs, inter alia in relation to suspected persons in the custody of the police. Given the position of our case, I will not discuss this in further detail.
(27) Accordingly I will now move on to consider whether in our case there exist entirely special considerations, see the Valebrokk ruling, according to which the prohibition against the taking of photographs must yield to the freedom of expression. In paragraph 63 of the judgment in that case (HR-2003-00037a-A63) the majority attached weight to the fact that the case - the harrowing child killings in Baneheia - had attracted extensive public interest and that the identity of the convicted person was known. It was also noted that the photographs might reveal something significant - in a negative sense - about his personality. The decisive point, however, which was discussed in paragraph 64, was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel. This was viewed as information which the public had a right to receive in such a case.
(28) Applied to our case it is clear that the Orderud case, too, was horrifying and was the subject of enormous public interest. Moreover, B’s identity was already widely known when the photographs were taken. However, the photographs of B were in my view of an entirely different nature. The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances. She was in a situation in which she had reduced control, in immediate connection with her conviction by the District Court - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect. The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them.
(29) The decisive point as regards the District Court’s acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law. According to the District Court the arrest was an event that it was legitimate for the mass media to cover, including with the aid of photographs. In my view there are no grounds for maintaining that the arrest meant that ‘entirely special considerations’ applied. An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the Orderud case, in which the accused persons had been at liberty throughout the trial. Moreover, I cannot conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation. As long as the photographs do not show something entirely special, for example relating to the procedures of the police during the arrest itself, the protection must in my view remain the same.
(30) [The applicants’] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case, gave the media a right and a duty to inform, even if this was contrary to the interests of the convicted persons. Moreover, in today’s media-based society this information would not be complete without photographs, which suggested that the scope of the prohibition against the taking of photographs should be limited. In my view the protection afforded to the convicted person pursuant to section 131A of the 1915 Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes. In practice, persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified. Nevertheless, the other considerations justifying the prohibition against the taking of photographs will be present, frequently to a greater degree than in the case of other convicted persons.
(31) ...
(32) I have accordingly concluded that the District Court’s acquittal is not based on a correct application of the law. The case has been sufficiently elucidated for the Supreme Court to render a new judgment, cf. Section 345 second paragraph of the Criminal Procedure Act. The Defendants have not objected to this. I find that [the applicants] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution, a fine of NOK 10,000, in the alternative a prison sentence of 15 days, is appropriate for both parties.
(33) I will conclude by considering the criminal injuries compensation claim.
(34) B has filed a claim for damages for non-pecuniary loss, not to exceed NOK 50,000, from each of the accused. She submits that given their convictions for breaches of sections 131A and 198(3) of the 1915 Act, the preconditions for awarding damages pursuant to section 3-6(1), last sentence, of the Damage Compensation Act will also have been met. I agree that this may frequently be the case. However, I will not consider this further since this involves a ‘may’ provision and I do not find that there are sufficient grounds to award economic compensation in this case.
(35) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment. Moreover it is clear from B’s testimony that she was not even aware that the photographs had been taken. The violation lies solely in the publication of the photographs, which were not particularly conspicuous in relation to what had been published about her otherwise. This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process. Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages.”
19. Section 131A, as in force at the material time, of the Administration of Courts Act 1915 (domstolloven) provided:
“During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent.
If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.”
20. Section 198(3) provided that the taking of photos or recordings made in breach of section 131A is punishable by the imposition of fines.
21. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies) contains the following principle of particular interest to the present case:
“Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-86655
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZAJC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants are Slovenian nationals who live in Slovenia. The first four applicants, Mr Zajc, Mr Podlogar, Mr Hohkraut and Mr Januš were represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. The fifth applicant, Mr Rozman, was not represented by a lawyer. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants were parties to civil proceedings which terminated before 1 January 2007. The relevant length of each of the proceedings is indicated in the attached table.
4. On 20 and 22 February 2007, 21 May 2007 and 11 September 2007 the respondent Government were given notice of the present applications.
5. On the dates indicated in the table the State Attorney’s Office sent settlement proposals to the applicants under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposals, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in respect of non-pecuniary damage and reimbursement of the costs and expenses connected with the case, if claimed, to each applicant (see the attached table).
6. Subsequently, each of the applicants informed the State Attorney’s Office that they were not willing to accept the proposals as the sums offered were too low. At the same time, they set out their proposals with a view to securing settlements.
7. No settlements have been reached so far.
8. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Project” the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which has been implemented since 1 January 2007.
9. Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
10. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction”:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
“....
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.”
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros.
“...
(3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office.
...
(6) Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.
(7) Appeal on points of law shall be excluded for disputes on damage under this Act.”
“...
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
...”
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”
11. Section 27 of the amended Personal Income Tax Act (Zakon o dohodnini, Official Journal No. 117/06), which entered into force on 1 January 2007, provides that monetary compensation for non-pecuniary damage received in accordance with the 2006 Act is exempt from personal income tax (dohodnina).


ITEMID: 001-91893
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NIKOLENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1967 and lives in Armavir, a town in Armenia.
5. A warrant officer of the Russian Border Guard Service (“Service”), she serves in a unit stationed in Armenia.
6. In June 2000 the applicant requested an early discharge because of structural changes in her service. Under domestic law, long-serving personnel in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that she wished to receive the housing.
7. As no housing was provided, in November 2003 the applicant sued the Director of the Service for provision of housing and an early discharge. On behalf of the defendant the trial was attended by X, a major of military justice acting on the basis of a power of attorney. X accepted the applicant’s claim and on 15 March 2004 the Fifth Garrison Military Court ordered the Director to provide the applicant’s family with housing in Moscow and to discharge her. This judgment became enforceable immediately, but was not enforced.
8. In July 2004 the Bailiff’s Service investigated the applicant’s allegation that the delayed enforcement constituted an offence under section 315 of the Criminal Code (ignoring judgments), but found that the Director had no case to answer.
9. On the Director’s request, on 18 January 2005 the Presidium of the North-Caucasian Military Court quashed the judgment on supervisory review and ordered a rehearing. The Presidium justified the quashing with four reasons.
First, the judgment had been based solely on the defendant’s acceptance of the claim and had not explored whether the claim as such had been lawful and compatible with third parties’ interests.
Second, X had not been duly authorised by the defendant proper, i.e. by the Director; he was authorised by the Service’s local branch only.
Third, the acceptance of the claim had not been formally recorded.
Fourth, the Garrison Court had misevaluated facts and material law.
10. After the rehearing, on 1 June 2006 the Garrison Court ordered the Director to provide the applicant’s family with housing in Moscow by means of a first-priority queue (в первоочередном порядке). The court dismissed the applicant’s claim for discharge because this matter was within the authority of her unit, not that of the Director. This judgment became binding on 25 October 2006.
11. To enforce the judgment, in November 2006 the logistics department of the Service sent to the applicant’s unit a list of documents necessary for putting her in the queue. In February 2007 the unit provided a part of these documents. In May 2007 the logistics department reminded the applicant that to complete her file she had to provide further documents, among them an extract from the register of tenants, her children’s birth certificates, and proof of entitlement to privileges. In September 2007 the applicant completed the file, and on 2 November 2007 the housing commission of the Service put the applicant’s family in the first-priority housing queue.
12. Under section 23 § 1 of the Federal Law on the Status of Servicemen, servicemen who have served ten years and more and whose housing needs to be improved, cannot be discharged against their will without the provision of such housing.
13. According to the Ruling of the Constitutional Court 322-O of 30 September 2004, after expiry of a serviceman’s contract and in the absence of his written agreement to discharge without provision of housing, he should be considered as serving voluntarily only until the provision of housing.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-90781
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AL-KHAWAJA AND TAHERY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1956 and lives in Brighton.
8. While working as a consultant physician in the field of rehabilitative medicine, the applicant was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. One of the complainants, S.T., committed suicide (taken to be unrelated to the assault) before the trial but, several months after the alleged assault, had made a statement to the police.
9. On 22 March 2004, a preliminary hearing was held to determine whether S.T.'s statement should be read to the jury. The judge stated that the contents of the statement were crucial to the prosecution on count one as there was no other direct evidence of what took place; “putting it bluntly, no statement, no count one.” The defence accepted that if the statement was read to the jury at trial they would be in a position to rebut it through the cross-examination of other witnesses and expose inconsistencies in their evidence. The judge considered that this represented a route by which S.T.'s statement and/or her credibility could be challenged; however, he went on to underline the importance of the need for the trial judge to give directions to the jury as to the status of the evidence. The judge allowed the evidence to be admitted at trial.
10. The jury heard evidence from a number of different witnesses and the defence were given the opportunity to cross-examine other witnesses who had produced similar fact evidence, including the second complainant who had produced supportive evidence. In his summing up, the trial judge directed the members of the jury, on two separate occasions, as to how they should regard the read statement of the deceased complainant. The judge stated in his summing up:
“It is very important that you [the jury] bear in mind when considering her [S.T.'s] evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence cross-examined [by applicant's counsel], who would undoubtedly have had a number of questions to put to her.”
11. The judge later stated:
“...bear in mind...that this evidence was read to you. The allegation is completely denied...you must take that into account when considering her evidence.”
On three occasions the jury asked for clarification of points raised in the read statement of S.T.
12. The applicant was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15 month custodial sentence on the first count and a 12 month custodial sentence on the second count, to run consecutively.
13. The applicant appealed against his conviction to the Court of Appeal. The appeal centred on the pre-trial ruling to admit S.T.'s statement as evidence. It was also submitted that, in his summing up, the trial judge did not give adequate directions to the jury as to the consequential disadvantage of this evidence to the applicant.
14. On 6 September 2005 the appeal was dismissed. The Court of Appeal concluded on 3 November 2005 that the applicant's right to a fair trial had not been infringed. With regard to the admission in evidence of the statement of the deceased complainant, the court held that it was not necessarily incompatible with Article 6 §§ 1 and 3 (d). Relying on Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996II p 66, the court held that admissibility of evidence is primarily a matter of domestic law. It then found:
“Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick [see relevant domestic law below] we do not consider that the case law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6(3)(d) that a person charged shall be able to [have] the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is 'whether the proceedings as a whole, including the way the evidence was taken, were fair' – Doorson, paragraph 19. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph.”
15. The court also considered that the applicant had been able to attack the accuracy of the deceased complainant's statement by exploring the inconsistencies between it and the evidence given by witnesses and experts. Turning to the issue of the trial judge's summing up, the court stated:
“We consider that it would have been better if the judge had stated explicitly that the appellant was potentially disadvantaged by the absence of [S.T.] and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of [S.T.'s] statement being in evidence in her absence, and that this is not a factor which might make the appellant's trial unfair and in breach of Article 6. We should also say that overall the evidence against the appellant was very strong. We were wholly unpersuaded that the verdicts were unsafe.”
16. The Court of Appeal refused leave to appeal to the House of Lords but certified that a point of law of general public importance was involved in the decision.
17. On 30 November 2005 the applicant petitioned the House of Lords on the point of law certified by the Court of Appeal. On 7 February 2005 the House of Lords refused the petition.
18. The applicant was born in 1975. On 19 May 2004 he was involved in a fight with S. during which it is alleged that the applicant stabbed S. three times in the back. The applicant was charged with wounding with intent and also with attempting to pervert the course of justice by telling the police that he had seen two black men stab S. When witnesses were questioned at the scene, no-one claimed to have seen the applicant stab S. Two days later, however, one of the witnesses, T., made a statement to police that he had seen the applicant stab S. In S.'s statement to the police, it is clear that he did not see who stabbed him. Both S. and T. were members of the Iranian community in London.
19. On 25 April 2005 the applicant's trial began at Blackfriars Crown Court. On 26 April (the second day of trial) the prosecution made an application for leave to read T.'s statement pursuant to section 116(2) (e) and (4) of the Criminal Justice Act 2003 (the “CJA 2003”). The prosecution argued under the CJA 2003 that T. was too fearful to attend trial before the jury and that he should qualify for special measures. The trial judge heard evidence from a police officer conducting the case who testified that the Iranian community was close-knit and that T.'s fear was genuine. The trial judge also heard evidence from T. himself who gave evidence to the judge from behind a screen. In ruling that leave should be given for the statement to be read to the jury, the trial judge stated:
“I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear; and I base that not only on his oral testimony, but also upon my opportunity while he was in the witness box to observe him. I therefore have to look, having looked at the contents of the statement, to any risk its admission or exclusion will result in unfairness to any party to the proceedings. I am satisfied that there would be an unfairness caused by its exclusion; but I am equally satisfied that no unfairness would be caused by its admission. And in doing so, I have taken into account the words of the statute [Section 116 (2)(e) of the Criminal Justice Act 2003, see relevant domestic law below]; in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence. Challenge of a statement does not always come from cross-examination. Challenge of a statement can be caused by evidence given in rebuttal; by either the defendant, if he chooses to do so, or by any other bystander – and we know that there were some – who were on the street at that time. Consequently I am satisfied that the defendant's evidence, if he chooses to give it, would be sufficient to rebut and to challenge the evidence that is contained in that statement. I have further considered other relevant factors, and I have also offered to the witness whilst he was in the witness box behind screens the possibility of him giving evidence with the same special measures in place. He told me his position would not change; that he could not give evidence before a jury, and the reason that he could not was because he was in fear. Having taken all those matters into account in those circumstances, I am satisfied that this is the type of case which Parliament envisaged might require a statement to be read.”
20. T.'s witness statement was then read to the jury in his absence. The applicant also gave evidence. The judge, in his summing up, warned the jury about the danger of relying on the evidence of T. He stated:
“That evidence, as you know, was read to you under the provisions that allow a witness who is frightened, it is not a question of nerves it is a question of fright, fear, for his statement to be read to you but you must be careful as to how you treat it. It is right, as has been pointed out by the defence, that they were deprived of an opportunity to test that evidence under cross-examination. It is right also that you did not have the advantage of seeing the witness and his demeanour in Court...You must ask yourselves 'can we rely upon this statement? Is it a statement which we find convincing?' It is only if you are satisfied so that you are sure that what is in the statement has accurately depicted what happened that night and what the witness saw, that you could rely upon it. That goes for any witness. It is only if you find that the evidence is compelling and satisfies you so that you are sure that you act upon it. So you must always ask yourselves 'is the statement he made reliable?' You must bear in mind also, importantly, that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear.”
On 29 April 2005, the applicant was convicted by a majority verdict, principally of wounding with intent to cause grievous bodily harm, and later sentenced to nine years' imprisonment to be served concurrently with a term of fifteen months' imprisonment for doing an act intended to pervert the course of justice.
21. The applicant's appeal was referred directly before the full Court of Appeal. The applicant argued that the inability to cross-examine T. infringed his right to a fair trial. The appeal judges were satisfied that if they were to refuse leave, under the CJA 2003, to have T.'s statement read at trial there would be unfairness to the prosecution and that, were they to grant it, there would be no unfairness to the applicant. The Court of Appeal acknowledged, however, that the Crown accepted that T.'s statement was “both important and probative of a major issue in the case...and had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced.” The court upheld the reasoning at first instance, stating that there was available not only cross-examination of other prosecution witnesses but also evidence from the applicant himself and the potential for evidence from other bystanders in order to prevent unfairness. It was also stated that the trial judge had explicitly warned the jury in detail as to how they should treat this evidence and properly directed them as to how they should consider it in reaching their verdict. Although the applicant maintained that even a proper direction by the judge could not cure the unfairness, the Court of Appeal held that the jury was informed of all matters necessary to its decision-making process. The applicant's sentence was reduced to seven years' imprisonment.
Leave to appeal on conviction was refused on 24 January 2006.
22. At the time of the trial judge's ruling and the trial in Mr Al-Khawaja's case, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. Section 23 of the 1988 Act provides for the admission of first hand documentary hearsay in a criminal trial:
“23.—...a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if—
(2)(a) the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness...
25.—(1) If, having regard to all the circumstances—
(a) the Crown Court—
(i) on a trial on indictment;
(ii) on an appeal from a magistrates' court; or
(iii) on the hearing of an application under section 6 of the [1987 c. 38.] Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates' court to Crown Court); or
(b) the criminal division of the Court of Appeal; or
(c) a magistrates' court on a trial of an information,
is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard—
(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.”
23. The following legislative provisions of the Criminal Justice Act 2003 were drafted as a means to tackle crime by providing special measures to protect witnesses who have a genuine fear of intimidation and repercussions. The Act entered into force in April 2005.
24. Section 116 (2)(e) of the Criminal Justice Act 2003 (cases where a witness is unavailable) states that:
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if...through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”
Section 116 (4) states:
“Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-
(a) to the statement's contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence) ...
(d) to any other relevant circumstances.”
25. This Court's judgment in Lucà v. Italy, no. 33354/96, § 40, ECHR 2001II was considered by the Court of Appeal in R. v. Sellick and Sellick [2005] EWCA Crim 651, which concerned two defendants who were alleged to have intimidated witnesses. Leave was given by the trial judge to have the witnesses' statements read to the jury. The defendants appealed on the ground that the admission of the statements breached Article 6 § 1 read with 3 (d) of the Convention. The Court of Appeal dismissed the appeal. In considering the relevant case-law of this Court, at paragraph 50 of its judgment, it stated that what appeared from that case-law were the following propositions:
“i) The admissibility of evidence is primarily for the national law;
ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;
iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.
iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”
The Court of Appeal then stated:
“The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.”
VIOLATED_ARTICLES: 6


ITEMID: 001-58800
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF I.J.L., G.M.R. AND A.K.P. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 as regards the use made at the applicants' trial of transcripts of their interviews;No violation of Art. 6-1 as regards alleged improper collusion;No violation of Art. 6-1 as regards alleged non-disclosure by the prosecution;No violation of Art. 6-1 as regards the length of the proceedings;No separate issue under Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - reserved
JUDGES: Nicolas Bratza
TEXT: 8. In early 1986 Guinness was competing with another public company, Argyll Group PLC (“Argyll”), to take over a third public company, the Distillers Company PLC (“Distillers”). The takeover battle resulted in victory for Guinness. Guinness's offer to the Distillers' shareholders, like Argyll's, included a substantial share exchange element and, accordingly, the respective prices at which Guinness and Argyll shares were quoted on the stock exchange was a critical factor for both sides. During the course of the bid the Guinness share price rose dramatically, but once the bid had been declared unconditional it fell significantly. According to the third applicant the share price rose in line with the range of the company's market sector and the fall was a consequence of normal market forces.
9. There were allegations and rumours of misconduct during the bid to the effect that the substantial increase in the quoted Guinness share price during the bid had been achieved as a result of an unlawful share-support operation. This involved certain persons (“supporters”) purchasing Guinness shares in order to maintain or inflate its quoted share price. It was alleged that supporters were offered secret indemnities against any losses they might incur and, in some cases, also large success fees if the Guinness's bid was successful. Such inducements, if true, would have been unlawful (1) because they were not disclosed to the market under the City Code on Takeovers and Mergers and (2) because they were paid out of Guinness' own monies in breach of section 151 of the Companies Act 1985 (the “1985 Act”), which prohibits a company from giving financial assistance for the purpose of the acquisition of its own shares.
10. It was further alleged that supporters who had purchased shares under the unlawful share-support operation were indemnified and rewarded, and that some of those who had helped find supporters were rewarded by the payment of large fees which had also come from Guinness funds. It was rumoured that in most cases payments were made using false invoices which concealed the fact that payment was being made in respect of the supporters' or other recipients' participation in the unlawful share-support operation.
11. These allegations and rumours led the Secretary of State for Trade and Industry on 28 November 1986 to appoint inspectors pursuant to sections 432 and 442 of the 1985 Act to inquire into the acquisition of Distillers by Guinness and to investigate the affairs of Guinness.
12. The investigation began on 1 December 1986. On 10 December 1986 the inspectors began taking oral evidence. Mr Seelig, a director of the merchant bank advisers to Guinness, was the first witness.
13. On 18 December 1986 the inspectors requested the second applicant to provide documents relating to his company's dealings in the shares of Guinness during the takeover bid. The second applicant's solicitor provided the materials on 24 December 1986, which indicated that his company had been approached by the third applicant about supporting the Guinness takeover bid.
14. On 12 January 1987 the inspectors informed the Department of Trade and Industry (DTI) of certain matters and, on 13 January 1987, a note from the DTI solicitor recorded that there was concrete evidence of criminal offences having been committed. On the same day the DTI contacted Mr John Wood of the Director of Public Prosecutions' office (DPP). It was decided that the proper thing to do was to permit the inspectors to carry on with their inquiry and to pass the transcripts on to the Crown Prosecution Service (CPS) which had come into being in September 1986. All the applicants maintain that they were unaware of these arrangements when they were interviewed by the inspectors.
15. On 14 January 1987 the Chairman of Guinness, Mr Saunders, was dismissed from the company.
16. On 29 January 1987 the Secretary of State required the inspectors to inform him of any matters coming to their knowledge as a result of their investigation pursuant to section 437(1A) of the 1985 Act. Thereafter the inspectors passed on to the Secretary of State transcripts of their hearings and other documentary material which came into their possession. The applicants point to official documentation which in their view confirms the collusion which began to take shape.
17. On 30 January 1987 a meeting was held attended by the inspectors, the solicitor and other officials of the DTI, Mr Wood and a representative from the CPS. Among other matters, potential accused were identified, possible charges were discussed and it was stated that a decision had to be made as to when to start a criminal investigation. All concerned agreed on the need to work closely together in preparing the way for bringing charges as soon as possible. The inspectors indicated their readiness to cooperate, although they reserved the right to conduct their investigations as they thought right. The applicants maintain that they were never notified of these arrangements during their respective interviews.
18. On 5 February 1987 Mr Wood, who had been appointed head of legal services at the CPS, appointed a team of counsel to advise on the criminal aspects of the investigation. Transcripts and documents from the inspectors were passed on to the team after receipt and consideration by the DTI. The applicants state that it is a matter of fact that all the transcripts and documents which existed at that date were passed on to the team of prosecution counsel as well as all material arising after that date.
19. The interviews conducted by the inspectors were surrounded by a constant wave of media publicity.
The first applicant was interviewed by the inspectors on five occasions: on 29 January, 12 February, 11 March, 16 March and 10 April 1987. The interviews related to his involvement in advising Guinness on the bid for Distillers and in identifying investors prepared to support the bid by purchasing Guinness shares.
The second applicant was interviewed by the inspectors on two occasions: on 14 January and 2 September 1987. The interviews focused on the way in which he was drawn into the support operation for the Guinness bid and on the arrangements for the payment of the success fee to his company.
The third applicant was interviewed by the inspectors on 22 and 27 January 1987. He was accompanied by his solicitor throughout these interviews during which he was pressed to answer a number of specific questions. He maintains that he sought either in person or through his solicitor to decline to answer them but was advised throughout of the consequences of his failure to respond. He was further interviewed by the inspectors on 26 May 1987. On 17 July 1987 the third applicant's solicitors confirmed the transcripts of the evidence which he had given, subject to a small amendment.
20. Having informed the inspectors of the particulars of his travel plans and having confirmed his availability through his solicitors or in person should it be required, the third applicant left for the United States, where he arrived on 30 September 1987. He was immediately arrested and detained pursuant to an extradition request by the United Kingdom to the United States. He returned voluntarily to the United Kingdom on 23 March 1988.
21. During the first week of May 1987 the police were formally asked by the DPP's office to carry out a criminal investigation. The transcripts and documents obtained as a result of the inspectors' interviews were then passed on to the police.
22. On 7 May 1987 Mr Saunders was charged with numerous offences relating to the illegal share-support operation. The applicants state that these were holding charges and did not relate to the illegal share-support operation. The charges against Mr Saunders related to the alleged destruction of records and documents belonging to Guinness which were created during his time as chief executive of the company.
23. About one month later the DPP instructed the police to carry out an investigation into the wider aspects of the Guinness takeover. The applicants maintain that an informal police investigation against them was already under way as from 12 January 1987, having regard to the well-documented cooperation between the inspectors, the DTI and the Deputy DPP based on the transcripts of the interviews conducted by the inspectors.
24. On 8 October 1987 the first applicant was charged with nine offences relating to invoices he had caused to be submitted for advice he had given during the bid. These invoices had been submitted after the successful outcome of the Guinness bid.
25. On 13 October 1987 the second applicant was charged with eight offences relating to invoices which two companies, being wholly owned subsidiaries of the company of which the second applicant was director, had submitted for the loss on the sale of Guinness shares and for the success fee paid after the successful outcome of the Guinness bid.
26. After his return from the United States, the third applicant was charged with six offences relating to two invoices and the success fees which had been charged to Guinness following its takeover of Distillers.
27. In total, seven persons were charged with offences in connection with the Guinness takeover. All seven defendants together were arraigned before the Crown Court on 27 April 1989.
28. In view of the large number of counsel and the number of defendants, two separate trials were subsequently ordered by the trial judge in the Crown Court on 21 September 1989. The applicants and Mr Saunders were to be tried together in a first set of proceedings and the remaining three codefendants in a separate set of proceedings. The third applicant's application to be tried with the latter category of defendants was refused.
29. From 6 to 16 November 1989 the court held a voir dire (submissions on a point of law in the absence of the jury) following the application of the third applicant to rule the DTI transcripts inadmissible. He argued, principally, that the statements obtained during three interviews before the inspectors should be excluded
(i) pursuant to section 76 of the Police and Criminal Evidence Act 1984 (PACE) on the basis that they had been obtained by oppression or in circumstances which were likely to render them unreliable;
(ii) pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained.
30. In a ruling given on 21 November 1989, the trial judge (Mr Justice Henry) held that the transcripts were admissible. He stated that it was common ground that the interviews were capable of being “confessions” as defined in section 82(1) of PACE. He found that, as a matter of construction of the 1985 Act, inspectors could ask witnesses questions that tended to incriminate them, that the witnesses were under a duty to answer such questions and the answers were admissible in criminal proceedings. He rejected the third applicant's assertion that the inspectors should have given a warning against self-incrimination. He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time.
31. From 22 to 24 January 1990 the court held a further voir dire following the application of Mr Saunders to rule inadmissible the DTI transcripts concerning the eighth and ninth interviews with him on the basis that they should be excluded either as unreliable under section 76 of PACE or pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. Reliance was placed on Mr Saunders' alleged ill-health at the time and on the fact that the two interviews in question had taken place after he had been charged.
32. In his ruling of 29 January 1990 Mr Justice Henry rejected the defence argument as to Mr Saunders' medical condition. He did, however, exercise his discretion pursuant to section 78 to exclude the evidence from the two above-mentioned interviews which had taken place after Mr Saunders had been charged on the grounds that the latter's attendance could not be said to have been voluntary. In his view, moreover, it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process.
33. The applicants were tried together with Mr Saunders. The trial opened on 16 February 1990 and involved seventy-five days of evidence, ten days of speeches by counsel and a five-day summing-up to the jury by the trial judge.
34. In the course of the trial, Mr Saunders was the only accused to give evidence. According to the applicants, the testimony of Mr Saunders was irreconcilable with the evidence which each had given to the inspectors and prejudicial to their case that their involvement in the share-support operation had not been dishonest. The third applicant maintains that his participation in the operation was in line with City practice on takeovers, but that he was unable to obtain witnesses who would be prepared to testify to this for fear of repercussions engendered by the criminal proceedings. He claims that at the time of his trial the prosecution had in its possession extensive material arising out of other investigations into takeover bids which confirmed that share-support operations involving indemnities to the purchasers of shares were regarded as an acceptable practice in the City.
35. A large part of the evidence against the applicants consisted of evidence gathered by the DTI inspectors. In the course of the proceedings, evidence was further taken from the former finance director of Guinness, Mr Roux, who had been granted immunity from prosecution. The prosecution also referred to the statements made by the applicants in the course of their interviews by the DTI inspectors. In the third applicant's submission, the prosecution had acknowledged at the voir dire that this was in fact the only evidence against him.
36. The transcripts of the interviews were read out to the jury by the prosecution over a three-day period during the trial (days 45 to 47). They were used in order to establish the state of the applicants' knowledge.
37. In his summing-up to the jury, the judge referred, inter alia, to the answers which the applicants had given to the DTI inspectors.
38. On 22 August 1990 the first applicant was convicted of two counts of conspiracy, three counts of false accounting and one count of theft. He was fined 3,000,000 pounds sterling (GBP), with a total of five years' imprisonment in default. He was also ordered to contribute GBP 440,000 towards the prosecution's costs.
39. The second applicant was convicted of one count of conspiracy, two counts of false accounting and one count of theft. He received an overall prison sentence of twelve months and was fined GBP 5,000,000, with a four-year consecutive prison sentence in default. He was also ordered to contribute GBP 440,000 towards the prosecution's costs.
40. The third applicant was convicted of four counts of false accounting and two counts of theft. He received an overall prison sentence of two and a half years. He was also ordered to contribute GBP 440,000 towards the prosecution's costs.
41. Mr Saunders was convicted of twelve counts in respect of conspiracy, false accounting and theft. He received an overall prison sentence of five years.
42. In the second set of proceedings concerning the other co-defendants, further challenge was made to the admissibility of the transcripts of the interviews on the ground, inter alia, that there was an abuse of process in that there was misconduct by the inspectors and/or the prosecuting authorities in the use of the inspectors' statutory powers for the purpose of constructing a criminal case. In particular, it was alleged by one of the co-defendants, Mr Seelig, that there was a deliberate delay in charging the accused so that the inspectors could use their powers to obtain confessions.
43. In a ruling given on 10 December 1990, Mr Justice Henry found that there was no prima facie case of abuse by either the inspectors or the prosecuting authorities. He had heard evidence from both the inspectors and the police officer in charge of the criminal investigation. In a ruling given on 14 December 1990, the judge rejected the application for a stay, finding that there had been no abuse of the criminal process in the questioning of the defendants or in the passing of Mr Seelig's depositions to the inspectors to the prosecuting authorities or in their conduct of the prosecution. He saw nothing improper or sinister in the decision by Mr Wood not to involve the police until the beginning of May 1987. He concluded that proper use had been made of the statutory powers. The judge also refused an application to exclude the evidence of the interviews under section 78 of PACE as constituting evidence which had such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
44. On appeal, the Court of Appeal in a judgment dated 2 May 1991 (R. v. Seelig) upheld the trial judge's ruling as to the admissibility of the interviews before the inspectors. On 24 July 1991 leave to appeal was refused by the House of Lords.
45. All three applicants applied for leave to appeal against conviction and sentence. However, on 18 December 1990 the first applicant withdrew his appeal on grounds of his precarious state of health. On 20 March 1991 the first applicant's knighthood was annulled.
46. The second and third applicants, like Mr Saunders, were granted leave to appeal against conviction. Following a hearing, the Court of Appeal gave its judgment on 16 May 1991. It held, inter alia, that while there were some blemishes and infelicities in the judge's summing-up, it was in the main a masterly exposition. As regards the admissibility of the transcripts, it was held that the question had been decided, as far as it was concerned, by the decision given by another division of the Court of Appeal in the case of R. v. Seelig, which had held that such statements were admissible.
47. Mr Saunders' appeal was rejected on all but one count. The Court of Appeal found that the judge had erred in his direction on one count and quashed that conviction. It reduced his sentence to two and a half years' imprisonment.
48. The second applicant's appeal resulted in a moderation of his sentence in that the period to be served in default of payment of his fine was reduced and the time within which he was to pay the fine was extended.
49. The third applicant's appeal resulted in a reduction of his sentence to twenty-one months' imprisonment.
50. The orders for costs made against the second and third applicants were reduced to GBP 300,000 each. A similar order was made by the Court of Appeal in favour of the first applicant.
51. On 13 December 1991 the Disciplinary Committee of the Council of the Stock Exchange ordered that the third applicant be expelled from the Stock Exchange.
52. On 20 July 1991 Mr Saunders lodged an application (no. 19187/91) with the European Commission of Human Rights.
53. On 3 August 1992 the applicants became aware for the first time of the existence of part of the material obtained by and available to the prosecution prior to their trial and which had not been previously disclosed. This evidence had been disclosed by the prosecution to the defendants in the second Guinness trial on 20 December 1991. They maintained that this material showed that share-support operations had been undertaken in relation to a number of other takeovers and had been considered to be an acceptable practice by the professional advisers involved in them. The material also included the outcome of an investigation undertaken on the initiative of the DTI and concluded on 8 December 1988 by the Licensed Dealers' Tribunal (a former disciplinary body). The Licensed Dealers' Tribunal had taken the view that share-support operations were an acceptable City practice.
54. The applicants sought disclosure of this material from the prosecuting authorities. In view of their failure to do so, they requested the Home Secretary to refer the case back to the Court of Appeal pursuant to section 17(1)(a) of the Criminal Appeal Act 1968. On 22 December 1994 the Home Secretary referred the whole of the applicants' and Mr Saunders' case to the Court of Appeal. The European Commission stayed consideration of the admissibility of Mr Saunders' application pending the outcome of the referral proceedings. After the case was referred, the prosecution disclosed the remainder of the material. The hearing before the Court of Appeal took place between 16 and 26 October 1995.
55. On 27 November 1995, the Court of Appeal rejected the first applicant's appeal on all but one count, quashing his conviction on one of the conspiracy counts. The appeals by the second and third applicants and Mr Saunders were dismissed.
56. In its judgment of 27 November 1995, the Court of Appeal rejected the argument that the use at trial of answers given to the DTI inspectors automatically rendered the criminal proceedings unfair. It pointed out that Parliament had expressly and unambiguously provided in the 1985 Act that answers given to DTI inspectors may be admitted in evidence in criminal proceedings even though such admittance might override the privilege against self-incrimination.
57. In its judgment the court noted that the interviews with each of the accused “formed a significant part of the prosecution case”.
58. With reference to the allegation that it was unfair that those interviewed by DTI inspectors should be treated less favourably than those interviewed by the police under PACE, the court noted as follows:
“... the unravelling of complex and devious transactions in those fields is particularly difficult and those who enjoy the immunities and privileges afforded by the Bankruptcy Laws and the Companies Acts must accept the need for a regime of stringent scrutiny especially where fraud is suspected ...”
59. In relation to the argument that the difference between the Companies Act and the Criminal Justice Act regimes was anomalous, the prosecution contended that:
“... the explanation lies in the very different regime of interviews by DTI inspectors compared with that of interviews either by police or the SFO [Serious Fraud Office]. DTI inspectors are investigators; unlike the police or SFO they are not prosecutors or potential prosecutors. Here, typically, the two inspectors were a Queen's Counsel and a senior accountant. They are bound to act fairly, and to give anyone they propose to condemn or criticise a fair opportunity to answer what is alleged against them. ... Usually, the interviewee will be represented by lawyers and he may be informed in advance of the points to be raised.”
60. The Court of Appeal held on this point:
“Whether or not these matters constitute a sufficient explanation and whether or not the distinction is 'an anomaly', the fact remains that the distinction exists because Parliament has created it. When enacting section 2(8) of the 1987 Act, it would have been open to Parliament to have amended section 434(5) of the Companies Act and other similar provisions so as to bring them into line with section 2(8). Their decision not to do so was no oversight. This is clear from the speech of Lord Caithness during the passage of the 1987 Bill ... He said the Government had deliberately not followed in that Bill the precedent in the Companies legislation on this very issue ... Parliament has made its intentions quite clear in section 434(5). It cannot be right for a judge to exercise his discretion to exclude evidence of interviews simply on the ground that Parliament ought not to have countenanced the possibility of self-incrimination ... However, ... a judge can, in our view, as part of the background setting, have in mind that under that [statutory] regime there is an obligation to answer the inspectors' questions on pain of sanctions.”
61. The court also rejected an allegation that there had been an abuse of process in that the DTI inspectors were used wrongly as “evidence gatherers” for the prosecution or that there had been improper or unfair “collusion”, as follows:
“We have carefully considered the effect of the events of November 1986 to October 1987 in the light of all the documents. We conclude that to allow the inspectors to continue their inquiry and to bring in the police only in May 1987 was a proper course subject to two essentials:
(1) That the inspectors were left to conduct their inquiries and interviews independently without instruction, briefing or prompting by the prosecuting authority. We are quite satisfied that the inspectors themselves made that clear and abided by it. Counsel also laid down those ground rules correctly and they were observed ...
(2) That the interviews were conducted fairly and unobjectionably. It was not suggested to the trial judge or before us that the inspectors could be criticised on this score. These were carefully structured sessions of proper length in suitable conditions. The appellants, experienced business men of high intelligence, were each represented either by counsel (usually Queen's Counsel) or a senior solicitor. The questions were put scrupulously fairly and the Code laid down in the Pergamon case ... was observed.”
62. The court also rejected the allegation that non-disclosure prior to the trial of the material alleged to indicate abuse caused any unfairness to the applicants. It further rejected the second applicant's complaint that there had been an improper delay in charging him. The court held:
“... it has been argued that the documents which we have seen, or at least some of them, should have been disclosed at the trial. The [applicants] claim that they, by counsel, raised an issue as to the delay in bringing in the police; that being so, disclosure should have been made. Instead a PII [Public Interest Immunity] certificate ... was put before the judge. Again complaint is made that the judge did not look behind the PII certificate and examine the documents himself ...
... Upon a bare assertion that the police should have been brought in earlier, we do not consider that the [applicants] were entitled at trial to the cornucopia of privileged documents before us. The PII certificate fairly and accurately summarised the principal documents to which it referred and we consider it was properly made. No party invited the judge to go behind it and examine the documents himself. At that time the Court of Appeal had not laid down any guidelines requiring the judge to do so.
In any event, having seen all the documents, we have ... reached the conclusion that there was no abuse of process or improper collusion.”
63. The Court of Appeal rejected the applicants' complaint on the non-disclosure of certain material by the prosecution. It concluded on this point:
“In the case of all four appellants, whilst we have held that the undisclosed material should have been disclosed, we are satisfied that the procedural irregularity which occurred as a result of non-disclosure in fact occasioned no prejudice to them. The verdicts of the jury would inevitably have been the same had disclosure been made.”
64. The Court of Appeal subsequently refused to certify that the case involved a point of public importance and denied leave to appeal to the House of Lords. Following this decision no further avenue of appeal was open to the applicants.
65. By section 432 of the Companies Act 1985 (the “1985 Act”) the Secretary of State may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as he may direct. The Secretary of State may make such appointment if it appears that there are circumstances suggesting:
“(a) that the Company's affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person, or otherwise for a fraudulent or unlawful purpose, or in a manner which is unfairly prejudicial to some part of its members, or
(b) that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial, or that the company was formed for any fraudulent or unlawful purpose, or
(c) that persons concerned with the company's formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members, or
(d) that the company's members have not been given all the information with respect to its affairs which they might reasonably expect.” (section 432(2))
66. The Secretary of State is also empowered to appoint inspectors to
“... investigate and report on the membership of any company, and otherwise with respect to the company, for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence its policy.” (section 442(1))
67. The function of inspectors is an inquisitorial and not a judicial function. It has been summarised in re Pergamon Press Ltd ([1971] Chancery Reports 388, per Lord Justice Sachs, p. 401), as follows:
“The inspectors' function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates.”
68. Section 434 of the 1985 Act provides:
“(1) When inspectors are appointed under section 431 or 432, it is the duty of all officers and agents of the company ...
(a) to produce to the inspectors all books and documents of or relating to the company ... which are in their custody or power,
(b) to attend before the inspectors when required to do so, and
(c) otherwise to give the inspectors all assistance in connection with the investigation which they are reasonably able to give ...
...
(3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in subsection (2), in relation to the affairs of the company or other body, and may administer an oath accordingly ...
...
(5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether it has effect in relation to an investigation under any of sections 431 to 433, or as applied by any other section in this Part) may be used in evidence against him.”
69. Section 436 of the Act provides:
“(1) When inspectors are appointed under section 431 or 432 to investigate the affairs of a company, the following applies in the case of –
(a) any officer or agent of the company,
(b) any officer or agent of another body corporate whose affairs are investigated under section 433, and
(c) any such person as is mentioned in section 434(2).
Section 434(4) applies with regard to references in this subsection to an officer or agent.
(2) If that person –
(a) refuses to produce any book or document which it is his duty under section 434 or 435 to produce, or
(b) refuses to attend before the inspectors when required to do so, or
(c) refuses to answer any question put to him by the inspectors with respect to the affairs of the company or other body corporate (as the case may be) the inspectors may certify the refusal in writing to the court.
(3) The court may thereupon enquire into the case, and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, the court may punish the offender in like manner as if he had been guilty of contempt of the court.”
70. Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding two years.
71. The relevant part of section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides:
“1. In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
2. If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession (notwithstanding that it might be true) was not obtained as aforesaid ...”
72. Section 78(1) provides:
“In any proceedings the court may refuse to allow the evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
73. Under section 82(1) of PACE a “confession” includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
74. The Criminal Justice Act 1987 confers on the Director of the Serious Fraud Office special powers to assist him in the investigation and prosecution of serious fraud. Section 2(2) requires a person whose affairs are being investigated to answer questions even if by so doing he might incriminate himself. Failure to answer may give rise to criminal sanctions (section 2(13)). Answers in this context cannot be used in evidence against a suspect unless he is prosecuted for failure, without reasonable excuse, to answer questions or unless he makes a statement in evidence which is inconsistent with a previous answer (section 2(8)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102360
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STRELTOV v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicants, Mr Alexandr Strelţov and Mr Ion Tătăroi, are Moldovan nationals who were born respectively in 1961 and 1958. Both applicants were represented before the Court by Mr Anatolie Bîzgu. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
As with the applicants in the pilot judgment of Olaru and others (Olaru and others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009), the applicants in the instant cases complained of a breach of their rights guaranteed under Article 6 of the Convention and under Article 1 of Protocol No. 1 as a result of the authorities’ failure to comply with final judicial decisions delivered by domestic courts in their favour.
By a final judgment of 5 May 2006 the Supreme Court of Justice ruled in favour of Mr Tătăroi and ordered the Moldovan Ministry of Finance, together with the Ministry of Economy and Trade and the Căuşeni local authorities, to provide him with accommodation.
By a final judgment of 16 May 2006 the Supreme Court of Justice ruled in favour of Mr Strelţov and ordered the Moldovan Ministry of Finance, together with the Ministry of Economy and Trade and the Căuşeni local authorities, to provide him with accommodation.
On 22 May 2006 Mr Tătăroi signed a contract by which the Căuşeni local authorities handed over to him property rights in respect of an apartment situated in Căuşeni. The contract was registered with the cadastral authorities on 9 August 2006.
On 12 December 2006 Mr Strelţov signed a similar contract in respect of another apartment situated in Căuşeni. The contract was registered with the cadastral authorities on 22 March 2007.
Following communication of the applications, on 30 June 2010 the Government informed the Court that the final judgments in favour of Mr Tătăroi and Mr Strelţov had been enforced, respectively, on 22 May 2006 and 12 December 2006. The Government also attached copies of sale contracts signed by the applicants and other relevant documents.