ITEMID: 001-58080
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF WINGROVE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10
JUDGES: John Freeland
TEXT: 7. The applicant, Mr Nigel Wingrove, is a film director. He was born in 1957 and resides in London.
8. Mr Wingrove wrote the shooting script for, and directed the making of, a video work entitled Visions of Ecstasy. Its running time is approximately eighteen minutes, and it contains no dialogue, only music and moving images. According to the applicant, the idea for the film was derived from the life and writings of St Teresa of Avila, the sixteenth-century Carmelite nun and founder of many convents, who experienced powerful ecstatic visions of Jesus Christ.
9. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa. It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground. She loses consciousness. This sequence takes up approximately half of the running time of the video. The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her. Throughout this sequence, St Teresa appears to be writhing in exquisite erotic sensation. This sequence is intercut at frequent intervals with a second sequence in which one sees the body of Christ, fastened to the cross which is lying upon the ground. St Teresa first kisses the stigmata of his feet before moving up his body and kissing or licking the gaping wound in his right side. Then she sits astride him, seemingly naked under her habit, all the while moving in a motion reflecting intense erotic arousal, and kisses his lips. For a few seconds, it appears that he responds to her kisses. This action is intercut with the passionate kisses of the psyche already described. Finally, St Teresa runs her hand down to the fixed hand of Christ and entwines his fingers in hers. As she does so, the fingers of Christ seem to curl upwards to hold with hers, whereupon the video ends.
10. Apart from the cast list which appears on the screen for a few seconds, the viewer has no means of knowing from the film itself that the person dressed as a nun in the video is intended to be St Teresa or that the other woman who appears is intended to be her psyche. No attempt is made in the video to explain its historical background.
11. Visions of Ecstasy was submitted to the British Board of Film Classification ("the Board"), being the authority designated by the Home Secretary under section 4 (1) of the Video Recordings Act 1984 ("the 1984 Act" - see paragraph 24 below) as
"the authority responsible for making arrangements (a) for determining, for the purposes of [the] Act whether or not video works are suitable for classification certificates to be issued in respect of them, having special regard to the likelihood of video works in respect of which such certificates have been issued being viewed in the home, (b) in the case of works which are determined in accordance with the arrangements to be so suitable (i) for making such other determinations as are required for the issue of classification certificates, and (ii) for issuing such certificates ... ..."
12. The applicant submitted the video to the Board in order that it might lawfully be sold, hired out or otherwise supplied to the general public or a section thereof.
13. The Board rejected the application for a classification certificate on 18 September 1989 in the following terms:
"Further to your application for a classification certificate ..., you are already aware that under the Video Recordings Act 1984 the Board must determine first of all whether or not a video work is suitable for such a certificate to be issued to it, having special regard to the likelihood of video works being viewed in the home. In making this judgment, the Board must have regard to the Home Secretary’s Letter of Designation in which we are enjoined to `continue to seek to avoid classifying works which are obscene within the meaning of the Obscene Publications Acts 1959 and 1964 or which infringe other provisions of the criminal law’. Amongst these provisions is the criminal law of blasphemy, as tested recently in the House of Lords in R. v. Lemon (1979), commonly known as the Gay News case. The definition of blasphemy cited therein is ‘any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible ... It is not blasphemous to speak or publish opinions hostile to the Christian religion’ if the publication is ‘decent and temperate’. The question is not one of the matter expressed, but of its manner, i.e. `the tone, style and spirit’, in which it is presented. The video work submitted by you depicts the mingling of religious ecstasy and sexual passion, a matter which may be of legitimate concern to the artist. It becomes subject to the law of blasphemy, however, if the manner of its presentation is bound to give rise to outrage at the unacceptable treatment of a sacred subject. Because the wounded body of the crucified Christ is presented solely as the focus of, and at certain moments a participant in, the erotic desire of St Teresa, with no attempt to explore the meaning of the imagery beyond engaging the viewer in an erotic experience, it is the Board’s view, and that of its legal advisers, that a reasonable jury properly directed would find that the work infringes the criminal law of blasphemy. To summarise, it is not the case that the sexual imagery in Visions of Ecstasy lies beyond the parameters of the `18’ category; it is simply that for a major proportion of the work’s duration that sexual imagery is focused on the figure of the crucified Christ. If the male figure were not Christ, the problem would not arise. Cuts of a fairly radical nature in the overt expressions of sexuality between St Teresa and the Christ figure might be practicable, but I understand that you do not wish to attempt this course of action. In consequence, we have concluded that it would not be suitable for a classification certificate to be issued to this video work."
14. The applicant appealed against the Board’s determination to the Video Appeals Committee ("the VAC" - see paragraph 25 below), established pursuant to section 4 (3) of the 1984 Act. His notice of appeal, prepared by his legal representatives at the time, contained the following grounds:
"(i) that the Board was wrong to conclude that the video infringes the criminal law of blasphemy, and that a reasonable jury properly directed would so find; (ii) in particular, the Appellant will contend that upon a proper understanding of the serious nature of the video as an artistic and imaginative interpretation of the `ecstasy’ or `rapture’ of the sixteenth-century Carmelite nun, St Teresa of Avila, it would not be taken by a reasonable person as contemptuous, reviling, scurrilous or ludicrous or otherwise disparaging in relation to God, Jesus Christ or the Bible. The appeal will raise the question of mixed fact and law, namely whether publication of the video, even to a restricted degree, would contravene the existing criminal law of blasphemy."
15. The Board submitted a formal reply to the VAC explaining its decision in relation to its functions under section 4 of the 1984 Act:
"The Act does not expressly set out the principles to be applied by the authority in determining whether or not a video work is suitable for a classification certificate to be issued in respect of it. In these circumstances, the Board has exercised its discretion to formulate principles for classifying video works in a manner which it believes to be both reasonable and suited to carrying out the broad objectives of the Act. Amongst these principles, the Board has concluded that an overriding test of suitability for classification is the determination that the video work in question does not infringe the criminal law. In formulating and applying this principle, the Board has consistently had regard to the Home Secretary’s Letter of Designation under the Video Recordings Act ... The Board has concluded on the advice of leading Counsel that the video work in question infringes the criminal law of blasphemy and that a reasonable jury properly directed on the law would convict accordingly. The Board submits and is advised that in Britain the offence of blasphemy is committed if a video work treats a religious subject (in particular God, Jesus Christ or the Bible) in such a manner as to be calculated (that is, bound, not intended) to outrage those who have an understanding of, sympathy towards and support for the Christian story and ethic, because of the contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and spirit in which the subject is presented. The video work under appeal purports to depict the erotic fantasies of a character described in the credits as St Teresa of Avila. The 14-minute second section of the video work portrays ‘St Teresa’ having an erotic fantasy involving the crucified figure of Christ, and also a Lesbian erotic fantasy involving the ‘Psyche of St Teresa’. No attempt is made to place what is shown in any historical, religious or dramatic context: the figures of St Teresa and her psyche are both clearly modern in appearance and the erotic images are accompanied by a rock music backing. The work contains no dialogue or evidence of an interest in exploring the psychology or even the sexuality of the character purporting to be St Teresa of Avila. Instead, this character and her supposed fantasies about lesbianism and the body and blood of Christ are presented as the occasion for a series of erotic images of a kind familiar from ‘soft-core’ pornography. In support of its contentions, the Board refers to an interview given by the appellant and published in Midweek magazine on 14 September 1989. In this interview, the appellant attempts to draw a distinction between pornography and ‘erotica’, denying that the video work in question is pornographic but stating that `all my own work is actually erotica’. Further on, the interviewer comments: `In many ways, though, Visions calls upon the standard lexicon of lust found in down market porn: nuns, lesbianism, women tied up (Gay Nuns in Bondage could have been an alternative title in fact). Nigel Wingrove flashes a wicked grin. `That’s right, and I’m not denying it. I don’t know what it is about nuns, it’s the same sort of thing as white stocking tops I suppose.’ So why does he not consider Visions to be pornography, or at least soft porn? `I hope it is gentler, subtler than that. I suppose most people think pornography shows the sex act, and this doesn’t.’ It is clear from the appellant’s own admissions that, whether or not the video work can rightly be described as pornographic, it is solely erotic in content, and it focuses this erotic imagery for much of its duration on the body and blood of Christ, who is even shown to respond to the sexual attentions of the principal character. Moreover, the manner in which such imagery is treated places the focus of the work less on the erotic feelings of the character than on those of the audience, which is the primary function of pornography whether or not it shows the sex act explicitly. Because there is no attempt, in the Board’s view, to explore the meaning of the imagery beyond engaging the viewer in a voyeuristic erotic experience, the Board considers that the public distribution of such a video work would outrage and insult the feelings of believing Christians ... ... The Board ... submits that the appeal should be dismissed and its determination upheld."
16. The applicant then made further representations to the VAC, stating, inter alia:
"The definition of the offence of blasphemy set out in ... the reply is too wide, being significantly wider than the test approved in the only modern authority - see Lemon & Gay News Ltd v. Whitehouse [1979] Appeal Cases 617, per Lord Scarman at 665. For example, there is no uniform law of blasphemy in Britain; the last recorded prosecution for blasphemy under the law of Scotland was in 1843 - see Thos Paterson [1843] I Brown 629. Nor is any religious subject protected - the reviling matter must be in relation to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. In the Appellant’s contention, these limitations are of the utmost significance in this case since the video is not concerned with anything which God or Jesus Christ did, or thought or might have approved of. It is about the erotic visions and imaginings of a sixteenth-century Carmelite nun - namely St Teresa of Avila. It is quite plain that the Christ figure exists in her fantasy as the Board expressly accepts ... The scurrilous and/or erotic treatment of religious subject matter has received the Board’s classification without attempted prosecution in recent years, e.g. Monty Python’s Life of Brian and Mr Scorsese’s The Last Temptation of Christ. ... The Board argues that the video is purely erotic or ‘soft-core’ pornographic, without historical, religious, dramatic or other artistic merit. The implication is that, had it possessed such merit the Board’s decision might very well have been otherwise. The Appellant will seek to argue and call evidence to the effect that the video work is a serious treatment of the subject of the ecstatic raptures of St Teresa (well chronicled in her own works and those of commentators) from a twentieth-century point of view. The so-called ‘rock music backing’ was in fact specially commissioned from the respected composer Steven Severin, after discussion of the Director’s desired artistic and emotional impact. The Board has based its decision upon the narrowest, most disparaging, critical appreciation of the work. The Appellant will contend that a very much more favourable assessment of his aims and achievement in making Visions of Ecstasy is, at the very least, tenable and that the Board ought not to refuse a certificate on a mere matter of interpretation. The Appellant takes objection to the Board’s quotation ... of comments attributed to him from an article by one Rob Ryan published in Midweek magazine 14th September 1989. The remarks are pure hearsay so far as the Board is concerned. That aside, the piece quoted is in large part the comments of the author of the article. An entirely misleading impression of what the Appellant said to the author is conveyed by the interpolation of the words attributed to him, and by taking this passage out of context. Above all, the Appellant disputes the key assertion by the Board that the video work is solely erotic in content."
17. The appeal was heard by a five-member panel of the VAC ("the Panel") on 6 and 7 December 1989; oral and affidavit evidence was submitted. By a majority of three to two, a written decision rejecting the appeal was given on 23 December 1989. The Panel also considered itself bound by the criteria set out in the designation notice (see paragraph 24 below). It had difficulty, however, in ascertaining and applying the present law of blasphemy. It commented as follows:
"The authorities on this Common Law offence were reviewed by the House of Lords in the case of Lemon and Gay News Ltd v. Whitehouse which concerned a magazine called Gay News, the readership of which consisted mainly of homosexuals although it was on sale to the general public at some bookstalls. One edition contained a poem entitled The Love that Dares to Speak its Name accompanied by a drawing illustrating its subject matter. In his judgment Lord Scarman said that it was unnecessary to speculate whether an outraged Christian would feel provoked by the words and illustration to commit a breach of the peace, the true test being whether the words are calculated to outrage and insult the Christian’s religious feelings, the material in question being contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England. It should perhaps be added that the word `calculated’ should be read in the dictionary sense of `estimated’ or `likely’ as it was decided that intent (other than an intent to publish) is not an element in the offence. In the same case Lord Diplock said that the material must be `likely to arouse a sense of outrage among those who believe in or respect the Christian faith’. In the present case the Board’s Director ... said in evidence that the Board’s view was that the video was `contemptuous of the divinity of Christ’. He added that although the Board’s decision was based upon its view that the video is blasphemous (blasphemy being an offence which relates only to the Christian religion), it would take just the same stance if it were asked to grant a Certificate to a video which, for instance, was contemptuous of Mohammed or Buddha."
18. The Panel went on to review the content of the video and accepted that the applicant had in mind St Teresa, a nun, "who is known to have had ecstatic visions of Christ although, incidentally, these did not start until she was 39 years of age - in marked contrast to the obvious youthfulness of the actress who plays the part".
19. The Panel reached the following conclusion:
"From the writings of St Teresa herself, and the subsequent writings of others, there seems no reason to doubt that some of her visions were of seeing the glorified body of Christ and being shown his wounds but, even so, it seems clear that Mr Wingrove has taken considerable artistic licence with his subject. Apart from the age discrepancy - a comparatively minor matter - we were made aware of nothing which would suggest that Teresa ever did anything to injure her hand or that any element of lesbianism ever entered into her visions. More importantly, there seems nothing to suggest that Teresa, in her visions, ever saw herself as being in any bodily contact with the glorified Christ. As one author, Mr Stephen Clissold, puts it `Teresa experienced ecstasy as a form of prayer in which she herself played almost no part’. So, in view of the extent of the artistic licence, we think it would be reasonable to look upon the video as centring upon any nun of any century who, like many others down the ages, had ecstatic visions. There is also another reason for taking this stance: unless the viewer happens to read the cast list which appears on the screen for a few seconds, he or she has no means of knowing that the nun is supposed to be St Teresa, nor that the figure of the second woman is supposed to be her psyche. And he or she in any event may well be unaware that Teresa was a real-life nun who had ecstatic visions. It is true that Mr Wingrove says that it is intended that the sleeve or jacket for the video will provide ‘basic historical information to assist the viewer’, but we feel bound to regard this as irrelevant. Firstly because it by no means follows that every viewer will read any such description; and secondly because the Board’s and the Appeal Panel’s decision must be based solely upon the video itself, quite apart from the fact that at the time of making a decision the sleeve or jacket is usually - as in the present instance - not even in existence. However, although we have thought it proper to dwell at some length with the ‘St Teresa’ aspect, we are of the opinion that in practice, when considering whether or not the video is blasphemous, it makes little or no difference whether one looks upon the central character as being St Teresa or any other nun. The appellant, in his written statement, lays stress upon the undoubted fact that the whole of the second half consists of Teresa’s vision or dream. Hence he says the video says nothing about Christ, his figure being used only as a projection of St Teresa’s mind, nor was it his intention to make that figure an active participant in any overt sexual act. He goes on to say `Rather the very mild responses are those of St Teresa’s conjecture: the kiss, hand clasp and ultimately the tears of Christ. To show no response to a creation of her own mind would be nonsense; no woman (nor man) whose deep love could cause such visions/ecstasies would imagine the object of that love coldly to ignore their caresses’. Although we quite appreciate the logic of this point of view, we have reservations about the extent to which a vision or dream sequence can affect the question of whether what is pictured or said is blasphemous. It would, for instance, be possible to produce a film or video which was most extremely contemptuous, reviling, scurrilous or ludicrous in relation to Christ, all dressed up in the context of someone’s imaginings. In such circumstances we find it hard to envisage that, by such a simple device, it could reasonably be said that no offence had been committed. If in our opinion the viewer, after making proper allowance for the scene being in the form of a dream, nevertheless reasonably feels that it would cause a sense of outrage and insult to a Christian’s feelings, the offence would be established. We should perhaps also deal, albeit briefly, with a further submission made on behalf of the appellant, namely that the crime of blasphemy may extend only to the written or spoken word and hence that a court might rule that no film or video, and perhaps nothing shown on television, could become the subject of such a charge. Suffice it to say that in our view this is too unlikely to cause it to be taken into account by the Board or a panel of the Appeals Committee when reaching a decision. In the opinion of a majority of the Panel the video did not, as the appellant claims, explore St Teresa’s struggles against her visions but exploited a devotion to Christ in purely carnal terms. Furthermore they considered that it lacked the seriousness and depth of The Last Temptation of Christ with which Counsel for the appellant sought to compare it. Indeed the majority took the view that the video’s message was that the nun was moved not by religious ecstasy but rather by sexual ecstasy, this ecstasy being of a perverse kind - full of images of blood, sado-masochism, lesbianism (or perhaps auto-erotism) and bondage. Although there was evidence of some element of repressed sexuality in St Teresa’s devotion to Christ, they did not consider that this gave any ground for portraying her as taking the initiative in indulged sexuality. They considered the over-all tone and spirit of the video to be indecent and had little doubt that all the above factors, coupled with the motions of the nun whilst astride the body of Christ and the response to her kisses and the intertwining of the fingers would outrage the feelings of Christians, who would reasonably look upon it as being contemptuous of the divinity of Christ. In these circumstances the majority were satisfied that the video is blasphemous, that a reasonable and properly directed jury would be likely to convict and therefore that the Board was right to refuse to grant a Certificate. Hence this appeal is accordingly dismissed. It should perhaps be added that the minority on the Panel, whilst being in no doubt that many people would find the video to be extremely distasteful, would have allowed the appeal because in their view it is unlikely that a reasonable and properly directed jury would convict."
20. As a result of the Board’s determination, as upheld by the Panel, the applicant would commit an offence under section 9 of the 1984 Act (see paragraph 23 below) if he were to supply the video in any manner, whether or not for reward.
21. The applicant received legal advice that his case was not suitable for judicial review (see paragraphs 30-31 below) on the grounds that the formulation of the law of blasphemy, as accepted by the Panel, was an "accurate statement of the present law".
22. According to statistics submitted by the Government, in 1994 there were 21.5 million video-recorders in the United Kingdom. Out of approximately 20.75 million households in the United Kingdom, 18 million contained at least one video-recorder. There were approximately 15,000 video outlets in the United Kingdom. Videos were available for hire in between 4,000 and 5,000 video rental shops. They were also available for sale in 3,000 "high street" shops and in between 7,000 and 8,000 "secondary" outlets such as supermarkets, corner shops and petrol stations. In 1994 there were 194 million video rentals and 66 million video purchases in the United Kingdom. It is estimated that a further 65 million illegal copies ("pirate videos") were distributed during that year.
23. The Video Recordings Act 1984 ("the 1984 Act") regulates the distribution of video works. Subject to certain exemptions, it is an offence under section 9 (1) of that Act for a person to supply or offer to supply a video work in respect of which no classification certificate has been issued. Under section 7 there are three categories of classification: works deemed suitable for general viewing (and to which a parental guidance reference may be added); works for which the viewing is restricted to people who have attained a specified age; and works which may only be supplied by licensed sex shops. The Secretary of State for the Home Department may require that the content of certain works be labelled (section 8). It is an offence to ignore such conditions, for example by supplying someone under 18 years of age with an "18" classified work (section 11).
24. Under section 4 (1) of the 1984 Act the Secretary of State may by notice designate any person or body as the authority for making arrangements for determining whether or not video works are suitable for classification certificates to be issued in respect of them (having special regard to the likelihood of certified video works being viewed in the home). By a notice dated 26 July 1985 the British Board of Film Classification was so designated. In the case of works which are determined in accordance with the arrangements described above to be suitable for classification certificates, the Board is responsible under section 4 (1) for making arrangements for the issue of certificates and making other determinations relating to their use. The Secretary of State’s notice enjoined the Board "to continue to seek to avoid classifying works which are obscene within the meaning of the Obscene Publications Acts 1959 and 1964 or which infringe other provisions of the criminal law".
25. Pursuant to section 4 (3) of the 1984 Act arrangements were made for the establishment of the Video Appeals Committee to determine appeals against decisions by the Board.
26. Blasphemy and blasphemous libel are common law offences triable on indictment and punishable by fine or imprisonment. Blasphemy consists in speaking and blasphemous libel in otherwise publishing blasphemous matter. Libel involves a publication in a permanent form, but that form may consist of moving pictures.
27. In the case of Whitehouse v. Gay News Ltd and Lemon [1979] Appeal Cases 617 at 665, which concerned the law of blasphemy in England, Lord Scarman held that the modern law of blasphemy was correctly formulated in Article 214 of Stephen’s Digest of the Criminal Law, 9th edition (1950). This states as follows:
"Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves."
The House of Lords in that case also decided that the mental element in the offence (mens rea) did not depend upon the accused having an intent to blaspheme. It was sufficient for the prosecution to prove that the publication had been intentional and that the matter published was blasphemous. The Gay News case, which had been brought by a private prosecutor, had been the first prosecution for blasphemy since 1922.
28. As stated above, the law of blasphemy only protects the Christian religion and, more specifically, the established Church of England. This was confirmed by the Divisional Court in 1991. Ruling on an application for judicial review of a magistrate’s refusal to issue a summons for blasphemy against Salman Rushdie and the publishers of The Satanic Verses, Lord Watkins stated:
"We have no doubt that as the law now stands it does not extend to religions other than Christianity ... ... We think it right to say that, were it open to us to extend the law to cover religions other than Christianity, we should refrain from doing so. Considerations of public policy are extremely difficult and complex. It would be virtually impossible by judicial decision to set sufficiently clear limits to the offence, and other problems involved are formidable." (R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All England Law Reports 306 at 318)
29. On 4 July 1989 the then Minister of State at the Home Department, Mr John Patten, had sent a letter to a number of influential British Muslims, in which he stated inter alia that:
"Many Muslims have argued that the law of blasphemy should be amended to take books such as [The Satanic Verses] outside the boundary of what is legally acceptable. We have considered their arguments carefully and reached the conclusion that it would be unwise for a variety of reasons to amend the law of blasphemy, not the least the clear lack of agreement over whether the law should be reformed or repealed. ... ... an alteration in the law could lead to a rush of litigation which would damage relations between faiths. I hope you can appreciate how divisive and how damaging such litigation might be, and how inappropriate our legal mechanisms are for dealing with matters of faith and individual belief. Indeed, the Christian faith no longer relies on it, preferring to recognise that the strength of their own belief is the best armour against mockers and blasphemers."
30. Decisions by public bodies which have consequences which affect some person or body of persons are susceptible to challenge in the High Court on an application for judicial review. Amongst the grounds on which such a challenge may be brought is that the body in question misdirected itself on a point of law. The Video Appeals Committee is such a public body because it is established pursuant to an Act of Parliament (see paragraph 25 above). Furthermore, its decisions affect the rights of persons who make video works because confirmation of a decision that a video work cannot receive a classification certificate would mean that copies of that work could not be lawfully supplied to members of the public.
31. On an application for judicial review a court would not normally look at the merits of any decision made by such a body, except where the decision was so unreasonable that no reasonable body, properly instructed, could have reached it. However, where the decision is based on a point of law and it is alleged that the body has misdirected itself on that point, the decision could be challenged by an application for judicial review. In the case of C.C.S.U. v. Minister for the Civil Service [1984] 3 All England Law Reports at 950, Lord Diplock, in the House of Lords, classified under three heads the grounds on which administrative action is subject to control by judicial review. He called the first ground "illegality" and described it as follows:
"By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the State is exercisable."
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-99589
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KURŁOWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1957 and lives in Knyszyn.
6. At the material time the applicant was the President of the City Council in Knyszyn (Przewodniczący Rady Miasta).
7. On 30 December 2004 a session of the City Council took place. One of the points on the agenda was a vote on whether to adopt a resolution requesting the Education Inspector (Kurator Oświaty) to give a positive report on the continued operation of the Knyszyn School Complex (Zespół Szkół Ogólnokształcących w Knyszynie). Since 1998, the manager of the school complex had been K. Ch.
8. During the session on 30 December 2004 the applicant, together with other representatives, voted against the planned resolution. The City Council adopted another resolution and decided that they would not request from the Education Inspector a positive report referred to above.
9. At the next session of the City Council, on 28 February 2005, further discussion about the future of the school complex was held. During the session the applicant took the floor and presented some arguments which in his view supported the resolution adopted on 30 December 2004. The applicant accused K. Ch of:
- adopting an inappropriate timetable, unjustified division of students into groups, increasing overtime, which caused additional costs;
- ismanagement of the school complex finances, increase of heating costs;
- reating the school complex as private property, the lease of school premises without remuneration;
- poor organisation of the students' free time during the school holidays;
- spending money on teachers' training which was not appropriate or objective and which did not correspond to the school's needs;
- lack of discipline at school;
- irresponsibility – organising a disco above a room in which a mock exam was being held;
- failure to appoint the school council;
- failure to adopt clear and transparent rules for granting awards to teachers; awards were granted publicly to some and in private to others;
- failure to provide reliable information on granting “incentive bonuses” to teachers;
- granting overtime work only to certain teachers;
- failure to advertise the school complex;
- failure to cooperate with the municipality;
- disorder in the teachers' personal files;
- intimidating teachers with threats that they would be fired or deprived of bonus payments, and so on;
- inadequate educational standards; only ten out of twenty-six students passed their final exams.
10. K. Ch., the school manager, found the accusations defamatory and untrue. He demanded that the applicant provide the participants at the session with evidence substantiating his allegations.
11. The events that took place during the session of the City Council on 28 February 2005 were subsequently described in an article published in the local edition and on the internet site of Gazeta Współczesna and on the internet site of the Mońki Municipality.
12. On 4 April 2005 K. Ch. lodged a private bill of indictment against the applicant with the Białystok District Court (Sąd Rejonowy), complaining that the applicant's statements of 28 February 2005 were defamatory.
13. On 2 December 2005 the Białystok District Court found the applicant guilty of presenting untrue statements during the session of the City Council as regards the performance of K. Ch. in his professional duties, which amounted to defamation which could impact negatively on the necessary public respect and esteem required by K. Ch. in the execution of his duties as headmaster of a public school and as a teacher. Relying on Article 212 § 1 of the Criminal Code (Kodeks Karny), the court sentenced the applicant to a fine in the amount of PLN 750 and ordered that the judgment of conviction be published. The court also ordered the applicant to apologise for all his accusations.
14. On 30 December 2005 the applicant's lawyer appealed against the first-instance judgment. She argued that the Białystok District Court had wrongly assessed the evidence, in that it had considered that the applicant's intention had been to insult K.Ch., while he had been motivated solely by concern for the local community. In consequence, according to the applicant's lawyer, the applicant should not have been sentenced on the basis of having committed defamation. The lawyer also referred to a violation of Article 10 of the Convention.
15. On 30 March 2006 the Białystok Regional Court (Sąd Okręgowy) partly amended the first-instance judgment. It found that taking into consideration the social consequences of the prohibited act and the conduct of the applicant, as well as his personal and family situation, it was unnecessary to sentence the applicant. The Regional Court amended the first-instance judgment in that it conditionally discontinued the proceedings for a probationary term of one year, ordered the applicant to pay PLN 750 to charity and rescinded the publication of the applicant's conviction. The court also ordered that during a session of the Knyszyn City Council the applicant should make a statement that his accusations had been untrue and apologise to K.Ch.
16. At the same time however the Regional Court confirmed the District Court's finding that the applicant's statements had been untrue and that the applicant had been acting on his own behalf rather than out of concern for the interests of the municipality. The court further dismissed the argument of a violation of Article 10 of the Convention as manifestly ill-founded, holding that that provision did not guarantee unlimited freedom of expression.
17. On 26 May 2006 the applicant's lawyer requested the Ombudsman to lodge a cassation appeal on the applicant's behalf.
18. On 9 August 2006 the Ombudsman refused her request, finding that the arguments contained in the judgments of the first and second-instance courts had not raised any doubts.
19. On 11 October 2006 at the session of the Knyszyn City Council the applicant read out the statement required by the Regional Court's judgment and apologised to K.Ch.
20. On 16 August 2006 the applicant's lawyer lodged a constitutional complaint with the Constitutional Court (Trybunał Konstytucyjny), arguing that Article 212 of the Criminal Code was incompatible with the relevant provisions of the Constitution.
21. On 17 October 2007 the Constitutional Court refused to hear the constitutional complaint (odmówił nadania dalszego biegu skardze), holding that a similar matter had already been examined by the court in its judgment of 30 October 2006.
22. Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
23. Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality) provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
24. Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”
25. Article 212 of the Criminal Code 1997 provides as follows:
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower this person, group or entity in the public's opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction on their liberty or imprisonment not exceeding one year.
§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding two years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or the Polish Red Cross, or of another social purpose designated by the injured person (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.”
26. Article 213 provides as follows:
“§ 1. The offence specified in Article 212 § 1 is not committed if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone's life or to prevent demoralisation of a minor.”
27. Article 214 provides as follows:
“The absence of an offence resulting from a reason specified in Article 213 does not exclude the liability of a perpetrator for the insult, by reason of the manner of announcing or publicising the allegation.”
Article 215 provides as follows:
“On the motion of the injured person the court may order the judgment of conviction to be punished.”
28. On 30 October 2006 the Constitutional Court, ruling on a legal question referred to it by the Gdańsk District Court, declared Article 212 §§ 1 and 2 of the Polish Criminal Code compatible with Articles 14 and 54 § 1 read in conjunction with Article 31 § 3 of the Constitution.
29. The court found that in some circumstances the protection of rights and freedoms such as dignity, good name and privacy may prevail over the protection of freedom of expression. The court further found that there was no basis to assume that protection of freedom of expression merely by means of civil law (provisions on personal rights) would be as efficient as criminal law. Protection of freedom of expression by means of criminal law did not of itself infringe the relevant provisions of the Constitution.
30. Three judges expressed their dissenting opinions to the Constitutional Court's judgment of 30 October 2006.
VIOLATED_ARTICLES: 10


ITEMID: 001-114767
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAVOVI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1946, 1950, 1971, 1973 and 1980 respectively and live in Smolyan. The first and second applicants are spouses and the other applicants are their children. During the relevant period they all shared the same household.
7. In the period between 25 July 1997 and 22 August 2001 the first applicant was the head of the Smolyan district police department.
8. On 7 January 1998 an inspection commission from the Inspectorate of the Ministry of the Interior (“the Commission”), acting in accordance with an order of the Minister of the Interior (“the Minister”), inspected the police department and informed the first applicant that his office and home had been subjected to covert surveillance by his inferiors. The next day the covert surveillance was terminated and the surveillance equipment removed. Three officers of the same department, Mr S.B., chief of the Criminal Police Division, Mr I.I., chief of the Group for Operative and Technical Information, and Mr G., chief of the Anti-Terrorist Division, were dismissed in connection with the incident.
9. In a report of 6 February 1998 the Commission established that on 4 December 1997 Mr S.B. had informed the Minister that he suspected the first applicant of links with criminal groups. On the following day Mr S.B. and Mr I.I. had requested a warrant for covert surveillance of the first applicant’s home and office. The chairman of the Plovdiv Military Court had issued the warrant on the same day and authorised two operations: surveillance of the applicants’ home in the period between 5 December 1997 and 4 February 1998, and of the first applicant’s office in the period between 6 December 1997 and 5 January 1998. The surveillance had started on 8 December 1997 without the requisite written authorisation of the Minister. The Commission did not draw any conclusion as to the lawfulness of the surveillance as such but limited the scope of its inspection to the conduct of the involved police officers. According to its report, Mr S.B. and Mr I.I. had committed serious breaches of the disciplinary rules in order to discredit the first applicant. It was further noted that some of the information gathered during the surveillance constituted a state secret which Mr S.B. had not been authorised to know. In the Commission’s opinion, the case revealed insufficient control by the Ministry of the Interior.
10. On 2 April 1998 the head of the Inspectorate reported the case to the military prosecuting authorities, in whom the power to investigate criminal offences committed by police officers was vested at the relevant time. There is no information as to whether the latter took any action.
11. On an unspecified date the Supreme Administrative Court quashed the dismissal of Mr S.B. and Mr I.I. in proceedings classified as confidential.
12. On 11 September 2001 the first applicant requested the Chief Public Prosecutor to open an investigation into the incident. On 27 November 2001 criminal proceedings were opened. The military investigator questioned the suspects and a number of witnesses.
13. In his explanations, Mr S.B. claimed that the Minister had given his consent for covert surveillance of the first applicant during a meeting between them on 4 December 1997.
14. The Minister stated that Mr S.B. and Mr I.I. had not informed him that they had requested surveillance measures against the first applicant. They had sent him several envelopes containing information but he had forwarded them to another officer without opening them. It was only later that he had learned about the surveillance of the first applicant.
15. According to witness statements, following the inspection members of the Commission had put the material obtained from the surveillance in a cardboard box and taken it away. The head of the Operative and Technical Information Service at the Ministry of the Interior stated that the material had not been received in that department and that he was not aware of its whereabouts.
16. On 25 March 2002 Mr S.B. and Mr I.I. were charged with an offence under Article 387 of the Criminal Code (see paragraph 37 below).
17. On 13 January 2003 the first applicant lodged a civil claim for damages in the context of the criminal proceedings.
18. On 4 September 2003 a prosecutor from the Plovdiv district military prosecutor’s office terminated the proceedings and discontinued the first applicant’s civil claim. He noted that the Minister had not approved the requests for secret surveillance in respect of the first applicant. However, during the inspection of 8 January 1998 the surveillance had been discontinued and the intelligence thus obtained had been delivered to the Chief Secretary of the Ministry of the Interior and had later been destroyed. The prosecutor therefore found that the first applicant had not suffered any damage, as the intelligence gathered had been destroyed. He further found that Mr S.B. and Mr I.I. had acted in accordance with section 17 of the SSMA, which only required the Minister to be informed about secret surveillance in urgent cases.
19. On 19 September 2003 the applicant appealed to the Plovdiv Military Court. He indicated several allegedly unclear points, among which: the reason why the case had been considered urgent; whether Mr S.B. and Mr I.I. were competent to request the application of secret surveillance and the reasons for considering that no surveillance had taken place between 5 and 8 January 1998.
20. By a decision of 30 September 2003 the Military Court quashed the appealed order for lack of sufficient reasoning and remitted the case for further investigation. It noted that the public prosecutor had not explained why he deemed that there had been a situation of urgency justifying the application of section 17 of the SSMA, nor why the two accused had failed to inform the Minister immediately, as the SSMA required. It went on to hold that the possible surveillance of the first applicant for several days after the expiration of the permission had also not been investigated.
21. The investigator questioned the two accused. They stated that they had sent the requests to the Minister for approval on 18 or 19 December 1997, together with some of the material gathered.
22. By an order of 18 August 2004 a prosecutor from the Plovdiv district military prosecutor’s office again terminated the proceedings. He found that the Minister had given oral permission for surveillance of the first applicant on 4 December 1997. The two accused had sent him the first envelope containing intelligence on 10 December 1997. The requests for covert surveillance had been sent on 19 December 1997 together with the second portion of intelligence. The last envelope had been sent on 26 December 1997. He found that while the Minister had not approved the secret surveillance in writing, he had in any event given oral permission and the two accused had acted pursuant to section 17 of the SSMA. The prosecutor noted that the Minister denied having given any oral permission for secret surveillance. However, he assumed that the Minister must have known about it, as the first results from it had been sent to him in December 1997. The prosecutor further found that in the period between 5 and 8 January 1998 secret surveillance was indeed still deployed, as time had been necessary for their dismantling, but no intelligence had been gathered during this period. He also held that although the Minister had not been informed immediately, this was a trivial breach of the procedure which did not amount to a criminal offence as no damage had been inflicted on the first applicant.
23. On 23 August 2004 the first applicant appealed further, reiterating his arguments and emphasising the Commission’s finding that on 8 January 1998 his office was still under secret surveillance.
24. In a final decision of 8 September 2004 the Plovdiv Military Court dismissed the appeal and terminated the proceedings. It relied on the prosecutor’s findings, and held that the accused officers had acted in accordance with the law and that the first applicant had not suffered any damage from their actions. Mr S.B. and Mr. I.I. had been dismissed on disciplinary grounds, but the Supreme Administrative Court had quashed the dismissal and ordered their reinstatement, thus finding that their actions had been lawful. The court also held that the case had been urgent as it had concerned the head of the Smolyan District Police Department and that no secret surveillance had taken place outside the permitted time-limit.
25. According to the information made available to the Court, no investigation was ever opened against the first applicant in connection with any criminal activity or unlawful conduct.
26. On an unspecified date in 2001 the first applicant initiated private criminal proceedings against Mr S.B. and Mr I.I. for insult and libel, and joined a civil claim for damages, in relation to allegedly insulting statements made by them on a local radio station and in a newspaper in August 2001 relating to his personality and his work as head of the Smolyan District Police Department.
27. In a judgment of 9 February 2004 the Smolyan District Court acquitted the defendants of the charges of insult and found them guilty of libel, sentencing them to a fine. It also awarded damages to the first applicant.
28. On 24 June 2004 the Smolyan Regional Court quashed this judgment for breaches of procedure and remitted the case for fresh examination.
29. In a court hearing on 11 October 2004 the Smolyan District Court terminated the proceedings, as the statutory limitation period for the offences had expired. The court did not rule on the civil claim, as it found that after the remittal the first applicant should have been designated a civil claimant again. This had not been possible however as no hearing on the merits had taken place after the remittal.
30. On an unspecified date in 2006 the first applicant brought a civil action against Mr S.B. and Mr I.I. for insult and libel. In a judgment of 6 November 2008 the Plovdiv Regional Court partly allowed the action. On appeal on 18 May 2009 the Plovdiv Appeal Court quashed that judgment, holding that the first applicant had not proved that he had sustained any non-pecuniary damage in connection with the defendants’ statements. On 17 February 2010 the Supreme Court upheld the judgment of the Plovdiv Appeal Court, with similar reasoning.
31. The relevant provisions of the Constitution of 1991 are:
“1. The private life of citizens shall be inviolable. Everyone shall have the right to be protected against unlawful interference with his private and family life and against encroachments on his honour, dignity and reputation.
2. No one may be spied on, photographed, filmed, recorded, or subjected to similar actions without his or her knowledge or despite his or her express disagreement, except in cases provided for by law.”
“The home shall be inviolable. No one may enter or remain in it without the consent of its inhabitant, except in the cases expressly specified by law.”
“1. The freedom and secrecy of correspondence and other communications shall be inviolable.
2. This rule may only be subject to exceptions with the permission of the judicial authorities, when necessary for uncovering or preventing serious offences.”
“Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or affects the rights of others.”
32. Under the Special Surveillance Means Act of 1997 (“the SSMA”), as in force at the relevant time, only several exhaustively listed bodies, including the regional directorates of the Ministry of the Interior, could request the use of special means of surveillance and draw on the intelligence obtained thereby (section 13 of the SSMA). Section 14 of the SSMA specified that it was the head of the respective service who could start the procedure for deploying such measures by lodging a written application with the relevant court.
33. After a judicial warrant had been issued, the Minister of the Interior or a deputy minister designated in writing by the Minister was to make a written order for the deployment of special means of surveillance (section 16). In urgent cases the deployment could start immediately upon the issue of the judicial warrant (section 17). However, in that case the Minister or the deputy minister was to be informed immediately (ibid.). In a judgment of 2005 (реш. № 504 от 2005 г. по н.д. № 1072/2004 г.) the Supreme Court of Cassation found that the written approval of the Minister of the Interior was of a technical nature and could be given after the beginning of the surveillance, while the existence of a court warrant at the time of deployment of the surveillance measures was essential for their lawfulness. As regards what was considered an “urgent case”, in its judgment of 2010 (реш. № 481 от 2010 г. по в.н.о.х.д. № 763/2010 г.) the Sofia Court of Appeal stated that this issue was to be determined by the body conducting the surveillance and that its discretion was not amenable to judicial review.
34. The remainder of the SSMA provisions and other legislation relevant to the application of means of secret surveillance as well as judicial practice on this issue have been summarised in paragraphs §§ 7-54 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).
35. Following the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above), on 14 October 2008 the Government laid before Parliament a bill for the amendment of the SSMA. The explanatory notes to the bill referred to the above-mentioned judgment and to the need to bring the Act in line with the requirements of the Convention. The bill was enacted on 15 December 2008 and came into force on 27 December 2008. Along with a host of other changes, the amendment created a National Bureau for Control over Special Surveillance Means, an independent body whose task was to oversee the services authorised to use such means. On 22 October 2009 Parliament adopted further amendments to the Act, abolishing the Bureau and replacing it with a special parliamentary commission vested with similar competence. Its powers included inspecting the premises where the information or documents connected with covert surveillance were kept or disposed of, requesting information from the bodies using surveillance measures, reporting to the Parliament, and making recommendations on the work of the competent bodies. It could also inform individuals, under certain conditions, that unlawful surveillance measures had been applied in respect of them.
36. Pursuant to Article 339a of the Criminal Code (CC) of 1968, the manufacture, use, sale and retention of special technical means for secret gathering of information without authorisation received in accordance with the law is an offence. The offence is aggravated if it is committed by an official in connection with his or her duties.
37. Article 387 of the CC provides that the abuse and excess of power and failure to carry out duties associated with an office held, resulting in damage being inflicted, is an offence.
38. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as amended in July 2006, provides as follows:
“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.”
39. Section 2(1) of the SMRDA provides for liability of the investigating and prosecuting authorities or the courts in six situations: unlawful detention; bringing of charges or conviction and sentencing, if the proceedings have later been abandoned or the conviction has been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration.
40. On 10 March 2009 a new point 7 was added to section 2(1). It provides that the State is liable for the damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special surveillance means. There is no reported caselaw under that provision.
41. According to the caselaw the Supreme Court of Cassation and the Supreme Administrative Court, the liability provisions of the SMRDA – including those added after the Act was originally enacted – confer on the persons concerned a substantive right to claim damages, and have no retroactive effect (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, §§ 31-32, 8 March 2011).
42. The pertinent provisions of the Code of Criminal Procedure of 1974, applicable at the relevant time, and other relevant legislation and practice, have been summarised in paragraphs 22-29 of the Court’s judgment in the case of Atanasova v. Bulgaria (no. 72001/01, 2 October 2008).
VIOLATED_ARTICLES: 13
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-58829
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF DU ROY AND MALAURIE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 10. At the material time the first applicant was the editor of the weekly magazine L'Evénement du Jeudi and the second applicant was a journalist on the magazine.
11. In its edition of 11 to 17 February 1993 L'Evénement du Jeudi published an article by the second applicant under the headline: “Sonacotra: the Left puts its house in order”.
12. The article was particularly critical of Michel Gagneux, the former head of Sonacotra (national company for the construction of workers' housing), and of his relations with Sonacotra's new management, who on 10 February 1993 had lodged a criminal complaint against Mr Gagneux alleging misuse of company property and had applied to join the proceedings as a civil party.
13. On 11 March 1993 Mr Gagneux summoned the applicants to appear in the Paris Criminal Court to answer a charge of publishing information concerning applications to join criminal proceedings as a civil party, an offence under section 2 of the Act of 2 July 1931. Mr Gagneux considered that he had been the victim of a breach of that provision on account of the following passages of the article published in L'Evénement du Jeudi:
“Sonacotra: the Left puts its house in order”
“Never before! The managers of a public company have condemned their predecessors' running of the company – and lodged a criminal complaint!”
“Raison d'Etat foiled! In bringing a complaint against their predecessor Michel Gagneux for misappropriation and misuse of company property, Sonacotra's managers have shown courage. As they are well aware, there is a serious risk that it will be discovered that men with links to the PS [Socialist Party] have been able to make free with the 'immigrants' cash'.”
14. In a judgment of 9 July 1993 the Paris Criminal Court found the applicants guilty and fined them 3,000 French francs (FRF) each. In addition to that sentence, damages were awarded to Mr Gagneux in his civil action and an order was made for the judgment to be published.
The court noted that the prohibition in section 2 of the Act of 2 July 1931 was general and absolute; the information had only to concern a criminal complaint that had been lodged together with an application to join the proceedings as a civil party.
The court further stated that the prohibition was intended to safeguard the presumption of innocence and to prevent any external influence on the course of justice. Accordingly, it was necessary in a democratic society for the “protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” within the meaning of Article 10 of the Convention.
15. On 16 July 1993 the applicants appealed against that judgment.
16. In a judgment of 2 February 1994 the Paris Court of Appeal upheld the applicants' conviction and the amount of the fine but reduced to one franc the damages awarded to Mr Gagneux as the civil party. Its decision included the following passage:
“The trial court rightly dismissed the defendants' submission that the Act of 2 July 1931 was incompatible with Article 10 [of the Convention], noting that the provisions of that Act, which were designed to protect persons against whom a complaint is lodged, to safeguard the presumption of innocence and to prevent any external influence on the course of justice, fell within the scope of the restrictions on freedom of expression permitted by the ... Convention ..., the restriction in question being proportionate to the aim pursued.”
17. The applicants then appealed on points of law. In their grounds of appeal they submitted, as they had done in the courts below, that there had been a violation of Article 10 of the Convention. They referred to the general and absolute nature of the prohibition of publication, arguing that it was disproportionate to the aim pursued.
18. In a judgment of 19 March 1996 the Court of Cassation held that the criminal proceedings had become barred as a result of an intervening amnesty. It further held that it was still required to rule on the appeal on points of law in respect of the civil action and dismissed it, stating in particular:
“The Court of Appeal rightly dismissed the defendants' submission that the Act of 2 July 1931 was incompatible with Article 10 of the ... Convention ...
While the first paragraph of Article 10 of the said Convention states that everyone has the right to freedom of expression, the second paragraph provides that the exercise of that freedom, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions or penalties as are prescribed by law and are necessary in a democratic society for, inter alia, the protection of the rights of others, and for maintaining the authority and impartiality of the judiciary; such is the purpose, which is proportionate to the aim pursued, of section 2 of the Act cited above.”
19. Section 2 of the Act of 2 July 1931 provides:
“The publication, before a judicial decision has been given, of any information concerning applications to join criminal proceedings as a civil party under Article 63 of the [former] Code of Criminal Procedure [Code d'instruction criminelle] [Article 85 of the current Code of Criminal Procedure (Code de procédure pénale)] shall be prohibited, on pain of a fine of FRF 120,000 as laid down in the last paragraph of section 39 of the Act of 29 July 1881 ...”
20. Article 9-1 of the Civil Code provides:
“Everyone is entitled to be presumed innocent until proved guilty. Where a person ... the subject of ... a criminal complaint lodged together with a civil-party application is, before any judgment has been given against him, publicly portrayed as being guilty of an offence or offences in respect of which an inquiry or judicial investigation is being conducted, the court may direct, even on a summary application, that a notice be printed in the publication concerned in order to end the breach of the presumption of innocence ...”
21. The relevant provisions of the Code of Criminal Procedure read:
“Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings during the inquiry and the judicial investigation shall be confidential ...”
“Where, after a judicial investigation begun on a criminal complaint and civil-party application, a decision has been taken that there is no case to answer, the public prosecutor may summon the civil party before the criminal court in which the case was investigated. If the complaint and civil-party application are held to have been an abuse of process or to have been intended purely to gain time, the court may impose a civil fine, the amount of which shall not exceed FRF 100,000. The proceedings must be brought within three months of the date on which the decision that there is no case to answer becomes final.
Within the same period and without prejudice to the institution of criminal proceedings for malicious prosecution, the person placed under investigation or any other person who was the subject of the complaint may, if he does not bring a civil action, seek damages from the complainant ...”
VIOLATED_ARTICLES: 10


ITEMID: 001-61247
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF Y.F. v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1951 and lives in Bingöl.
10. On 15 October 1993 the applicant and two days later his wife, Mrs N.F., were taken into police custody in Bingöl on suspicion of aiding and abetting an illegal terrorist organisation, namely the PKK (Workers' Party of Kurdistan).
11. Mrs F. was held in police custody for four days, during which period she was allegedly kept blindfolded. The police officers allegedly hit her with truncheons, insulted her verbally and threatened her with rape.
12. On 20 October 1993, following her detention in police custody, Mrs F. was examined by a doctor, who reported that there were no signs of ill-treatment on her body. On the same day she was taken to a gynaecologist for a further examination. The police requested that the report should indicate whether she had had vaginal or anal intercourse while in custody. Despite her refusal, Mrs F. was forced by the police officers to undergo a gynaecological examination. The police officers remained on the premises while Mrs F. was examined behind a curtain. The doctor reported that she had not had any sexual intercourse in the days preceding the examination.
13. On the same day Mrs F. was taken to the Bingöl public prosecutor's office, where she complained about her forced gynaecological examination. The public prosecutor did not record her complaints and ordered her release.
14. On 28 October 1993 the public prosecutor at the Diyarbakır National Security Court charged the applicant and his wife with aiding and abetting members of the PKK.
15. On 23 March 1994 the Diyarbakır National Security Court acquitted the applicant and his wife for lack of evidence.
16. On 9 February 1995, the applicant and his wife complained to the Bingöl public prosecutor about their ill-treatment while in police custody. They further complained that Mrs F. had been forced to undergo a gynaecological examination without her consent.
17. The police officers denied the allegations in statements made before the Bingöl public prosecutor. They submitted that it had been necessary for a gynaecological examination to be performed in order to determine whether Mrs F. had been sexually assaulted while in police custody. They further submitted that the examination had been performed with her consent.
18. On 5 October 1995 the Bingöl public prosecutor decided not to prosecute the police officers for lack of evidence. The applicant and his wife appealed.
19. On 29 November 1995 the Muş Assize Court quashed the public prosecutor's decision on the ground that there had been insufficient examination of the evidence in the investigation file.
20. On 19 December 1995 the Bingöl public prosecutor charged three police officers with, inter alia, violating Mrs F.'s private life by forcing her to undergo a gynaecological examination.
21. On 16 May 1996 the Bingöl Assize Court acquitted the defendant police officers on the ground that the complainants had not provided sufficient convincing evidence in support of their allegations. The court held that the police officers had had no intention of subjecting the applicant's wife to degrading and humiliating treatment when they made her undergo a gynaecological examination, but were trying to protect themselves against a possible accusation of rape. The applicant and his wife appealed.
22. On 7 May 1997 the Court of Cassation upheld the Bingöl Assize Court's judgment.
23. The right to physical integrity is protected by the Constitution. Article 17 § 2 provides:
“Save in the case of medical necessity and in circumstances defined by law, violation of physical integrity shall be prohibited; human beings shall not be subjected to scientific or medical experiments.”
24. Article 66 of the Code of Criminal Procedure provides an exception to this rule. It lays down:
“...
During the preliminary investigation, medical examinations may be performed at the request of the public prosecutor.”
25. Article 1 of the Regulation of 13 August 1999, which amended Article 8 of the Regulation of 1 October 1998 concerning the arrest, detention and questioning of suspects, provides that persons under arrest shall be bodysearched before being taken into custody. Body searches of female detainees must be performed by a female officer or a woman designated for that purpose.
26. According to Circular no. 2000/93 issued by the Ministry of Justice on 20 September 2000, which repealed Circulars nos. 6058, 6065, 6068, 6070 and 6090, medical personnel shall respect fundamental human rights and freedoms and rules on privacy when conducting medical examinations and tests. The doctor must see and examine the patient personally and must not rely on another person's statement in his or her report.
Medical examinations must be performed under appropriate conditions and out of the hearing and sight of members of the security forces. Persons required to undergo a medical examination must be seen on premises to which only medical personnel are admitted and undress in readiness for the examination after being given the necessary information.
VIOLATED_ARTICLES: 8


ITEMID: 001-99970
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BLATCHFORD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The applicants, Mr John Blatchford and Mrs Jane Blatchford, are British nationals who were born in 1944 and 1948 respectively and live in Margate. They were represented before the Court by Marsden Duncan, a firm of solicitors practising in Ramsgate. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office.
2 The applicants traded as builders and roofing contractors under the trade name of Anchor and Arrow. The business premises were located at Northdown Road, Margate, Kent. They were subject to a mortgage and loans held by Barclays Bank Plc (“Barclays”).
3. The applicants lived, and still live, at Omer Avenue, Margate, Kent. That property was also subject to a mortgage in favour of Barclays.
4. On 22 October 1992, the applicants appeared at Canterbury County Court pursuant to a creditor's petition lodged under section 264(1)(a) of the Insolvency Act 1986 (“the 1986 Act” – see paragraphs 57-69 below). They sought more time to try and settle their debts as their son had agreed to purchase the property at Omer Avenue from them for a sum which would have allowed them to satisfy their creditors. The applicants did not have legal representation at the hearing because they could not afford to pay for a solicitor. The court refused their request for more time and made a bankruptcy order against them.
5. The effect of the order was that the official receiver took charge, on an interim basis, of the applicants' estate, pursuant to section 287(1) of the 1986 Act (see paragraph 64 below). The applicants subsequently had discussions with the official receiver's office and provided details of their financial situation.
6. In July 1993, United Friendly Insurance Company, the second applicant's life insurance company, paid to the second applicant the sum of GBP 2,893.41, the cash surrender value of a life insurance policy in her name.
7. Around the same time, the applicants' local authority, Thanet Council, obtained a warrant for the arrest of the first applicant for non-payment of business rates and poll tax.
8. K.C. was subsequently appointed trustee in bankruptcy. Under section 306(1) of the 1986 Act, the applicants' estate vested in him and he was entitled to manage and dispose of the property comprised in the estate as he saw fit.
9. On 2 August 1993, the applicants received a letter from K.C. advising them that he had been appointed trustee in bankruptcy. On 3 August 1993, unknown to the applicants, K.C. registered a caution over the property at Omer Avenue under section 313 of the 1986 Act (see paragraph 65 below).
10. On 19 August 1993, K.C. contacted the applicants asking them to surrender to him the sums which they had received from the United Friendly Insurance Company. The applicants replied that they were concerned about the outstanding warrant for arrest in respect of the first applicant. They asked K.C. to resolve the situation with Thanet Council and advised him that once the warrant had been set aside, they would send him the money received from the insurance company.
11. K.C. did not assist with the warrant. The applicants wrote to him advising him that they would use the insurance money to remove the threat of the arrest and imprisonment of the first applicant. They subsequently paid GBP 1,400 of the money obtained from the insurance company to Thanet Council to discharge the outstanding debt. They used the remainder of the money on general living expenses. However, further business rates had accumulated in the meantime and the applicants were concerned that Thanet Council could recommence action for non-payment at any time.
12. On 16 December 1993, the applicants' solicitor advised them that Thanet Council had agreed to a court order to stay the arrest warrant. On an unknown date, the applicants became aware that K.C. had commenced a claim against the second applicant for repayment of GBP 2,893.41 (the sum paid to the second applicant by the United Friendly Insurance Company) plus interest and asking for further information about the payment made to Thanet Council. On 17 December 1993, the second applicant was informed that she had been denied legal aid to contest the proceedings because any sums awarded would become the property of her creditors.
13. On 8 March 1994, Barclays advised the applicants that it would be content to discuss restructuring their debt provided that there was agreement that the property at Northdown Road be sold.
14. On 2 February 1994, the County Court ordered the second applicant to pay to K.C., as trustee in bankruptcy, the sum of GBP 2,893.41 plus costs, a total of GBP 3,216.97.
15. The official receiver subsequently applied for an order postponing the discharge of the second applicant from bankruptcy until such time as she had paid the sum of GBP 1,735 (composed of the sum of GBP 1,600 being the balance of monies received from the insurance policy payment once the business rates had been paid plus the sum of GBP 135, a debt to the applicants' business which had been paid directly to the second applicant) or until two years had elapsed, whichever was earlier.
16. On 16 May 1994, Barclays offered to restructure the applicants' debt owed to it by way of a remortgage. It was agreed that the property at Northdown Road would be sold and the applicants undertook to sign all documentation necessary to effect the sale.
17. On 9 August 1994, K.C. advised the applicants that he was considering applying to the court to extend their bankruptcy because of lack of co-operation. He provided no details of their alleged failure to cooperate.
18. On an unspecified date in 1994, the property at Northdown Road was sold for GBP 13,500. The sale was arranged by Barclays and the applicants signed the documentation as agreed. The applicants considered that the sale proceeds were about GBP 20,000 less than the value of the property. K.C. was aware of Barclays' intention to sell the property for this sum. The second applicant subsequently sought to have K.C. removed as trustee in bankruptcy on the ground that he was incompetent. She was denied legal aid because any sums awarded would become the property of her creditors.
19. On 16 July 1995, Barclays restructured the applicants' debt, setting aside some of the interest owed and allowing the remainder of the debt to be repaid over a period of fourteen years. This was done with the knowledge of K.C.
20. On 22 October 1995, the first applicant was discharged from bankruptcy.
21. On 5 February 1996, K.C. issued a notice to creditors of a meeting of creditors to be held on 12 March 1996. The notice advised that K.C. considered that he had realised as much of the estate as was practically possible and that he was applying to be released as trustee. He commented in the notice that there was no equity in the property owned by the applicants.
22. On 12 March 1996, a creditors' meeting was held, at which K.C. was released from his duties as trustee.
23. On 22 October 1997, the second applicant was discharged from bankruptcy.
24. The applicants subsequently applied for a certificate of their discharge from bankruptcy, which was provided to both applicants in February 1998.
25. In January 2003, the applicants wished to purchase a new house. In the course of negotiations, it was discovered that there was a caution recorded on the Land Register in favour of K.C. in respect of the property at Omer Avenue. The applicants applied to have the caution removed. The Land Registry wrote to the official receiver asking whether there was any objection to the removal of the caution from the Register.
26. On 21 March 2003, the Assistant Land Registrar wrote to the applicants advising that, no reply having been received from the official receiver, the caution in favour of K.C. would be cancelled that day.
27. On 3 April 2003, a caution was registered in the Land Register against the property at Omer Avenue by the official receiver's office.
28. In October 2004, the applicants sought to have the caution removed but the official receiver objected.
29. On 5 January 2005, D.C. was appointed by the official receiver as trustee in bankruptcy for the applicants.
30. On 28 January 2005, D.C. sent a notice of a creditors' meeting. He noted that at the time that K.C. obtained his release as trustee, there was no equity in the matrimonial home. D.C. intended therefore to investigate and realise the beneficial interest in the matrimonial home.
31. On 18 March 2005, a creditors' meeting was held at which the trustee's disbursements and remuneration were agreed and it was agreed to administer the bankruptcy on a joint basis.
32. On 20 December 2005, an application was made to register a caution against the property at Omer Avenue in favour of D.C.
33. On 7 March 2006, D.C.'s solicitors wrote to the applicants enclosing two schedules showing the sums required to discharge all bankruptcy costs and liabilities. One schedule showed the sum owed where only liabilities in respect of creditors who had made a claim against the estate were included and amounted to GBP 157,064.54; the other showed the sum owed where all known creditors, whether or not they had made a claim, were included and amounted to GBP 262,205.70. Both schedules calculated the amount actually claimed by creditors to be GBP 60,137.16. The amount not yet claimed, and included in the second schedule, was GBP 45,608.13. The remainder of the sums in the two schedules was composed of costs and expenses of the official receiver and the trustee in bankruptcy, fees payable to the Department of Trade and Industry (“DTI”) and statutory interest at the rate of 8 per cent from 22 October 1992 to 21 March 2006. In the first schedule, the statutory interest amounted to GBP 64,981.08; in the second schedule, it amounted to GBP 114,262.86. The solicitors advised that if the applicants were unable to procure such sums within three calendar months, they might wish to consider a voluntary sale of the property at Omer Avenue.
34. On 10 March 2006, the applicants replied to the solicitors, asking for clarification of the two different sums. They also provided further information requested.
35. On 14 March 2006, the solicitors replied explaining the two different sums and acknowledging receipt of the further information.
36. On 20 March 2006, D.C. sent a letter to the applicants to fix an appointment to value the property at Omer Avenue.
37. On 21 March 2006 D.C.'s solicitors wrote again enclosing two further schedules, one for the first applicant and one for the second applicant, setting out details of their creditors, as previously disclosed by the applicants.
38. On 22 March 2006, the applicants were advised by their solicitors that they would not get legal aid in order to contest D.C.'s caution registered against the property at Omer Avenue.
39. On 29 March 2006, the applicants wrote to D.C.'s solicitors asking for a final settlement figure. They indicated their intention to raise funds by obtaining a mortgage over the property at Omer Avenue and advised D.C. of the possibility of obtaining further sums from a member of their family. They disputed some of the figures provided in the schedules and asked for an extension of the three-month period (see paragraph 33 above) which they considered too short in light of the longevity of the bankruptcy.
40. On 4 April 2006 the solicitors replied, noting that pursuant to a change in the law the trustee in bankruptcy was required to take steps to deal with the property at Omer Avenue by April 2007. They extended the deadline for response from the applicants to 18 April 2006. As to the sums required to settle the applicants' debts, the solicitors confirmed that the final figures were those appearing in the schedules provided by letter of 7 March 2006.
41. On 12 April 2006, the applicants wrote to D.C.'s solicitors indicating that they had engaged the services of a mortgage broker and would be in touch as soon as they had made arrangements.
42. On 10 May 2006 the solicitors wrote noting that they had heard nothing since the letter of 12 April 2006 and asking for confirmation of the terms proposed by 24 May 2006.
43. On 13 May 2006 the applicants replied to the solicitors indicating that they were still seeking a mortgage and asking for further clarifications.
44. On 17 May 2006, the solicitors wrote again, responding to the applicants' queries and seeking a response by 29 May 2006. They indicated that they reserved their position as to whether to commence possession and sale proceedings in the event that no satisfactory response was received.
45. On 27 May 2006, the applicants wrote to D.C.'s solicitors asking how much money would be required to settle the bankruptcy proceedings.
46. On 15 June 2006, D.C.'s solicitors wrote advising that D.C. would be unable to agree a settlement with the applicants without the approval of the creditors. However, the applicants were invited to provide details of any settlement they wished to propose and any offer made would be put to creditors.
47. On 5 July 2006, D.C.'s solicitors wrote inviting the applicants to make an offer by 19 July 2006. This deadline was extended to 1 August 2006 at the applicants' request. On 20 July 2006, the deadline was extended, unprompted, by D.C.'s solicitors to 23 August 2006. In the event that no offer was made by that date, the solicitors advised that they were instructed to issue proceedings for possession and sale of the property at Omer Avenue without further notice.
48. On 18 August 2006, the applicants replied denying that D.C. had any right or interest in the property at Omer Avenue. However, they offered GBP 15,000 to settle matters.
49. By letter of 22 August 2006, D.C.'s solicitors replied noting the offer made and asking for the applicants' best offer by 29 August 2006.
The applicants replied on 29 August 2006 asking for clarification of what would be an acceptable amount to settle the bankruptcy proceedings.
50. D.C.'s solicitors replied on 31 August 2006 indicating that they were not in a position to suggest an appropriate amount and giving the applicants until 7 September 2006 to make their best offer.
51. On 27 September 2006, D.C.'s solicitors wrote to the applicants noting that the applicants' final offer of GBP 20,000 would be insufficient to meet the costs, fees and expenses of the bankruptcy and that there was little incentive for creditors to accept the offer. The solicitors enclosed a schedule showing, by way of example, the estimated sum required in order to ensure creditors a dividend of GBP 0.20 per GBP 1.00. The sum came to GBP 35,614.62. The applicants were given until 6 October 2006 to consider the level of their offer.
52. On 6 October 2006, the applicants faxed a letter to D.C.'s solicitors offering GBP 35,614.62 in final settlement. They indicated that they would require some time to gather the funds together.
53. On 9 October 2006, D.C.'s solicitors wrote reminding the applicants that the sum of GBP 35,614.62 was specified merely as an example and that it would have to be referred to creditors for consideration. On 11 October 2006, the applicants confirmed that they wished their offer of GBP 35,614.62 to be put to creditors. On 13 October 2006, D.C.'s solicitors noted the applicants' offer and agreed to put it to the creditors.
54. On 31 October 2006, D.C. referred in a letter to the relevance of the length of time which had elapsed since the bankruptcy orders were first made, to the fact that there was little or no equity in the property at the time of the making of the orders and for some time subsequently and to his efforts to approach the matter on a “conciliatory basis”.
55. On 5 December 2006, D.C.'s solicitors wrote to the applicants confirming that their offer of GBP 35,614.62 had been accepted by the creditors. Settlement was to take place by 17 January 2007 at the latest.
56. On 12 January 2007, the applicants' solicitors provided them with forms of assignment transferring the trustee's interest in the property at Omer Avenue from D.C. to the applicants. The applicants also arranged to remortgage the property to obtain funds. On 26 January 2007, the applicants were advised that the transaction had been completed.
57. The Insolvency Act 1986 sets out the procedure to be followed in bankruptcy and the powers of the trustee.
58. Section 305(2) of the Act provides that the function of the trustee is to:
“... get in, realise and distribute the bankrupt's estate in accordance with the following provisions of this Chapter; and in the carrying out of that function and in the management of the bankrupt's estate the trustee is entitled, subject to those provisions, to use his own discretion.”
59. Section 283 provides that the bankrupt's estate comprises all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, excluding items necessary to the bankrupt for use personally by him in his employment, business or vocation or for satisfying the basic domestic needs of the bankrupt and his family.
60. The duration of the bankruptcy is defined in section 278 as beginning on the day the bankruptcy order is made and continuing until the individual is discharged.
61. Discharge is dealt with in section 279, which, at the relevant time, provided that:
“(1) Subject as follows, a bankrupt is discharged from bankruptcy—
...
(b) ... by the expiration of the relevant period under this section.
(2) That period is as follows—
...
(b) ... the period of 3 years beginning with the commencement of the bankruptcy.”
62. However, under section 279(3), where the court is satisfied on the application of the official receiver that an undischarged bankrupt has failed or is failing to comply with any of his obligations, the court may order that the relevant period under section 279(2)(b) shall cease to run for such period, or until the fulfilment of such conditions, as may be specified in the order.
63. Section 281 sets out the effect of a discharge and provides as follows:
“(l) Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect—
(a) on the functions (so far as they remain to be carried out) of the trustee of his estate, or
(b) on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part;
and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.
(2) Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is released.”
64. Under sections 287 and 300, at any time when there is no trustee in bankruptcy appointed, the official receiver is the receiver and manager of the bankrupt's estate.
65. Section 313 makes special provision for the bankrupt's home. It provided, at the relevant time, as follows:
“(l) Where any property consisting of an interest in a bankrupt's dwelling house which is occupied by the bankrupt or by his spouse or former spouse is comprised in the bankrupt's estate and the trustee is, for any reason, unable for the time being to realise that property, the trustee may apply to the court for an order imposing a charge on the property for the benefit of the bankrupt's estate.
(2) If on an application under this section the court imposes a charge on any property, the benefit of that charge shall be comprised in the bankrupt's estate and is enforceable, up to the value from time to time of the property secured, for the payment of any amount which is payable otherwise than to the bankrupt out of the estate and of interest on that amount at the prescribed rate.
(3) An order under this section made in respect of property vested in the trustee shall provide, in accordance with the rules, for the property to cease to be comprised in the bankrupt's estate and, subject to the charge (and any prior charge), to vest in the bankrupt.”
66. Section 338 of the 1986 Act provides that:
“Where any premises comprised in a bankrupt's estate are occupied by him ... on condition that he makes payments towards satisfying any liability arising under a mortgage of the premises or otherwise towards the outgoings of the premises, the bankrupt does not, by virtue of those payments, acquire any interest in the premises.”
67. Section 285 provides that:
“(1) At any time when proceedings on a bankruptcy petition are pending or an individual has been adjudged bankrupt the court may stay any action, execution or other legal process against the property or person of the debtor or, as the case may be, of the bankrupt.
(2) Any court in which proceedings are pending against any individual may, on proof that a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.
(3) After the making of a bankruptcy order no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall—
(a) have any remedy against the property or person of the bankrupt in respect of that debt, or
(b) before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the court and on such terms as the court may impose.”
68. Under section 375(1), the County Court has the power, exercisable at any time, to review the order for bankruptcy, to vary it or to revoke it.
69. Section 303 provides that if a bankrupt or any of his creditors or any other person is dissatisfied by any act, omission or decision of a trustee of the bankrupt's estate, he may apply to the court; and on such an application the court may confirm, reverse or modify any act or decision of the trustee, may give him directions or may make such other order as it thinks fit.
70. The Enterprise Act 2002 introduced changes to the 1986 Act. It entered into force on 1 April 2004.
71. Section 279 of the 1986 Act was amended to reduce the period of bankruptcy prior to discharge from three years to one year.
72. Section 313 was also amended to limit the value of a charge on a bankrupt's property to “the charged value”, which was defined as “the amount specified in the charging order as the value of the bankrupt's interest in the property at the date of the order plus interest on that amount from the date of the charging order at the prescribed rate”.
73. Finally, a new section 283A was introduced into the 1986 Act and provides as follows:
“(1) This section applies where property comprised in the bankrupt's estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—
(a) the bankrupt,
(b) the bankrupt's spouse ...
(2) At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall—
(a) cease to be comprised in the bankrupt's estate, and
(b) vest in the bankrupt (without conveyance, assignment or transfer).
(3) Subsection (2) shall not apply if during the period mentioned in that subsection—
(a) the trustee realises the interest mentioned in subsection (1),
(b) the trustee applies for an order for sale in respect of the dwelling-house,
(c) the trustee applies for an order for possession of the dwelling-house,
(d) the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or
(e) the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.
(4) Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—
(a) cease to be comprised in the bankrupt's estate, and
(b) vest in the bankrupt (without conveyance, assignment or transfer).
...
(6) The court may substitute for the period of three years mentioned in subsection (2) a longer period—
(a) in prescribed circumstances, and
(b) in such other circumstances as the court thinks appropriate.”
74. Under transitional provisions, the three year period in respect of pre-commencement bankruptcies commenced on 1 April 2004 and therefore terminated on 31 March 2007.