ITEMID: 001-61168
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PEDERSEN AND BAADSGAARD v. DENMARK
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 10
JUDGES: Christos Rozakis
TEXT: 9. The applicants (the second of whom died in 1999) were at the relevant time employed by one of the two national TV stations in Denmark, Danmarks Radio. They produced two television programmes which were broadcast on 17 September 1990 at 8 p.m. and 22 April 1991 at 8 p.m. respectively. The programmes were called “Convicted of Murder” (dømt for mord) and “The Blind Eye of the Police” (Politiets blinde øje) respectively and dealt with a murder trial in which the High Court of Western Denmark (Vestre Landsret) had convicted a person, henceforth called X, on 12 November 1982 of murdering his wife. X was sentenced to 12 years' imprisonment. The Supreme Court (Højesteret) upheld the sentence in 1983. Subsequent to X's release on probation, he requested the Special Court of Revision (Den Særlige Klageret), on 13 September 1990, to reopen the case.
10. At the outset of both programmes it was stated that they had been produced on to the following premise:
“In the programme we shall provide evidence by way of a series of specific examples that there was no legal basis for X's conviction and that by imposing its sentence, the High Court of Western Denmark set aside one of the fundamental tenets of the law in Denmark, namely that the accused should be given the benefit of the doubt.
We shall show that a scandalously bad police investigation, in which the question of guilt had been prejudged right from the start, and which ignored significant witnesses and concentrated on dubious ones, led to X being sentenced to 12 years' imprisonment for the murder of his wife.
The programme will show that X could not have committed the crime of which he was convicted on 12 November 1982”.
11. At an early stage in the first programme, “Convicted of Murder”, there is the following comment:
“In the case against X, police inquiries involved about 900 people. More than 4,000 pages of reports were written – and 30 witnesses appeared before the High Court of Western Denmark.
We will try to establish what actually happened on the day of the murder, 12 December 1981. We shall critically review the police's investigations and evaluate the witnesses' statements regarding the time of X's wife's disappearance.”
As part of the preparation of this first programme, the applicants had invited the police in the district of Frederikshavn, who were responsible for the investigation of the murder case, to take part in the programme. As certain conditions for giving interview were not complied with, inter alia that the questions be send in writing in advance, by letter of 19 April 1990 the Chief of Police informed the applicants that the police could not participate in the programme.
12. In the introduction to the second programme, “The Blind Eye of the Police”, there is the following comment:
“It was the police in the district of Frederikshavn who were responsible at that time for the investigations which led to the conviction of X. Did the police assume right from the start that X was the killer and did they therefore fail to investigate all the leads in the case, as otherwise required by the law?
We have investigated whether there is substance in X's serious allegations against the police in the district of Frederikshavn.”
13. Shortly afterwards in the programme the second applicant is interviewing a taxi driver. She explains to the applicant that a few days after the disappearance of X's wife, she was interviewed by two police officers and that during this interview she mentioned two observations she had made on 12 December 1981; she had seen a Peugeot taxi (which was later shown to have no relevance to the murder), but before that she had seen X and his son at about 5-10 minutes past noon. She had driven behind them for about one kilometre. The reason why she could remember the date and time so exactly was because she had had to attend her grandmother's funeral on that date at 1 p.m.
14. The following comment is then made:
Commentator: So in December 1981, shortly after X's wife disappears and X is in prison, the Frederikshavn Police is in possession of the taxi driver's statement in which she reports that shortly after 12 o'clock that Saturday she drives behind X and his son for about a kilometre...So X and his son were in Mølleparken [residential area] twice, and the police knew it in 1981.
15. The interview went on:
“Second applicant: What did the police officers say about the information you provided?
Taxi driver: Well, one of them said that it couldn't be true that X's son was in the car, but in fact I am 100% certain it was him because I also know the son because I have driven him to day-care.
Second applicant: Why did he say that to you?
Taxi driver: Well, he just said that it couldn't be true that the son was there.
Second applicant: That it couldn't be true that you saw what you saw.
Taxi driver: No, that is, he didn't say that I hadn't seen X, it just couldn't be true that the son was with him.
Second applicant: These were the two police officers who questioned the taxi driver in 1981 and it was they who wrote the police report.
We showed the taxi driver her statement from 1981, which she had never seen before.
Taxi driver: It's missing the bit about – there was only ...about the Peugeot, there was nothing about the rest, unless you have another one.
Second applicant: There is only this one.
Taxi driver: But it obviously cannot have been important.
Second applicant: What do you think about that?
Taxi driver: Well it says, I don't know, well I think when you make a statement, it should be written down in any case, otherwise I can't see any point in it, and especially not in a murder case.
Commentator: So the taxi driver claims that already in 1981 she had told two police officers that she had seen X and his son. Not a word of this is mentioned in this report.
Second applicant: Why are you so sure that you told the police this, which at that time was 1981.
Taxi driver: Well I am 100% sure of it and also, my husband sat beside me in the living room as a witness so ..., so that is why I am 100% certain that I told them.
Second applicant: And he was there throughout the entire interview?
Taxi driver: Yes, he was.
Second applicant: Not just part of the interview?
Taxi driver: No, he was there all the time.
Commentator: It was not until 1990, nine years later, that the taxi driver heard of the matter again, shortly after the “Convicted of Murder” programme had been shown; even though the taxi driver's report had been filed as a so called 0-report, she was 'phoned by a Chief Inspector of the Flying Squad (Rejseholdet) who had been asked by the Public Prosecutor to do a couple of further interviews.
Taxi driver: The Chief Inspector of the Flying Squad called me and asked whether I knew if any of my colleagues knew anything they had not reported, or whether I had happened to think of something, and I then told him on the 'phone what I said the first time about the Peugeot and that I had driven behind X and his son up to Ryets Street, and then he said that if he found out about anything which, otherwise ... or if there was anything, then he would ... then he would get in touch with me again, which he didn't do, not until a while afterwards when he called me and asked whether I would come for another interview.
Second applicant: When you told the Chief Inspector of the Flying Squad in your telephone call that you followed X and his son was in the car, what did he say about that?
Taxi driver: Well, he didn't say anything.
Second applicant: He did not say that you had never reported this?
Taxi driver: No, he didn't.”
16. Then the second applicant has a short interview with X's new counsel:
“Second applicant: Have you any comment on the explanation the taxi driver has given now?
X's new counsel: I have no comment to make at this time.
Second applicant: Why not?
X's new counsel: I have agreed with the public prosecutor, and the President of the Special Court of Revision, that statements to the press in this matter will in future only be issued by the Special Court of Revision.
Commentator: Even though X's new counsel does not wish to speak about the case, we know from other sources that it was he who, in February this year, asked for the taxi driver to be interviewed again. So in March she was interviewed at Frederikshavn police station in the presence of the Chief Superintendent, which is clearly at odds with what the Public Prosecutor previously stated in public, namely that the Frederikshavn police would not get the opportunity to be involved in the new inquiries.”
17. The interview with the taxi driver goes on:
“Second applicant: And what happened at the interview?
Taxi driver: What happened was that I was shown into the Chief Inspector of the Flying Squad and the Chief Superintendent was there too.
Second applicant: Was there any explanation given about why he was present?
Taxi driver: No.
Second applicant: So what did you say in this interview?
Taxi driver: I gave the same explanations as I had done the first time when I was interviewed at home.
Second applicant: 10 years before, that is.
Taxi driver: Yes.
Second applicant: And that was?
Taxi driver: Well, that I had driven behind X and his son up to Ryets Street.
Second applicant: What did they say about that?
Taxi driver: They didn't say anything.
Second applicant: The report, which was made in 1981, did you see it?
Taxi driver: No.
Second applicant: Was it there in the room?
Taxi driver: There was a report there when I was being interviewed, but I wasn't allowed to see it.
Second applicant: Did you expressly ask whether you could see the old report?
Taxi driver: I asked whether I could see it but the Chief Inspector of the Flying Squad said I couldn't ...”
18. After the interview with the taxi driver the commentator asks:
“Now we are left with all the questions: why did the vital part of the taxi driver's explanation disappear – and who in the police or public prosecutor's office should carry the responsibility for this?
Was it the two police officers who failed to write a report about it?
Hardly, sources in the police tell us, they would not dare.
Was it [the named Chief Superintendent] who decided that the report should not be included in the case? Or did he and the Chief Inspector of the Flying Squad conceal the witness's statement from the defence, the judges and the jury? ...”
Pictures of the two police officers, the named Chief Superintendent and the Chief Inspector of the Flying Squad were shown on the screen simultaneously parallel with the above questions. The questions went on:
“Why did the Chief Inspector of the Flying Squad 'phone the taxi driver shortly after the TV-programme 'Convicted of Murder'? After all, the police had taken the view that the taxi driver had no importance as a witness and had filed her statement amongst the O-reports.
Why did the Chief Inspector of the Flying Squad not call her in for an interview when she repeated her original explanation on the telephone?
Why was the taxi driver interviewed at the Frederikshavn police station in the presence of the Chief Superintendent, which was completely at odds with the Public Prosecutor's public statement?
On 20 September last year [a named] Chief Constable stated to [a regional daily]: 'all the information connected to the case has been submitted to the defendants, the prosecution and the judges' Did the Chief Constable know about the taxi driver's statement, when he made this statement? Did the State Prosecutor know already in 1981 that there was a statement from a witness confirming that twice X had been in Mølleparken, and that X's son had been with him both times? Neither of them have wished to make any statement at all about the case.”
19. In the meantime, at the request of X's new counsel, the taxi driver was interviewed by the police again on 11 March 1991. She stated that on 12 December 1981 she had attended her grandmother's funeral at 1 p.m. and that on her way to the funeral around five or ten past noon she had driven behind X and his son. She arrived at the funeral at the last minute before 1 p.m. She also explained that she had told the police about this when first interviewed in 1981. Later on 11 March 1991 the police made an enquiry which revealed that the funeral of the taxi driver's grandmother had indeed taken place on 12 December 1981, but at 2 p.m.
Thereafter, the police held three interviews with the taxi driver during which she changed her explanation, inter alia, as follows.
On 24 April 1991 she maintained having seen X shortly after noon but agreed that the funeral had taken place at 2 p.m. On her way to the funeral she realised she had forgotten a wreath. Thus, she had had to return to her home and had consequently arrived at the funeral just before 2 p.m.
On 25 April 1991 she stated that she was not sure about the date or the time when she had seen X and his son. Moreover, she was uncertain whether, shortly after the murder, she had told the police about having seen X. In addition, she explained that during the shooting of her interview, which took place on 4 April 1991, the applicant Baadsgaard had suggested that she say something like “where is the other report” when he was to show her the report of 1981.
On 27 April 1991 she initially stated that she would exclude having seen X and his son on 12 December 1981. She had never before connected this episode to the funeral. She also admitted having made up the story about the forgotten wreath, but had wanted “things to fit”. Later during the interview she maintained having seen X and his son on 12 December 1981, but at around 1 p.m.
20. On 23 May 1991 the Chief Superintendent reported the applicants and the TV station to the police for defamation. It appears, however, that the prosecution's decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X's case.
21. This was decided in the affirmative by the Special Court of Revision on 29 November 1991 after two hearings and the examination of ten witnesses, including the taxi driver. Two judges (out of five) in the Special Court of Revision found that new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. Two other judges found that no new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. The fifth judge agreed with the latter, but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly. Accordingly, the court granted a retrial.
22. In the meantime, following the television programmes, an inquiry had commenced into the police investigation of X's case. It appeared that the Police in Frederikshavn had not complied with section 751, subsection 2 of the Administration of Justice Act (Retsplejeloven), which was introduced on 1 October 1978 and which provides that a witness shall be given the opportunity to read his or her statement. Consequently, on 20 December 1991 the Prosecutor General (Rigsadvokaten) stated in a letter to the Ministry of Justice, that it was unfortunate and open to criticism that the police in Frederikshavn had not implemented the above provision as part of their usual routine and informed the Ministry that he had made an agreement with the State Police Academy that he would produce a wider set of guidelines concerning the questioning of witnesses, which could be integrated into the Police Academy's educational material.
23. X's retrial ended with his acquittal on 13 April 1992.
24. On 10 July 1992 the applicants became aware of the fact that they had been reported to the police. On their request, however, they were informed that no decision had yet been taken as to possible charges against them.
25. On 19 January 1993 the Chief Constable in Gladsaxe informed the applicants that they were charged with defamation against the Chief Superintendent. On 28 January 1993 the applicants were questioned by the police in Gladaxe.
26. A request of 11 February 1993 from the prosecution to seize the applicants' research material was examined at a hearing in the City Court of Gladsaxe (Retten i Gladsaxe) on 30 March 1993 during which the applicants' counsel, claiming that the case concerned a political offence, requested that a jury in the High Court - instead of the City Court - try the case. Both requests were refused by the City Court of Gladsaxe (retten i Gladsaxe) on 28 May 1993. In June 1993 the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue. At the request of one of the applicants' counsel, an oral hearing was scheduled to take place in the High Court of Eastern Denmark (Østre Landsret) on 15 November 1993. However, on 7 October 1993 counsel challenged one of the judges in the High Court alleging disqualification and requested an oral hearing on the issue. The High Court decided on 15 October 1993 to refuse an oral hearing and on 11 November 1993 that the judge in question was not disqualified. It appears that counsel requested leave to appeal against this decision to the Supreme Court (Højesteret), but to no avail. As to the appeal against non-seizure and the question of venue, hearings were held in the High Court on 6 January and 7 March 1994, and by a decision of 21 March 1994 the High Court upheld the City Court's decisions. The applicants' request for leave to appeal to the Supreme Court was refused on 28 June 1994.
27. On 5 July 1994 the prosecution submitted an indictment to the City Court, and a preliminary hearing was held on 10 November 1994 during which it was agreed that the case would be tried over six days in midJune 1995. However, as counsel for one of the parties was ill the final hearings were re-scheduled to take place on 21, 24, 28 and 30 August and 8 September 1995.
28. On 15 September 1995 the City Court of Gladsaxe delivered a 68 page judgment finding that the questions put in the TV programme concerning the named Chief Superintendent amounted to defamatory allegations, which should be declared null and void. However, the court refrained from sentencing the applicants as it found that the applicants had reason to believe that the allegations were true. Also, the applicants were acquitted of a compensation claim raised by the widow of the named Chief Superintendent, as he had deceased before the trial. The judgment was appealed against by the applicants immediately and by the prosecution on 27 September 1995.
29. On 15 April 1996 the prosecutor sent a notice of appeal to the High Court, and on 30 April 1996 he invited counsel for the applicants and the attorney for the widow of the Chief Superintendent to a meeting concerning the proceedings. Counsel for one of the parties stated that he was unable to attend before 17 June 1996, and accordingly the meeting was held on 25 June 1996. The High Court received the minutes of the meeting from which it appeared that counsel for one of the parties was unable to attend the trial before November 1996, and that he preferred the hearings to take place in early 1997. On 16 August 1996 the High Court scheduled the hearings for 24, 26 and 28 February and 3 and 4 March 1997.
30. On 6 March 1997 the High Court gave judgment convicting the applicants of violating the personal honour of the Chief Superintendent by making and spreading allegations of an act likely to disparage him in the esteem of his fellow citizens, under Article 267, subsection 1 of the Penal Code. The allegations were declared null and void. The applicants were each sentenced to 20 day-fines of 400 Danish kroner (DKK) (or in the alternative 20 days' imprisonment) and ordered to pay compensation to the estate of the deceased Chief Superintendent of DKK 75,000.
31. On 6, 16 and 25 March 1997 the applicants sought leave from the Leave to Appeal Board (Procesbevillingsnævnet) to appeal to the Supreme Court. Before deciding, the Board requested an opinion from the prosecuting authorities, namely the Chief of Police, the State Prosecutor and the Prosecutor General. On 27 June 1997 their joint opinion was submitted opposing leave to appeal. However, in the meantime it appears that a lawyer representing the TV station, Danmarks Radio, contacted the State Prosecutor, proposing that the public prosecution assist in bringing the case before the Supreme Court as, according to the TV station, the High Court's judgment was incompatible with the Media Responsibility Act (Medieansvarsloven). Consequently, the public prosecutors initiated a renewed round of consultation on this question, and their joint opinion was forwarded to the Board on 3 September 1997. Having heard the applicants' counsel on the prosecution's submissions, on 29 September 1997 the Board granted the applicants leave to appeal to the Supreme Court.
32. The Prosecutor General submitted a notice of appeal and the case file to the Supreme Court on 3 October and 6 November 1997 respectively.
33. As counsel wanted to engage yet another counsel, on 20 November 1997 they asked the Supreme Court whether costs in this respect would be considered legal costs. Moreover, they stated that their pleadings could not be submitted until early January 1998. On 17 March 1998 the Supreme Court decided on the question of costs, and on 19 March 1998 scheduled the trial for 12 and 13 October 1998.
34. By a judgment of 28 October 1998, the High Court's judgment was upheld, though the compensation payable to the estate was increased to DKK 100,000. The majority of five judges held:
“In the programme 'The Blind Eye of the Police' the applicants not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in 1981 that shortly after 12 p.m. on 12 December 1981 she had driven behind X for about one kilometre, but also, in accordance with the common premise for the programmes 'Convicted of Murder' and 'The Blind Eye of the Police', took a stand on the truth of the taxi driver's statement and presented the matters in such a way that viewers, even before the final sequence of questions, were given the impression that it was a fact that the taxi driver had given the explanation as she alleged to have done in 1981 and that the police were therefore in possession of this explanation in 1981. This impression was strengthened by the first of the concluding questions: '... why did the vital part of the taxi driver's explanation disappear and who, in the police or public prosecutor's office, should carry the responsibility for this?'. In connection with the scenes about the two police officers they pose two questions in the commentator's narrative, to which the indictment relates; irrespective of the kind of question, viewers undoubtedly received a clear impression that a report had been made about the taxi driver's statement that she had seen X at the relevant time on 12 December 1981; that this report had subsequently been suppressed; and that such suppression had been decided upon either by the named Chief Superintendent alone or by him and the Chief Inspector of the Flying Squad jointly. The subsequent questions in the commentator's narrative do not weaken this impression, and neither does the question as to whether the Chief Constable or the Public Prosecutor were aware of the taxi driver's statement. On this basis we find that in the programme 'The Blind Eye of the Police' the applicants made allegations against the named Superintendent which were intended to discredit him in the eyes of his peers, as described in Article 267, subsection 1 of the Penal Code (Straffeloven). We find further that it must have been clear to the applicants that they were, by way of their presentation, making such allegations.
The applicants have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of Article 269, subsection 1 of the Penal Code – that a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties...
As laid down in the Thorgeirson v. Iceland judgment (25 June 1992) there is a very extensive right to public criticism of the police. As in that decision there is, however, a difference between passing on and making allegations, just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force. Even though being in the public eye is a natural part of a police officer's duties, consideration should also be given to his good name and reputation.
As stated, the two applicants did not limit themselves in the programme to referring to the taxi driver's statement or to making value judgments on this basis about the quality of the police's investigations and the Chief Superintendent's leadership thereof. Neither did the applicants limit themselves to making allegations against the police as such for having suppressed the taxi driver's explanation, but made an allegation against the named Chief Superintendent for having committed a criminal offence by way of suppressing a vital fact.
When the applicants were producing the programme, they knew that an application had been made to the Special Court of Revision for the case against X to be reopened and that as part of the Court of Revision's proceedings in dealing with the said application, the taxi driver had been interviewed by the police on 11 March 1991 at the request of X's defence as part of the proceedings to reopen the case. In consequence of the ongoing proceedings for reopening the case, the applicants could not count on the Chief Superintendent and the two police officers, who had interviewed the taxi driver in 1981, being prepared to participate in the programme and hence possibly anticipate proceedings in the Court of Revision. Making the allegations cannot accordingly be justified by lack of police participation in the programme.
The applicants' intentions, in the programme, of undertaking a critical assessment of the police's investigation were proper as part of the role of the media in acting as a public watchdog, but this does not apply to every charge. The applicants had no basis for making such a serious charge against a named police officer and the applicants' opportunities for satisfying the purposes of the programme in no way required the questions upon which the charges are based to be included.
On this basis, and even though the exemptions provided in Article 10 § 2 of the Convention must be narrowly interpreted, and even though Article 10 protects not only the content of utterances but also the manner in which they are made, we concur that the charges made are not excluded by Article 269, subsection 1 of the Penal Code. Indeed, as a result of the seriousness of the charges, we concur that there is no basis for charges to be dropped in accordance with Article 269, subsection 2 of the Penal Code. We agree further that there are no grounds for an acquittal under Article 272.
We also concur with the findings on defamation.
We agree with the High Court that the fact that the charges were made in a television programme on the national TV station 'Danmarks radio' and hence could be expected to get – as indeed they did – widespread publicity, must be regarded as an aggravating factor, as described in Article 267, subsection 3. Considering that it is more than seven years since the programme was shown, we do not find, however, that there are sufficient grounds for increasing the sentence.
For the reasons given by the High Court we find that the applicants must pay damages in compensation in damages to the heir of the Chief Superintendent. In this, it should be noted that it cannot be regarded as essential that the nature of the claim for damages in compensation was not stated in the writ of 23 May 1991 since the Chief Superintendent's claim for financial compensation could not relate to anything other than damages in compensation. Due to the seriousness of the allegation and the manner of its presentation, we find that the compensation should be increased to DKK 100,000.”
35. The minority of two judges who wanted to acquit the applicants held, inter alia:
“We agree that the statements covered by the indictment, irrespective of their having been phrased as questions, have to be regarded as indictable under Article 267, subsection 1 of the Penal Code and that the applicants had the requisite intentions.
As stated by the majority, the question of culpability must be decided in accordance with Article 269, subsection 1, taken together with Article 267, subsection 1, interpreted in the light of Article 10 of the European Convention on Human Rights and the European Court of Human Right's restrictive interpretation of the exemptions under Article 10 § 2.
In reaching a decision, consideration must be given to the basis on which the applicants made their allegations, their formulation and the circumstances under which the allegations were made, as well as the applicants' intentions in the programme.
... We find that the applicants had cause to suppose that the taxi driver's statement that she had seen X on 12 December 1981 shortly past noon was true. We further find ...that the applicants had reason to assume that the taxi driver, when interviewed in 1981, had told the two police officers of having seen X ...We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police; that it is also apparent from her explanation in the police report of 11 March 1991 that she had already told the police about her observations in 1981; and that her explanation about the reaction of the police to her information that X's son had been in the car strengthened the likelihood of her having reported the observation at the interview in 1981.
...It is apparent from the TV programme that the applicants were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements. The applicants may accordingly have had some grounds for supposing that the report of December did not contain the taxi driver's full statement or that there was another report thereon...
We consider that the applicants, in putting the questions covered by the indictment, did not exceed the limits of freedom of expression which a case, such as the present one, relating to serious matters of considerable public interest, should be available to the media. We also attach some weight to the fact that the programme was instrumental in the Court of Revision's decision to hear witnesses and we attach some weight to X's subsequent acquittal.
Overall, we accordingly find that [the allegations] are not punishable by virtue of Article 269, subsection 1 of the Penal Code...
[We agree that] the allegation should be declared null and void since its veracity has not been proved..”
36. The relevant provisions of the Danish Penal Code read as follows at the relevant time:
Article 154
If a person, while carrying out a public office or function, has been guilty of false accusation, an offence relating to evidence .. or breach of trust, the penalty prescribed for the particular offence may be increased by not more than one-half.
Article 164
1. Any person who gives false evidence before a public authority with the intention that an innocent person shall thereby be charged with, convicted of, or subject to a legal consequence of, a punishable act, shall be liable to mitigated detention (hæfte) or to imprisonment for a term not exceeding six years.
2. Similar punishment shall apply to any person who destroys, distorts or removes evidence or furnishes false evidence with the intention that any person shall thereby be charged with, or convicted of, a criminal act...
Article 267
1. Any person who violates the personal honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the esteem of his fellow citizens shall be liable to a fine or to mitigated detention.
2...
3. When imposing the sentence it shall be considered an aggravating circumstance if the insult was made in printed documents or in any other way likely to give it wider circulation, or in such places or at such times as greatly to aggravate the offensive character of the act.
Article 268
If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation and liable to mitigated detention or to imprisonment for a term not exceeding two years. If the allegation has not been made or disseminated publicly, the punishment may, in mitigating circumstances, be reduced to a fine.
Article 269
1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others.
2. The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.
Article 272
The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.
NON_VIOLATED_ARTICLES: 10
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59414
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF MARONEK v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. On 27 June 1991 the mayor of Bratislava allocated a single-room flat (“the flat”) to the applicant. It was at the disposal of the State-owned Tesla company, by which the applicant was employed at the time. The mayor’s decision entitled the applicant to have a contract signed, giving him the right to occupy the flat. However, the applicant was not able to sign the contract and move in, as it was occupied by A.
9. By a letter dated 4 March 1991 the Bratislava Staré mesto local council (Miestny úrad) informed A., in reply to his request that the right to occupy the flat be transferred to him, that the flat was at the disposal of Tesla. The letter further stated that A. was under no obligation to move out until he was provided with alternative accommodation.
10. On 18 March 1991 the Bratislava I Housing Administration (Bytový podnik) informed the housing department of the Bratislava Staré mesto local council that the flat had been occupied by A. without any justification since the death of the former occupant and that A. was registered as living in his parents’ flat, situated in the same house. On the same day a representative of the Bratislava I Housing Administration recorded the fact that the deceased occupant had been the only person living in the flat.
11. In a letter of 5 June 1991 a social welfare authority informed the housing department of the Bratislava Staré mesto local council that, between 1 June 1984 and 11 June 1990, A. had taken care of the occupant of the flat in return for remuneration from public funds. On 26 June 1990 the occupant of the flat had been placed in a welfare institution. The letter stated that, when social workers had visited the former occupant prior to her placement in the institution, nothing belonging to A. had been seen in the flat.
12. On 19 June 1991 Tesla brought an action in the Bratislava I District Court (Obvodný súd), claiming that A. should be ordered to move out. The action stated that, during a random inspection of the flat on 14 March 1991, it had been discovered that A. had illegally forced entry to the flat, had changed the lock and had prevented the representatives of Tesla and of the Bratislava I Housing Administration from entering.
13. Tesla further claimed that A. lived with his parents, whose flat was situated next door to the flat in issue. Since both flats had the same address, he had misled the local council when claiming that the right to occupy the flat in question should be transferred to him. Tesla submitted documentary evidence that A. was registered as living with his parents and that he had never occupied the flat in issue. The plaintiff argued that A. had no right to alternative accommodation.
14. At a later date the applicant joined the proceedings and claimed that he had the right to occupy the flat. A. counter-claimed that he was entitled to have the right to occupy the flat transferred to him.
15. On 1 January 1992 new legislation was enacted which started the process of denationalisation of State-owned flats. As a result, the flat ceased to be at the disposal of Tesla and the latter lost locus standi in the proceedings.
16. On 22 January 1992 the Western Slovakia Electricity Board informed the applicant that there had been no consumption of electricity in the flat as of the beginning of 1991.
17. On 29 September 1993 the applicant unsuccessfully requested the Bratislava Staré mesto local council to sign a contract with him for the use of the flat.
18. On 7 September 1994 the Bratislava I District Court discontinued the proceedings concerning the action brought by Tesla and the counter-claim filed by A. The court noted that in the course of the proceedings the ownership rights in respect of the flat had been transferred ex lege to the Bratislava Staré mesto municipality and that both the latter and A. had withdrawn their actions.
19. On 26 March 1996 the Bratislava I District Court granted A.’s application, filed on 28 May 1993, concerning his right to occupy the flat. The court held that A. had lived with the former occupant of the flat until her death on 2 July 1990. It concluded that A. had acquired the right to use the flat pursuant to Article 179 § 1 of the Civil Code as in force at the relevant time.
20. On 8 November 1991 the daily newspaper Smena published a full- page article written by a journalist on the applicant’s case. It was entitled “Absurd? Absurd!”. The article contained, inter alia, a description of the applicant’s unsuccessful attempt to enter the flat on 29 October 1991 and of the verbal exchanges between the applicant, on the one hand, and A. and his wife H., a public prosecutor, on the other. The article stated that the flat allocated to the applicant had been unlawfully occupied by A. and criticised the fact that the applicant had no possibility of using it.
21. On 17 December 1991 the Bratislava City Prosecutor brought disciplinary proceedings against H. on the ground that, during the applicant’s attempt to enter the flat on 29 October 1991, she had behaved in an inappropriate manner. The decision stated that the disciplinary proceedings had been brought on the basis of the article published in Smena on 8 November 1991 and of the explanations given by the persons involved. H. later resigned from her post of public prosecutor.
22. On 5 February 1992 the applicant addressed an open letter to the Prime Minister. It was entitled “For How Long?”, and its relevant parts read as follows:
Smena on 8 November 1991, but since then little has changed.
The flat is situated ... opposite the flat of [A.’s father], with whom his son has his permanent address at present. The flat was duly allocated to me by the Bratislava City Council on 27 June 1991. [A.] shamefully benefits from the fact that both flats have the same address (all flats in the same block have the same address) and prevents me from moving into my flat. In doing so, he is vehemently supported by his wife [H.], who is the principal occupant of another State-owned flat ... [A.] claims the right to occupy the flat on the basis of a document signed by the head of the housing department of the Bratislava Staré mesto local council on 4 March 1991 ... stating that [A.] does not have to leave the flat until he has been provided with alternative accommodation. However, [A.] has had alternative accommodation for a long time, namely his wife’s flat. He has acquired the right to occupy that flat automatically. Why has he not yet vacated the flat [allocated to the applicant]?
[A.] and his wife lied to me when they said they had no place to live and alleged that because of this they would not vacate the flat. I point out that [H.] is a public prosecutor (!). If our newly born democracy has such people to represent the law, it will not outlive its childhood and we can bury it right away. The judiciary should first and foremost ensure that the law is respected and justice upheld in the State. But what is our judiciary like?
Tesla brought an action against [A.] on 19 June 1991. The first hearing was scheduled for 27 January 1992 (!!!). Why? [A.] failed to appear.
For how long will certain groups of people think that they detain all the power in the State (and act accordingly)? ...
It is high time to show the world, before the second free election, that our government and society defend justice.
I appeal to you. On 24 February 1992 at 11 a.m. the case of Tesla against [A.] will be heard in room no. 37 at the Bratislava law courts. Do not let democracy be trampled once more and the ideals underlying the promotion of the rule of law become empty words.
P.S. I call upon all who have a similar problem to write to me. I hope that through our joint efforts we will be able to achieve more. May there be no need for it.”
23. The letter was signed by the applicant and gave his address. It also gave the full name and profession of both A. and H. A copy of it was posted up at several tram and bus stops in Bratislava.
24. On 21 February 1992 Smena published the applicant’s opinion on the case. Its contents were almost identical to the open letter of 5 February 1992.
25. On 28 February 1992 A. and H. lodged with the Bratislava City Court (Mestský súd) a civil action against the applicant to protect their good name and reputation. They later extended their action to Smena.
26. On 9 April 1993 a witness confirmed before the City Court that, at the relevant time, A. was living with his father.
27. On 23 June 1993 the Bratislava City Court found in favour of A. and H. It ordered the applicant to apologise in writing for damaging the plaintiffs’ honour. The applicant was further ordered to pay 100,000 Slovakian korunas (SKK) to each of the plaintiffs for non-pecuniary damage, to reimburse their lawyer’s fees and to pay the court fees. Smena was ordered to publish an apology, pay another SKK 100,000 to each of the plaintiffs and reimburse their legal costs.
28. The City Court noted that proceedings were pending before the Bratislava I District Court which concerned Tesla’s claim for the flat in issue to be vacated and A.’s counter-claim. The City Court held that the proceedings before the District Court raised difficult questions of fact and law. It further held that the applicant had not, so far, acquired the right to occupy the flat and noted that, according to a document issued by the housing department of the Bratislava Staré mesto local council on 4 March 1991, A. was under no obligation to vacate the flat until he obtained alternative accommodation.
29. In the City Court’s view, the opinions of the applicant and of a journalist which had been published in Smena on 8 November 1991 and 21 February 1992 had not been substantiated. The court considered that the applicant had also interfered with the plaintiffs’ right to protection of their personality by displaying his open letter of 5 February 1992 in public places or, as the case may be, allowing it to be published. The court held that the letter contained tendentious, distorted and unsubstantiated information which had damaged the plaintiffs’ personal integrity.
30. The City Court found that the damage had affected H.’s health, that, following the publication of the article of 8 November 1991, disciplinary proceedings had been brought against her and that, for the same reason, a loan had not been granted to A., who was a businessman. The family life of the claimants and of H.’s children had also been affected.
31. Both the applicant and Smena appealed. The applicant claimed, with reference to the documents included in the case file, that the information contained in his open letter of 5 February 1992 was true. In particular, he argued that, under the relevant law, A. had no right to occupy the flat in question. He also offered proof that, at the relevant time, A. had had a permanent address with his parents and that his wife had had the right to occupy another flat.
32. The applicant also pointed out that he could not have the contract for the use of the flat signed as the flat had been illegally occupied by A. He therefore maintained that his conclusion that A. had prevented him from moving into the flat was correct. Finally, the applicant alleged that, in any event, the interference in question had not had any defamatory effect within the meaning of Article 11 of the Civil Code and that the City Court had not indicated any relevant damage or circumstance within the meaning of Article 13 of the Civil Code on which its conclusion had been based.
33. On 16 November 1995 the Supreme Court (Najvyšší súd) dismissed the appeal. It considered that the evidence heard by the City Court showed that the information contained in the article of 8 November 1991, in the applicant’s opinion published in Smena on 21 February 1992 and in the applicant’s open letter displayed in public places did not correspond to reality and was objectively capable of affecting the plaintiffs’ personality rights.
34. The Supreme Court recalled that, after the allocation of the flat to the applicant, the relevant authorities had not signed a contract for its use with him as required by the law then in force and that the applicant had not requested that such a contract be signed. The Supreme Court therefore considered that the applicant’s allegation that A. had occupied the flat in question unlawfully and that he had shamefully benefited from the fact that his permanent address was the same as that of the flat in question had been tendentious and misleading as the proceedings concerning the right to occupy the flat in issue were still pending before the Bratislava I District Court.
35. In the Supreme Court’s view, the disclosure, in both the open letter and the opinion of 21 February 1992, of H.’s name and of the fact that she was a public prosecutor had grossly interfered with her right to protection of her personality. It concluded that the way in which the applicant had attempted to resolve his housing problem was inappropriate as he had had other lawful means of seeking redress.
36. In the judgment, the Supreme Court referred to the profession of the plaintiffs and found that the compensation the applicant had been ordered to pay was appropriate and corresponded to the non-pecuniary damage A. and H. had suffered. The applicant was ordered to reimburse to the plaintiffs the cost of the proceedings. The judgment was served on 17 January 1996.
37. On 14 February 1996 the applicant lodged a petition with the Constitutional Court (Ústavný súd). He alleged a violation of his constitutional rights, including freedom of expression, in the proceedings leading to the Supreme Court’s judgment of 16 November 1995.
38. On 27 February 1996 the Constitutional Court rejected the petition on the ground that it lacked jurisdiction to review or quash the ordinary courts’ decisions and to award compensation to the applicant.
39. Subsequently a bailiff started to enforce payment of the sums due by the applicant by attaching one-third of his salary.
40. The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code.
41. Under Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
42. According to Article 13 § 1 any natural person has the right to request that unjustified interference with his or her personality rights be stopped and that the consequences of such interference be eliminated, and to obtain just satisfaction.
43. Article 13 § 2 provides that, in cases where satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person’s dignity and position in society have been considerably diminished, the person affected is entitled to compensation in respect of non-pecuniary damage.
44. Under Article 13 § 3, the amount of compensation to be paid under Article 13 § 2 is fixed by the courts after considering the severity of the damage and the circumstances in which the person’s right was violated.
45. Article 179 § 1 of the Civil Code, as in force up until 31 December 1991, provides that the right to use a flat after the death of the occupant shall be transferred to persons who, inter alia, have lived in a common household with the person entitled to use it for at least one year before his or her death, provided that they have no flat of their own.
VIOLATED_ARTICLES: 10


ITEMID: 001-108938
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SECKERSON v. THE UNITED KINGDOM AND TIMES NEWSPAPERS LIMITED v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The applicants are Mr Michael Alexander Seckerson (“the first applicant”) and Times Newspapers Limited (“the second applicant”). The first applicant is a British national who was born in 1943 and lives in Maidenhead. He is represented before the Court by Mr M. Uddin, a lawyer practising in Slough. The second applicant is the proprietor and publisher of The Times newspaper and is a company registered in England. It is represented before the Court by Mr M. Stephens, a lawyer practising in London.
2.
3. The first applicant was the foreman of the jury at the trial of a childminder, K.H., for the manslaughter of a baby who sustained fatal injuries while in her care. The prosecution case was that she had shaken the baby so violently that she had died. The prosecution did not call any eye witnesses to testify that K.H. had injured the child but instead relied on expert medical evidence as to how the injuries were sustained.
4. The trial lasted for five to six weeks and the jury deliberated its verdict over a period of about three days. K.H. was convicted by a majority of ten of the twelve members.
5. In late 2007, following the conviction, the first applicant contacted The Times to express grave concerns about the trial and the conviction.
6. On 19 December 2007 The Times published two articles based on the first applicant’s comments. One article appeared on the front page in the following terms:
“Jurors question guilt of killer childminder
The role of expert witnesses in baby death trials was called dramatically into question last night after two jurors spoke out to challenge the conviction of a childminder for killing a baby in her care. Senior judges and law officers faced calls yesterday for a fresh review of the role of expert witnesses in baby-death cases.
In an unprecedented move, the jurors disputed the recent conviction of [K.H.] 42, a mother of two married to a former police officer, for shaking 11-month-old [M.S.] so violently that the baby was left blind and irreparably brain-damaged. She died days later.
The jury foreman, who cannot be named for legal reasons, has told The Times that he believes [K.H.] is innocent. ‘A case relying on circumstantial evidence and forensic opinion based on evidential proof from other cases should never have reached a court.’
The case comes amid increasing concern over cases involving baby deaths that turn on the evidence of medical experts. [S.C.], [A.C.] and [T.P.] were all accused of killing their children, only later to be found innocent. [S.C.], a solicitor who was finally released from prison after three years, died in March from alcoholism and psychological trauma caused by her ordeal.
... [T]he chairman of Justice for Families, called yesterday on the Lord Chief Justice and Attorney-General to set up a fresh inquiry into the way that courts use medical expert evidence. ‘Jurors think that [K.H.] is innocent,’ he said. ‘When we are asking medical expert witnesses to diagnose innocence or guilt, we need more certainty than is the case for most medical treatment — a false diagnosis of guilt can generally cause far more damage than a false medical diagnosis.’”
7. The second article appeared on the inside pages in the following terms:
“Jurors break silence to insist childminder did not kill baby
Two jurors have spoken out to question the guilty verdict in a case last month in which a childminder was jailed for shaking a baby to death.
In an unprecedented move, the two jurors – a man and a woman – say they believe that [K.H.], 42, a childminder and mother, was wrongly convicted of killing 11-month-old [M.S.] by shaking her so violently that she was left blind and brain damaged.
[K.H.], a respected Scout leader, allegedly lost her temper and shook the baby so hard that she was taken to hospital, blind and unconscious. She died two days later.
But the jury foreman, who cannot be named for legal reasons, has told The Times that he does not think the case should ever have come to court.
‘A case relying on circumstantial evidence and forensic opinion based on evidential proof from other cases should never have reached a court,’ he said. He added: ‘I think that although the trial was very carefully run, the case in my view was flawed and the accused innocent.’
He said: ‘I think [K.H.’s] heartrending response [she broke down in uncontrolled weeping] to the verdict confirms that it was flawed.’
A second juror named as Carol told BBC Radio 5 Live yesterday: ‘I believe a miscarriage of justice has occurred and there’s nothing I can do about it.
I don’t think you can get a fair outcome. I will never know, as long as I live, whether the verdict was right or not because we have not got all this medical expertise and I think if medics can’t decide between themselves, what chance have we got?’
Jurors are prohibited by law from disclosing the secrets of the jury room and the discussions as to how a verdict was reached. But the readiness of two of the 12 in this trial to speak out is an indication of how strongly they feel.
A campaign has already begun by friends and relatives who maintain that [K.H.] is innocent and want to secure her release. She was jailed for three years. And yesterday an MP called for an inquiry into the use of medical experts in trials.
At the time of the trial, some media commentators suggested that the verdict was unjust. They said that it raised a question mark over majority verdicts, implying that given more time the jury might have reached a different verdict.
But the foreman of the jury insisted that the verdict was understandable on the basis of medical expert evidence presented.
[K.H.] qualified as a childminder in 2000 and often had up to eight children in her care at her home in Iver Heath, Buckinghamshire. She had looked after [M.S.] since January 2005, having been recommended to her parents ... by a mutual friend.
On the day [M.S.] died she was described as ‘full of energy’ although she had been unwell in the weeks before her death.
The jury foreman told The Times that there was no question, as has been suggested, of the jury being rushed. It was given ample time and the ‘consensus was taken three minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that there was no going back.’
He added: ‘The jury majority voted guilty because it could do no other.
‘The medical evidence was overwhelming. All the necessary ingredients of what the experts call the “triad” [a collection of features typically caused by shaking that lead to hypoxic-ischaemic brain injury and death] were there.
But many expert witnesses vouchsafe that the literature on shaken baby syndrome is contentious and far from complete. And so who caused the death, or whether anyone did, is not proved. The evidence, whether expert or other, was merely circumstantial – probabilities, therefore uncertainties.’
The juror said that the defence was good; but up against ‘the weight of a dozen medical and forensic experts, was clearly on a hiding to nothing.
The circumstances were that of amateurs made to do a professional’s job.
Such a complex case was made easier by the judge’s excellent, well-rounded summary ... although we were told we could not have a transcript.’ Had the jury been given a transcript they might have reached a better verdict, he added.
What was not proved, he said, was who caused the death ‘or indeed whether anyone did’.
He added: ‘Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense.’
The outcome has left him disillusioned with the jury system. ‘One’s peers, however good and true, are generally not up to the job.’
The ... chairman of Justice for Families, called on the Government and the judiciary to set up a review of medical expert evidence. ‘[K.H.’s] case had been taken up by the Angela Cannings Foundation, who believe that a miscarriage of justice has occurred,’ he said.
‘This makes it clear that the way in which our courts use expert evidence, and particularly medical expert evidence, has insufficient intellectual rigour. Evidence which is clearly unreliable and based upon pet theories without proper research groundings is accepted as fact in court.’”
8. Section 8 of the Contempt of Court Act 1981 (“the 1981 Act”) prohibits the disclosure of information regarding the deliberations of a jury (see “Relevant domestic law and practice”, below).
9. The first applicant was interviewed under caution by the police on 26 February 2008 as a result of the comments he had made regarding the K.H. case. He accepted that he had written an article and given interviews about his experience on the case. However, he explained that his sole intention had been to describe his general experience and that he had had no intention of disclosing any particulars of statements made, opinions expressed or votes cast by members of the jury in the course of their deliberations, nor did he consider that he had done so.
10. The journalist who had written the articles was interviewed by the police on 16 July 2008. She also indicated that she did not believe that anything in the articles rendered her liable for contempt of court. She confirmed that the article had been reviewed by the legal team of The Times prior to publication to ensure that it complied with the law.
11. The Attorney General subsequently applied to the Divisional Court for permission to make a committal application against the applicants for their contempt of court on the ground that they had breached section 8 of the 1981 Act. It was alleged that the first applicant had disclosed to the journalist at The Times particulars of votes cast, arguments advanced and opinions expressed by members of the jury in the course of their deliberations as to the verdict and that the second applicant had published that information, or some of it, in an article in The Times on 19 December 2007. On 20 January 2009 permission was granted and the proceedings were issued on 3 February 2009.
12. At the subsequent hearing, counsel for the Attorney General accepted that for a juror after a trial to express his own views in a general way about the merits or demerits of the jury system would not be a breach of section 8. Similarly, the juror would not breach section 8 by expressing general views about jurors relying on expert evidence. He identified the disclosures in the articles which he alleged infringed section 8 as:
“... the consensus was taken three minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that there was no going back.”
“The jury majority voted guilty because it could do no other.”
“The medical evidence was overwhelming.”
“Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, commonsense.”
13. Counsel for the second applicant, supported by counsel for the first applicant, referred to Article 10 of the Convention and to the right and duty of the press, in the interests of the administration of justice, to tell the public what had happened in court proceedings. He argued that a purposive construction of section 8 was required and that involved limiting breaches to disclosures which interfered with the proper administration of justice. Considered in the context of the article as a whole, the first applicant was using his experience of the K.H. trial to criticise the way in which cases based on medical opinion evidence were tried. It was not a disclosure of confidential information but of information about how the system worked, much of it favourable to the system. Fears were expressed about reliance on expert medical evidence and the expression of such concerns was legitimate. The applicants’ counsel accordingly argued that the order sought by the Attorney General would amount to a violation of the applicants’ rights under Article 10 of the Convention. There was no ‘pressing social need’ to curtail the disclosures made and, on the facts of the case, the balance between the Article 10 right and the general community interest came down on the side of freedom of expression.
14. Lord Justice Pill, delivering the judgment of the court on 22 May 2009, found the applicants guilty of contempt of court. He observed that it was not suggested that section 8 was incompatible with Article 10 of the Convention, and observed that this Court had acknowledged the legitimacy of the rule governing the secrecy of jury deliberations in England. He therefore declined to read down the words in section 8 of the 1981 Act, pursuant to the Human Rights Act 1998, in order to interpret restrictively the relevant words contained in that section.
15. The judge accepted that the articles were published in a reputable newspaper, following legal advice given in good faith, and that the first applicant was not harassed to provide his views but had approached the newspaper unprompted. He further accepted that the first applicant was genuinely concerned about the use made of medical evidence in criminal trials, which was an issue of public interest. However, he noted:
“49. The words used in section 8 in relation to the ‘deliberations’; ‘statements made’, ‘opinions expressed’, ‘arguments advanced’, and ‘votes cast’ appear to me to cover the entire range of a jury’s deliberations when considering their verdict or verdicts in the case. Provided the disclosure is in relation to their deliberations in the case, and not about an extraneous matter, it comes within the section.”
16. Reiterating the rationale for the need to keep secret the deliberations of the jury as stated in previous cases, he continued:
“51. ... The jury system has shown itself to be robust in operation and is valued highly in this jurisdiction. Its strength and value depend on the open and frank expression of views between twelve people in the secrecy of the jury room. Confidence to express views in that way depends on the juror’s knowledge that the views will not be revealed outside the jury room. Jurors should not be constrained by fears a juror would legitimately have if his friends and neighbours, and the general public, may come to know of his views, which could be unpopular views. If views were expressed in the hope of their being disclosed, or with an intention to disclose, that would also have a deleterious effect on the quality of deliberations.
52. It is the principle of the secrecy of the jury room which is at stake and which is central to the proper administration of justice in this jurisdiction, as stated in the authorities. It is not necessary to establish that the disclosure has led to injustice in the case concerned. Disclosures must be examined individually if the principle is to be maintained. Disclosures found to be in breach of the section do not obtain cover by being interwoven, whether intentionally or unintentionally interwoven, with expressions of general concern, which may legitimately be made by a juror. They do not obtain cover by the addition of favourable comments about how the jury functioned, as some of the disclosures in this case may have done. Indeed, disclosures incorporating favourable comment about other jurors could constitute a breach.”
17. Accordingly, he concluded:
“53. In my judgment, the disclosure of the 10-2 vote was a clear breach of section 8(1). It was a breach as disclosing a vote. Moreover, it revealed the opinions expressed by 10 members of the jury, at an early stage of a long deliberation. The reference to ‘no going back’ also revealed a firm intention on the part of those 10 members not to change their minds, a revelation of the opinions they held.
54. The paragraph dealing with common sense also constituted a breach. It was disclosed that the majority who convicted used a ‘despicable enemy of correct and logical thinking’. That was the foreman’s assessment of the opinions of and statements expressed by the majority members and he disclosed them by making those comments. The majority members were, in the opinion of the foreman, guilty of incorrect and illogical thinking, an accusation against them, combined with a disclosure of, their opinions.
55. It is disclosed that the majority members used that ‘wonderfully persuasive device, common sense’. That is a disclosure of their approach to the evidence, which necessarily was based on statements they had made or opinions they had expressed during the deliberations. If the foreman’s assessment of their opinions was incorrect, it may add to the wrong done to them, but that is not material; the mischief is in the disclosure of the deliberations. It is not necessary to prove that the accusations made against fellow jurors were true.
56. The assumption is made in the foreman’s disclosure that common sense is the enemy of correct thinking, and therefore of justice. That assumption can of course be questioned; common sense is generally perceived to be valuable and does not inevitably lead to the acceptance of expert medical evidence. Debate of the merits of common sense is not, however, in point for present purposes. What is relevant is that the disclosures reveal the approach of this jury to the evidence in this case; reliance on common sense and not correct and logical thinking. Whether or not that is a disclosure offensive to the majority members need not be decided; it was a disclosure of their approach, as assessed by the foreman, thereby revealing their opinions. It offended against the secrecy of the jury room, as that concept is viewed in the authorities. The foreman should not have disclosed the approach to the evidence of other jurors. What may be legitimate debate in the course of deliberations should not be revealed outside.”
18. As regards the remaining two disclosures about which the Attorney General had complained (see above), the judge found that they were general comments on the strength of the evidence for the prosecution and did not breach the 1981 Act.
19. The first applicant was fined GBP 500. The second applicant was fined GBP 15,000 and ordered to pay costs of GBP 27,436.41.
20. On 18 June 2009 the second applicant sought leave to appeal to the House of Lords. Leave was refused by the newly instituted Supreme Court on 9 December 2009.
21. Between 1999 and 2003 three high-profile trials took place concerning the death of children in which expert medical evidence had been critical to the prosecution case. In two of the cases, convictions were handed down at first instance. However, the convictions were subsequently overturned and the medical evidence called into question. These cases were referred to in the front page article published in The Times.
22. In January 2005, the Department of Constitutional Affairs published a consultation paper on Jury Research and Impropriety, seeking views on whether there should continue to be a ban on all research into a jury’s deliberations. The summary of responses received, published in November 2005, indicated that the majority of respondents were in favour of allowing some degree of research into the jury decision-making process. However, no amendment was made to the 1981 Act.
23. In March 2005 a House of Commons Select Committee published a report on forensic evidence used in criminal trials (Forensic Science on Trial, 7th Report of Session 2004–05, HC Paper 96) which recommended an amendment to section 8 of the 1981 Act to permit research into jurors’ deliberations.
24. The matter of the death of babies in which the triad of intracranial injuries, considered by most experts to be indicative of non-accidental head injury, or “shaken baby syndrome”, was present was also of topical importance, following the review of four convictions by the Court of Appeal in June 2005 which resulted in two convictions being overturned. The Court of Appeal explained in its judgment that while the triad pointed strongly to non-accidental head injury it did not automatically and necessarily lead to such a diagnosis.
25. The criminal case at issue in the present applications had itself received considerable publicity. It had been suggested in the press, prior to the publication of the two articles by The Times, that the jury had not been given adequate time to deliberate and that a miscarriage of justice had occurred.
26. In 2009 the Law Commission issued a consultation paper on the Admissibility of Expert Evidence in Criminal Proceedings in England and Wales. The paper noted:
“2.6 However, the possibility or likelihood of jury deference in relation to complex fields of knowledge gives rise to a danger if there are legitimate questions about the reliability of the expert’s evidence. This may be because the expert’s field of knowledge is a novel or developing science with little in the way of peer review, or because there are doubts as to the validity of the expert’s methodology, hypothesis or assumptions, or for some other reason.
2.7 The problem is particularly worrying if there is no available expert in the same field who can be called by the opposing party to provide an effective criticism of the expert evidence in question, particularly if the forensic tool of cross-examination (by a non-specialist advocate) would provide only an ineffectual substitute. The jury in such cases may have no real option but to defer to the view of the expert even though his or her testimony may be insufficiently reliable to warrant such deference or, indeed, any consideration at all.
2.8 A related problem, touched upon in the preceding paragraph, is that the non-specialist individuals involved in the criminal trial process may have an insufficient understanding of the limitations of expert evidence, scientific evidence in particular. They may assume that just because an expert’s evidence is presented as ‘scientific’ it may be taken to be reliable. Certainly there is evidence to suggest that juries may find it difficult to understand or follow cross-examination aimed at revealing flaws in scientific methodology, a problem which is likely to be more acute if the evidence is complex.”
27. A jury in England is composed of twelve members, although its number may be reduced to a minimum of nine in the case of the discharge of a member or members because of illness or for some other reason.
28. The jury’s verdict is given in open court in the presence of all the jurors and the parties to the proceedings. Majority verdicts are possible. Where a majority verdict is handed down the foreman of the jury must state in open court the number of jurors who agreed to and dissented from the verdict. The minimum majorities possible are 11-1 or 10-2. In the case of a jury which has been reduced in number to ten or eleven members, the minimum permissible majorities are 9-1 or 10-1 respectively. A jury of nine members must be unanimous.
29. Section 8 of the Contempt of Court Act 1981 provides, in so far as relevant:
“Confidentiality of jury’s deliberations.
(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.
(2) This section does not apply to any disclosure of any particulars–
(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict, or
(b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed.
...”
30. In Attorney-General v. Associated Newspapers Limited and Others [1994] UKHL 1, the House of Lords held that the word “disclose” in section 8 of the 1981 Act was apt to describe both offending revelations by a juror to a newspaper and the further disclosure of those revelations by their publication in the newspaper, provided that this amounted to a disclosure rather than re-publication of facts already known.
31. In R. v. Mirza [2004] UKHL 2, Lord Steyn cited with approval a passage in a judgment of the Canadian Supreme Court in R v. Pan 2001 SCC 42 in which Arbour J identified the principal reasons for the common law rule of jury secrecy in the following terms:
“The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation.
The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy.
The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors ..., and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.”


ITEMID: 001-117634
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ASEN KOSTOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1961 and lives in Striama.
6. The applicant was convicted of a number of crimes committed between 1991 and 1998. The cases were given the case numbers 70/1995, 343/1998, 805/2001, 751/2002, 660/2002, 868/2003 and 1732/2002.
7. On 13 October 2003 a plea bargain agreement in case no. 868/2003 was approved by the Plovdiv District Court, under the terms of which the applicant pleaded guilty to robbery and was sentenced to one year’s imprisonment.
8. The applicant started serving that sentence on 28 October 2003.
9. By a decision of 19 December 2003 in case no. 868/2003, the Plovdiv District Court imposed an overall sentence of two years’ imprisonment, which included imprisonment for four of the applicant’s other convictions (cases nos. 343/1998, 805/2001, 751/2002 and 660/2002).
10. Following an appeal lodged by the applicant, by a decision of 10 May 2004 the Plovdiv Regional Court set aside the lower court’s decision. It imposed an overall sentence of one year’s imprisonment solely for the applicant’s convictions in cases nos. 343/1998 and 868/2003. From that prison term, the court deducted the six months which had been served by the applicant following his conviction in case no. 343/1998. It also held that the period served by the applicant following his conviction in case no. 868/2003 was also to be deducted from the overall sentence. The court did not specify when the one-year prison term was to expire. In respect of the convictions in cases nos. 70/1995, 805/2001, 751/2002 and 660/2002 (the applicant had already served the sentence imposed in case no. 70/1995 and the sentences in the remaining three cases were suspended), it concluded that imposing a separate overall sentence would be to the applicant’s benefit but that another regional court was competent in this respect.
11. Following the decision of 10 May 2004 the applicant, relying on Article 425 of the Code Criminal Procedure of 1974, applied for the suspension of his sentence. On 14 May 2004 the regional prosecutor rejected the application, reasoning that an overall sentence for four other convictions was yet to be imposed.
12. The applicant was released on 1 June 2004, when it would appear that the decision of 10 May 2004, not having been appealed by either the applicant or the prosecution authorities, became final.
13. On an unspecified date in 2005 a new set of proceedings in which an overall sentence would be imposed started on account of the applicant’s conviction in case no. 1732/2002, which had not been taken into consideration during the previous set of proceedings.
14. By a decision of 13 December 2005 the Plovdiv District Court imposed an overall sentence of one year and three months’ imprisonment for the applicant’s convictions in cases nos. 343/1998, 1732/2002 and 868/2003. On 21 April 2006 the Plovdiv Regional Court upheld that decision.
15. It is not clear from the documents in the case file whether an overall sentence in cases nos. 70/1995, 805/2001, 751/2002 and 660/2002 was imposed.
16. On 1 October 2004, the applicant brought an action for damages under the State and Municipalities’ Responsibility for Damage Act 1988 (“the 1988 Act”) against the Plovdiv District Court and public prosecutor’s office. He claimed that under the decision of 10 May 2004 he had been sentenced to one year’s imprisonment but that he had actually served one year, two months and ten days.
17. By a judgment of 13 May 2005 the Pazardzhik Regional Court held that, after deducting time served and reducing the sentence to take account of the days the applicant had worked in prison, he had served two months and ten days over the prison term imposed by the decision of 10 May 2004. However, the court found that proceedings in which an overall sentence for some of the applicant’s convictions would be imposed were pending, and that the period of time served in excess of the sentence imposed by the decision of 10 May 2004 would be taken into consideration when an overall sentence was imposed for the remaining convictions. The court consequently dismissed the action and ordered the applicant to pay the sum of 480 Bulgarian levs (BGN) in court fees.
18. The applicant appealed against the judgment. He stated that by adding another conviction and imposing a higher overall sentence, the decision of 21 April 2006 had contradicted that of 10 May 2004. By a judgment of 12 December 2008 the Plovdiv Court of Appeal upheld the lower court’s finding and ordered the applicant to pay an additional BGN 240 in court fees. The court reasoned that his detention had been lawful because the applicant’s conviction in case no. 1732/2002 had not been taken into consideration by the decision of 10 May 2004 as it should have been – a shortcoming rectified by the decision of 21 April 2006 – and that consequently in May 2004 the proceedings in which an overall sentence would be imposed had not yet been completed.
19. The applicant subsequently appealed on points of law, claiming that the amount of court fees he had been ordered to pay had breached amendments to the 1988 Act which had come into force on 30 May 2008.
20. By a decision of 5 February 2010 the Supreme Court of Cassation (“SCC”) refused to grant the applicant’s appeal on points of law, thus upholding the lower court’s judgment. In respect of the complaint against the court fees, the SCC ordered that separate proceedings be initiated.
21. By a final decision of 6 July 2010 the Supreme Court of Cassation upheld the applicant’s complaint in respect of the court fees. The court applied section 9a and paragraph 9 of the concluding provisions of the 1988 Act (see paragraph 25 below) and determined that a flat court fee of BGN 15 should apply.
22. Article 25 § 1 of the Criminal Code 1968 provides that when an individual is convicted pursuant to two or more separate judgments, one overall term of imprisonment shall be imposed if all of the crimes were committed prior to the first conviction. Paragraph 2 of that provision states that time served following conviction pursuant to one of the judgments shall be deducted from the time to be served under the overall term of imprisonment. Paragraph 4 provides that in the event that a sentence imposed in one or more of the judgments is suspended, the court imposing the overall prison term shall decide whether it is, in fact, to be served effectively.
23. Article 371 of the Code of Criminal Procedure 1974 (“the 1974 Code”) (in force until 29 April 2006 when it was replaced by a new Code) provided that judgments and decisions were enforced after they become final. A copy of the judgment is sent to the prosecutor who is competent to take the necessary measures for its execution; in the case of a custodial sentence the prosecutor orders the prison authorities to detain the prisoner in execution of the sentence (Article 375 § 2 of the 1974 Code).
24. Article 425 of the 1974 Code provided, inter alia, that the service of a sentence of imprisonment could be interrupted on compelling grounds of a family or social nature. Article 426 § 1 of the 1974 Code stipulated that a prison governor could recommend such an interruption, which might then be ordered by the competent public prosecutor.
25. The relevant provisions of the State and Municipalities’ Responsibility for Damage Act 1988 (“the 1988 Act”) in respect of court fees are summarised in paragraphs 19-21 of the Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, ECHR 2007VIII).
26. The 1988 Act was amended with effect from 30 May 2008, introducing, in new section 9a, a flat court fee in cases brought under the Act, irrespective of the amount of claim. According to paragraph 9 of the concluding provisions of the 1988 Act, section 9a applied to proceedings pending at the time of its introduction.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5
VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-67116
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: YILDIRIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Ali Yıldırım, is a Turkish national, who was born in 1962 and lives in Ankara. He was represented before the Court by Mr F. Gümüş, a lawyer practising in Ankara.
On 2 April 1992 the applicant, along with some other intellectuals, artists and representatives of non-governmental organisations, totalling 126 persons, gathered together outside the United Nations building in Ankara, where a representative read a declaration entitled “To the United Nations and all other international organisations” and distributed copies of it to members of the press.
On 23 February 1993, the public prosecutor filed a bill of indictment with the Ankara State Security Court against the applicant and 125 other co-defendants, who signed the declaration.
During the criminal proceedings before the State Security Court, the court had obtained some of the defendants' statements before it, for the others it issued rogatory letters addressing the local courts, as the accused persons were living outside the territory of Ankara, in fourteen different cities of the Country, namely, Adana, Antalya, Istanbul, Izmir, Bursa, Batman, Gaziantep, Malatya, Şanliurfa, Van, Silopi, Şırnak, Diyarbakir and Tunceli.
The court took note of the statements that were sent back at each hearing. It also issued arrest warrants for the defendants that could not be found merely for the purpose of obtaining their statements.
The case file does not disclose any information as to whether the applicant or his lawyer requested from the court that the applicant's case proceed separately from the others.
On 9 April 1999 before delivering its first decision, the court separated the fifteen defendants' cases from the main case as they still could not be found, and sentenced the applicant and some of his co-accused to one year imprisonment each and a fine of 100 million Turkish liras for disseminating propaganda against the territorial integrity of the State and the indivisible unity of the nation pursuant to section 8 (1) of the Prevention of Terrorism Act (Law no. 3713).
On 5 May 1999 the applicant appealed to the Court of Cassation.
On 8 November 1999 the Court of Cassation quashed the judgment on account of the lack of notification papers in the case file, and sent it back to the first instance court.
On 17 February 2000 the State Security Court convicted the applicant of the offence as charged, and suspended the execution of the sentence in accordance with Article 2 of Law no. 4454. The applicant appealed.
On 11 October 2000 the Court of Cassation quashed the Ankara State Security Court's judgment on the grounds that the criminal proceedings against the applicant should be discontinued since the prosecution was time-barred.
On 1 November 2000 the State Security Court adhered to the judgment of the Court of Cassation and decided that the case be struck off from its list.


ITEMID: 001-100958
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KHAYREDINOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1984 and lives in Dachne village in Crimea.
6. On 23 March 2004 a massive fight between youngsters took place in the centre of Simferopol in which a number of persons sustained injuries varying from slight to serious.
7. On the same day the applicant was questioned by the police as a witness at the hospital where he had accompanied a friend who had been injured in the fight.
8. In March and April 2004 the applicant was summoned by and appeared before the investigator on a number of occasions.
9. On 28 April 2004 the applicant, having been questioned as a witness by the investigator, was detained on police premises on suspicion of armed hooliganism in respect of the events of 23 March 2004.
10. On 1 May 2004 the Kyivskyy District Court of Simferopol (“the Kyivskyy Court”), in allowing the investigator's application, remanded the applicant in custody and rejected a request by him to be placed instead under an undertaking not to abscond. The court gave as grounds for that decision the seriousness of the charges against the applicant, his mediocre character reference from the university where he was studying, his medical fitness for detention, and the risk that he might abscond or impede the investigation if at liberty. Although the management of the school from which he had graduated two years earlier and the authorities of the village where he had been living before his arrest gave the applicant positive character references, the court decided that they “could not provide grounds for the rejection of the [investigator's] application, as law-abiding behaviour is a requisite for life in society, and not an exception to the rule.”
11. On 5 May 2004, in the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”), the applicant's lawyer challenged the detention of his client, arguing that the applicant had a permanent place of residence, positive character references, suffered from Vitiligo (a chronic disorder which causes depigmentation in patches of skin) which could worsen in detention, and that he had no criminal record. He further noted that the applicant had always appeared voluntarily before the investigator and that his parents could pay bail for his release.
12. On 18 May 2004 the Crimea Court of Appeal rejected the appeal, referring to the seriousness of the charges brought against the applicant.
13. On 15 June 2004 the Kyivskyy Court extended the term of his detention to 28 August 2004 on grounds of the necessity to complete the investigation, the seriousness of the charges and the inherent risk that the applicant would abscond, influence witnesses or reoffend.
14. On 22 June 2004 the applicant was provided access to the case file.
15. On 16 July 2004 the Crimea Court of Appeal extended his detention to 28 November 2004 following a request by the investigator, who maintained that the other co-accused needed more time to study the case file. The court rejected a request by the applicant to be released under an undertaking not to abscond, on grounds of the seriousness of the charges and the risk that he would abscond.
16. In August 2004 the investigation was completed and the applicant, together with the other co-accused, was committed for trial.
17. On 13 September 2004 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) held a preparatory hearing during which the applicant again asked to be released under an undertaking not to abscond. He argued that all the evidence in the case had been collected by that time so there was no risk that he might tamper with it, that he had a permanent place of residence and well-established social networks, and that he had never hindered the investigation or attempted to abscond or reoffend. The court rejected the request with a final ruling, finding the preventive measure to be in compliance with the criminal procedural legislation.
18. In a judgment of 29 December 2004 the Tsentralnyy Court found the applicant guilty of armed hooliganism, as well as of deliberately inflicting medium and grievous bodily harm, and sentenced him to eight years' imprisonment.
19. On 22 June 2006 the Crimea Court of Appeal upheld that judgment.
20. On 17 May 2007 the Supreme Court changed it, finding the applicant guilty of hooliganism without the use of arms and of deliberately inflicting medium bodily harm, and reduced the sentence to three years and two months' imprisonment.
21. The relevant provisions of the Code of Criminal Procedure (“the CCP”), as worded at the material time, read as follows:
“Pre-trial detention during pre-trial investigations shall not last more than two months.
When it is impossible to complete the investigation within the period provided for in paragraph 1 of this Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the pre-trial detention] may be extended:
up to four months – upon a request of or approved by the prosecutor supervising the compliance with law by the bodies of inquiry and investigation, by a judge of the court which applied the respective preventive measure; ...
The term of pre-trial detention shall end on the day the court receives the case file.
... After the completion of the investigation the case file shall be presented to the detained accused and his defence not later than a month before the expiry of the pre-trial detention time-limit set under paragraph 2 of this Article.
... If the accused and his defence received access to the case file [in due time as noted above], but that time appeared insufficient, the respective term may be extended by a judge of an appellate court at the request of the investigator approved by the Prosecutor General of Ukraine or his deputy, or at the request coming directly from the [aforementioned prosecutorial officials]. Where there are several co-accused held in pre-trial detention and if at least one of them finds [the term for the case file study] insufficient, a request [for its extension] may also be applicable to the other coaccused who has/have completed his/their study of the case file, if his/their pretrial detention remains necessary and there are no grounds for changing that preventive measure. ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3