ITEMID: 001-60605
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF AMROLLAHI v. DENMARK
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (estoppel);Violation of Art. 8
JUDGES: Christos Rozakis
TEXT: 9. The applicant is an Iranian citizen, born in 1966, and lives in Viborg, Denmark.
10. In 1986 the applicant commenced his military training in Iran. It is not clear whether he participated directly in the war between Iran and Iraq. On 25 April 1987 he deserted and fled to Turkey, where he arrived on 5 May 1987. It appears that the applicant stayed for some time in Turkey and then in Greece.
11. He arrived in Denmark on 20 August 1989 and applied for asylum. Pursuant to the practice of the Danish immigration authorities at that time, all asylum-seekers from Iran who, due to desertion from the army, had left their home country before the armistice between Iran and Iraq in the summer of 1988 were granted a residence permit. Accordingly, on 12 October 1990 the applicant was granted a residence and work permit. On 25 August 1994 the residence permit became permanent.
12. In 1992 the applicant met a Danish woman, A, with whom he cohabited. A daughter was born out of the relationship on 16 October 1996. The applicant and A got married on 23 September 1997 and had another child, a son, born on 20 April 2001. A also has a daughter born in 1989 from a previous relationship, who lives with A and the applicant, and with whom the applicant has a very close relationship. All three children have been raised pursuant to Danish traditions.
13. It appears that the applicant's family broke off all relations with him in 1987 due to his desertion from the army.
14. In Denmark the applicant had been making a living as the owner of a pizzeria until the end of 1996. Since May 2000 he had been receiving welfare benefits and was at the same time assigned job training by the municipality with the possibility of continuing employment. A works at a retirement home.
15. On 17 December 1996 the applicant was arrested and detained on remand, charged with drug trafficking allegedly committed during 1996. By judgment of 1 October 1997 the City Court of Hobro (retten i Hobro) found him guilty, inter alia, of drug trafficking with regard to at least 450 grams of heroine contrary to Article 191 of the Criminal Code. He was sentenced to three years' imprisonment and, pursuant to sections 22 and 26 of the Aliens Act, was expelled from Denmark with a life-long ban on his return.
The applicant appealed against the judgment but withdrew the appeal in November 1997, whereupon the City Court judgment acquired legal force.
16. On 14 July 1998, pursuant to section 50 of the Aliens Act, the applicant instituted proceedings in the City Court of Hobro claiming that material changes in his circumstances had occurred on account of which he requested the court to review the expulsion order. He referred to his family situation and alleged, with reference to information obtained from Amnesty International, that it could not be ruled out that he would risk severe punishment in Iran for having deserted from the army and also perhaps receive a life sentence for the narcotics crimes committed in Denmark.
On 11 September 1998 the City Court rejected the applicant's request, as it did not find that the applicant's situation had changed to such an extent that there was any reason to revoke the expulsion order. This decision was upheld by the High Court of Western Denmark (Vestre Landsret) on 9 October 1998.
17. On 17 December 1998 the applicant had served two-thirds of his sentence and was due to be released on parole. Since he did not consent to the deportation and refused to leave the country voluntarily, he was detained as from that date in accordance with the Aliens Act with a view to being repatriated. Also in accordance with the Aliens Act, the applicant availed himself of the possibility, prior to the enforcement of a deportation, to bring before the immigration authorities (Udlændingestyrelsen) the question whether he could be returned to Iran, since, pursuant to the Aliens Act, an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in Article 1 A of the Convention of 28 July 1951 concerning the Status of Refugees. The immigration authorities found, on 13 January 1999, that the applicant would not risk persecution in Iran of a kind which could constitute a basis for his remaining in Denmark. The applicant appealed against this decision to the Refugee Board (Flygtningenævnet), which on 16 April 1999 requested the Ministry of Foreign Affairs to provide more information on the situation in Iran.
Having obtained information from several different authorities, on 4 January 2000 the Refugee Board confirmed the immigration authorities' decision.
18. Subsequently, relying on section 50 of the Aliens Act for the second time, and claiming that material changes in his circumstances had occurred, the applicant requested the City Court of Hobro to reconsider the expulsion decision. The court had the same material at its disposal as the Refugee Board and a number of statements from doctors concerning the applicant's state of health. In addition, A was heard stating inter alia that her daughter from a previous relationship, refuses to move to Iran. By judgment of 14 February 2000 the City Court revoked the decision to expel the applicant.
On 3 March 2000 the High Court of Western Denmark quashed the above decision and dismissed the applicant's request for reconsideration of the expulsion order since, pursuant to section 50 of the Aliens Act, an expelled alien is entitled to only one judicial review of the question of expulsion. The applicant's application for leave to appeal against this decision was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 5 May 2000.
The applicant was released from his detention on 11 May 2000.
On 7 September 2000 the Supreme Court upheld the High Court's decision of 3 March 2000 as it agreed that a request for a review of an expulsion order pursuant to section 50 of the Aliens Act could only be examined once by the courts.
19. The Aliens Act formerly provided in so far as relevant:
Section 22
“An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if:
...
(iv) the alien is sentenced to imprisonment or other custodial penalty pursuant to the Euphoriants Act or Articles 191 or 191a of the Criminal Code.”
Section 26:
1. “In deciding whether or not to expel the alien, regard must be had not only to the alien's ties with the Danish community, including the duration of his stay in Denmark, but also to the question whether expulsion must be assumed to be particularly burdensome on him, in particular because of:
(i) the alien's age, health, and other circumstances;
(ii) the alien's personal or family ties with Danish or foreign nationals living in Denmark;
(iii) the alien's other ties with Denmark, including whether the alien came to Denmark in his childhood or tender years and therefore spent some or all of his formative years in Denmark;
(iv) the alien's slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence;
(v) the risk that the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence; and
(vi) exposure to outrages, misuse or other harm etc. in the present country causing an alien holding a residence permit pursuant to section 9, subsection 1 (ii) to no longer cohabit at a shared residence with the person permanently resident in Denmark, or the alien's otherwise particularly weak position.
2. An alien may be expelled pursuant to section 22(iv) unless factors mentioned in subsection 1 above constitute a decisive argument against doing so.”
Section 50 (1) provides:
“If expulsion under section 49 (1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, cf. section 26, may demand that the public prosecutor bring before the court the question of revocation of the expulsion order. Such a petition may be submitted not less than six months and no later than two months before the date when enforcement of the expulsion can be expected. If a petition is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time-limit has been exceeded.“
VIOLATED_ARTICLES: 8


ITEMID: 001-121103
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: FÜRST VON THURN UND TAXIS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: 1. The applicant, Mr Albert Fürst von Thurn und Taxis, is a German national, who was born in 1983 and lives in Regensburg. He was represented before the Court by Mr A. Geiger, a lawyer practising in Munich.
3. The applicant is the owner of a court library and archives dating back to the fifteenth century. In 1943 the library contained approximately 150,000 volumes; today, it contains about 204,000 volumes. The library is accessible to the public and the archives are accessible for scientific purposes.
4. The property was originally incorporated in a family trust fund (Fideikommis). Under section 1 of the Law on the Dissolution of Family Trust Funds (Gesetz über das Erlöschen der Familienfideikommisse und sonstiger Vermögen, FideiErlG, see relvant domestic law, below), which entered into force on 30 June 1938, all family trust funds were dissolved by 1 January 1939. The property contained in these funds was, as a rule, transferred into normal private property. However, section 6 of the abovementioned law allowed the authorities to impose certain protective and security measures in respect of objects of particular artistic, scientific, historical or patrimonial value.
5. By decisions of 12 July, 22 October and 30 October 1943 the Nuremberg Court of Appeal, in its capacity as a trust fund court, relying on section 6 of the above-mentioned law, placed the administration of the different parts of the court library and archives under the supervision of the director of the Bavarian State Library, and of the directors of the State Archives in Stuttgart and Amberg. The current owner and his legal successors were ordered to obtain authorisation from the supervising authority before changing, displacing, or disposing of the library or the archives or of parts thereof. Furthermore, it was ordered that the library and archives had to be maintained in an “orderly condition”.
6. On 31 January 2002 the applicant lodged a request with the Nuremberg Court of Appeal to lift the above-mentioned measures. Relying on section 6 § 8 of the Law on the Dissolution of Family Trust Funds, he argued that the measures deprived him of making use of his property in a reasonable way. Under the orders issued in 1943, he had to bear considerable expenses while being denied any possibility of profiting from his property. The applicant submitted that the factual and legal circumstances had changed since 1943. The costs of maintenance for the court library and the central archives had increased dramatically. For the year 2002, the total expenses were estimated at 295,000 euros. The applicant further argued that the limitations imposed were unconstitutional, as he did not receive any compensation for the factual expropriation.
7. On 8 December 2003 the Nuremberg Court of Appeal rejected the applicant’s request on the grounds that the applicant had not established that the factual and legal circumstances had changed since the imposition of the impugned measures in 1943. The Court of Appeal conceded that the expenses submitted by the applicant for the maintenance of the library and the archives were considerable. However, there was no indication that these expenses had not merely increased because of general inflation, but had been generated after 1943. The Court of Appeal further considered that section 6 of the Law on the dissolution of Family Trust Funds was constitutional. The court noted in this context that the court library and archives were cultural goods of exceptional importance meriting special protection. The measures imposed were justified by the public interest in the conservation of valuable goods giving testimony of German culture and history. If the measures imposed in 1943 were lifted, the conservation and accessibility of the court library and central archives could no longer be assured.
8. On 27 October 2004 the Bavarian High Court (Oberstes Landesgericht) rejected the applicant’s complaint on the grounds that the orders issued in 1943 were legally binding and that the factual and legal circumstances had not changed in a way which would justify the measures to be lifted. The court observed that the court library and central archives remained an important part of the cultural heritage which necessitated protection. Conversely, economic interests did not play a decisive role in the decision taken in 1943. Accordingly, the general change in the economic context did not justify the measures to be lifted. The Court of Appeal further considered that there was no violation of the right to equal treatment. The situation had to be seen in the context of the historical and social circumstances under which the property was acquired. These circumstances, taken in their entirety, could not be compared to the circumstances under which “civil” property was acquired.
9. On 28 October 2009 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (1 BvR 963/05). This decision was served on the applicant’s counsel on 12 November 2009.
10. The Law on the Dissolution of Family Trust Funds (Gesetz über das Erlöschen der Familienfideikommisse und sonstiger Vermögen, FideiErlG) as in force from 30 June 1938 until 30 November 2007 read, in so far as relevant:
Section 1 Date of Dissolution
“(1) All remaining family trust funds are dissolved by 1 January 1939...”
Section 2 The Trust Fund Property
“As from the [date of] dissolution of the trust fund, the trust fund property becomes the free property of the last trust fund owner....”
Section 6 Other Safeguards and Security measures
“(1) If the trust fund contained objects or collections of particular artistic, scientific, historical or local value (e. g. buildings, picture galleries, archives, libraries) or charitable institutions, the Trust Fund Court has to take the necessary measures for their appropriate conservation in case the objects appear to be endangered because of the dissolution of the trust fund and if the conservation lies in the public interest.
(2) The Trust Fund Court may, in particular...issue regulations on the storage and conservations of objects and may subject the change, displacement and the validity of legal dispositions to administrative authorisation. The Trust Fund Court is further obliged to ensure that objects of particular artistic, scientific, historical or patrimonial value are made accessible to the public in an appropriate way. ...
...
(8) In case of a change of circumstances, the Trust Fund Court, on request of one of the parties concerned, may change or lift the measures taken under the above paragraphs...”
11. Under Section 34, measures taken under that law did not give rise to compensation claims.
12. The FideiErlG was re-published in the Federal Law Gazette of 10 July 1958 (BGBl. III 7811-2) and repealed by law of 30 November 2007 under the condition that the rights and duties established under that law remained unchanged and that the law remained applicable for rights and duties established when it was still in force.


ITEMID: 001-59211
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF KROMBACH v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1+6-3-c;Violation of P7-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. In April 1977 the applicant, a widower with two children, remarried. His second wife was a French national who herself had two children from a previous marriage with a French national from whom she had been divorced in 1976. During the summer of 1982 the applicant’s wife’s son and daughter were on school holidays at the applicant’s home at Lindau, near Lake Constance.
10. The daughter, K.B., was fourteen years old and a French national. On 9 July 1982 she spent the day wind surfing. On her return she complained that she felt tired and was not as tanned as she would have liked. As he had done several times in the past, the applicant injected her at about 8.30 p.m. with a ferric preparation that was sold under the brand name Kobalt-Ferrcelit and was in principle intended for the treatment of anaemia.
11. At about 9.30 a.m. on 10 July 1982 the applicant found K.B. dead in her bedroom and proceeded to inject her with various products in an attempt to revive her. A call was made to the emergency services and the body examined by a doctor at about 10.20 a.m. He put the time of death at about 3 a.m. and found no traces of violence, apart from marks made by injections to the thorax and right arm.
12. The police immediately started an investigation into the death at the hands of a person or persons unknown and an autopsy was carried out by two pathologists on 12 July 1982. Although they were unable to determine the cause of death, primarily because the body was in an advanced state of decomposition, they found no evidence of sexual or other assault. Consequently, on 17 August 1982 the Kempten public prosecutor’s office made the first of four decisions to take no further action in the case, in accordance with Article 170 § 2 of the German Code of Criminal Procedure.
13. The girl’s father then requested the Kempten public prosecutor’s office to make further inquiries, notably on the ground that the autopsy report had been criticised by a French forensic doctor to whom he had submitted a copy. The public prosecutor’s office agreed to his request and sought an expert opinion from the Institute of Forensic Medicine in Munich.
14. On 27 November 1982 one of the pathologists who had carried out the autopsy said that wounds found to the girl’s external genitalia had been caused after death. On 3 March 1983, after he had carried out a chemo-toxicological and histological analysis and heard the pathologists, the applicant and other members of the family, the expert concluded that the girl had not died of natural causes. However, he was unable to reach any further conclusion about the cause of death, which, in his opinion, could not be attributed to the injection of the ferric product, no traces of which had been found in the body. In May 1983 a further expert pharmacological examination was carried out to determine the side-effects or contraindications of the ferric product that had been injected on the day before the girl’s death.
15. On 14 June 1983 the Public Prosecutor at the Kempten Regional Court decided for the second time to take no further action. The Principal Public Prosecutor at the Munich Court of Appeal (Oberlandesgericht) took the view that an appeal lodged against that decision by the victim’s father on 4 July 1983 was an internal appeal (Dienstaufsichtsbeschwerde) and dismissed it on 20 September 1983.
16. On 17 October 1983 the victim’s father lodged a complaint through his German lawyers in which the applicant was named as the suspect in the rape and murder of his daughter. The case file in the investigation that had been started in 1982 against a person or persons unknown was joined to the new investigation procedure that had been initiated on the complaint of the victim’s father. On 2 November 1983 the public prosecutor’s office at Kempten Regional Court decided for the third time, on the basis of the conclusions of the various experts in the previous investigation, to take no further action.
17. The decision of 2 November 1983 to take no further action was upheld by the Principal Public Prosecutor at the Munich Court of Appeal on 30 January 1984 on the ground that the investigation had produced insufficient evidence to justify a prosecution.
18. On 15 March 1984, after a petition had been sent to the Bavarian Regional Parliament, the investigation was resumed for the fourth time and on 15 April 1984 the Principal Public Prosecutor at the Court of Appeal instructed the public prosecutor’s office to make further inquiries.
19. On 8 June 1984 the Kempten public prosecutor’s office requested the Toulouse public prosecutor’s office under arrangements for judicial mutual assistance to question the victim’s younger brother, who was born in 1971, about the circumstances of his sister’s death. The boy was questioned on 4 September 1984.
20. In addition, a further pharmacological report on the toxicological effects of the ferric preparation was requested from the Clinical Pharmacology Institute in Bremen, which set out its conclusions in two reports dated 15 July and 26 September 1985. On 17 July 1985 the Kempten public prosecutor’s office also requested the French authorities under the arrangements for judicial mutual assistance to exhume the body which had been buried in Toulouse. The Toulouse investigating judge made an order to that effect on 30 October 1985 and on 4 December 1985 the body was exhumed and examined by two forensic doctors.
21. On 24 February 1986, in the light of the conclusions of the expert report and of the negative results of the autopsy that had been carried out after the exhumation, the Kempten public prosecutor’s office decided for the fourth time to take no further action in the case. That decision was upheld on 9 May 1986 by the Principal Public Prosecutor at the Munich Court of Appeal.
22. In accordance with the provisions of Article 172 of the German Code of Criminal Procedure, the victim’s father issued proceedings (Klageerzwingungsverfahren) in the Munich Court of Appeal in which he complained that the Principal Public Prosecutor should not have upheld the decision to take no further action and sought an order compelling the public prosecutor’s office to charge the applicant with voluntary or involuntary homicide. In a judgment of 9 September 1987 the First Criminal Division of the Munich Court of Appeal declared the appeal inadmissible.
23. On 23 January 1984, while continuing to press for the applicant’s prosecution in Germany, the victim’s father lodged a criminal complaint for involuntary homicide against a person or persons unknown with the Paris investigating judge and applied to be joined as a civil party to the proceedings. The complaint was based on Article 689-1 of the French Code of Criminal Procedure, which lays down that aliens who commit a serious crime (crime) outside the territory of the Republic may be prosecuted and tried under French law if the victim is a French national.
24. In support of his complaint the victim’s father lodged documents, expert reports, investigative papers and witness statements that had been obtained by the Kempten public prosecutor’s office in Germany.
25. On 12 March 1985 the Paris investigating judge sent letters rogatory to the German authorities requesting them to question various witnesses and to take certain steps. The Kempten public prosecutor’s office replied on 2 November 1985.
26. On 27 February 1986 the Kempten public prosecutor’s office sent the investigating judge a photocopy of the investigation file comprising three volumes.
27. A new investigating judge assigned to the case in Paris was informed by the victim’s father on 10 March 1986 that the public prosecutor’s office had decided for the fourth time on 24 February 1986 to take no further action. He sent new letters rogatory to the German authorities on 17 June 1987, in which he invited them to make available to three French experts, whom he had appointed that day, samples that had been taken during the autopsy and examined by the three German experts who had compiled the report of 3 March 1983.
28. In accordance with the French letters rogatory, the samples were delivered to the French police on 22 March 1988 and, on 25 March, to the experts who had been appointed on 17 June 1987. The experts lodged their report on 27 July 1988 and a supplementary report on 30 November 1988, in which they corrected an error of transcription.
29. On 9 December 1988 the Paris investigating judge ordered an additional expert report with a view to ascertaining the precise role and effects of the medicines with which the applicant said he had injected his stepdaughter when attempting to revive her. That report was lodged on 26 December 1988.
30. On 8 February 1989 the third investigating judge assigned to the case issued a summons requiring the applicant to appear before him. In a letter of 22 February 1989 the applicant informed the investigating judge that the German authorities had concluded after an investigation that no third party bore responsibility for K.B.’s death and that he saw no reason to travel to Paris. He indicated, however, that he was willing to be interviewed at his home.
31. On 27 July 1989 the investigating judge sent a third set of letters rogatory to the German authorities asking them to notify the applicant of the conclusions of the expert reports of 27 July and 26 December 1988 and to put to him, as an “assisted witness”, certain precise questions regarding the sequence of events. The applicant was questioned by a German judge on 8 February 1990.
32. On 20 May 1990 the applicant informed the investigating judge in reply to a request of 4 May that it was not possible for him to travel to Paris and that he had already answered the judge’s questions. He said, however, that he was willing to reply in writing to any further questions the judge might wish to ask.
33. On 1 February 1991 – almost seven years after the investigation had begun – the applicant was charged with the crime of assault resulting in unintentional death. On 23 April 1991 he was questioned by a German judge acting pursuant to letters rogatory.
34. On 10 July 1992 the investigating judge made an order closing the investigation and sending the file to the Principal Public Prosecutor at the Paris Court of Appeal, who lodged written submissions on 25 September 1992.
35. Using the system established by the scheme for international mutual assistance in law enforcement, the applicant was notified of the date of the hearing before the Indictment Division on 28 January 1993. His lawyer was informed on 3 February 1993. Neither the applicant nor his lawyer attended the hearing on 11 March 1993.
36. By a judgment of 8 April 1993 the Indictment Division of the Paris Court of Appeal committed the applicant to stand trial in the Paris Assize Court on a count of involuntary homicide. The Indictment Division noted the conflicting opinions of the French experts who had seen the evidence in the German file, including the expert reports. By way of conclusion the Indictment Division stated:
“The investigation was started on a complaint of voluntary homicide. However, in the order closing the investigation the investigating judge charged Dieter Krombach with voluntary assault resulting in unintentional death. The Principal Public Prosecutor and the civil party have also submitted that he should be committed for trial on that charge.
The court finds that the medical evidence gathered in the course of the investigation suggests that K.B.’s death was a direct consequence of an intravenous injection of a solution that might have been Kobalt-Ferrcelit. The injection was contemporaneous with the death.
In order to justify that act, Dieter Krombach has furnished conflicting and untrue accounts, stating firstly that his intention had been to help the girl to tan more quickly and subsequently to treat her for her anaemic condition. Kobalt-Ferrcelit does not help people to tan and at the material time K.B. was a girl in perfect health, there being no reference in her medical records to any symptoms of anaemia.
Dieter Krombach also lied about the chronology of the events when he affirmed that the injection had taken place several hours before the death. Lastly, the faked attempt to revive her and the use of mutually incompatible products on a living being can only be explained by an intention to conceal the cause of death.
These factors taken as a whole constitute sufficient grounds for suspecting that Dieter Krombach gave the fatal injection not as a cure, but with the intention of causing death.”
The Indictment Division also issued an arrest warrant.
37. On 4 May 1993 the judgment was served on the applicant through the foreign public prosecutor’s service. The applicant was summonsed on several occasions for preliminary questioning in order to establish his identity, but refused to comply with any of the summonses.
38. The applicant appealed to the Court of Cassation against the committal order. In his written submissions he argued, inter alia, that the non bis in idem principle had been contravened and that an estoppel per rem judicatam arose, as, although Article 689-1 of the Code of Criminal Procedure enabled aliens to be tried under French law if the victim of the crime was a French national, no prosecution could lie if there had been a final judgment overseas. In that connection, the applicant maintained that a discharge order had been made in his favour on 24 February 1986 by the Kempten public prosecutor’s office, an investigating body, and had become final with the decision of the Criminal Division of the Munich Court of Appeal of 9 September 1987.
39. In a judgment of 21 September 1993 the Court of Cassation dismissed the applicant’s ground of appeal on the ground that it raised a new issue as neither the impugned judgment nor any of the procedural documents showed that the appellant had argued before the Indictment Division that the German judicial authorities had made a discharge order in his favour in respect of the same offence.
40. On 7 September 1994 the applicant’s French lawyer was informed that the applicant was required to appear before Paris Assize Court from 7 to 10 November 1994. On 26 October he applied to the President of the Assize Court for an order for a supplementary measure to ensure that the case file contained all the documents from the German proceedings. The President dismissed that application by a letter of 3 November 1994 in which he informed the lawyer that it was for the assize court with lawful jurisdiction in the case to determine whether such a measure was necessary.
41. By an order of 15 November 1994, which was served on 17 November 1994, the President of the Assize Court invited the applicant to report to the authorities within ten days. In accordance with Articles 627 et seq. of the Code of Criminal Procedure, that order was published in the Gazette du Palais (Court Gazette) and displayed in the courtroom of the Paris Assize Court and on the front door to the town hall of the first administrative district of Paris.
42. On 7 February 1995 the applicant wrote a letter to the President of the Assize Court explaining that he was willing to attend the hearing on 1 March 1995 provided that he received an assurance that he would remain at liberty throughout the duration of the trial. He said that he could not understand the conduct of the French authorities, who had failed throughout the investigation in France to take the discharge order that had been made in Germany into account. He added that it was his intention to be represented by a lawyer.
43. By an order of 1 March 1995 the President of the Assize Court adjourned the case to 9 March 1995.
44. The applicant’s French lawyer, assisted by a German lawyer, lodged submissions with the Assize Court based on Article 6 of the Convention. He sought permission to represent the applicant in his absence and to make submissions regarding various matters, namely: the existence of an estoppel per rem judicatam, a ruling on the estoppel issue by the Assize Court acting on its own initiative, an order for an additional investigation to secure the communication of the investigation file by the German authorities and an examination of the scope of the discharge orders.
45. By a judgment of 9 March 1995 delivered by the Paris Assize Court after it had heard the Advocate-General’s submissions calling for a thirty-year prison sentence, the applicant was found guilty of voluntary assault on his stepdaughter unintentionally causing her death and sentenced to fifteen years’ imprisonment.
46. The Assize Court explained in its judgment that if the applicant had reported to the authorities, it would have been able to discontinue the in absentia procedure and the applicant would have been able to make any requests that would assist in his defence when complying with that mandatory procedural requirement. It also reminded the applicant’s lawyers, who were present at the hearing, that Article 630 of the Code of Criminal Procedure prohibited representation for absent defendants and laid down that their submissions were inadmissible.
47. In a civil judgment that was also delivered in absentia on 13 March 1995, the Paris Assize Court ordered the applicant to pay 250,000 French francs (FRF) as reparation for non-pecuniary damage and FRF 100,000 for costs and expenses. The applicant’s lawyer had lodged a note to the Assize Court in deliberations in which he had pointed out that the total lack of representation for the defence in the civil action constituted a breach of Article 6 of the Convention. He complained in particular that he had not been informed of the heads of claim or of the civil party’s submissions.
48. By an order of 1 June 1995 made under Article 636 of the Code of Criminal Procedure, the President of the Court of Cassation declared the applicant’s appeals against the judgments of the Assize Court inadmissible.
49. A “Schengen” warrant followed by an international warrant were issued, on dates which are not indicated in the case file, for the applicant’s arrest.
50. On 12 September 1995 the victim’s father applied to the Kempten Regional Court for an authority to execute the Paris Assize Court’s judgment ordering the applicant to pay FRF 350,000 in damages. On 29 April 1996 the Regional Court granted that application and its decision was upheld by the Munich Court of Appeal on 11 February 1997.
51. The applicant appealed on points of law. By a decision of 4 December 1997 the Federal Court (Bundesgerichtshof) referred the case to the Court of Justice of the European Communities with a view to obtaining a preliminary ruling on the interpretation of Article 27 § 1 of the Convention of 27 September 1968 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, which lays down that judicial decisions shall not be recognised if recognition would be contrary to public policy in the State in which recognition is sought.
52. Among the reasons given by the Federal Court for seeking a ruling was that it considered that the enforcement of the judicial decision obtained by proceedings in absentia such as those conducted in France might be regarded as contrary to German public policy, at least so far as the civil limb of the proceedings was concerned, as Article 103 § 1 of the Basic Law laid down that everyone had the right to be heard (Anspruch auf rechtliches Gehör), and that that right incorporated the right to representation by a lawyer. Lastly, referring to Article 6 of the European Convention on Human Rights, the Federal Court indicated that the decision delivered in absentia appeared to it to infringe the right to access to a court and, as regards the civil limb, the right to equality of arms.
53. In a judgment of 28 March 2000, the Court of Justice of the European Communities held: “the court of the State in which enforcement is sought can, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, take account, in relation to the public-policy clause in Article 27, point 1, of the Convention, of the fact that the court of the State of origin refused to allow that person to have his defence presented unless he appeared in person”.
54. Following that judgment the Federal Court dismissed the application by the victim’s father of 29 June 2000 for an order to enforce the civil judgment delivered by the French Assize Court on 13 March 1995.
55. On 7 January 2000 the applicant was arrested in Austria and detained pursuant to an order of the judge of the Feldkirch Regional Court (Journalrichter des Landesgerichts Feldkirch) pending the hearing of a request for his extradition. By an order of 21 January 2000 the judge concerned dismissed a bail application by the applicant, despite his offer of a surety.
However, on 2 February 2000 the Innsbruck Court of Appeal (Oberlandesgericht Innsbruck) quashed that order and ordered the applicant’s immediate release. It considered that the judgment of the Munich Court of Appeal of 9 September 1987 (see paragraph 22 above), against which there was no right of appeal under German law, raised a relative estoppel per rem judicatam, since the investigation could only be restarted in Germany if new evidence came to light. Once the courts in the state in which the offence had been committed had decided not to prosecute the applicant and had taken a final decision in that regard, he could not be detained for the purposes of extradition. Lastly, the Court of Appeal held that Article 54 of the Convention implementing the Schengen Agreement (Schengener Durchführungsabkommen), which incorporates the non bis in idem principle, precluded the applicant’s being retried in France in respect of the matters for which a final discharge order had been made in his favour in Germany.
56. Article 214 of the Code of Criminal Procedure lays down that if the offence charged is classified by statute as a serious crime (crime), the indictment division will commit the accused for trial by the assize court.
There is an assize court in Paris and in each of the French départements. The court is composed of professional judges (the president and two wing members) and a nine-person lay jury whose members are drawn by lot from a panel of thirty-five jurors and ten substitute jurors chosen annually by lot for jury service during the four ordinary assize sessions held in the département.
The inquiry into the facts of a serious criminal case (affaire criminelle) must be conducted orally at the trial. At the end of the hearing, the court retires to decide on its verdict and sentence. Article 349 of the Code of Criminal Procedure provides that the court must answer each of the questions contained in the operative provisions of the committal order by either “yes” or “no” and that each question must be put in the following way: “Is the accused guilty of having committed such an offence?”. The votes of a majority comprising at least eight jurors are required for the accused to be convicted of the offence.
57. As regards the accused’s presence at the trial, Article 215 of the Code of Criminal Procedure lays down that the committal order, which is valid only if it contains a statement and the legal classification of the alleged offences, shall be accompanied by a warrant for the accused’s arrest, specifying his or her identity. Article 215-1 provides that an accused who is on bail must surrender to custody at the latest on the day preceding the hearing in the assize court and that the arrest warrant shall be executed if, after being duly summonsed and without due cause, he or she fails to attend on the appointed day for questioning by the president of the assize court. Article 270 provides for the accused to be tried in absentia if he or she cannot be apprehended and does not attend the trial (see paragraphs 59-61 below).
58. As soon as the committal order has become final and the accused, after being detained, has been transferred to the prison in the locality where the assize court will sit, the president of the assize court must, in accordance with Article 273, establish the accused’s identity and ensure that he or she has been duly served with the committal order. Article 274 also requires the president to invite the accused to choose a lawyer to assist with his or her defence; if the accused fails to do so, the president must assign counsel to represent him or her. This is because Article 317 makes the accused’s representation at the trial mandatory and provides that if no counsel appears on behalf of the accused, the president must on his or her own initiative assign the accused counsel. Article 320 lays down that if an accused refuses to appear at the trial after being summonsed to do so by a bailiff the president may order that he or she be brought before the court by force. The president may also order that the hearing shall proceed notwithstanding the accused’s absence.
59. As regards the procedure for trial in absentia, the main provisions of the French Code of Criminal Procedure are as follows:
“If, after the committal order has been made by the indictment division, it has not proved possible to apprehend the accused or he or she has failed to report within ten days after the service of notice at his or her home to do so or the accused has absconded after reporting or being apprehended, the president of the assize court or, in his absence, the president of the court in the locality where the assize court will sit, or the judge replacing him or her, shall issue an order requiring the accused to report within a further period of ten days, failing which the accused shall be declared an outlaw, the exercise of his or her rights as a citizen shall be suspended, his or her assets shall be sequestered for the duration of the contempt, he or she shall not be entitled to take part in any court proceedings during that period, the criminal proceedings shall continue and any person knowing where the accused is to be found shall be under a duty to report that information. The order shall also contain particulars of the serious crime (crime) and of the arrest warrant.”
“Within eight days that order shall be published in one of the newspapers in the département and displayed on the door to the accused’s home, the door to the town hall in the district where the accused lives and in the courtroom of the assize court. The Principal Public Prosecutor shall send an office copy of the order to the director of the State lands department in the locality where the accused who is in contempt resides.”
“After ten days the court shall rule on the contempt issue.”
“No lawyer (avocat or avoué) may attend on behalf of an accused who is in contempt. However, if it is totally impossible for the accused to comply with the injunction contained in the order made pursuant to Article 627, his or her close relatives or friends may explain the reason for his or her absence.”
“If the court finds that due cause has been shown, it shall order a stay of the accused’s trial and, if necessary, of the order for the sequestration of his or her assets for a period commensurate with the nature of the cause shown and the distance to be travelled.”
“Except in those circumstances, the order committing the accused for trial before the assize court, the affidavit of service of the order requiring the person in contempt to report and the affidavits confirming that that order has been published and displayed shall be read out. After that has been done and after it has heard the submissions of the Principal Public Prosecutor the court shall make an order for trial in absentia. If any of the formalities prescribed by Articles 627 and 628 have been omitted, the court shall declare the contempt procedure void and order it to be restarted from the stage where the first unlawful act occurred. Otherwise, the court shall deliver its verdict on the accusation without the assistance of the jurors and without being entitled to take into account any circumstances mitigating the guilt of the person in contempt in the event of a conviction. The court shall then decide the civil parties’ claims.”
“If the person in contempt is convicted, his or her assets shall, if no confiscation order has been made, remain sequestered and a sequestration account shall be delivered to the person entitled to receive it once the conviction has become irrevocable as a result of the expiry of the limitation period for purging the contempt.”
“Once all the publication procedures prescribed by [Article 634] have been carried out, the convicted person shall be subject to all the statutory disabilities.”
“Persons in contempt shall not be entitled to appeal on points of law.”
60. Article 639, which concerns the procedure when the contempt is purged, provides as follows:
“If the person in contempt surrenders to custody or is arrested before the time allowed for enforcing the sentence has expired, the judgment and the procedural steps taken after the order requiring the accused to report shall be automatically null and void and the proceedings will continue under the ordinary procedure ...”
61. Under the case-law, if a person convicted in absentia dies during the period allowed for the enforcement of the sentence, the conviction becomes irrevocable (Court of Cassation, Criminal Division, 1 July 1954, Recueil Dalloz 1954, p. 550).
62. Resolution (75) 11 of the Committee of Ministers of the Council of Europe on the criteria governing proceedings held in the absence of the accused also contains a number of basic rules, including the following:
“1. No one may be tried without having first been effectively served with a summons in time to enable him to appear and to prepare his defence, unless it is established that he has deliberately sought to evade justice ...
...
4. The accused must not be tried in his absence, if it is possible and desirable to transfer the proceedings to another state or to apply for extradition.
5. Where the accused is tried in his absence, evidence must be taken in the usual manner and the defence must have the right to intervene ...
...
7. Any person tried in his absence must be able to appeal against the judgement by whatever means of recourse would have been open to him, had he been present.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-67713
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BECVAR AND BECVAROVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Inadmissible under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicants were born in 1951 and 1952 respectively, and live in Svoboda nad Úpou.
5. In January 1986 the applicants bought from the State a house, which had been seized after the emigration of the former owners. The applicants made an initial payment of CZK 100,000 by 30 April 1986, the remaining sum of CZK 244,846 to be paid in fifteen annual instalments. However, the purchase was without risk of forfeiture if such an instalment remained unpaid.
6. Pursuant to the Extra-Judicial Rehabilitation Act (hereinafter “the Act”), in December 1991 the former owners brought an action against the applicants for the restitution of their property. In January 1996 the applicants were ordered to restore the property to the former owners. In May 1999 the applicants were ordered to vacate the house within a year of the coming into force of the first instance judgment without receiving compensatory accommodation.
7. In February 2002 the District Court ordered the execution of its judgment for the applicants' eviction. In May 2000 the Regional Court upheld the order. In October 2002 the District Court dismissed the applicants' request to suspend the execution. In April 2003 the Regional Court upheld the District Court's dismissal.
8. On 28 January 2004 the applicants were informed that the eviction would take place on 23 February 2004. On 19 February 2004 the District Court dismissed their request to suspend the eviction. On 23 February 2004, the applicants' lawyer was served with the District Court's dismissal of 19 February 2004 and, on 9 March 2004, she filed an appeal which is still pending before the Regional Court.
9. Apart from the two aforesaid proceedings, the former owners instituted proceedings against the applicants for the illegal use of the house since 1 January 1996, seeking payment of outstanding rent in the amount of CZK 431,000 (13,596 EUR). In these proceedings, which have been pending since 10 October 1997, the applicants sought to recover damages to compensate for expenditure invested in material improvements to the house, filing a counterclaim (kompenzační námitka) for CZE 300,000 (EUR 9,464) on 5 January 1998, apparently under section 7(4) of the Act. This provides that, if the value of the property has increased so that its price, as assessed on the day of the submission of the written request by the entitled person, substantially exceeds the original purchase price of the property, it is left to the discretion of the entitled person whether he or she will request financial compensation or the return of the property. If he or she insists on the surrender of the property, the entitled person must compensate the person obliged to return the property for the difference between the two prices.
10. In September 1997 the applicants lodged with the Ministry of Finance a request for reimbursement of the purchase price, pursuant to section 11 of the Act, which entitles physical persons who are under an obligation to restore property to recover the price they had paid when acquiring such property from the State. On 4 February 1998, upon the Ministry's request of 5 November 1997, they submitted additional documents. On 13 March 1998 their lawyer informed the Ministry that, on 11 March 1998, she had obtained the document of the Svoboda nad Úpou Municipal Office (městský úřad) confirming that the applicants had so far paid CZK 295,888 (EUR 9,334) of the purchase price. In a letter of 15 May 1998, the Ministry informed the applicants' lawyer that they would deal with her clients' request for reimbursement of the purchase price on reception of the restitution agreement (dohoda o vydání věci) which, together with other documents, had not yet been adduced by the applicants. They were further requested to provide evidence of the amount of the purchase price which they had already paid. The applicants' lawyer replied on 9 June 1998.
11. On 18 January 1999 the applicants lodged an action for damages against the Ministry of Finance and the Trutnov District Office (okresní úřad), seeking compensation in the amount of CZK 500,000 (EUR 15,773) for damage caused by the allegedly erroneous action of a public authority by virtue of the State Liability Act, no. 58/1969. The damages which they requested corresponded to the difference between the original purchase price (CZK 344,846 - EUR 10,878) and the price which should now be paid for a house of the same standard. By instituting this action, the applicants further sought to recover damages to compensate for the second applicant's loss of business premises and customers (she is a dressmaker), for the betterment of the land on which the house had been built and for the loss of accommodation.
12. On 15 February and 10 May 1999 respectively, the District Office and the Ministry of Finance presented their comments on the action.
13. On 17 June 1999 the applicants' lawyer sent documents issued by the Svoboda nad Úpou Municipal Office on 7 June 1999 proving that the applicants had already paid CZK 321,212 (EUR 10,133).
14. On 5 October 1999 the applicants' lawyer sent an additional document to the Ministry of Finance concerning their request for reimbursement of the purchase price.
15. On 20 October 1999 the applicants extended their action, also directing it against the Town of Svoboda nad Úpou and the Ministry of the Interior. The two new defendants commented upon the action on 8 November 1999 and 14 February 2000 respectively.
16. According to the Government, on 29 November 1999 the applicants' lawyer informed the Ministry of Finance that the property at issue had been restored to the former owners in accordance with the judgment. She said that her clients did not agree with the judgment and would continue to pay annual instalments towards the purchase price. She stated that she would inform the Ministry whether she wished to have the purchase price reimbursed or whether she would wait.
17. On 28 December 1999 the applicants were invited to submit observations on the arguments of the Ministry of the Interior. They did so on 10 January 2000.
18. By a letter of 24 January 2000 the Ministry of Finance informed the applicants' lawyer that, inter alia, it had all the documents necessary for the settlement of their request for reimbursement of the purchase price under section 11 of the Act. Nevertheless, it asked the lawyer to submit an additional document and to specify whether the sum of CZK 312,212 (EUR 9,848), corresponding to the part of the purchase price which the applicants had paid so far, had to be reimbursed and, if so, to which bank account.
19. At a hearing of 12 October 2000, the District Court invited the applicants to rectify certain shortcomings in their action and to specify which of the four defendants in fact represented the interests of the State. On 12 December 2000 the court urgently reminded the applicants to submit this information.
20. On 12 March 2001 the District Court, upon the applicants' request received on 10 January 2001, adjourned the proceedings pending the Supreme Court's decision on the applicants' appeal on points of law concerning their eviction from the house.
21. On 30 October 2001 the District Court resumed the proceedings for damages, the decision of the Supreme Court of 28 June 2001 rejecting the applicants' appeal having become effective on 19 July 2001.
22. On 2 November 2001 the court invited the applicants to rectify, within four weeks, certain shortcomings in their action, to specify who of the four defendants in fact represented the State, and to quantify their claim for damages. On 16 November 2001 the Ministry of the Interior requested the court to take a decision in this respect.
23. On 18 February 2002 the applicants rectified their action. However, on 24 October 2002, they were requested to rectify further shortcomings and supplement their action.
24. On 28 November 2002, upon the District Court's invitation of 22 October 2002, the applicants specified their arguments on which they based their action for damages. On 18 December 2002 they adduced further documentary evidence, proposing that the District Court ensure the submission of certain additional documents.
25. On 7 February 2003 the Ministry of Finance informed the District Court that the applicants had requested to have the purchase price reimbursed but that, according to their lawyer, they had not complied with the court judgment to return the house, had continued to pay the annual instalments and, therefore, had not insisted on the settlement of the case, i.e. on the reimbursement of the purchase price. The Ministry assured the court that it was ready to reimburse the amount due to the applicants.
26. On 24 April 2003 a hearing was held by the District Court, and was adjourned until 23 June 2003.
27. On 4 June 2003 the applicants submitted their supplementary observations on the merits of their action for damages.
28. The hearing held on 23 June 2003 was adjourned to 14 July 2003, when the District Court decided that the proceedings concerning the payment of the purchase price, with interest for the delays in payment since 18 January 1999, would be considered separately. It dismissed the remainder of the applicants' claim for damages.
29. On the same day, the Ministry of Finance reimbursed the whole purchase price of CZK 344,846 (EUR 10,878) to the applicants who, on 11 August 2003, withdrew the relevant part of their action for damages.
30. On 18 December 2003 the Regional Court, upon the applicants' appeal of 1 September 2003, upheld the merits of the District Court's judgment.
31. On 22 March 2004 the applicants filed an appeal on points of law (dovolání) in the Supreme Court (Nejvyšší soud). These proceedings are still pending.
32. On 21 June 2004 the District Court, after having held a hearing on 4 June 2004, stayed the proceedings as to the payment of the purchase price. It ordered the Ministry of Finance to pay interest for the delays in payment since 18 January 1999 within three days of the coming into force of the judgment.
33. The defendant lodged an appeal against this judgment. The appellate proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99109
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: YILMAZ AND AKMESE v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants are Turkish nationals, who were arrested on suspicion of involvement in an illegal organisation. Subsequently, criminal proceedings were brought against them, which are, according to the information in the case files, currently pending before the domestic courts.
The information concerning the applications, the dates of the applicants' arrest, bills of indictment, decisions of the domestic courts and the total length of the proceedings, as submitted by the applicants, is detailed in the annexed table.


ITEMID: 001-60486
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2002
DOCNAME: CASE OF STAFFORD v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown
TEXT: 10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad.
11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”.
12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990.
13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence.
14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment.
15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision.
16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said:
“This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.”
17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms:
“... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release.
For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.”
18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review.
19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act).
20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences.
21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public.
22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however:
“The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.”
23. Lord Justice Buxton, concurring with the latter remarks, added:
“The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...”
24. On 16 December 1997 the applicant was moved to open conditions.
25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review.
26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law.
27. On 22 December 1998 the applicant was released on licence by the Secretary of State.
28. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (such as manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside. Where an offender is under 18 years of age when the offence of murder is committed, he or she is sentenced to detention during Her Majesty's pleasure (section 53(1) of the Children and Young Persons Act 1933).
29. As at 31 December 2001 there were 3,171 male and 114 female mandatory life prisoners, 228 men and 11 women serving a sentence of detention during Her Majesty's pleasure and 1,424 male and 25 female discretionary life prisoners.
30. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-07). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407, at pp. 492G-493A).
31. According to section 34 of the Criminal Justice Act 1991 (“the 1991 Act”), the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board, which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.
32. A different regime, however, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State, who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-64).
33. In the judicial review proceedings in Ex parte V. and T. (cited above), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise.
34. Lord Steyn held:
“The starting-point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.”
35. Lord Hope held:
“But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ...
If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...”
36. In Ex parte Pierson [1998] Appeal Cases 539, Lord Steyn stated, in a case concerning mandatory life prisoners:
“In public law the emphasis should be on substance rather than form. The case should not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise'. The undeniable fact is that in fixing a tariff in the individual case the Home Secretary is making a decision about the punishment of the convicted man. In any event, a majority holding in Ex Parte V. concludes the matter ... This point is therefore settled by the binding authority of a decision of the House.”
37. A whole life tariff may be set in appropriate cases. In R. v. the Home Secretary, ex parte Hindley [2001] 1 Appeal Cases, where a provisional tariff of thirty years had been replaced by a whole life tariff, Lord Steyn held that “life-long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous”. The decision of the Secretary of State to apply a whole life tariff in her case was found in the circumstances to be lawful. He had been entitled to revise his view of the tariff, which had initially been based on incomplete knowledge of her role in the three murders upon which she had faced trial and in ignorance of her involvement in two other murders, matters which came to light later. According to information provided by the Government, there were twenty-two mandatory life prisoners with whole life tariffs at 31 December 2001.
38. At the relevant time, the Criminal Justice Act 1991 provided in section 35(2):
“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
This is in contrast to the position for other life prisoners, where the Parole Board now has the power of decision – pursuant to the provisions of the 1991 Act for discretionary life prisoners and pursuant to the 1997 Act for detainees during Her Majesty's pleasure. Where, however, a mandatory life prisoner was recalled to prison, the Parole Board did have a power to direct the Secretary of State to release the prisoner immediately (section 39(5) of the 1991 Act, now section 32(5) of the 1997 Act).
39. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State
“will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that [he] will only exercise [his] discretion to release if [he is] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”
40. In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135, and R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Law Reports 576).
41. In R. v. Secretary of State for the Home Department, ex parte Doody ([1993] 3 All England Law Reports 92), the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and practice in respect of mandatory life sentences were out of tune. In his speech, with which the other judges agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “tariff” period to reflect the requirements of retribution and deterrence. He added:
“The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and current practice, there remains a substantial gap between them. It may be – I express no opinion – that the time is approaching when the effect of the two types of sentence should be further assimilated. But this is a task of Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review.”
42. On 10 November 1997 the Secretary of State made the following parliamentary statement, inter alia:
“I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.”
43. It was noted by the Court of Appeal in R. (Lichniak and Pyrah) v. Secretary of State for the Home Department [2001] 3 Weekly Law Reports (judgment of 2 May 2001) that the criterion of public acceptability of release identified by the Home Secretary (point (c) in paragraph 39 above) had never been a determining factor, although the current Home Secretary followed the policy of his predecessors.
44. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings.
45. In Lichniak and Pyrah (cited above), the two applicants challenged the imposition on them for murder of a mandatory life sentence, arguing that this was disproportionate and arbitrary and contrary to Articles 3 and 5 of the Convention. In dismissing their appeals, the Court of Appeal found that the mandatory sentence of life imprisonment was in reality an indeterminate sentence, rarely involving imprisonment for life, and as such could not be labelled inhuman and degrading. Nor was it arbitrary as in each case the sentence was individualised from the moment it was imposed. The purpose of the mandatory life sentence was, according to the Government's counsel,
“to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him ... That is not merely the effect of the sentence, it is the sentence”.
Lord Justice Kennedy also cited in his judgment the conclusions of the Committee on the Penalty for Homicide, chaired by Lord Lane, issued in 1993:
46. In R. (Anderson and Taylor) v. Secretary of State for the Home Department, two prisoners who had been convicted of murder complained that the Home Secretary had fixed a tariff superior to that recommended by the judiciary – twenty years instead of fifteen years and thirty years instead of sixteen years. They relied on Article 6 § 1 of the Convention, alleging that it was incompatible for the executive to carry out what was in fact a sentencing exercise. The Divisional Court dismissed their claims. The Court of Appeal rejected their appeals on 13 November 2001. In doing so, the appellate judges considered the nature of the tariff-fixing exercise for mandatory life prisoners and the significance of Strasbourg case-law.
Lord Justice Simon Brown held, inter alia:
“... I accept of course that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally. As for 'broader considerations of a public character', it is difficult to understand quite what these are. Regard must not be had to 'public clamour' – see [V.]. There is, of course, 'the need to maintain public confidence in the system of criminal justice' (see the Home Secretary's statement to Parliament on 10 November 1997). To my mind, however, this can and should be catered for in the fixing of the tariff. The retributive element of the tariff should reflect the public's moral outrage at an offence. Surely the maintenance of public confidence in the system cannot require longer incarceration than that which properly reflects society's entitlement to vengeance. Sometimes, I recognise that will require a whole life tariff. But why should not the judges determine that? ... [A]s to retrospectively increasing the tariff ... [t]he same problem could presumably arise in a discretionary life sentence case. In truth, however, it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing.
In short I find none of Mr Pannick's arguments convincing. Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff-fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty's pleasure detainees. In all three cases the exercise is in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence – that part of it which (subject only to the need for continuing review in Her Majesty's pleasure cases) must be served in custody before any question of release can arise ...”
47. Although he was of the view that the existing mandatory life sentence regime breached Article 6 § 1 and Article 5 § 4, he, and the other two judges, considered that the Strasbourg case-law (in particular, Wynne v. the United Kingdom, judgment of 18 July 1994, Series A no. 294-A) had to be regarded as determinative of the Convention issues in the case. He noted that the European Court of Human Rights was about to re-examine the position in Stafford and, although considering that the final decision should be the Court's, stated that he would be surprised if the present regime for implementing mandatory life sentences survived that re-examination.
48. In Scotland, the Convention Rights (Compliance) (Scotland) Act 2001 now provides that in the case of mandatory life sentences the trial judge fixes the “punishment part” of the sentence, on the expiry of which the Parole Board decides on possible release on licence. The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in England and Wales, namely, that the Parole Board is satisfied that the prisoner does not present a substantial risk of reoffending in a manner which is dangerous to life or limb or of committing serious sexual offences.
49. In Northern Ireland, the Life Sentences (Northern Ireland) Order SI no. 2564 provides that the trial judge decides on the tariff for a mandatory life prisoner and that release post-tariff is determined by Life Sentence Review Commissioners (with a status and functions very similar to those of the Parole Board operating in England and Wales). The test applied by the Commissioners is one of protection of the public from “serious harm”, this term meaning the risk of harm from violent or sexual offences.
50. Justice, a human rights and law reform organisation founded in 1957, submitted written comments regarding domestic law and practice, following the leave granted to it by the President of the Court to intervene as a third party (see paragraph 7 above). Its submissions may be summarised as follows.
51. The mandatory life sentence imposed by the 1965 Act (see paragraph 28 above) applied to all convictions for murder, covering a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal serial killings to the mercy killing of a beloved partner. It could not be said that murder was a uniquely heinous offence. The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts. Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of State could no longer set tariffs in these cases. Similar provisions were now being extended to mandatory life prisoners in both Scotland and Northern Ireland under legislation to ensure compliance with human rights.
52. There had been substantial criticism of the current system. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. In 1996 the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the same issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and Parole Board. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993.
53. The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness. They had a lower recidivism rate than discretionary life prisoners and the general prison population. The system of tariff-fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty, both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences.
54. The United Kingdom had more serving life prisoners than the rest of Europe together, which was attributable primarily to the mandatory life sentence for murder. While some countries, such as Germany, France and Italy, had mandatory life sentences, these were only applied where there were aggravating factors or for a particular type of murder. Article 77 of the Statute for the International Criminal Court provided that a life sentence could only be ordered “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4