ITEMID: 001-61185
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF FINUCANE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza;Simon Brown
TEXT: 9. The applicant was born in 1950 and lives in Belfast, Northern Ireland.
10. Around 7.25 p.m. on 12 February 1989 the applicant's husband, solicitor Patrick Finucane, was killed in front of her and their three children by two masked men who broke into their home. She herself was injured, probably by a ricochet bullet. Patrick Finucane was shot in the head, neck and chest. Six bullets had struck the head and there was evidence that one or more of these had been fired within a range of 15 inches when he was lying on the floor. The day after the murder, 13 February 1989, a man telephoned the press and stated that the illegal loyalist paramilitary group the Ulster Freedom Fighters (UFF) claimed responsibility for killing Patrick Finucane – the Provisional Irish Republican Army (Provisional IRA) officer – not the solicitor.
11. Patrick Finucane represented clients from both sides of the conflict in Northern Ireland and was involved in a number of high-profile cases arising from that conflict. The applicant believed that it was because of his work on these cases that prior to his murder he had received death threats, via his clients, from officers of the Royal Ulster Constabulary (RUC) and was targeted for murder. Patrick Finucane had been threatened occasionally since the late 1970s. After acting for Brian Gillen in a case concerning maltreatment in RUC custody, the threats apparently escalated, and clients reported that police officers often abused and threatened to kill him during interrogations at holding centres such as Castlereagh. On 5 January 1989, five weeks before his death, one of Patrick Finucane's clients reported that an RUC officer had said that the solicitor would meet his end. On 7 January 1989 another client claimed that he was told that Patrick Finucane was “getting took out” (murdered). His death came less than four weeks after Douglas Hogg MP, then Parliamentary Under-Secretary of State for the Home Department, had said in a committee stage debate on the Prevention of Terrorism (Temporary Provisions) Bill on 17 January 1989:
“I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.”
12. After the shooting, the applicant's house was cordoned off by the RUC and a forensic examination of the scene conducted by experts. Photographs were taken and maps prepared. A scene of crimes officer examined the car believed to have been used by those responsible for the shooting and which had been found abandoned.
13. On 13 February 1989 a consultant in pathology conducted a post-mortem examination.
14. A “major incident room” was set up at the Antrim Road police station. Many suspected members of the UFF were detained and interviewed about the murder.
15. On 4 July 1989 the RUC found one of the weapons believed to have been used in the murder. On 5 April 1990 three members of the UFF were convicted of possessing this and another weapon and of membership of the UFF. The weapon had been stolen from the barracks of the Ulster Defence Regiment (UDR – a locally recruited regiment of the British army) in August 1987, and in 1988 a member of the UDR was convicted of this theft.
16. In or around September 1990 the police found firearms in the attic of William Stobie's flat. The latter was arrested. He was, according to the applicant, questioned about the Finucane murder from 13 to 20 September 1990. A journalist had allegedly interviewed William Stobie and had told the police about the interview but declined to make a statement. The applicant alleged that William Stobie denied to the police any direct involvement in the shooting but admitted that he was the quartermaster for the Ulster Defence Association (UDA), supplying weapons and recovering them after use. He is also reported as having told the police that he had been acting as an informer for Special Branch for the past three years. A decision was taken on 16 January 1991 not to prosecute William Stobie in connection with the Finucane case, apparently on the ground that there was insufficient evidence. On 23 January 1991 it was decided not to proceed with two arms charges against William Stobie. The prosecution adduced no evidence and he was acquitted.
17. The inquest into Patrick Finucane's death opened on 6 September 1990 and ended the same day. Evidence was heard from RUC officers involved in investigating the death, as well as from the applicant, two neighbours and a taxi driver whose car had been hijacked and used by those responsible for the shooting. The applicant was represented by counsel, who was able to question witnesses on her behalf. After giving evidence, the applicant wanted to make a statement concerning the threats made against her husband by the RUC but was refused permission to do so by the coroner on the ground that it was not relevant to the proceedings.
18. Forensic evidence showed that the victim had been hit at least eleven times by a 9 mm Browning automatic pistol and twice by a .38 Special revolver. Detective Superintendent (D/S) Simpson of the RUC, who was in charge of the murder investigation, gave evidence that the Browning pistol was one of thirteen weapons stolen from Palace army barracks in August 1987 by a member of the UDR who was subsequently jailed for theft. These weapons found their way into the hands of three members of the UFF who were convicted of possession of the weapons and of membership of the UFF. However, the police were satisfied that those individuals had not been in possession of the weapons at the time of Patrick Finucane's murder.
19. According to the evidence given by D/S Simpson at the inquest, the police had interviewed fourteen people in connection with the murder, but had found that, although their suspicions were not assuaged, and they remained reasonably certain that the main perpetrators of the murder were among the suspects, there was insufficient evidence to sustain a charge of murder. None of the fourteen persons had any connection with the security forces. D/S Simpson further stated that none of the suspects had any connection with the security services. He rejected the claim made by the UFF that Patrick Finucane was a member of the Provisional IRA.
20. The inquest heard evidence that the murderers had used a red Ford Sierra car with the registration no. VIA 2985, which had been hijacked by three men from a taxi driver, W.R., shortly before the murder. D/S Simpson stated that he did not think that the hijackers had carried out the murder and that the precision of the killing indicated that the murderers had killed before. He had heard that a death threat had been made in front of a prisoner who was a client of the deceased. He had also seen parts of a report by a group of international lawyers. This had been investigated by the Stevens inquiry team (see below), with whom he liaised closely. Although he did not know who had been interviewed, as the Stevens inquiry was separate from the murder investigation, he said that no evidence had been found substantiating the allegation. On further questioning, he said that he had only read the report by the international lawyers that lunchtime and was unaware of the existence of material linking the security forces to Patrick Finucane's death.
21. On 14 September 1989 the Chief Constable of the RUC appointed John Stevens, then Deputy Chief Constable of the Cambridgeshire Constabulary, to investigate allegations of collusion between members of the security forces and loyalist paramilitaries (the Stevens 1 inquiry).
22. While, according to the applicant, it was claimed by the RUC at the inquest that John Stevens had also investigated her husband's death, the Government state that the inquiry was prompted by events other than the shooting of Patrick Finucane.
23. On 5 April 1990 John Stevens submitted his report to the Chief Constable of the RUC. While the full report was not made public, the Secretary of State for Northern Ireland made a statement to the House of Commons on 17 May 1990 in which he declared, inter alia, that as a result of the inquiry ninety-four persons had been arrested, fifty-nine of whom had been reported or charged with criminal offences. He stated that while the passing of information to paramilitaries by the security forces had taken place, it was restricted to a small number of individuals and was neither widespread nor institutionalised. Any evidence or allegation of criminal conduct had been rigorously followed up. No charges had been laid against members of the RUC, but John Stevens had concluded that there had been misbehaviour by a few members of the UDR. He had made detailed recommendations aimed at improving the arrangements for the dissemination and control of sensitive information.
24. As a result of the Stevens inquiry, Brian Nelson, who had worked as an undercover agent providing information to British military intelligence and who had become the chief intelligence officer of the UDA, an illegal loyalist paramilitary group which directed the activities of the UFF, was arrested. At his trial, the British authorities claimed that he had got out of hand and had become personally involved in loyalist murder plots. Originally, he faced thirty-five charges, but thirteen were dropped and he was eventually convicted on five charges of conspiracy to murder, for which he was sentenced to ten years' imprisonment. During the Stevens inquiry, members of the team had interviewed him. According to the Government, he had denied any complicity in the murder.
25. In prison, Brian Nelson allegedly admitted that, in his capacity as a UDA intelligence officer, he had himself targeted Patrick Finucane and, in his capacity as a double agent, had told his British army handlers about the approach at the time. It was also alleged that he had passed a photograph of Patrick Finucane to the UDA before he was killed. Loyalist sources further alleged that Brian Nelson had himself pointed out Patrick Finucane's house to the killers. These allegations were transmitted in a BBC Panorama programme on 8 June 1992 and the transcript of the programme was sent to the Director of Public Prosecutions (DPP).
26. Following the Panorama programme, the DPP asked the Chief Constable of the RUC to conduct further inquiries into the issues raised in the programme. In April 1993 John Stevens, then Chief Constable of the Northumbria Police, was appointed to conduct a second inquiry (the Stevens 2 inquiry). According to the Government, he investigated the alleged involvement of Brian Nelson and members of the army in the death of Patrick Finucane (see, however, John Steven's press statement, paragraph 33 below). The applicant stated that no member of the inquiry team contacted her or her legal representative, or any former clients of Patrick Finucane, about the death threats made prior to the murder.
27. On 21 January 1995 John Stevens submitted his final report to the DPP, having submitted earlier reports on 25 April 1994 and 18 October 1994. On 17 February 1995 the DPP issued a direction of “no prosecution” to the Chief Constable of the RUC.
28. In answer to a parliamentary question published on 15 May 1995, Sir John Wheeler MP said that the DPP had concluded that there was insufficient evidence to warrant the prosecution of any person, despite Brian Nelson's alleged confession. He refused to place copies of Mr Stevens' three reports in the House of Commons library, claiming that police reports were confidential.
29. On 11 February 1992 the applicant issued a writ of summons against the Ministry of Defence and Brian Nelson, claiming damages on behalf of the estate of the deceased, herself and other dependants of the deceased. It was alleged that the deceased's murder had been committed by or at the instigation of or with the connivance, knowledge, encouragement and assistance of the first defendant and by the second defendant, who was at all material times a servant or agent of the first defendant. It was also alleged that the first defendant had been negligent in the gathering, recording, retention, safe-keeping and dissemination of material concerning the deceased, and in the warning, protection and safeguarding of the deceased.
30. The applicant's statement of claim was served on 8 December 1993 and the defence of the Ministry of Defence on 29 December 1993. In its amended defence of 11 October 1995, it was admitted that Brian Nelson had acted as agent for and on behalf of the Ministry of Defence but it was claimed that if he had had any information about the proposed attack on Patrick Finucane he had not communicated it to the ministry as he was required to do.
31. On 22 January 1998 the applicant served further and better particulars of her case and a request for further and better particulars of the Ministry of Defence's case. She served a list of documents on 8 April 1998. On 20 May 1999 a supplemental list of documents, certified by an affidavit sworn by the Permanent Under Secretary of the Ministry of Defence, was served on the applicant. The applicant requested copies of those documents, which were provided on 20 July 1999. The applicant then asked to inspect the originals but was informed on 21 October 1999 that the Ministry of Defence did not have them.
32. On 12 February 1999 the Government stated that at a meeting between the applicant and Dr Mowlem, the Secretary of State for Northern Ireland, a paper was handed over to Dr Mowlem which, it was claimed, contained new material relating to the murder of Patrick Finucane. This paper was passed on to John Stevens, now Deputy Commissioner of the Metropolitan Police, who had been appointed by the Chief Constable of the RUC to conduct an independent investigation into the murder of the applicant's husband (the Stevens 3 inquiry).
33. On 28 April 1999, at a press conference, John Stevens stated:
“... in September 1989 ... I was appointed ... to conduct the so-called 'Stevens inquiry' into breaches of security by the security forces in Northern Ireland.
This commenced after the theft of montages from Dunmurry Police Station.
This inquiry resulted in 43 convictions and over 800 years of imprisonment for those convicted.
My subsequent report contained over 100 recommendations for the handling of security documents and information.
All of those recommendations were accepted and have been implemented.
This 'Stevens 1' inquiry was followed by a 'Stevens 2' inquiry in April 1993 ...
At the request of the DPP I was asked to investigate further matters which solely related to the previous inquiry and prosecutions. [The then RUC Chief Constable] referred to our return as 'tying up some loose ends'.
At no time, either in Stevens 2 or in the original Stevens 1 inquiry did I investigate the murder of Patrick Finucane ... However, those inquiries through the so-called double agent, Brian Nelson, were linked into the murder of Patrick Finucane.
[The] Chief Constable of the [RUC] has now asked me to conduct an independent investigation into the murder of Patrick Finucane. I am also investigating the associated matters raised by the British Irish Rights Watch document 'Deadly Intelligence' and the UN Commissioner's Report. ...”
34. On or around 23 June 1999 charges were brought against William Stobie for the murder of Patrick Finucane and against Mark Barr, Paul Givens and William Hutchinson for offences of possession of documents containing information useful to terrorists.
35. It was reported by the Committee for the Administration of Justice that on being charged William Stobie made the following statement:
“Not guilty of the charge that you have put to me tonight. At the time I was police informer for Special Branch. On the night of the death of Patrick Finucane I informed Special Branch on two occasions by telephone of a person who was to be shot. I did not know at the time of the person who was to be shot.”
36. William Stobie's solicitor told the court that his client was a paid police informer from 1987 to 1990 and that he had given information to the police on two occasions before the Finucane murder which was not acted upon. He also stated that, at his client's trial on 23 January 1991 on firearms charges, the prosecution had adduced no evidence and his client was acquitted. The bulk of the evidence against his client had, he alleged, been known to the authorities for almost ten years.
37. On 26 November 2001 it was reported in the press that William Stobie's trial had collapsed when the Lord Chief Justice returned a verdict of not guilty in the absence of evidence. The prosecution had informed the court that the key witness, a journalist, was not able to give evidence due to serious mental illness.
38. On 12 December 2001 William Stobie was shot dead by gunmen, shortly after receiving threats from loyalist paramilitaries.
39. Further arrests were reported as having been made by officers in the Stevens inquiry in March 2002, with persons being questioned in relation to the Finucane murder.
40. On 24 October 2001 the government announced in Parliament that, amongst the measures proposed to the Irish government in the context of the Good Friday Agreement, was the proposal for the United Kingdom and Irish governments to appoint a judge of international standing from outside both jurisdictions to undertake an investigation into allegations of security force collusion in loyalist paramilitary killings, including that of Patrick Finucane. In the light of the investigation, the judge would decide whether to recommend a public inquiry into any of the killings.
41. On 17 April 2003 John Stevens submitted his report to the DPP. A nineteen-page overview with recommendations was made public. It included the following:
“4.6. I have uncovered enough evidence to lead me to believe that the murders of Patrick Finucane and Brian Adam Lambert could have been prevented. I also believe that the RUC investigation of Patrick Finucane's murder should have resulted in the early arrest and detection of his killers.
4.7. I concluded that there was collusion in both murders and the circumstances surrounding them. Collusion is evidenced in many ways. This ranges from the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder ...”
He stated that his inquiries with regard to satisfying the test for prosecution in relation to possible offences arising out of these matters were continuing.
42. 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 evidence from witnesses and reports of, inter alia, post-mortem and forensic examinations, who the deceased was and how, when and where he died.
43. Under the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe that a person died directly or indirectly by violence must 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 the district are required to give notice to the coroner (section 8).
44. 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.
45. 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.
46. 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.”
47. The verdict forms used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (for example, bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the verdict form 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 is criminally liable. The jury in England and Wales may also append recommendations to their verdict.
48. However, in Northern Ireland, the coroner is under a duty (section 6(2) of the Prosecution of Offences (Northern Ireland) Order 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.
49. 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. These 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.
50. The coroner enjoys the power to summon such witnesses as he thinks should attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7 of the Coroners Rules). In England and Wales, as in 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) of the Coroners Rules, which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.
51. 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.
52. Rules 15 and 16 of the Coroners Rules (see paragraph 46 above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:
“... [T]he 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.”
53. 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 '[t]o 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 Justice of the Peace Reports 357)
“... [I]t 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 Solicitors' Journal 625)
54. The Director of Public Prosecutions (DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) Order 1972 (“the 1972 Order”), is an independent officer with at least ten 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.”
55. 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.”
56. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (“United Nations Principles on Extra-Legal Executions”), adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provides, inter alia:
“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. ...”
57. Paragraphs 10 to 17 of the United Nations 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. ...”
58. The “Minnesota Protocol” (Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and Summary Executions, contained in the United Nations 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.”
59. 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”.
VIOLATED_ARTICLES: 2


ITEMID: 001-67952
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RAJCOOMAR v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Jogendranath Rajcoomar, is a United Kingdom national who was born in 1952. At the time of the introduction of this application he was detained in prison. He is represented before the Court by Liberty, a non-governmental organisation based in London. The respondent Government are represented by Ms E. Willmott, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, and as they emerge from the transcripts sent by the applicant of the domestic applications, rulings and judgments, may be summarised as follows.
In December 1994 the applicant, a prison governor, was convicted of obtaining property by deception and sentenced to two years' imprisonment.
While he was in prison, another inmate, Paul Dawes (“Dawes”), made contact and offered to introduce him to criminals who would deal with him after his release. Unknown to the applicant, Dawes was a registered police informer. Some of their conversations were recorded, and showed that, while the applicant was initially interested in credit card fraud and counterfeit currency, Dawes attempted to persuade him to become involved in the supply of heroin.
Dawes was released in August 1995 and the applicant in November 1995. The applicant claims that after his release Dawes pressured him to meet. In January 1996 Dawes was again arrested on fraud charges. He was, however, released on bail and, on 25 January 1996, observed by the police, he met with the applicant. Dawes later introduced the applicant to an undercover police officer called “Arif”; Arif introduced him to an undercover officer called “Davinder”; and Davinder introduced him to another undercover officer called “Sam”. Over the next few months the applicant had conversations with these officers during which, he alleges, they pressurised him into supplying drugs, although he was interested only in credit card fraud and counterfeit currency. Some, but not all, of these conversations were recorded.
The applicant agreed to sell heroin to Sam. On 10 June 1996 he provided Sam with a small sample, which he claimed to have bought in a public house. Twice, between 10 and 30 June 1996, he promised to sell Sam a kilogram of heroin, but on each occasion he failed to deliver. In the light of these failures, on 30 June 1996 the police detective in charge of the undercover operation decided to discontinue it.
On 15 August 1996, the operation having been discontinued, the applicant initiated contact with Sam and again offered to supply a kilogram of heroin. After the meeting with Sam the applicant made a number of telephone calls to the Royal Cabs taxi firm in Stoke-on-Trent, which was owned by R., and where H. had worked for many years. Following these calls the applicant paged Sam to tell him that the deal was on.
On 22 August 1996 the applicant was seen driving to Stoke from his home in Oxfordshire. His car was parked near the premises of Royal Cabs for over six hours. Towards the end of the afternoon, in response to a message, Sam telephoned the cab office and the applicant was put on the line to confirm that everything had been arranged. A few minutes later the applicant was observed driving away with two passengers in the car, which he parked near the home of H.'s girlfriend. Later that evening the applicant drove home, accompanied by R. It was the Crown's case that H. had supplied the heroin, and that at this point it was in the possession of R.
On 23 August 1996, H, driving R's car, came to the Hilton Hotel near Warwick shortly after 8 a.m. He and his girlfriend waited in the reception area all morning. At approximately 9.30 a.m. the applicant and R arrived. H. showed no sign of recognition when they walked through the lobby. It was the Crown's case that H. was there to supervise the drugs deal, but he claimed to have come to the hotel to collect R. from an adulterous liaison.
After arriving at the hotel, R. and the applicant separated, and the applicant made contact with Sam. R. rejoined them with a bag containing a kilogram of heroin of 46% purity and all three went to Sam's room in the hotel which had been fitted with covert surveillance equipment. R. handed over the drugs, Sam tested them and left the room, purportedly to fetch GBP 22,000 in cash. The applicant and R. were then arrested, as was H, still waiting in the hotel foyer.
During his initial interviews with the police, on 23 and 24 August 1996, even after having been told that Sam was an undercover police officer, the applicant denied any involvement with the supply of heroin and suggested instead that Sam had brought the drugs to the hotel to falsely implicate him.
The applicant, R. and H. were charged with being concerned in the supply of a Class A drug and indicted for trial in the Crown Court.
It appears that in October 1996 Dawes, who was facing fraud charges, disappeared.
On 15 November 1996 and 7 January 1997 there were directions hearings, at which the defendants were ordered to disclose the outline of their defences. The applicant indicated at that stage that it was his case that he had been “targeted by the police and pressurized into participation by [the] police”. The defence also indicated that they would apply to exclude the police evidence on that basis.
On 4 February 1997 R. pleaded guilty, but the applicant and H. maintained their “not guilty” pleas.
On 12 February 1997 the barrister who was acting for the applicant at the time wrote to the Crown Court in connection with the applicant's legal aid certificate. In the letter he stated, inter alia, that it was the applicant's case that he had been enticed to commit the offence by Sam, and he also indicated that the applicant claimed that Davinder had encouraged him to consider obtaining drugs to sell as an easy way of making money. This letter was seen and responded to by another judge, and the trial judge had no knowledge of it until he was shown a copy of it at the hearing on 6 August 1997.
In February 1997 the applicant's legal representatives wrote to the prosecution requesting, inter alia, full particulars of all occasions when video or audio recording equipment had been used by the police. The prosecution responded on 26 February 1997 that “[t]hese details are included in Sam's witness statements”, without mentioning that there had been other undercover agents involved in the operation whose conversations with the applicant had been recorded. In response to the defence request to “provide the name, address and anything else known about [Davinder]”, the prosecution answered only that Davinder had not made a statement.
On 28 February 1997 the prosecution successfully applied to the trial judge ex parte (that is, in the absence of any representative of the defence) for an order that the status of Dawes, Davinder and Arif, together with transcripts of conversations between these undercover agents and the applicant, be withheld from the defence on the grounds of public interest immunity (“PII”). As the judge later explained during the hearing on 6 August 1997, before this PII hearing on 28 February 1997 he had read transcripts of all the tape-recorded conversations between the applicant, Arif and Davinder. He granted the prosecution's application to withhold evidence relating to these undercover officers because, as far as he knew at that stage, the applicant was alleging only that he had been enticed to commit the offence by Sam, and it did not appear that evidence which the prosecution was not intending to use relating to the other undercover officers would be of any help to the applicant's case, whereas there was a public interest in not disclosing it in order to protect police methods of investigation. He made it clear that his decision would have to be reviewed in the light of the pending application by the defence to exclude the police evidence.
On 8 March 1997 the prosecution wrote to the defence informing them that an application had been granted “for immunity from disclosing certain unused material in the possession of the police”. On 25 March 1997 the applicant's solicitors wrote to the prosecution asking “Do the Crown possess any information relating to Arif, Davinder and Paul Dawes?” but no information in this connection was disclosed at that stage by the prosecution.
On 7 April 1997 the trial judge heard an application by the defence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) to exclude the evidence of Sam on the grounds that he had unfairly enticed the applicant into committing the offence, that he had failed to keep a proper record of his conversations with the applicant and that the status of Davinder (who was believed by the defence to be the informant) was unknown and untested. Defence counsel indicated that if the application did not succeed, the applicant would plead guilty: his only “defence” to the charge was that he had been enticed.
Sam gave evidence and, on the judge's instructions, revealed that Davinder was an undercover police officer. The applicant then gave evidence. During his cross-examination, his solicitor overheard prosecution counsel refer to the fact that Dawes had been the informant. Counsel for the applicant reported this to the trial judge and expressed his concern about the level of disclosure.
On 8 April 1997 the trial judge adjourned the application to exclude the police evidence. He heard from prosecution counsel ex parte and ordered the Crown to make full disclosure of all the evidence relating to the role of the undercover police officers and the informant. The Crown indicated that if full disclosure were made and if the defence wished to continue with the application to exclude the police evidence at a later date, the Crown would call Arif and Davinder to testify.
The defence were then told that Dawes was the informant, that Arif and Davinder were undercover police officers and that further covert recordings existed of conversations between the applicant and these two officers. The applicant's counsel immediately applied to have the proceedings stayed as an abuse of process on the basis, inter alia, that disclosure had not been made at the right time. The trial judge indicated that the application was premature until full disclosure had been made, and the applicant did not therefore pursue it at that time.
Throughout April and May 1997 the defence wrote to the prosecution requesting copies of the informant log, details of the case against Dawes and confirmation of whether or not he had been an informant prior to this case, as well as surveillance logs, the notebooks of Arif and Davinder and confirmation as to whether the co-accused H. was an informant. The prosecution refused to provide any further information in relation to Dawes or H., and invited the defence to come and inspect the logs and notebooks at the police station. In June 1997 the defence wrote to the prosecution asking them to confirm that full disclosure had been made. The prosecution replied by a letter dated 6 June 1997 that they had made disclosure of all “unused material which is considered relevant”.
On 6 August 1997 the applicant again applied to stay the proceedings as an abuse of process. It was argued on his behalf, inter alia, that the fact that full disclosure had not been made before 8 April 1997 had materially prejudiced his chances of persuading the judge that he had been entrapped, because as a result of the lack of disclosure and his ignorance at that point that Arif and Davinder were police officers, that recordings and transcripts of some of his conversations with him were in existence and that they could be called as witnesses, the applicant believed, at the hearing on 7 April 1997, that it was safe for him to give false evidence about his dealings with them without fear of discovery. The defence further argued that because of the circumstances in which the application under section 78 PACE had been adjourned, the prosecution had gained an unfair advantage, because they had already heard the applicant's testimony and would have a chance to prepare their case better were the application to be resumed.
During the course of the hearing of 6 August 1997 the judge ordered that a tape recording of the ex parte PII application of 28 February 1997 be played in open court, to enable the applicant and his representatives to learn what material had originally been withheld from them and the reasons given by the judge for non-disclosure.
It is alleged by the applicant that during the hearing the prosecuting counsel stated in open court that Dawes had been sent to the same prison as the applicant specifically to target him. The Government deny that any such admission was made.
The judge rejected the application to stay the proceedings as an abuse of process. He held that the defence had been at fault in that there had been no indication prior to the hearing on 7 April 1997 that it was the applicant's case that he had been enticed to commit the offence by anyone other than Sam. Since the transcripts of the conversations with the other undercover officers would have been more likely to harm the applicant's case than to assist it, the prosecution had not acted wrongly in seeking to withhold them, and it had been reasonable for him (the judge) not to order disclosure on 28 February 1997. The defence had not established on the balance of probabilities that the applicant had been unduly prejudiced in his application under section 78 PACE: if that application were to be renewed, and if the applicant's evidence were to differ from that he gave on 7 April 1997, it would be for the trial judge to decide whether or not the inconsistency was understandable and resulted from his having been put in a difficult position because of the lack of earlier disclosure.
Finally, the defence counsel referred to the exchange of correspondence in June 1997 and asked for confirmation that all the sensitive material in the case had been disclosed. Prosecution counsel indicated that all the evidence considered by them to be relevant had been disclosed, and the trial judge ruled that this was sufficient: it was not open to the defence to go on a “fishing expedition” in an attempt to force disclosure of sensitive information peripheral to the case; if they suspected that there was additional relevant material which had not been disclosed, they should write explaining their reasons for needing to know about it.
The applicant submits that the trial judge heard at least two further PII applications by the prosecution in early 1998 relating to information concerning Dawes and, possibly, H.'s status as an informant. According to the applicant, the judge ruled that save insofar as they related to Dawes' involvement with the applicant, it was not in the public interest to disclose this information.
On 23 March 1998 the applicant's case was again listed for trial. The defence requested an adjournment on the ground that the prosecution should make further disclosure concerning Dawes' criminal activities and his relations with his police “handler”. The judge could see no reasonable basis for adopting that course and accepted the prosecution contention that it was speculation and “fishing” on the part of the defence. It was further contended on behalf of the applicant that notes or counterfeit notes allegedly handed by Dawes to the officer in charge of the operation should be produced and tested for fingerprints. The judge described this matter as “utterly peripheral”, and refused the applications on the basis that the information sought was irrelevant to the issues in the applicant's case.
The defence therefore proceeded with their application to exclude the police evidence under section 78 PACE, on the ground that the applicant had been entrapped into committing the offence by the undercover police officers with the aid of a participating informer. The applicant, Arif, Davinder and Sam gave evidence, as did the police officer who had been both in charge of the undercover operation and Dawes' “handler”. The applicant alleged that many of his conversations with the undercover agents which had not been recorded – or, at least, of which no transcripts had been produced by the prosecution – would have supported his claim to have been the victim of undue pressure to become involved in the supply of drugs. It was further argued on behalf of the applicant that the lack of disclosure before the hearing on 7 April 1997 had given rise to an abuse of process.
On 8 April 1998 the trial judge held that the submissions on abuse of process and under section 78 of PACE went hand in hand. According to English law, entrapment or unfair incitement by an agent provocateur did not per se afford a defence to a criminal charge but it could constitute a ground for excluding prosecution evidence. The judge went on to review the facts of the case. He rejected the applicant's evidence as to entrapment and said that he was “entirely satisfied” that the applicant had not been pressurised to commit the offence. He found that none of the officers had overstepped the mark and that Dawes was not a “participating informant” as that phrase was understood and clarified by a Home Office Circular. The trial judge also found that it was the applicant who had brought up the subject of drugs as one of the things he was interested in at a very early stage and that the applicant had been a willing supplier of drugs at all times.
Having made those findings, the judge went on to consider whether any of the evidence should nonetheless be excluded under section 78 of PACE by reason of any procedural irregularity. He ruled against exclusion, finding that nothing had been done in the case by the prosecution which amounted to a deliberate or inadvertent abuse of process, and that the applicant had not been caused prejudice.
The applicant then changed his plea to one of guilty of being concerned in the supply of a controlled drug of Class A. He offered to make a statement to the prosecution but the prosecution said they would not wish to call him in the trial of his co-accused, H. He was sentenced to seven years' imprisonment.
The applicant applied for leave to appeal, challenging the trial judge's rulings. The single judge found as follows:
“All the [trial] judge's rulings were within his discretion, and in each case he directed himself correctly as to the applicable law. Specifically:-
(i) on the information available to the prosecution on 28th February 1997, the existence and status of the undercover police officers was irrelevant.
(ii) in August 1997, the judge ruled that the defence had fallen far short of establishing prejudice and that the points raised had no real substance.
(iii) the judge was right to reject the (further) application for an adjournment on 23rd March 1998 (see e.g. 'utterly peripheral'...)
(iv) in the main ruling on 8th April 1998, the judge, having summarised the law correctly, rejected the appellant's evidence and found that the appellant was not pressured, and indeed that the appellant himself brought up the subject of drugs at an early stage. Given these findings, the admission of the evidence was inevitable. ...”
The applicant appealed to the full Court of Appeal which refused leave to appeal in a judgment of 18 February 1999.
's rulings, which had formed the basis of the grounds of appeal, and expressed itself to be in agreement with the single judge, that each of the trial judge's rulings fell plainly within the scope of the reasonable exercise of his discretion. The Court of Appeal in addition dismissed the defence contention that the trial judge, in rejecting the applicant's claim to have been entrapped, had taken into account inadmissible hearsay evidence, namely the investigating officer's account of what he had been told by Dawes; even if he did take such evidence into account, it was plainly not determinative of his decision, which would have been reached in any event given his “emphatic rejection of Rajcoomar's evidence”.
The national law relevant to this application is set out in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 31-45, 27 October 2004).


ITEMID: 001-102121
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF JAKÓBSKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 9;Non-pecuniary damage - award
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1965 and is currently detained in Nowogród Prison.
6. Since 20 June 2003 the applicant has been serving an eight-year prison sentence imposed by the Poznan Regional Court following his conviction for rape.
7. He was previously held in Goleniów Prison. On several occasions he requested to be served meat-free meals on account of his religious dietary requirements. He submitted that he was a Buddhist and that he adhered strictly to the Mahayana Buddhist dietary rules which required refraining from eating meat.
8. On 19 January 2006 the prison dermatologist recommended that the applicant be placed on a meat-free diet in view of his health problems. For three months he was granted a “no pork” diet (PK diet) that included very little meat and was also applied to six Muslims detained in the Goleniów Prison.
9. On 20 April 2006 a doctor who examined the applicant considered that there were no medical grounds to continue granting the PK diet to the applicant. Consequently, the diet was discontinued. The applicant objected and threatened to go on a hunger strike.
10. On 27 April 2006 the applicant asked the District Prosecutor to institute criminal proceedings against the employees of Goleniów Prison. The applicant claimed that despite having requested on several occasions to be provided with a meat-free diet, he was receiving meals containing meat products. Since he could not eat meat for religious reasons he depended on food parcels from his family. He was forced to accept the meals and then throw them away. The refusal to accept them would have been regarded as a decision to start a hunger strike and would have entailed disciplinary punishment. On 13 June 2006 the Goleniów District Prosecutor discontinued the criminal proceedings in respect of the applicant's allegations.
11. On 3 July 2006 the Buddhist Mission in Poland sent a letter to the prison authorities supporting the applicant's request for a meat-free diet. They submitted that the Mahayana Buddhists had a serious moral problem when they were forced to eat meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings. They further asked the authorities simply to eliminate meat products from the applicant's meals.
12. On 17 July 2006 the applicant requested the Director of Goleniów Prison to be served meat-free meals in view of his religious dietary requirements. He noted that the PK diet contained meat products and therefore it did not satisfy his needs. The applicant's request was refused on 16 October 2006. That decision did not contain any reasons.
13. On 21 August 2006 and 31 August 2006 the applicant asked the Goleniów District Prosecutor to institute criminal proceedings against the prison guards. He alleged that there had been an interference with his religious convictions, in particular as the guards had referred to the Buddhist Mission in Poland as “a sect”. They had also thrown religious publications belonging to the applicant into a toilet. On 19 August 2006, after receiving a family visit, he was ordered to undergo a body search. The applicant took off his clothes except for his underwear, whereupon the prison guard allegedly touched his private parts. He was further ordered to squat and other prison guards ridiculed him.
14. On 29 October 2006 the Goleniów District Prosecutor refused to institute criminal proceedings against the persons concerned. It considered that the applicant's allegations were unfounded. The applicant was entitled to exchange correspondence with the Buddhist Mission in Poland and he could also telephone them. In addition, he was entitled to a diet that roughly corresponded to his religious requirements. However, the prosecutor stressed that as the applicant was kept in a single cell, there were no witnesses to the alleged ill-treatment by the prison officers and it was impossible to establish whether the events described by the applicant had actually taken place.
15. On 13 October 2006 the District Court dismissed the applicant's interlocutory appeal against the decision of 13 June 2006. The court held that the applicant, when refusing to accept meals containing meat, had referred to his alleged vegetarianism. The court considered that there was no information in the prison files showing that the applicant was a vegetarian, and in addition for 3 months he had agreed to the PK diet even though it was not a completely meat-free diet.
16. On 14 November 2006 in reply to the applicant's further complaints, the Szczecin Regional Prisons Inspector informed the applicant that the only special diet available in Goleniów Prison was the “PK” diet. That diet, with the exception of pork, consisted of various meat products, namely beef and poultry, as well as fish. A meat-free diet was not available in that prison.
17. On 20 November 2006 the Szczecin Prisons Inspector, in reply to yet another complaint from the applicant, again confirmed that the only special diet which took into account religious beliefs was the PK diet. In addition, he explained:
“A convict has a right to change religion while serving a prison sentence and to profit from freedom of religion if he/she feels like that. However, this does not mean that the prison authorities are obliged to provide an individual with special food in order to meet the specific requirements of his faith. The question of food related to religion or cultural background should not lead convicts to manipulate the prison authorities in order to secure personal advantages.”
18. On 14 December 2006 the Goleniów District Court dismissed the applicant's interlocutory appeal against the decision of 29 September 2006.
19. On 25 June 2007 the Buddhist Mission in Poland again sent a letter to the Director of Goleniów Prison asking him to provide the applicant with a meat-free diet.
20. In a complaint lodged with the Szczecin Regional Court on 3 September 2007 the applicant argued that the diet he had been granted in Goleniów Prison did not take into account his religious beliefs.
21. On 3 December 2007 the Regional Court dismissed the applicant's complaint. The court held that the applicant had been granted a special diet since 18 July 2006. It further noted that given the technical conditions in the prison kitchen, the transporting of meals and understaffing in the kitchen, it was not possible to provide each prisoner individually with food in conformity with his or her religious dietary requirements. The court also confirmed that meals without pork were prepared.
22. In March 2009 the applicant was transferred to Nowogród Prison. On 2 May 2009 he applied to be served meat-free meals in view of his religious dietary requirements. The applicant's request was refused on 13 May 2009.
23. On 12 August 2009 in reply to the applicant's complaint, the Ombudsman informed him that the prison authorities had not been obliged to prepare special meals taking into consideration different dietary requirements. In addition, since the applicant was the only Buddhist in this prison, it would have put too much strain on the prison authorities.
24. The situation of prisoners and persons detained on remand is governed by the Code of Execution of Criminal Sentences of 6 June 1997.
Under Article 109 of that Code, prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. On the basis of that Article the Minister of Justice issued the Ordinance of 22 September 2003 on the rules to be followed by the relevant authorities when determining daily meals and different diets to be allowed to persons detained in prisons (Rozporzadzenie Ministra Sprawiedliwosci w sprawie okreslenia wartosci dziennej normy wyzywienia oraz rodzaju diet wydawanych osobom osadzonym w zakladach karnych I aresztach sledczych). The ordinance refers to two types of special diet – a “light diet” (dieta lekkostrawna) and a “diet for diabetics” (dieta cukrzycowa).
25. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 445 § 1 of the Civil Code, applicable in the event that a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“...The court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of whether he or she seeks any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest.”
26. A Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of diet in prison that may be relevant in the context of the present case.
“1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
2. The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.
3. Food shall be prepared and served hygienically.
4. There shall be three meals a day with reasonable intervals between them.
5. Clean drinking water shall be available to prisoners at all times.
6. The medical practitioner or a qualified nurse shall order a change in diet for a particular prisoner when it is needed on medical grounds. “
VIOLATED_ARTICLES: 9


ITEMID: 001-90190
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GOGIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1962 and lives in the town of Debaltseve, in the Donetsk region, Ukraine.
5. On 15 July 1998 the Dokuchayevsk Court ordered the State-owned mining company “Yuzhnodonbassakya-3” (“the company”) to pay the applicant 2,147.72 Ukrainian hryvnyas (UAH) in salary arrears and other payments. By another decision adopted on the same day the court ordered the company to pay the applicant UAH 312.11 for loss of salary and to rectify the records in his work book (трудова книжка) about the date and the reason of his dismissal.
6. On 1 September 1998 the same court ordered the company to pay the applicant UAH 949.90 for loss of salary and other payments. By the same judgment the court ruled again to rectify the records in his work book about the date of his dismissal.
7. On 6 January 1999 the same court ordered the company to pay the applicant UAH 1,438.42 for loss of salary and other payments. By the same judgment the court ruled to rectify the records in his work book about the date of his dismissal.
8. On 26 February 1999 the same court ordered the company to enforce the judgments of 15 July 1998.
9. On 1 October 1999 the same court ordered the company to provide the applicant with an apartment, as stipulated in his employment contract. On 4 March 2002 the same court, upon the applicant’s request, modified the manner of enforcement of the judgment of 1 October 1999 and ordered the company to pay the applicant UAH 13,137 instead of providing him with an apartment.
10. All the above judgments became final and the enforcement proceedings were instituted by the Vugledar Bailiffs Service (“the Bailiffs Service”).
11. On 22 February 2000 the Bailiffs Service informed the applicant that the enforcement proceedings had been suspended due to bankruptcy proceedings pending against the company.
12. In September 2003 the applicant instituted proceedings in the Vugledar Court against the Bailiffs Service seeking compensation for damage caused to him due to the non-enforcement of the above judgments. On 10 June 2004 the Vugledar Court rejected the applicant’s complaints against the alleged inactivity of the Bailiffs Service. On 26 August 2004 the Donetsk Regional Court of Appeal quashed the decision and remitted the case to the first-instance court for a new consideration. According to the applicant’s submissions, the proceedings are still pending.
13. The applicant rented a house owned by Mr. Ch. In December 2001 the applicant instituted proceedings against the municipal company Donetskoblvodokanal (ДОКП Донецькоблводоканал), and the Dokuchaevsk Water and Sewerage Company (Докучаєвське управління водопровідно каналізаційного господарства) claiming UAH 2,000 in compensation for non-pecuniary damage, alleging that the water supply to the house rented by him was unsatisfactory. The applicant also sought a recalculation of his water rates.
14. On 13 September 2002 the Dokuchayevsk Court allowed the applicant’s claims in part. On 5 December 2002 the Donetsk Regional Court of Appeal quashed that decision and remitted the case to the Dokuchayevsk Court for a fresh consideration by another judge.
15. On 6 May 2003 the Dokuchayevsk Court allowed the applicant’s claim in part and awarded him UAH 1,000 in compensation for non-pecuniary damage. On 21 July 2003 the Donetsk Regional Court of Appeal quashed this decision and remitted the case to the Dokuchaevsk Court for a fresh consideration by another judge.
16. On 13 August 2003 the President of the Dokuchayevsk Court requested that the Donetsk Regional Court of Appeal transfer the applicant’s case to another court on the ground that it only had two judges, who had both already considered the case. On 19 August 2003 the Court of Appeal granted the request and transferred the case to the Volnovakha Court.
17. Meanwhile, the applicant appealed in cassation against the ruling of the court of appeal of 21 July 2003. On 15 June 2005 the Supreme Court rejected the applicant’s cassation appeal.
18. On 8 February 2006 Mr Ch. entered the proceedings as a third party. On 22 February 2006 he requested that the Volnovakha Court suspend the proceedings in the applicant’s case since he had instituted other proceedings against the municipal company “Donetskvodokanal” in the Dokuchaevsk Court, and their outcome would have a bearing on the consideration of the case. On the same date the court granted the request. On 31 May 2006 the Dokuchaevsk Court left Mr Ch.’s claim unexamined because it lacked jurisdiction over the case. On 23 July 2006 the Volnovakha Court renewed proceedings in the applicant’s case.
19. On 7 November 2006 the Volnovakha Court allowed the applicant’s claim in part and awarded him UAH 200 in compensation for non-pecuniary damage. On 13 March 2007 the Donetsk Regional Court of Appeal upheld that decision.
20. On 19 September 2007 the Supreme Court dismissed the applicant’s appeal in cassation.
21. According to the materials in the case file, out of around forty-one scheduled hearings, seven were adjourned due to the absence or at the request of the defendants’ representatives. Four were adjourned because of the absence of both parties; four were adjourned because of the absence of the applicant or at his request; and one was adjourned due to the judge’s illness.
22. On 29 March 2002 the Volnovakha Tax Inspection Office fined the applicant with UAH 170 because he had submitted his VAT declaration out of time.
23. In May 2002 the applicant lodged a complaint with the Dokuchayevsk Court.
24. On 22 July 2002 the applicant’s complaint was transferred to the Volnovakha Court, which left it unexamined on the ground that the dispute fell within the jurisdiction of the commercial courts. On 4 November 2002 and 29 August 2003 the Donetsk Regional Court of Appeal and the Supreme Court, respectively, upheld that ruling.
25. On 2 March 2004 the investigator of the Debaltseve Department of the Interior appointed the applicant, acting as a legal advisor, as legal assistant to a minor, B., who was charged with robbery. On 5 March 2004 the Public Prosecutor of Debaltseve annulled this appointment; on 16 March 2003 B.’s mother cancelled the legal aid contract.
26. The applicant alleged that the Vice-President of the Donetsk Regional Court of Appeal ordered that lawyers without an advocate’s licence were not to be appointed as legal assistants.
27. The relevant domestic law is summarised in the judgments of Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005) and Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).
VIOLATED_ARTICLES: 6