ITEMID: 001-60484
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF McSHANE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2;No violation of Art. 6-1;No violation of Art. 14;No violation of Art. 13;Failure to comply with obligations under Art. 34
JUDGES: Matti Pellonpää;Nicolas Bratza;Simon Brown
TEXT: 9. In July 1996, there were disturbances throughout Northern Ireland. On 7 July 1996, the Royal Ulster Constabulary (RUC) had announced that they would not allow a march by the loyalist Orange Order from Drumcree Church to the Orange Lodge in Portadown to pass through the mainly Catholic residential area of the Garvaghy Road. Members of the Orange Order gathered in the area, and demonstrations occurred in Londonderry (Derry) and Belfast. On 11 July 1996, the RUC reversed its decision and at 11 a.m. the march proceeded through the Garvaghy Road.
10. The following day, 12 July 1996, another controversial march was allowed through the mainly nationalist area of the Lower Ormagh Road in Belfast. That evening, there was a major disturbance in Londonderry, characterised by the use of petrol bombs and the substantial use of “baton rounds”, or plastic bullets, by the RUC and the British Army.
11. Dermot McShane, the husband of the applicant, had been with friends in a bar close to Londonderry city centre during that night. According to a friend who was with him, they left the bar at about 1.30 a.m. Close to the junction of Little James Street and Great James Street, a large crowd of people had gathered and were throwing missiles at the police. Military reinforcements were called. Police were firing large numbers of plastic baton rounds at the crowd. A commercial skip and a large piece of hoarding were being used by persons in the crowd to shield them from plastic baton rounds as they moved towards the police. An RUC inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed. According to his statement, he instructed the driver of a Saxon armoured personnel carrier (“the APC”), Private P., to advance towards the obstruction.
12. Dermot McShane fell underneath the hoarding over which the APC advanced. The circumstances in which the APC struck the hoarding, its speed, and the length of time which it remained on the hoarding are subject to dispute.
13. RUC officers reached Dermot McShane and arranged for his transfer by ambulance to hospital where he died a short time later. According to the pathologist who carried out the post mortem examination, his injuries were consistent with having been run over by the wheels of a vehicle while lying underneath a sheet of hoarding. He also had injuries on the thigh, consistent with being struck by a plastic baton round. No traces of petrol, paraffin or any type of fire accelerant were found which might suggest that Dermot McShane had been in contact with petrol bombs.
14. At 6.17 a.m. on 13 July 1996, Detective Constable Cooper attended the scene at which Dermot McShane had been hit. He removed the hoarding and a bloodstained bandage for inspection. Shortly afterwards, the scene was secured. The Government submitted that the delay in crime scene procedures was due to crowd violence.
15. At 8 a.m., Detective Superintendent Houston was directed to undertake the investigation into the death. He appointed Detective Chief Inspector Cooke as Deputy Senior Investigating Officer.
16. At 10.05 a.m., photographs were taken of the scene. DS Houston attended, making arrangements inter alia for the mapping of the scene.
17. In the afternoon of 13 July 1996, statements were collected by the police from 13 members of the army, regarding the events. This included a statement from Private P., the driver of the APC which hit Dermot McShane. DS Houston informed the driver that he would interview him once he had undertaken other inquiries. The interview commenced at 7.10 p.m. and terminated at 7.16 p.m. After being cautioned, the driver replied that he had nothing to say at that stage. The driver had provided a pre-prepared written statement and was accompanied by his legal adviser. The statement said inter alia;
“I charged a sheet of corrugated iron in the centre of the street which was my target. While approaching the barricade I saw around 5/6 persons round it, most ran away on sighting me approaching but [I] was unsure that I did or did not cause injury to any person.”
18. On 14 July 1996, the RUC began interviewing other witnesses. On 17 July 1996, the RUC issued a press release appealing for witnesses to the events to come forward. They collected statements from 115 persons, including 39 who had witnessed the relevant events. Of these, four persons were civilian witnesses and the remainder were RUC and army personnel. Of the 115 statements, 33 were taken in the first week following the incident and a further 28 in the following two weeks.
19. On 6 December 1996, the driver of the APC was interviewed again. In his statement, he stated that on the night in question he had been the driver of the control centre vehicle, which held the spare ammunition, shields and supplies. He was in position on Great James Street at the junction with Little James Street. He saw missiles being thrown, including petrol bombs and more than a hundred rioters in conflict with the RUC. He had been instructed by an RUC inspector to remove the barricade, which was being used by rioters for cover. As he neared the barricade, he had revved the engine to give the rioters time to get away from the barricade. The vehicle hit the barricade which fell backwards. The vehicle mounted it and drove over. At that time, the driver was alone in the APC, without a person looking out and giving directions. His vision was through a slit, about letter box size 7-8 feet above the road. He could see only the top of the barricade, not behind or under it. He had not been aware that anyone was injured. When he stopped and people had climbed on the vehicle, saying that someone was injured, he had thought that this was a “come on”. When shown a video of the incident, he stated that he could see the vehicle brake lights illuminated, indicating that the vehicle stopped prior to striking the hoarding. He confirmed that it was customary for the driver of such a vehicle to be accompanied by a commander who looked out and gave directions from the top hatch, and who was in constant communication by radio with the driver. He was however alone in the vehicle on this occasion.
20. Expert evidence was gathered, including post mortem examinations of the deceased and various forensic analyses, inter alia of Dermot McShane's blood, hair and clothing, the hoarding which he had used as a shield and the APC which had hit him. According to the applicant, the APC was not examined until two weeks after the incident and the report on the examination was not provided to her until much later. Other evidence collected included a transcript of the army and RUC communications at the time and a video of the incident recorded by Sky News.
21. On 9 June 1997, the RUC sent the file of relevant material to the DPP. Further inquiries were made by the police, leading to a final report to the DPP on 2 March 1998.
22. On 1 April 1998, the DPP directed that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder, manslaughter or dangerous driving contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. The applicant was formally notified of the decision not to bring criminal proceedings by letter dated 6 April 1998.
23. On 19 June 1998, the applicant lodged an application for judicial review of the decision not to prosecute in relation to the death of her husband. At a leave hearing on 30 June 1998, it transpired that the applicant had never formally requested the reasons for the decision. The hearing was adjourned pending that request.
24. By letter dated 11 September 1998, the DPP stated:
“As you are aware, the death of Dermot Patrick McShane occurred at approximately 1.30 a.m. on 13 July 1996 at Little James Street, Londonderry in circumstances of very serious and sustained rioting. Disorder was concentrated in the Strand Road, Great James Street, Little James Street, Waterloo Place and William Street areas of the city. The ferocity of the rioting was such that the police required military assistance.
A skip and hoarding were used by the rioters at the time in question in Little James Street as a shield/barricade from behind which missiles, including petrol bombs, were launched at police and military positioned at the junction of Great James Street and Little James Street. A decision was taken that baton rounds, which had been discharged to contain an advancing group of rioters shielded by the skip and hoarding, were ineffective [and] the barricade should be removed. A military vehicle driven by a Private was deployed for this purpose, advanced and struck the hoarding knocking it to the ground. The deceased was behind and in very close proximity to the barricade as it was being removed. The Private stated, inter alia, during interview under caution that he could not see anyone behind it. The deceased sustained multiple injuries consistent with a crushing mechanism, which proved fatal.
The police investigation contains, inter alia, some 39 witness statements from persons who provided differing accounts of the removal of the hoarding, four of whom were civilians. The remainder were by police and military personnel. In addition, the incident was captured on film by a Sky News TV crew. The Private in question was interviewed by the police. He provided a witness statement on 13 July 1996. He was interviewed after caution on 6 December 1996. On that date, he provided oral answers and made a written statement after caution in regard to his conduct. The Private stated, inter alia, that as he approached the 'barricade' he 'began to brake and revved up the engine to scare the rioters and clear the barricade' and was 'crawling forward' when he hit the barricade.
On 19 December a further interim Direction was issued to the Chief Constable. The Director wished to obtain evidence from the Forensic Science Agency of Northern Ireland, inter alia, in respect of the speed the vehicle in question was travelling at or prior to the moment of impact, and the speed which the vehicle in question was capable of reaching in the time available. A forensic report was received in this office on 2 March 1998. This indicated, inter alia, that the vehicle in question could reach a theoretical maximum speed of 16 mph from a standing start at the junction of Little and Great James Street to the position of the barrier. It was noted that the vehicle was shown on the video to be braking over an unknown distance prior to impact with the barrier and that it was 'axiomatic' that the speed of the vehicle at the point of impact was substantially less than 16 mph.
All available evidence was then the subject of further careful consideration. The conclusion reached was that there was insufficient evidence to provide a reasonable prospect of conviction for the offence of murder. Further, there was insufficient evidence to provide a reasonable prospect of establishing the requisite degree of negligence for the offence of manslaughter. In addition, consideration was given to whether the evidence was sufficient to provide a reasonable prospect of conviction of causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. It was concluded that there was no reasonable prospect of establishing that the Private's driving fell far below what would be expected of a competent and careful driver having regard to all the circumstances. ...”
25. On 18 September 1998, the applicant withdrew her application for judicial review.
26. In October 1996, the Committee for the Administration of Justice (CAJ) published a booket entitled “The Misrule of Law” criticising the handling of events during the summer of 1996. Appendix III included extracts from certain anonymous witness statements.
27. On 12 March 1997, the police wrote to the CAJ requesting that information relating to the names and addresses of witnesses be made available to the police enquiry. The applicant states that the CAJ contacted the witnesses to confirm whether they wished their names to be made available to the police. As they did not, the CAJ informed the police accordingly.
28. In the application submitted to the Commission on 18 November 1996, the applicant included a number of extracts from twelve statements taken from anonymous witnesses by the applicant's solicitor.
29. They described the events of the evening in the following terms.
(i) Witness No. 80 described how he was in the area at about 1 a.m. He stated that there was a skip in Little James Street, behind which approximately 50 people were hiding. Next to the skip were 6 or 7 people hiding behind a large wooden board, approximately 2 metres by 1 metre, throwing petrol bombs, about 30 in an hour. At the other end of the street were approximately 60 police officers of the RUC in riot equipment firing plastic bullets.
(ii) Witness No. 86 was in the area taking photographs, behind the RUC and British Army lines. He stated that in Little James Street there was a barricade of a burning car and a skip, which had been there from the night before. A number of army vehicles, including Saxon APCs, formed a cordon across the road, and there were about 20-30 soldiers and approximately the same number of RUC officers behind them. There was an intensive barrage of missiles being thrown towards the cordon, and plastic bullets were being fired back continuously. He stated that there was considerable confusion. The cordon of vehicles then moved forward at walking speed with continuous firing of plastic bullets and some missiles incoming from the crowd. He stated that he observed RUC officers recover the body of Dermot McShane and attempt to administer first aid. There were four other photographers and a TV crew present, who were taking pictures until stopped from doing so by the RUC. This witness stated that in a 4½ hour period he observed that the RUC used 30 ammunition boxes, containing a total of 750 rounds of plastic bullets, and that the Army were firing a similar amount.
(iii) Witness No. 101 was one of the people behind the hoarding, which he stated they were pushing towards the police, who were firing plastic bullets. The police made an advance towards the hoarding in their vehicles, and the witness dropped the hoarding. He saw it fall on Dermot McShane. He stated that he tried to indicate that there was someone under the hoarding, but one of the vehicles drove over it. At this point a group of police and soldiers came towards him with batons. He made a statement to the police.
(iv) Witness No. 100 was observing the events from his apartment. He saw the vehicle ram into the hoarding at a speed of 35-40 km per hour. The RUC moved in with batons.
(v) Witness No. 99 observed the vehicle come forwards onto the hoarding, and in his opinion it must have been obvious that someone was holding the board up. He stated that he shouted that there was someone under the board, but that the vehicle remained on top of it for some 10-15 minutes.
(vi) Witness No. 91 stated that when the vehicle was on top of the board, he shouted to the driver that there was a man underneath, but it stayed on top for 4-5 minutes. He attempted to pull Dermot McShane out.
30. The Government obtained the Court's permission to submit copies of these extracts to the DPP, which occurred on 14 February 2000, and an adjournment in the Court's proceedings was granted to enable the DPP to consider whether any action was appropriate. The DPP enquired whether he was able to furnish copies of the statements to the police and whether the makers of the statements could be identified.
31. The applicant informed the Court on 27 March 2000 that the witnesses had given their statements on condition that their identity would not be disclosed to the police. They feared that they would become victims of harassment if their identities became known.
32. In the light of these constraints, the DPP concluded that there were no further steps which he could properly take under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order to obtain further relevant information. Accordingly, his direction of 1 April 1998 still stood.
33. The investigation file was forwarded to Sergeant McFetridge on 22 May 1998 to prepare an inquest file. He briefed the Coroner as to the progress of the file on 26 November 1998. The inquest file was forwarded to the Crime Branch RUC Headquarters for examination on 7 January 1999. After examination, it was delivered to the Coroner's office on 18 February 1999.
34. The Coroner listed the inquest for 13 and 14 December 1999 as the first suitable dates. A number of documents were provided to the applicant by the RUC acting under Home Office Circular 20/99 on or about 19 November 1999. On 24 November 1999, the applicant requested an adjournment from the Coroner while she sought disclosure of further documents from the RUC and Ministry of Defence. The applicant considered that documents were missing from those disclosed, including the statement of the APC driver taken by the RUC. The Coroner acceded to her request.
35. By letter dated 7 February 2000 to the RUC, the applicant made reference to previous correspondence about disclosure of documents and requested copies of radio transmission transcripts, occurrence book entries, notebooks, diaries and journals of RUC officers involved in the matter and forensic reports concerning the examination at the scene of the incident and the relevant vehicle.
36. By letter dated 11 April 2000, the RUC responded that in addition to the documents already made available arrangements had been made for all remaining written information obtained by the RUC concerning the death of Dermot McShane to be furnished. This included the report on the vehicle and the typed transcripts of RUC communication logs. It was stated that none of the entries in RUC notebooks were at variance with the statements already provided, though sight of these notebooks would be provided for the purpose of the inquest if requested.
37. By letter dated 1 September 2000, the Coroner informed the applicant that he had been told that full disclosure had been made by the RUC and, expressing his desire to proceed with the Inquest as soon as possible, asked to be informed specifically of any matters that might still be outstanding. By letter dated 3 November 2000, the Coroner requested a response to his earlier letter. By letter of 22 December 2000, the Coroner again requested confirmation from the applicant's representatives that they had received all necessary disclosure.
38. By letter dated 19 February 2001, the applicant's representatives stated that they had been informed that they were in possession of all material to which they were entitled under Home Office Circular 20/1999. As they had only received witness statements and radio transmission transcripts, they requested confirmation from the Coroner as to whether he had received any other documents, including the police investigation report, and proposed that the Coroner should request the RUC to provide all material relevant to the death of Dermot McShane. The Coroner did not answer the letter until he had an opportunity to consider the Court's judgments in the Hugh Jordan v. the United Kingdom series of cases (cited at paragraph 73 below). On 30 May 2001, the Northern Ireland Court Service, which covered the Coroner's Branch, informed the applicant that the Coroner for Greater Belfast was consulting the Lord Chancellor concerning the Government's response to those judgments and suggested that the preliminary hearing on the future conduct of the inquest concerning Dermot McShane should await the meeting held by all the coroners concerning the procedures to be adopted in future.
39. By letter dated 15 August 2001, the Coroner informed the Northern Ireland Court Service that he was still awaiting confirmation from the applicant that full disclosure had been made and that it had been suggested that matters wait until after developments in inquests to take place in Belfast in September and which related to possible consequences of the Court's judgments. He confirmed that the delay in the case until the present had been at the request of the next-of-kin.
40. In October 2001, it came to light that three statements taken at a late stage in the inquiry had not been disclosed and copies were provided to the applicant.
41. By writ issued on 19 August 1999, the applicant commenced proceedings against the Ministry of Defence, the Chief Constable of the RUC and the Secretary of State for Northern Ireland, claiming damages in her own right and for the estate of Dermot McShane, arising out of the alleged negligence of the defendants and alleged breach of statutory duty. The grounds of negligence included the speed and manner in which the Saxon APC was driven, the failure to listen to the warnings given that a body was trapped under the hoarding, the failure to instruct the driver of the APC in appropriate tactics, the employment of a method of riot control which they knew or ought to have known would cause death or serious injury and the failure to carry out a proper strategic assessment of the security situation before ordering the APC to charge civilians.
42. The defendants served a defence dated 20 June 2000, in which they claimed, inter alia, that the action was statute-barred as the claim had not been lodged within three years of the death. They also served a notice for further and better particulars.
43. On 19 November 1999 statements obtained during the police investigation were disclosed by the RUC to Mrs C., the applicant's solicitor in the inquest, under cover of an undertaking by her to maintain the documents as confidential and not to use the documents for any other purpose than the inquest or to disclose the documents or information to any other third party save her clients.
44. The RUC became concerned that Mrs C. had breached her undertaking as the Committee for Administration for Justice, who represent the applicant before the Court, had used extracts from some of the statements in their submissions to the Court. By letter dated 9 November 2000, the RUC (Legal Services Branch) wrote to Mrs C., asking her to confirm that she had not released the documents to any third person or for any purpose other than the inquest. By letter dated 23 March 2001, Mrs C. replied that she believed that she had not in any way breached the undertaking.
45. By letter dated 2 May 2001, the RUC Legal Adviser wrote to the Law Society of Northern Ireland under the heading “Apparent breach of undertaking”, stating that the written submissions by the CAJ to the Court had contained direct quotes from a number of statements which had been supplied to Mrs C. pursuent to an undertaking of confidentiality. These statements had not been provided to the CAJ by the RUC and neither the CAJ nor Mrs C. had sought permission to use the statements for this purpose. As the only other firm of solicitors with copies of the statements had confirmed that they had not released the documents to any third person, the RUC considered that Mrs C. was responsible either directly or indirectly for supplying the statements to the CAJ in apparent breach of her undertaking. As the undertaking was given between solicitors, this breach was regarded as a serious issue and the Society was asked to treat the letter as a formal complaint.
46. By letter dated 22 May 2001, the Law Society replied that they did not feel that there was sufficient evidence to show a prima facie case of unprofessional conduct against Mrs C. She had assured the Law Society that she had not breached her undertaking and the Law Society was entitled to rely on her assurance as an officer of the court unless contrary evidence was produced. As Mrs C was not the only legal recipient of the documents, there was every possibility that she could have acted correctly but others did not. The matter would not be pursued further.
47. Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia:
“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.”
48. Self-defence or the defence of others is contained within the concept of prevention of crime (see e.g. Smith and Hogan on Criminal Law).
49. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died.
50. Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post- mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8).
51. Rules 12 and 13 of the Coroners Rules give power to the coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.
52. Where the coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.
53. The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:
“15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely:-
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.
16. Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.”
54. The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable.
55. However, in Northern Ireland, the coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.
56. Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased.
57. The coroner enjoys the power to summon witnesses who he thinks should attend the inquest (section 17 of the Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.
58. In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.
59. Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:
“... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”
60. Domestic courts have made, inter alia, the following comments:
“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how...the deceased came by his death', a far more limited question directed to the means by which the deceased came by his death.
... [Previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is 'To allay rumours or suspicions' this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported)
“The cases establish that although the word 'how' is to be widely interpreted, it means 'by what means' rather than in what broad circumstances... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357)
“... it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial...
It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner ex parte Thompson (1982) 126 SJ 625)
61. There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence.
62. Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest.
63. Paragraph 7 of the Circular stated:
“The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis.”
Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example:
– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary);
– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and
– personal information about third parties not material to the inquest.
Paragraph 11 envisaged that there would be non-disclosure of the investigating officer's report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate.
64. When documents were supplied by the RUC to the legal representatives of the family of the deceased at an inquest, it was common practice to require an undertaking that the documents would be used only for the purpose of the inquest and would not be disclosed to any third party, besides the clients for whom the lawyer was acting. Consent could be sought for relaxation of the undertaking if the documents became relevant for other purposes. If consent was denied, the courts could direct that the materials could be used (e.g. Sybron Corp. v. Barclays Bank PLC [1985] Ch 299).
65. In a case brought challenging the requirement by the RUC for such an undertaking on disclosure, In the Matter of an Application by Hugh Jordan for Judicial Review, the High Court on 4 September 2001 found that Article 2 of the Convention did not confer on the relatives any absolute right of access to documents and that it had not been demonstrated that the requirement to give an undertaking would involve any compromise of the effectiveness of the investigation. It was noted that, as the only purpose identified by the applicant's solicitors to which the documents might be put other than the inquest was the case pending in the European Court of Human Rights, the Chief Constable of the RUC had stated that he was prepared to modify the standard undertaking to permit use of the documents before that Court.
66. The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 by the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998.
67. The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC.
68. The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement as to whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted.
69. The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged, or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)).
70. If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)).
71. The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years' experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia:
“(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;
(b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;
(c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.”
72. Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows:
“(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.
(3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to -
(a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ...
and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.”
73. According to the Government's observations in previous cases (see Hugh Jordan v. the United Kingdom, no. 24746/94, [Sect.3], judgment of 4 May 2001, §§ 82-86), it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that
(1) if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice;
(2) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation;
(3) the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses);
(4) in a substantial category of cases decisions not to prosecute were based on the DPP's assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications;
(5) there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants).
74. Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court.
75. In R v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery:
“From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute:
(1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100);
(2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or
(3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”
76. In the case of R v. DPP and Others ex parte Timothy Jones the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury – required further explanation.
77. R v. DPP ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000) concerned the DPP's decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted:
“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”
As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said:
“It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake's conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner's Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director's decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court's expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake's conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.”
On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute.
78. In the Matter of an Application by David Adams for Judicial Review, the High Court in Northern Ireland on 7 June 2000 considered the applicant's claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that no duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim's families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (paragraph 77 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (paragraph 75 above) were infringed. Notwithstanding the findings in the civil case, they were not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted.
79. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
80. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.
81. Other relevant provisions read as follows:
Paragraph 10
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
Paragraph 22
“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”
Paragraph 23
“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”
82. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (UN Principles on Extra-Legal Executions) provides, inter alia, that:
“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...”
83. Paragraphs 10 to 17 of the UN Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths.
Paragraph 10 states, inter alia:
“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...”
Paragraph 11 specifies:
“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.”
Paragraph 16 provides, inter alia:
“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...”
Paragraph 17 provides, inter alia:
“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...”
84. The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in section B on the “Purposes of an inquiry”:
“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:
(a) to identify the victim;
(b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;
(c) to identify possible witnesses and obtain statements from them concerning the death;
(d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;
(e) to distinguish between natural death, accidental death, suicide and homicide;
(f) to identify and apprehend the person(s) involved in the death;
(g) to bring the suspected perpetrator(s) before a competent court established by law.”
In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established...”.
85. In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1999, published on 13 January 2000, the European Committee for the Prevention of Torture (the CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treating persons. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness.
In particular, it noted that chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority.
It stated at paragraph 55:
“As already indicated, the CPT itself entertains reservations about whether the PCA [the Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS for consideration of whether or not criminal proceedings should be brought.
In any event, the CPT recommends that the role of the 'chief officer' within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer's functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer's report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer's report, and liase with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way.
57. ...Reference should also be made to the high degree of public interest in CPS [Crown Prosecution Service] decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.”
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 13
14
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109187
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BUZILO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1972 and lives in Chişinău.
6. On 20 November 2006 the applicant, suspected of theft, was allegedly subjected to a beating by police officers in police station no. 7 in Chişinău. Later he was taken to the Botanica District Police Station, where several police officers allegedly handcuffed him, put a gas mask over his face and beat him with batons and a metal chair for hours.
7. In the morning of 21 November 2006 he was locked in a cell, where he spent the entire day. During the day he lost consciousness several times and asked for medical assistance. At 4 p.m. the applicant was taken to a hospital where he was diagnosed with multiple bruises on his face, a fracture of the left shin and a head trauma with concussion.
8. On 23 November 2006 the applicant was taken to a forensic medical institution for examination. He was diagnosed with multiple bruises on his face, chest, legs and buttocks, a fracture of the left shin and a head trauma with concussion. The medical report stated that:
“The [applicant’s] injuries were inflicted by blows with blunt objects with a limited surface area (au fost cauzate în rezultatul acţiunii traumatice de un corp contondent cu suprafaţa limitată de interacţiune)...
It cannot be excluded that the fracture [of the left shin] ... was caused as a result of [the applicant’s] fall from a height.”
9. On the same day the applicant complained to the Prosecutor’s Office about the ill-treatment to which he had been subjected and requested that the police officers who had ill-treated him be prosecuted.
10. On 6 December 2006 the Botanica Prosecutor’s Office dismissed the applicant’s complaint as manifestly ill-founded. The prosecutor had questioned the applicant, who had reiterated his complaints. He had also questioned two police officers accused of ill-treatment, who had declared that on 20 November 2006 the applicant had attempted to escape from the police station by jumping from the window of a toilet on the second floor. The prosecutor concluded that all of the injuries on the applicant’s body resulted from his fall.
11. The applicant challenged the prosecutor’s decision before the Botanica District Court and argued, inter alia, that he had never jumped from the window of the toilet of the police station and that there was no window in that toilet. Moreover, the forensic medical report concluded that only the fracture of his shin could have been caused by a fall.
12. On 31 October 2007 the Botanica District Court upheld his appeal. The court relied on the forensic medical report, which found that most of the applicant’s injuries could only have been caused by blows, and on the applicant’s submission that there was no window in the toilet of the police station.
13. On 21 November 2007 Prosecutor R.D. from the Botanica Prosecutor’s Office again dismissed the applicant’s complaint about ill-treatment. The prosecutor again questioned the police officers accused of ill-treatment, who repeated their account of the applicant’s jump from the window. This time the police officers added that after jumping from the window and breaking his shin, the applicant had attempted to escape and resisted arrest and that they had been forced to apply force and special techniques, thus causing the other injuries on his body. The prosecutor also questioned a third party, who worked in an office in the police station and who confirmed the accounts of the police officers. The third party also added that he had heard the applicant shout that he would mutilate himself in order to accuse the police later of ill-treatment. Finally, the prosecutor stated that he had checked the toilet of the police station on the second floor and had found that it had a large window.
14. The applicant challenged the prosecutor’s decision before the Prosecutor General’s Office and the investigation was reopened. A further forensic report dated 12 March 2008 was obtained, which excluded the possibility that all the injuries on the applicant’s body could have been sustained as a result of a jump from the height of the second floor or a fall from the applicant’s own height.
15. On 11 July 2008 the Prosecutor’s Office indicted the two police officers accused of ill-treating the applicant and one week later referred the case to a court.
16. On 10 March 2009 the Botanica District Court found the accused police officers guilty of acts of torture in respect of the applicant. The court relied on the forensic reports which contradicted the police officers’ version of events concerning the origin of the applicant’s injuries and relied on the testimony of a witness who had heard sounds of ill-treatment and shouts from the office where the applicant was questioned and who had seen the applicant lying on the floor when the door opened. The police officers were given a suspended sentence of five years’ imprisonment and banned from working at the Ministry of Internal Affairs for three years.
17. On 9 November 2009 the Chişinău Court of Appeal dismissed the appeals lodged by the Prosecutor’s Office, the applicant and the accused police officers and upheld the judgment of the Botanica District Court.
18. On 25 May 2010 the Supreme Court of Justice upheld the appeal on points of law lodged by the Prosecutor’s Office and ordered the reopening of the proceedings before the Chişinău Court of Appeal. It found, inter alia, that the sanction imposed on the accused police officers was too lenient.
19. On 21 December 2010 the Chişinău Court of Appeal re-examined the appeal against the judgment of 10 March 2009 and acquitted the accused police officers. The Court has not been provided with a copy of the judgment of the Court of Appeal. The Prosecutor’s Office appealed against that judgment and on an unspecified date the Supreme Court of Justice quashed the judgment of 21 December 2010 and ordered a fresh examination by the Chişinău Court of Appeal of the appeal against the judgment of 10 March 2009. The proceedings are still pending before the Court of Appeal.
20. The relevant provisions of the Criminal Code read as follows:
“(1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by imprisonment of up to three years ...
(2) The same act accompanied by:
(a) violence;
(b) cruel, inhuman or degrading treatment;
...
Shall be punishable by imprisonment of three to eight years ...”
“(1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or testimonies ... shall be punishable by imprisonment of two to five years. ...
(3) The actions referred to in paragraph 1 ..., carried out:
(c) by two or more persons;
(e) with the use of special instruments of torture or other objects adapted for that purpose;
(f) by an official,
shall be punishable by imprisonment of five to ten years ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-95578
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STASZEWSKA v. POLAND
IMPORTANCE: 3
CONCLUSION: No violations of Art. 3
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1969 and lives in Szczecin.
6. In the early hours on 2 June 2001 the applicant and her friend J.D. were coming back from a party in Cracow. At a certain point they stopped because the applicant wanted to collect some leaves from an oak tree; she is a painter and she needed them to produce dye for her work. As they approached the tree, a police car stopped near them. Two uniformed policemen got out of the car and asked the applicant and her friend what they were doing there. The applicant asked what she was suspected of and what the policemen wanted from her. She asked them to show their badges. The policemen refused.
7. Then the applicant and her friend were asked to show their identity cards. J.D. did not have his identity card on him; however, he gave the policemen his personal details. The applicant refused, saying that she did not have her card on her and that she did not trust the Polish police. Then she said that she would not speak to them any longer and tried to walk away. Subsequently, she was informed that the process of establishing her personal details had not been finished and was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. Then the applicant was pushed into the car, laid on the floor and held down by the weight of the policemen's bodies. While she was being pushed into the car, kicking and shouting, one of the policemen was accidently hurt by a walking-length umbrella that the applicant was holding.
8. Subsequently, the applicant was handcuffed behind her back and taken to the police station. She refused to give a sample of her breath, saying that she suffered from asthma and bronchitis. She was taken to an accident and emergency service, where she refused to undress for a medical examination. Then she was taken to a sobering-up centre where she underwent a breath test, which showed a blood-alcohol level of 0.04 ‰. The doctor refused to keep the applicant in the sobering-up centre. She was taken back to the police station, where she apparently underwent another breath test. Subsequently she was taken to the police detention centre (izba zatrzymań). As emerges from the record of arrest (protokół zatrzymania osoby) the applicant did not appeal against the decision on her arrest and did not ask for a lawyer. She refused to sign the record of arrest.
9. In the police detention centre a policewoman told the applicant that she had to undress to undergo a body search in order to check whether she had any dangerous objects on her. The applicant refused, but as the policewoman allegedly warned her that she would be undressed by force, she eventually agreed. The applicant was then placed in a cell without a mattress. She had to spend the night on a concrete floor without her jacket, which had been taken away from her because it had a cord which might serve as a dangerous object. Only after some time was she given a blanket. She was refused permission to go to the toilet.
10. On 2 June 2001, at an unspecified time during the day, the applicant was released.
11. On the same day, at 21.55, the applicant went to an accident and emergency service in Cracow, where she was examined by a doctor.
12. According to a medical certificate from that examination the applicant had bruises on her chest and both arms, a haematoma on the left arm, bruises on the left hip and a haematoma on her left foot.
13. There are no discrepancies in the facts until the moment the applicant was asked to show her identity card. She refused, saying that she did not have her card on her, and tried to walk away. Subsequently, she was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. They “helped carry out the intervention”. When the applicant was in the car, she suddenly hit one of the policemen in his mouth with the ferrule of her umbrella.
14. Alternatively, according to the criminal court which conducted proceedings against the applicant (see below), the applicant had calmed down before being “put in the car”. After that she hit one of the policemen with her umbrella.
15. There are no discrepancies as regards facts which occurred in the accident and emergency service and the sobering-up centre.
16. Subsequently, in the police detention centre, two policewomen told the applicant that she had to remove her clothing to undergo a body search. The policewomen, who were questioned later in the course of investigation, said that the strip search had been carried out in accordance with the relevant procedures and denied that it could be humiliating for the applicant.
17. On an unspecified date the applicant's lawyer applied to the Cracow District Prosecutor for the prosecution (wniosek o ściganie) of the police officers who had arrested the applicant.
18. On 30 May 2003 the Cracow District Prosecutor discontinued the investigation, finding that the policemen's acts did not constitute the offence of abuse of authority. The prosecutor relied on statements given by a number of witnesses, including the applicant's friend J.D. 's version”. J.D. however did not see what happened after the applicant had been placed in the police car. He said that only at the police station had he noticed that one of the police officers was hurt on his face and that he had found the wound “superficial”. The Prosecutor relied also on an expert opinion produced in the course of the investigation, according to which, as a result of the police intervention on the night in question, the applicant had bruises on both her arms and a haematoma on her left arm, bruises and a haematoma on her left foot, bruises on her left hip and a sprained right wrist. The above symptoms and physical state caused her health to be impaired for a period shorter than seven days within the meaning of Article 157 § 2 of the Criminal Code. As regards the body search of the applicant, the prosecutor invoked the provisions of the 1990 Police Act and Order no. 7/94 of the Chief Police Commandant (Komendant Główny Policji) of 10 November 1994, which provided for the detailed examination of the clothes, shoes and underwear of arrested persons for any objects which could be dangerous to their own or another's health or life.
19. On 16 June 2003 the applicant's lawyer appealed, asking that the evidence in the file of the criminal proceedings against the applicant, which were pending at that time (see: “Criminal proceedings against the applicant”, below), be examined. In the applicant's lawyer's view, it was relevant for the present proceedings that the case against the applicant had been remitted by the second-instance court for reexamination. He also wanted the court to compare the evidence given by the police officers in both sets of proceedings. In his appeal the applicant's lawyer did not refer to the fact that at the police detention centre the applicant had allegedly been refused permission to go to the toilet and that she had had to spend the night on a concrete floor without any cover.
20. On 14 October 2003 the Cracow District Court (Sąd Rejonowy) held a hearing and rejected the applicant's lawyer's application. The court found that it was not bound by a judgment given in the criminal proceedings against the applicant and that the question whether or not the applicant had committed the offence of forcibly resisting arrest was irrelevant for the assessment of whether the police officers had abused their authority.
21. On the same day the Cracow District Court upheld the prosecutor's decision.
22. On an unspecified date the applicant was charged with resisting lawful arrest.
23. On 25 June 2002 the Cracow District Court convicted the applicant as charged and ordered her to pay a fine.
24. On an unspecified date the applicant's lawyer appealed.
25. On 1 July 2003 the Cracow Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case for further examination. The court found that the applicant's injuries could not have been caused by her being placed in the police car in the way described by the police officers.
26. On 24 March 2004 the Cracow District Court, having re-examined the case, again convicted the applicant and ordered her to pay a fine. The District Court did not directly refer to the shortcomings of the proceedings found on appeal by the Regional CourtThe applicant was found guilty of resisting lawful arrest by, inter alia, hitting one of the policemen with an umbrella and hurting his lip and kicking the police officers.
27. On an unspecified date the applicant's lawyer appealed again.
28. On 12 April 2005 the Cracow Regional Court upheld the firstinstance judgment.
29. The regulations on permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order.
30. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person's life, health or property.
31. Order no. 7/94 of the Chief Police Commandant of 10 November 1994 is neither an act nor a regulation which is published in the Journal of Laws (Dziennik Ustaw). Thus it is an internal police document and not accessible to the public.
32. Article 157 of the Criminal Code sets the threshold between minor and more serious bodily injury or impairment to health. According to that provision, if the bodily injury or impairment to health lasts less than seven days, the perpetrator is subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to two years. In such case the prosecution occurs upon a private charge. If the bodily injury or impairment to health lasts longer than seven days, the perpetrator is liable to a heavier penalty.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-108846
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MUCO v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Jean de Dieu Muco, is a Burundian national who was born in 1987 and is currently in Sweden.
The applicant arrived in Sweden on 30 August 2006 and applied for asylum and a residence permit. Before the Migration Board (Migrationsverket) he stated that he was of Tutsi ethnicity from Bujumbura Rural. During the war in 1993 his parents had been killed and he and his four younger siblings had remained in their home town. Since April 2006 they had been threatened by Hutus to leave their property as the Hutus considered that the land belonged to them. On 20 August 2006 a group of former Hutu rebels, who now belonged to the army and police, had come to their home and threatened to burn it. They had separated the applicant from his younger siblings and they had taken him to a graveyard where they had beaten him until he lost consciousness. He had awoken later at a medical centre run by Médecins sans Frontières. One of the doctors had helped to arrange travel documents and a passport for him and this doctor had then travelled with him to Sweden where he had left him. He did not know what had happened to his siblings. The applicant further claimed that he had not reported the incident to the police as both his attackers and the police were of Hutu ethnicity and thus would protect each other. Lastly, he stated that he suffered from hepatitis B and was in need of treatment.
On 19 January 2007 the Migration Board rejected the request. It first stated that the general situation in Burundi was not so serious that the applicant could be granted a residence permit on this sole ground. Turning to his individual claims, the Board noted that the applicant had not reported the incident to the authorities although it was a criminal act and not condoned by the State. Moreover, it observed that about 80% of the cases before the Burundian courts concerned disputes over land, making them a priority issue, which was also reflected in the fact that the authorities cooperated with non-governmental organisations (NGO) to solve property conflicts. As the applicant had failed to report the incident to the police (or to the alleged involved police officers’ superiors), the judicial system or NGOs, he had not exhausted domestic remedies available to him. In this respect, the Board considered that there was no reason to believe that he would not have received help and support from the authorities or NGOs. The fact that he was Tutsi did not change its opinion on this point. Thus, the Board found that the applicant had not shown that he would be at risk if returned and that he was not in need of protection in Sweden. As concerned his illness, the Board noted that he took no medication for his hepatitis B and that health care was available in Burundi. Hence, he could not be granted leave to remain in Sweden on this ground either.
The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that he was now convinced that his younger siblings had been killed so they could not claim their right to the property. The same fate would await him, if he returned. He also stressed that the judicial system in Burundi was corrupt and that, since he had no financial means, he would never win legal proceedings or get help.
On 19 October 2007 the Migration Court rejected the appeal. It first considered that, although parts of the applicant’s story, such as his travel to Sweden, lacked credibility, in general his story about the incident in August 2006 appeared credible. However, like the Migration Board, the court found that the applicant had failed to exhaust the domestic remedies available to him in Burundi and that thereby he had not shown that he was in need of protection in Sweden. It also considered that his illness was not so serious that he could be granted leave to remain in Sweden.
On 14 January 2008 the Migration Court of Appeal (Migrationsöver-domstolen) refused leave to appeal.
On 30 June 2008 the applicant lodged a request for reconsideration of his case. He now claimed that he had worked as a bodyguard for Deo, the president of SOJEDEM (Solidarité des Jeunesse pour la Défense des Droits des Minorités). This had also been the real reason for the attack in August 2006 by the Secret Service as they had wanted to interrogate him and then kill him. The applicant further alleged that he had received confirmation that his siblings had been killed by “Valentine” upon order by Adolphe Nshimirimana, a general within the Secret Service. He was now very afraid of being returned to Burundi as he would be arrested, tortured and killed for political reasons. Since he had been depressed, he had not understood the importance of telling every detail to the migration authorities.
On 7 July 2008 the Migration Board refused to reconsider the case. It noted that the applicant had invoked new circumstances for his asylum claim but found that he had given no valid grounds for why he had not invoked these reasons before. In this respect, it observed that he had been in Sweden for almost two years before mentioning these new reasons. In the Board’s view, it was an escalation of the applicant’s story and not credible. Moreover, it considered that there were no impediments to the enforcement of the deportation order.
The applicant appealed to the Migration Court, relying on the same grounds as before and adding that he had also been active for the organisations AC Genocide, la Puissance d’Auto-defense and PARENA (Parti pour le Redressement National). As he had been very depressed he had not thought of mentioning this before. Moreover, he had only been in contact with persons in Burundi during the summer of 2007 and they had informed him of his “personal situation” there. He submitted a copy of what he claimed was his membership card for SOJEDEM.
On 14 August 2008 the Migration Court rejected the appeal. It noted that the applicant had invoked new grounds for his asylum claim but agreed with the Migration Board that he had shown no valid excuse for not having invoked these circumstances from the beginning.
On 11 June 2009 the applicant lodged his application with the Court and requested the Court to apply Rule 39 of the Rules of Court in order to stop the enforcement of his deportation, scheduled for the following morning. As the application was incomplete and arrived very late in the afternoon, the applicant was informed that the request had been submitted too late to the Court for it to be able to make a proper examination of his request.
On 15 June 2009 the applicant again contacted the Court, informing it that his deportation planned for 12 June 2009 had been postponed to a later, unknown date. Therefore, he renewed his request for interim measures and stated that he had been a fervent member of SOJEDEM. Since the Burundian government persecuted opposition parties and, in particular, SOJEDEM, he had been forced to flee the country. In support, he submitted copies of what he alleged were:
His SOJEDEM membership card.
An arrest warrant (Mandat d’Arrêt), no. 1237/AG/2006, dated 18 August 2006 and signed by General Major Adolphe Nshimirimana, Director of the National Intelligence Service (l’Administrateur General du Service National de Renseignement, SNR). It stated that the SNR ordered the arrest of the applicant for breach of national security (Atteinte à la Sécurité Nationale) and requested all public authorities to help in apprehending him and taking him to the SNR or the police. The copy also contained some text in Kirundi.
An article from “Umuntu-Lumière”, no. 068 of 18 October 2006, and written by Gerard Nimubona. It stated that on 20 August 2006 the family of Ndayshimiye had been attacked by men wearing police uniforms. Five persons had been killed, four were children who were burned alive. Their brother, Muco Jean de Dieu, had been found unconscious at a cemetery and later disappeared. It was suspected that members of the Documentation Nationale and the police were responsible for the deaths as they allegedly wanted to eliminate all witnesses to the acts of genocide committed by persons in power within the governing party, the CNDD-FDD. As this family had lost members during the “crisis”, they had been ready to testify before the international criminal court.
On 8 July 2009 the President of the former Third Section refused the applicant’s request for interim measures. Subsequently, the applicant informed the Court that he wished to maintain his application.
The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.
Burundi is a constitutional republic with an elected government and a population of 8.6 million. Roughly 85% of the population are of Hutu ethnic origin, 15% are Tutsi and fewer than one percent are Twas.
The political landscape of Burundi has been dominated in recent years by the civil war and a long peace process and move to democracy. The country has a multi-party system where the parties are usually based on ethnic background.
The US Department of State, Background note, Burundi, 3 June 2011, sets out, inter alia:
“Burundi’s civil war officially ended in 2006 under a South Africa-brokered cease-fire agreement with the last of Burundi’s rebel groups. In 2009, the PALIPEHUTU-FNL, the last rebel group, disarmed, demobilized and registered as a political party (the FNL), in accordance with the terms of the agreement. Today the government is focused on rebuilding its infrastructure and re-establishing external relations with its regional neighbours.
From May to September [2010], the country held elections for all public offices, including the first direct presidential elections since 1993. Following the May 25 Communal Council elections, which the international community characterized as generally free and fair, a coalition of 12 opposition parties alleged massive fraud and called for the annulment of the results and new elections. When the parties’ demands were not met, they withdrew their candidates from the subsequent presidential, legislative, and “colline” elections. President Pierre Nkurunziza, of the ruling National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD) party, ran unopposed in the June presidential election and was reelected to a second term. International observers characterized the elections as generally free and fair, although there were reports of political violence leading up to and throughout the five-month election season. ...
Human rights abuses during the year included security force killings, torture, and mistreatment of civilians and detainees; official impunity; societal killings and vigilante justice; harsh, life-threatening prison and detention center conditions; prolonged pretrial detention and arbitrary arrest and detention; detention and imprisonment of political prisoners and political detainees; lack of judicial independence and efficiency; official corruption; restrictions on privacy and freedom of speech, assembly, and association; ...”
The 2011 UNHCR country operations profile – Burundi, states as follows in relation to land conflicts:
“Access to land for returnees remains a priority. UNHCR supports the resolution of land disputes by working with the Government’s land commission, the Commission Nationale des Terres et autres Biens (CNTB). With the voluntary return of some 35,000 refugees from Tanzania, the DRC and other countries, the reintegration programme will be extended to the west and north of the country to cover the needs of returnees.
UNHCR will be advocating for the CNTB and informal mechanisms to resolve land conflicts peacefully and to include returnees in national development plans. A contingency plan has been put in place in the case of forced returns from Tanzania. UNHCR will support the reintegration of 53,800 returnees, including those repatriated in 2009 and 2010 and not yet assisted. Legal assistance will be provided to returnees facing land disputes.”
SOJEDEM (Solidarité jeunesse pour la défense des droits des minorités) was founded in 1993 by Father Déogracias Niyonzima, a member of the Dominican Order (expelled from the Order in 1995). It is a Tutsi youth organisation, by some considered extremist.