ITEMID: 001-4609
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BARCLAY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are British citizens, born in 1934. They are twin brothers, resident in Monaco. They own an island, Brecqhou, in the Channel Islands. They also own "The European" newspaper. They are represented before the Court by Mrs J. McDermott, solicitor, of Messrs Lovell White Durrant, with Mr D. Pannick QC. The facts of the application, as submitted by the parties, may be summarised as follows.
A.
The applicants bought Brecqhou in order to build a private residence there for themselves and their family.
In August 1995, a producer of the television programme "The Spin" wrote to the applicants' lawyers requesting an interview with the applicants on the issue of The European and their home on Brecqhou. The request was referred to the Editor in Chief of The European, who offered to answer questions concerning the newspaper, and stated that the applicants did not wish do be interviewed and that they refused permission for anyone to enter Brecqhou without their express permission.
The producer nevertheless arranged for a reporter on The Spin to be taken to the island in a small boat, and for his unauthorised landing to be filmed by a film crew. When challenged about his landing, the reporter told an employee of the building contractors that he had come for a meeting with the applicants. The reporter then walked about the island until challenged by a Mr Field. The reporter initially told Mr Field that he did not have any recording equipment on him, but later produced a radio, a voice microphone and a battery pack. Mr Field then sought to escort the reporter off the island. In order to secure the reporter's departure, Mr Field used the reporter's radio to speak to a person, identified by the reporter as his producer, to ask for the reporter to be picked up again. The producer informed Mr. Field that he no longer had the boat, with the result that the applicants had to arrange for a boat to be chartered, at their expense, to ensure the reporter's return to Sark.
The applicants complained about the invasion of privacy to the Broadcasting Complaints Commission (BCC), which denied jurisdiction unless and until the relevant issue of The Spin was broadcast. The applicants' challenge by way of judicial review to that decision of the BCC failed on 2 October 1996, leave to apply for judicial review having been granted on 23 February 1996. In his judgment on the application for judicial review, Mr Justice Sedley agreed that on a proper construction of Section 143 of the Broadcasting Act 1990, the BCC had no role to play until a broadcast had occurred. He observed:
"The law of England and Wales at present places no general constraints upon invasions of privacy as such. Section 143 of the Broadcasting Act 1990 unambiguously limits the power of the [BCC] to adjudication upon complaints of infringement of privacy against the BBC arising out of programmes which have been broadcast. If an unwarranted infringement of privacy has been committed by the BBC otherwise that in connection with the obtaining of material included in a broadcast programme - whether because the nexus is insufficient or because no programme has been broadcast - the Commission is without adjudicative power. It cannot therefore entertain an anticipatory complaint even where, once the programme is broadcast, the complaint is bound to succeed. It follows that in this field and to this extent, as elsewhere in English law, the individual is without an effective remedy before a national authority if the right to respect for his or her private and family life is violated."
Leave to appeal was refused.
On 16 December 1996, the BCC delivered its adjudication on the applicants' complaint following the broadcast of The Spin, which had taken place on 4 October 1995. The BCC found, inter alia, that "in landing on the Barclays' private island and in broadcasting footage obtained, the BBC unwarrantably infringed the Barclays' privacy".
In separate proceedings relating to a different broadcast, the Rennes Court of Appeal on 24 January 1997 awarded the applicants FF10,000.00 against the reporter.
B. Relevant domestic law
The Broadcasting Complaints Commission (BCC) was created in its present form by the Broadcasting Act 1990 (the 1990 Act). By Section 143 of the 1990 Act, its function is to consider and adjudicate upon complaints of:
(a) unjust or unfair treatment in programmes to which this Part applies, or
(b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.
The relevant Part of the 1990 Act applies to "any television or sound programme broadcast by the BBC or after [1 January 1991] ...".
Under Section 146 of the 1990 Act, where the BCC has considered and adjudicated upon a complaint, it may give the following directions, namely:
"directions requiring [the BBC] to publish the matters mentioned in subsection (2) in such manner, and within such period, as may be specified in the directions".
Section 146 (2) provides that:
"Those matters are -
(a) a summary of the complaint; and
(b) the BCC's findings on the complaint or a summary of them."


ITEMID: 001-69457
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARAKAŞ AND YEŞİLIRMAK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 6-1;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicants were born in 1974 and 1977 respectively and live in Istanbul.
10. On an unspecified date police officers from the anti-terror branch of the Bağcılar Security Directorate reported that an illegal organisation, namely Dev-Sol (Revolutionary Left), would organise a demonstration in front of the head office of a daily journal, namely Hürriyet, on 13 August 1994.
11. On 13 August 1994 the applicants, together with twelve other people, were arrested in front of the newspaper’s head office and taken to police custody at the Bağcılar Security Directorate. According to the arrest report drafted by the police, Dev-Sol members were arrested following a chase and two warning shots. It was also noted that the police officers made the detainees lie on the floor and collected the pamphlets and banners that they carried.
12. On 15 August 1994 the Istanbul Criminal Police Laboratory provided an expert report where it concluded that Yılmaz Yeşilırmak’s handwriting matched the writing on several of the banners seized by the police.
13. On 17 August 1994 the applicants were examined by a doctor from the Bakırköy Forensic Medical Institute. The doctor reported bruises on one hand of the first applicant and on both hands of the second applicant. The report stated that the applicants’ injuries did not constitute a danger to life, but would prevent them from working for three days.
14. On the same day the Bağcılar Security Directorate held a press conference on the subject of the apprehension of members of the Dev-Sol organisation. There is no information in the case-file as to whether any declaration was made by the police during the conference. However, the next day the applicants’ names and pictures appeared in two national newspapers, namely Milliyet and Türkiye, where they were described as members of the Dev-Sol organisation.
15. The news in the Milliyet newspaper, with the headline “Fourteen members of Dev-Sol arrested”, read as follows:
“The members of Dev-Sol organisation, namely ..., Yılmaz Yeşilırmak, Bülent Karakaş, ..., who were getting ready to hold a demonstration in Güneşli, in order to protest against the Hürriyet newspaper, have been arrested. The police seized the following items from the accused: pamphlets and banners with slogans against journalists, publications with leftist points of view, and slings to smash the windows of the Hürriyet building.”
16. The information in the Türkiye newspaper, with the headline “Protesters with slings”, was accompanied by a photo, in which a group of accused was standing behind a table on which pamphlets, banners and rubber bands were displayed. The text was as follows:
“The police arrested fourteen people, (including five women), who were allegedly members of an illegal leftist organisation and were getting ready to hold a demonstration to protest about an article that was published in Hürriyet newspaper. The police seized banners, pamphlets, and rubber bands for slings which were found on the accused, namely ... Y.Y., Bülent Karakaş ...”
17. On 18 August 1994 the applicants were brought before the Public Prosecutor and then before a non-presiding judge at the Istanbul State Security Court, where they denied all charges. Both applicants rejected their statements given in police custody, contending that they had been forced to sign them. The court ordered their detention on remand.
18. On 23 August 1994 the applicants were examined by the prison doctor. The medical report indicated the presence of bruises on the right hand of the first applicant. Moreover a site of scarred tissue, approximately 0.5 x 0.5 cm in dimension, was identified on the back of his right hand.
At the end of the examination of the second applicant the doctor reported the presence of bruises on both hands and three sites of scarred tissue, each approximately 0.5 x 1 cm in dimension on the back of his left hand.
19. On 26 August 1994 the Public Prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicants under Article 169 of the Criminal Code with aiding and abetting an illegal organisation. The summary of the relevant parts of the indictment provided as follows:
“... In view of the accused’s statements given at different stages of the criminal proceedings, the arrest report, the house search and seizure reports, the seized pamphlets, banners and slings which were found on the accused at the time of arrest, the expert report and the content of the case file, it has been established that:
1. The accused Yılmaz Yeşilırmak was a supporter of the ideology of the illegal Dev-Sol organisation ..., two months ago he started to visit the head office of the Devrimci Gençlik (Revolutionary Youth) periodical in Beyoğlu, together with his friend Bülent Karakaş ..., he was informed of the demonstration that was going to be held in front of the Hürriyet building, on 8 August 1994, by a person who approached him while he was reading the Mücadele (Struggle) periodical in a public park.
He assisted in the preparation of banners. ... According to the Istanbul Criminal Police Laboratory’s report dated 15 August 1994 the characteristics of the applicant’s handwriting were visible on three banners.
...
9. ... the accused Bülent Karakaş was a supporter of the ideology of the illegal Dev –Sol organisation. He was a reader of the Mücadele periodical. He met with his friend Yılmaz Yeşilırmak in Şişli and they arrived together at the scene of the incident. When he was arrested the police seized two banners which he was carrying.”
20. On 7 and 8 September 1994 a doctor at the Forensic Medicine Institute examined the second and the first applicant respectively. The medical report reiterated the findings of the reports dated 23 August 1994 and indicated that the first applicant complained of pain in his waist and the second applicant complained of pain in his thighs.
21. At the first hearing held on 27 October 1994 before the Istanbul State Security Court, the applicants submitted the medical reports and written statements in which they alleged to have been subjected to torture in police custody. They did not give any details concerning their allegations of torture. They also maintained that, in police custody, they had been forced to sign statements before reading them. The court ordered the applicants’ release pending trial.
22. At the hearing dated 21 February 1995 the Istanbul State Security Court decided that the police officers whose signatures appeared under the applicants’ written statements given in police custody should be summoned to appear before the court.
23. On 5 September 1995 and 14 March 1996 the police officers confirmed before the court the content of the applicants’ police statements and the authenticity of their signatures appearing on the bottom of these statements.
24. On the latter date, in view of the incident report, the witness statements, the seized banners, pamphlets and the content of the case-file, the court decided to acquit nine of the accused and convicted five of them, including the applicants, under Article 169 of the Criminal Code and Article 5 of the Law on Prevention of Terrorism. It sentenced the applicants to three years and nine months’ and two years and six months’ imprisonment respectively.
25. On 17 April 1996 the applicants’ lawyer lodged an appeal with the Court of Cassation. In the petition the lawyer repeated the allegation that the applicants had been subjected to torture in police custody.
26. On 13 April 1998, at the hearing which took place before the Court of Cassation, the applicants repeated their allegations of torture in police custody and pleaded not guilty.
27. On 27 April 1998 the Court of Cassation upheld the decision of the Istanbul State Security Court in respect of three of the accused, including the applicants, and quashed it in respect of two of them. It quashed the decision regarding one of the accused on procedural grounds and the other one on account of lack of evidence.
28. On 27 May 1998 the Court of Cassation rejected the applicants’ request to rectify the decision.
29. Article 169 of the Criminal Code provides:
“Any person, who knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”
30. Article 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) provides that the offence defined in Section 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”. According to Article 5, penalties laid down in the Criminal Code as punishment for the offences defined under Article 4 of the Act are increased by one half.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-66608
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BACHMAIER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Stefan Bachmaier, is an Austrian national, who was born in 1978 and lives in Geretsberg (Austria). He is represented before the Court by Mr J. Postlmayr, a lawyer practising in Mattighofen (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 July 1996 the applicant was involved in a road accident in which a passenger in his car was killed. Subsequently, criminal proceedings against the applicant were opened. On 13 August 1996 the Ried Public Prosecutor’s Office (Staatsanwaltschaft) preferred a bill of indictment against the applicant charging him with having caused death by negligence in particularly dangerous conditions under Sections 80 and 81 § 2 of the Criminal Code (fahrlässige Tötung unter besonders gefährlichen Verhältnissen), namely in a state of drunkenness.
On 6 September 1996 the Braunau District Administrative Authority (Bezirkshauptmannschaft) summoned the applicant as he was suspected of having committed the administrative offence of driving a car in a state of drunkenness under Section 99 (1) (a) of the Road Traffic Act (Straßenverkehrsordnung).
On 19 September 1996 the applicant admitted in his submissions to the District Administrative Authority that he had driven the car in a state of drunkenness, but stressed that the District Administrative Authority was not entitled to prosecute him for the administrative offence under Section 99 (1) (a) of the Road Traffic Act, as criminal proceedings concerning the same issue were already pending. He relied on Article 4 of Protocol No. 7.
On 16 September and 14 October 1996 the Ried Regional Court (Landesgericht) held hearings and, on the latter date, acquitted the applicant of the charges under Sections 80 and 81 § 2 of the Criminal Code as it had not been established that the applicant had caused the accident.
On 15 October 1996 the District Administrative Authority issued a penal order (Straferkenntnis) against the applicant and fined him in the amount of ATS 10,000 (EUR 726.73) for having driven a car in a state of drunkenness on 14 July 1996.
On 23 October 1996 the applicant appealed relying on Article 4 of Protocol No 7. He did not request a hearing.
On 22 November 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat – hereafter referred to as IAP), sitting with a single member, dismissed the applicant’s appeal. It found that the present case had to be distinguished from the case of Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C, pp. 64-65, §§ 49-51) as the records of the Regional Court’s hearings disclosed that the court, acquitting the applicant, had accepted his defence that the passenger killed in the accident had caused the accident by grabbing the steering wheel. As it could not be established that the applicant had caused the accident, the Regional Court had not anymore been called upon to consider the further question whether the applicant had actually been drunk. Accordingly, the District Authority’s decision did not infringe the applicant’s rights under Article 4 of Protocol No. 7.
On 4 December 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He submitted that the IAP’s decision had been based on an unconstitutional provision and had violated his rights under Article 4 of Protocol No 7.
On 29 January 1997 the IAP submitted observations in reply and repeated in essence the arguments of its decision of 22 November 1996.
On 10 October 1997 the Constitutional Court quashed the IAP’s decision. Referring to its findings of 9 October 1997, it held that the decision in the applicant’s case was based on an unconstitutional provision which excluded that Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) be applied in road-accident proceedings. Section 20 of the Code of Administrative Offences provides that, if the extenuating circumstances outweigh the aggravating circumstances, the fine imposed may be reduced to the half of the statutory minimum fine.
On 2 December 1997 the IAP requested the applicant to submit information on his financial situation by the end of December 1997. It further noted that the issue would be assessed on the basis of the file if he failed to comply with this request. The applicant did not respond.
On 27 January 1998 the IAP, sitting with the same single member as in the first round of the proceedings, partly allowed the applicant’s appeal and, applying Section 20 of the Code of Administrative Offences, reduced the fine to ATS 8,000 (EUR 581.38). It confirmed its previous finding of 22 November 1996 concerning the issue under Article 4 of Protocol No. 7.
On 16 February 1998 the applicant filed a complaint with the Constitutional Court. He pointed out that the IAP had failed to hold a hearing and that the decisions had not been pronounced in public. Further, he complained that the composition of the IAP had been unlawful and challenged the member of the IAP for bias, who had already decided on his appeal in the first round of the proceedings.
On 21 April 1998 the IAP submitted observations in reply.
On 26 August 1998 the applicant supplemented his complaint.
On 19 June 2000 the Constitutional Court dismissed the complaint. It found that the Regional Court had first to consider whether the applicant had caused death by negligence and only then whether or not he had done so in particularly dangerous circumstances, i.e. in a state of drunkenness. Neither the records of the hearings nor the reasons of the shortened version of the acquitting judgment of the Regional Court disclosed any indication that the court had actually considered the applicant’s drunkenness. Therefore, the administrative authorities were free to prosecute the applicant for the administrative offence of driving a car in a state of drunkenness, which did not infringe Article 4 of Protocol No. 7.
As regards the lack of a public hearing before the IAP, the Constitutional Court found that the applicant had failed to file a request to this effect in both the first and second set of the proceedings and that his appeal only related to issues of law.
As regards the lack of a public pronouncement of the IAP’s decision, the Constitutional Court, referring to Section 67 g of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz), found that this complaint did not raise an issue under the angle of the Constitution.
As regards the alleged bias of the member of the IAP, it found that the mere fact that the same IAP member had decided on the applicant’s appeal in the first and second set of the proceedings did not disclose any appearance of partiality. In conclusion, there was no indication of unfairness of the proceedings.
On 27 July 2000 the applicant requested that the case be transferred to the Administrative Court (Verwaltungsgerichtshof).
On 16 November 2000 the Constitutional Court allowed this request.
On 28 November 2000 the Administrative Court ordered the applicant to supplement his complaint. The applicant did so on 16 January 2001.
On 22 February 2001 the IAP submitted observations in reply, on which the applicant commented on 5 March 2001.
On 18 May 2001 the Administrative Court declined to deal with the applicant’s complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake as the Constitutional Court had already dealt with the issue under Article 4 of Protocol No. 7. This decision was served on the applicant’s lawyer on 19 June 2001.
Section 5 of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to, or higher than, 0.8 grams per litre or 0.4 milligrams per litre, respectively.
Section 99 of the 1960 Act provides, so far as relevant at the material time, that:
“(1) It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks’ imprisonment, for any person:
(a) to drive a vehicle when under the influence of drink (...)
(b An administrative offence is not committed where: (...)
(c) facts constituting an offence under sub-sections (2), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .”
Under Section 80 of the Criminal Code, it is an offence, punishable by up to one years’ imprisonment, to cause death by negligence. Where the special circumstances of Section 81 § 2 apply, the maximum possible sentence is increased to up to three years’ imprisonment.
Section 81 § 2 applies where a person commits the offence,
“after allowing himself, even if only negligently, to become intoxicated (...) through the consumption of alcohol, but not to an extent which excludes (...) responsibility (...)”.
Under an irrefutable presumption applied by the criminal courts, a driver with a level of blood alcohol of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Section 81 § 2.


ITEMID: 001-84461
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ISMAYILOV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1947 and lives in Baku.
6. The applicant was one of the founders of an association named “Humanity and Environment” (“İnsan və Mühit” İctimai Birliyi), established on 6 September 1999.
7. On 30 September 1999 the founders applied to register the association with the Ministry of Justice (“the Ministry”), the government authority responsible for the state registration of legal entities. In accordance with the domestic law, a non-governmental organisation acquires the status of a legal entity only upon its state registration by the Ministry.
8. On 11 February 2000, approximately four and a half months after the date of application for registration, the Ministry returned the registration documents to the founders without taking any action, that is without issuing either a state registration certificate or an official refusal to register the association. The Ministry noted that the association's charter did not comply with Article 1 of the Law on Public Associations of 10 November 1992.
9. The founders redrafted the charter in line with the Ministry's comments and on 24 July 2000 reapplied for state registration, submitting a new version of the charter. On 28 December 2000 the Ministry responded with another refusal, stating that the charter provisions concerning the association's members were not in compliance with Article 10 of the Law on Non-Governmental Organisations (Public Associations and Funds) of 13 June 2000 (“the NGO Law”).
10. The applicants again revised the charter and on 28 August 2002 submitted their third registration request.
11. Having not received any response to their third registration request, on 25 October 2002 the founders lodged an action, complaining that the Ministry “evaded” registering their organisation within the time-limits specified by law and asking the court to oblige the Ministry to register it. They also demanded compensation for non-pecuniary damage. On 2 December 2002 the Yasamal District Court dismissed the founders' claim, finding nothing unlawful in the actions of the Ministry. The court found that the association's charter had not been drafted in accordance with the requirements of the domestic law. The founders lodged an appeal against this judgment with the Court of Appeal.
12. In the meantime, on 6 December 2002 the Ministry again returned the registration documents to the founders. This time the reason for declining the registration was the founders' failure to include in the charter the conditions for terminating membership of the association, as required by Article 13 of the NGO Law.
13. On 22 May 2003 the Court of Appeal upheld the judgment of the Yasamal District Court. On 5 November 2003 the Supreme Court upheld the lower courts' judgments dismissing the founders' claim.
14. The Civil Code of the Republic of Azerbaijan of 2000 provides as follows:
“47.1. The charter of a legal entity approved by its founders is the legal entity's foundation document. ...
47.2. The charter of a legal entity shall set out the name, address, procedure for management of activities and procedure for liquidation of the legal entity. The charter of a non-commercial legal entity shall define the object and purpose of its activities. ...”
“48.1. A legal entity shall be subject to state registration by the relevant executive authority. ...
48.2. A violation of the procedure of a legal entity's establishment or noncompliance of its charter with Article 47 of the present Code shall be the grounds for refusal to register the legal entity. ...”
15. The Law on State Registration of Legal Entities of 6 February 1996 provides as follows:
“Upon receipt of an application for state registration from a legal entity or a branch or representative office of a foreign legal entity, the authority responsible for state registration shall:
– accept the documents for review;
– within ten days, issue to the applicant a state registration certificate or a written notification of refusal to register; or
– review the documents resubmitted after rectification of the breaches previously existing therein and, within five days, take a decision on state registration.”
16. The Law on Non-Governmental Organisations (Public Associations and Funds) of 13 June 2000 provides as follows:
“16.1. The state registration of non-governmental organisations shall be carried out by the relevant executive authority in accordance with the laws of the Republic of Azerbaijan on state registration of legal entities.
16.2. Non-governmental organisations shall acquire the status of a legal entity only after achieving state registration.”
“17.1. Non-governmental organisations can be refused registration only if there is another organisation existing under the same name, or if the documents submitted for registration contravene the Constitution of the Republic of Azerbaijan, this law and other laws of the Republic of Azerbaijan, or contain false information.
17.2. Decision on refusal of state registration shall be presented in writing to the representative of the non-governmental organisation, with indication of the grounds for refusal as well as the provisions and articles of the legislation breached upon preparation of the foundation documents.
17.3. Refusal of registration shall not prevent the organisation from resubmitting its registration documents after rectification of the breaches.
17.4. A decision on refusal of state registration may be challenged in court.”
17. For the summary of the relevant domestic law and practice concerning requests for the reopening of the domestic civil proceedings and review of the final decision by the Plenum of the Supreme Court under the procedure of additional cassation, see Babayev v. Azerbaijan ((dec.), no. 36454/03, 27 May 2004).
18. The Constitution of the Republic of Azerbaijan of 12 November 1995, as amended by the referendum of 24 August 2002, provides as follows:
“V. Every person claiming to be a victim of an infringement of his or her rights and freedoms by the legislative and executive authorities, as well as decisions of municipal authorities and courts, may lodge a complaint with the Constitutional Court of the Republic of Azerbaijan ... with the purpose of the restoration of the infringed human rights and freedoms.”
19. The Law on the Constitutional Court of the Republic of Azerbaijan of 23 December 2002, in force from 8 January 2004 (hereafter the “Law on Constitutional Court”), provides as follows:
“34.1. Every person claiming to be a victim of an infringement of his or her rights and freedoms by the legislative and executive authorities, as well as decisions of municipal authorities and courts, may lodge a complaint with the Constitutional Court of the Republic of Azerbaijan in order to resolve matters set out in Article 130, Part III.1-7 of the Constitution with the purpose of the restoration of the infringed human rights and freedoms. ...
34.4. Complaints can be submitted to the Constitutional Court in the following cases:
34.4.1. after exhaustion of all appeal rights, within six months of the entry into force of the decision of the court of last instance (the Supreme Court of the Republic of Azerbaijan);
34.4.2. within three months of the infringement of the complainant's right to access to court.
34.5. A complaint may be lodged directly with the Constitutional Court if the courts of general jurisdiction cannot prevent serious and irreparable damage to the complainant as a result of violation of his or her human rights and freedoms.”
20. Prior to lodging a constitutional complaint against the domestic courts' decisions in civil cases, individual applicants were required, as part of the conditions on admissibility of individual applications under Article 34.4.1 of the Law on Constitutional Court, to have lodged an additional cassation appeal with the President of the Supreme Court, requesting the reopening of the proceedings and a review of the Supreme Court's final decision by the Plenum of the Supreme Court. The constitutional complaint was admitted into preliminary examination only after the individual complainant had obtained either a refusal by the President of the Supreme Court to reopen the proceedings or, if the proceedings had been re-opened, a decision of the Plenum of the Supreme Court.
VIOLATED_ARTICLES: 11


ITEMID: 001-100504
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KEVIN O'DOWD v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-3;Remainder inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The applicant was born in 1946 and lives in London.
7. On 6 December 2001, the applicant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. It was alleged that over a period of days in mid-September 2000, the applicant had raped a woman in her flat, imprisoned her in his car and then indecently assaulted her in his flat. Nine months later, the complainant gave birth to a baby boy and four months after that, in October 2001, she made her first complaint to the police.
8. On 7 December 2001, the applicant's case was sent for trial at the Central Criminal Court pursuant to section 51 of the Crime and Disorder Act 1998.
9. On 17 December 2001, the applicant made an application for bail. As he had served 14 years' imprisonment in respect of a previous conviction for rape and an offence of violence in 1989, under section 25 of the Criminal Justice and Public Order Act 1994 as amended (“the 1994 Act”) bail could only be granted if the judge was satisfied that there were “exceptional circumstances” which justified the grant of bail. The judge was not so satisfied and bail was refused.
10. On 28 January 2002, the applicant pleaded not guilty to all charges and a trial date was fixed for 8 April 2002. A further bail application was refused.
11. On 22 March 2002, the applicant dispensed with the services of his solicitors and counsel and served his own defence statement. The judge did not alter the trial date but gave the applicant time to reconsider his position. On 3 April 2002, the applicant indicated that he would like to have the services of his former legal team and the judge reinstated the representation order. As valuable time had been lost, the trial date was vacated and rearranged for 6 June 2002. A further bail application was refused.
12. At the end of May 2002, the applicant again dispensed with the services of his lawyers. When the case was called on 6 June 2002, however, he was represented by leading and junior counsel. After a midday adjournment, the applicant once again dispensed with the services of his lawyers. The next day, he asked for his legal team to be reinstated and this was done. Defence counsel then indicated that as there had been a delay in disclosure, an application to stay the proceedings would be made. It was agreed to hear the application the next day.
13. Under the Prosecution of Offences (Custody Time Limits) Regulations 1987 (“the 1987 Regulations”) as amended, the maximum period of custody between the sending for trial and the start of the trial (taken to be the date on which the jury is sworn in) in a case such as the applicant's was 182 days. That period was due to expire at midnight on 7 June 2002. The prosecution accordingly applied to extend the custody time limit. Under section 22(3) of the Prosecution of Offences Act 1985 (“the 1985 Act”), a request for extension of the custody time limit must be refused where the court is not satisfied that the prosecution has acted with all due diligence. The application made by the prosecution in the applicant's case was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure.
14. However, under the 1987 Regulations, the right to bail upon expiry of the custody time limit was subject to section 25 of the 1994 Act (see paragraph 45 below). Accordingly, on 7 June 2002, a further application for bail was refused by Judge Norris in the Crown Court because he was not satisfied that “exceptional circumstances” justifying the grant of bail existed.
15. On 8 June 2002, the defence requested access to hospital and telephone records for the first time. As a result, the case was removed from the court agenda and relisted for mention on 21 June 2002. On that date, the trial was re-fixed for 4 November 2002 and a further application for bail was refused.
16. On 20 August 2002, an application for bail was made in the High Court and was refused on the basis that no exceptional circumstances existed.
17. On 10 October 2002, the case came before Woolwich Crown Court for the consideration of two preliminary matters of law. The applicant once again dispensed with the services of his lawyers and the representation order was revoked. As a result, it was not possible to deal with the issues of law, which were accordingly held over for consideration on the first day of trial.
18. On 4 November 2002, the trial began. The applicant was acting in person but counsel had been appointed by the court to cross-examine the complainant. Issues arose regarding discovery, abuse of process, admissibility of photographs and the use of screens. The applicant from time to time absented himself from the court room.
19. On 6 November 2002 the court began to swear in the jury. However, one member of the panel had been at school with the applicant and another, who was related to the applicant, made an observation in public which made it necessary to release the entire panel. The applicant then applied for and was granted legal representation. On 15 November 2002, the applicant's case was transferred to Harrow Crown Court as he was too well-known in the Woolwich area.
20. On 5 December 2002, the case came before Harrow Crown Court. The court indicated that it was prepared to hear the case in January 2003 but the applicant declined this date on the ground that it was unsuitable. The judge subsequently fixed the trial to begin on 2 June 2003 in order to accommodate the needs of the defence regarding preparation and availability of counsel. Outline submissions as to the grant of bail were made and discussion was adjourned until 9 December 2002 in order for skeleton arguments to be prepared in writing.
21. A further application for bail was heard on 9 December 2002. The applicant's counsel made extensive submissions in support of the application, with particular reference to the Court's judgment in Caballero v. the United Kingdom [GC], no. 32819/96, ECHR 2000II. She argued that once the time limit under the 1987 Regulations had expired and was not extended, a defendant should be admitted to bail. Accordingly, in her submission, the applicant had been unlawfully detained since 7 June 2002.
22. Judge Sanders disagreed. He considered, first, that the words “subject to Section 25” in the 1987 Regulations meant “unless this is a case where Section 25 applies”. He found that section 25 clearly did apply in the applicant's case and continued:
“... it is lamentable that the prosecution have been shown to be wanting as far as the custody time limits were concerned and indeed had it also been shown that they were deliberately defalcating [sic] on their duty and relying on Section 25 as a stop gap, believing that they could still persuade the Judge to keep [the applicant] in custody come what may, that might in itself and in certain circumstances amount to exceptional circumstances for reconsidering his bail position.
But I am not satisfied from the chronology and the history of this trial that that is at all the case. I am satisfied however that no exceptional circumstances did arise at the time that that application was made; that the regulations on custody time limits do not out-weigh the serious considerations of Section 25 and that I consider that it is a completely separate consideration and that I have separate jurisdiction to deal with it and so notwithstanding that the custody time limits did expire and that he might have been entitled to his release in any other case, that is not the case here and so he must, unless I am persuaded otherwise on a straightforward application regarding Section 25, then he must find himself bound by Section 25.”
23. Judge Sanders recalled that he had recently been persuaded to grant a “very long adjournment” to June 2003, at the request of the applicant. He indicated that he was of the view that defendants should not be detained for excessively long periods of time before their trials took place, but noted:
“On the other hand, everything that was done by me on his behalf was for the defendant's assistance because it was explained that he yet needed to get his independent DNA; that there were papers missing that have not been properly served upon his defence team and thirdly, since counsel have built up a rapport with the defendant and counsel who have been briefed fairly late in this matter ... had herself commitments that precluded her from safely being able to undertake this work until June.”
24. He added:
“If your client, by my ruling on the bail matter and Section 25, feels aggrieved then I would take up [counsel for the prosecution's] suggestion and bring the case forward come what may ...”
25. He continued:
“...two things strike me of interest. Bearing in mind the sad chronology I also note that the defendant at the outset had suggested that this was a fabricated tissue of lies by the complainant for motives that he would explain to the jury in due course.
A lot of the disclosure arose because of that and he was offered the opportunity to have his own independent DNA as far back as last June, an offer that he never took up ... he then spoke in open court ... of automatism, which again left one ... curious as to know whether there was a need for DNA and whether he was denying intercourse took place, which of course to an alleged victim of rape is an important issue, which of course she is entitled to be aware of in order that she does not have to go through the ordeal of being accused of being sexually promiscuous or a liar and such things, and we still do not know the answer to that.
So what is going on? You have come up with another DNA application.”
26. Counsel for the applicant responded that she did not have full instructions and could therefore not speak on behalf of the applicant. The judge again reiterated that the trial date for the applicant might need to be reconsidered, a matter on which the applicant's counsel undertook to seek instructions. The judge expressly pointed out that the effect of his ruling on section 25 was that, if the applicant persisted with his request for a June 2003 trial, he would have to remain in custody for another six months.
27. The applicant's counsel appeared before the judge later that day to confirm that the applicant was content that his trial be held on 2 June 2003, notwithstanding the section 25 ruling.
28. On 30 January 2003, the applicant issued a claim for judicial review of the court's decision of 9 December 2002 to refuse him bail, arguing that his continued detention following the expiry of the custody time limits was in breach of Article 5 § 3 of the Convention. The matter was considered on the papers on 6 February 2003. It was referred for an oral hearing and permission was granted on 26 February 2003. On 20 March 2003, solicitors acting for the applicant indicated that he would also apply for a writ of habeas corpus contending that since the expiration of the custody time limit on 7 June 2002 his custody had been illegal.
29. On 16 April 2003, the applicant's applications for habeas corpus and judicial review of the decision refusing bail were rejected by the Divisional Court. In dismissing the argument of the defence that the amendments to section 25 to allow the grant of bail in “exceptional circumstances” were insufficient to restore the judicial control required under the Convention, Kennedy LJ held (at paragraph 28) that:
“... there is nothing offensive or contrary to Convention law about Parliament reminding the courts of the risks normally attendant upon the grant of bail to those to whom section 25 applies. A reminder can properly be given by creating a statutory presumption against the grant of bail, but if judicial control is to be effective courts must be left free to examine all the relevant circumstances and, in an appropriate case, to override the presumption.”
30. Kennedy LJ considered the Convention authorities and accepted (at paragraph 32) that section 25 would not be compatible with the Convention if “exceptional circumstances” were too narrowly construed or if the court set too high a threshold at which it would be prepared to conclude that “exceptional circumstances” existed. In considering the application of section 25 in practice, Kennedy LJ explained that:
“[Section 25] establishes a norm. The norm is that those to whom it applies if granted bail are so likely to fail to surrender to custody, or offend, or interfere with witnesses or otherwise obstruct the course of justice that bail should not be granted. If in fact, taking into account all the circumstances relating to a particular alleged offence and offender he does not create an unacceptable risk of that kind he is an exception to the norm, and in accordance with his individual right to liberty he should be granted bail.”
31. As regards the expiration of the custody time limit, Kennedy LJ considered that the custody time limits set out in national law and the “reasonable time” requirement under Article 5 § 3 of the Convention were not one and the same. Accordingly, in assessing whether the prosecution had acted with “special diligence” as required by the Convention, the finding of the lower court that it was not satisfied that the prosecution had acted with all due diligence as required by section 22(3) of the 1985 Act (see paragraph 46 below) was not decisive. Although Kennedy LJ accepted that in a case where the prosecution had not demonstrated all due diligence, a court may well conclude that it had not displayed the necessary “special diligence” required under Article 5 § 3, he considered that this was not the case here.
32. Finally, in respect of the applicant's argument under Article 14 of the Convention that section 25 operated in a discriminatory manner, Kennedy LJ considered that the applicant was not in a situation analogous to a person charged with a serious offence because he also had a previous conviction for a serious offence which was relevant to the risk attendant on a grant of bail. He further found that the distinction made was justified, was based on relevant factors, pursued a legitimate objective and was proportionate.
33. In conclusion, he stressed the importance of setting out reasons for refusing bail in order to show that careful and appropriate consideration had been given to the question whether exceptional circumstances exist.
34. Hooper J agreed with Kennedy LJ in all respects, save that unlike Kennedy LJ he considered that section 25 did impose the burden on the defendant to show “exceptional circumstances” which, in light of Convention case-law, was inconsistent with Article 5 § 3. Accordingly, he considered that section 25 should be read down in accordance with the obligation in section 3 of the Human Rights Act 1998 to impose merely an evidential burden on the applicant to point to or produce material which supports the existence of “exceptional circumstances”, thereby ensuring compliance with the demands of Article 5 § 3.
35. The applicant appealed to the House of Lords, arguing that once the custody time limit had expired there was, by virtue of the expiry of the time limit itself, a breach of Article 5 § 3 by his continued detention under section 25; and, in the alternative, that the effect of section 25 was to place a burden on the applicant to establish exceptional circumstances required for the grant of bail, which was a breach of the applicant's Convention rights.
36. In the meantime, the applicant's trial commenced on 1 September 2003. However, on 25 September 2003, the prosecution was permanently stayed as an abuse of process, for reasons which are unclear, and the applicant was released from custody.
37. The House of Lords handed down its judgment in the judicial review and habeas corpus proceedings on 26 July 2006. Delivering the leading judgment, Lord Brown of Eaton-under-Heywood considered that an approach under section 25 which required the applicant to provide good and sufficient reason for bail would be “irreconcilable with the Strasbourg case law” (at paragraph 27). However, as regards the operation of section 25 in practice, he continued (at paragraphs 34-34):
“Importantly, however, both members of the [divisional] court decided that section 25(1) (subject only to its effect in cases where the custody time limit has expired, the important second issue yet to be addressed) has no substantive effect upon the way in which bail applications by section 25 defendants would in any event fall to be determined under the Bail Act. It serves merely to 'remind' the courts of the risks normally posed by those to whom section 25 applies and 'will merely assist the court to adopt a proper approach' in relation to bail in their cases. In my judgment they were right in that conclusion and it seems to me unsurprising that the Scots, placed in a similar position by the Caballero judgment, decided against introducing an 'exceptional circumstances' test, believing that it would 'add nothing to a clear common law position in Scotland' ...
Whether or not, strictly speaking, section 25 needs to be read down to achieve the agreed result is a question of little moment. I myself, however, have a mild preference for Hooper J's approach. Like him I read the section as placing a burden on the section 25 defendant. He has to rebut a presumption and if he fails to do so is to be denied bail. True it is, as [counsel for the defendant] himself accepted, that in the vast majority of cases the court will reach a clear view one way or the other whether the conditions for withholding bail specified by Schedule 1 to the Bail Act are satisfied. But just occasionally the court will be left unsure as to whether the defendant should be released on bail—the only situation in which the burden of proof assumes any relevance—and in my judgment bail would then have to be granted. That must be the default position. Section 25 should in my judgment be read down to make that plain.”
38. As to the lawfulness of the applicant's continued detention after the expiry of the custody time limit, Lord Brown reviewed the facts of the case, noting that the applicant had a previous conviction for rape; indeed, he had 30 previous convictions for a wide variety of offences. He also observed that the applicant had dispensed with his lawyers and had them reinstated on no fewer than four occasions, two of which had caused delay. A further five months' delay was caused by the applicant's decision to reject the offer of a January 2003 trial date in favour of a date in June 2003, to suit his counsel's convenience. Lord Brown noted that it was unclear, in the absence of a transcript of the court's decision of 7 June 2002 or any further information on the subject, why the lower court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. However, he concluded that even where there was a lack of due diligence under domestic law, this was not in itself sufficient to establish the lack of “special diligence” required for a breach of Article 5 § 3. Lord Brown concluded (at paragraph 63) that:
“By the very nature of things, the Strasbourg Court will be looking at the case in a different way from the domestic court, in particular from a longer and wider perspective. Strasbourg will have the whole picture before it and will take an overall view as to whether the reasonable time guarantee has been exceeded. Grisez illustrates the point well: the ultimate question addressed by the court was whether 'the total length of the detention pending trial appear[ed] excessive'. So too in Contrada: the court took account of the trial court's post-delay offer to increase the rate of the hearings (akin perhaps to the offer of a January 2003 trial date in the present case, similarly declined). The domestic court, by contrast, is inevitably having to decide a much narrower question and within a shorter time-frame. And it is doing so within the strict confines of section 22(3) which, despite the marked similarity between its language and that used in Strasbourg, in fact imposes a more rigid formula for the extension of custody time limits than Strasbourg does with regard to the reasonable time guarantee under article 5(3). For my part I would not expect there to be many cases where, as here, bail is refused notwithstanding the court's refusal to extend the custody time limit. But I conclude that there is no necessary inconsistency between the two and that Article 5(3) is not necessarily breached. Nor, in my judgment, is there any other reason for thinking that this appellant was wrongly refused bail: on the contrary, the case for his continued detention in custody appears to have been a strong one.”
39. The House of Lords found no violation of Article 5 § 3 and unanimously rejected the applicant's appeal.
40. Section 51 of the Crime and Disorder Act 1998 provides that where an adult appears before a magistrates' court charged with an offence triable only on indictment, the court shall send him forthwith to the Crown Court for trial for that offence.
41. The Bail Act 1976 (“the 1976 Act”) regulates the grant of bail. Section 4 provides that defendants:
“shall be granted bail except as provided for in Schedule 1 to this Act.”
42. Schedule 1 of the 1976 Act provides, under paragraph 2, that:
“The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.”
43. Paragraph 9 of the Schedule provides that:
“In taking the decisions required by paragraph 2 ... the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—
(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
(b) the character, antecedents, associations and community ties of the defendant,
(c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,
(d) ... the strength of the evidence of his having committed the offence or having defaulted,
as well as to any others which appear to be relevant.”
44. Section 4(8) of the 1976 Act provides that the right to bail under section 4 is subject to section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”).
45. The 1994 Act makes specific provision for bail in a case where a suspect is charged with a serious offence and has previously been convicted and imprisoned for a serious offence. Section 25 provides:
“(1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it.
(2) This section applies, subject to subsection (3) below, to the following offences, that is to say–
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) rape under the law of Scotland or Northern Ireland;
(e) an offence under section 1 of the Sexual Offences Act 1956 (rape);
(f) an offence under section 1 of the Sexual Offences Act 2003 (rape);
(g) an offence under section 2 of that Act (assault by penetration);
...
(3) This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or of culpable homicide, if he was then sentenced to imprisonment ...”
46. The Prosecution of Offences Act 1985 allows the Secretary of State, under section 22(1), to make regulations setting custody time limits. Section 22 also provides the appropriate court with the power to extend the time limit in a given case:
“(3) The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied–
(a) that the need for the extension is due to–
(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;
(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition.
47. The Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended set out the custody time limits applicable. Regulation 5(6B) provides that where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998, the maximum period of custody between the accused being sent to the Crown Court for an offence and the start of the trial shall be 182 days. Under section 22(11A) of the 1985 Act, the start of a trial on indictment shall be taken to occur when a jury is sworn in.
48. Under Regulation 6 of the 1987 Regulations, upon the expiry of the custody time limit, an accused in custody must be granted bail, subject to section 25 of the 1994 Act:
“(6) The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under Regulation 5 above and that the time limit is about to expire, shall, subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape), grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial.”
49. In R (Quereshi and Others) v Leeds Crown Court [1999] EWHC Admin 454, the High Court considered the scope for extending custody time limits. Lord Bingham CJ noted:
“14. ... The court made plain in ex parte McDonald, as indeed is plain on the face of the statute, that when seeking an extension or a further extension of a custody time limit the Crown must show that there is good and sufficient [cause] for making the extension and that it has acted with all due expedition. What, however, was not made plain in ex parte McDonald (because the question did not arise) is that these two provisions are in my judgment linked. It is not in doubt that the Crown must show proper grounds for keeping a defendant in prison awaiting trial for a period longer than the statutory maximum. But the Crown must also show that such an extension is not sought because it has shown insufficient vigour in preparing the case for trial. Put crudely, the prosecution cannot prepare for trial in a dilatory and negligent manner and then come to the court to seek an extension of the custody time limit because the prosecution is not ready for trial. Nor, if the effect of its dilatoriness is to put the defence in a position where the defence is not ready for the trial can the Crown seek an extension and show that it has acted with all due expedition. It is in the ordinary way the business of the prosecution to be ready. If therefore the Crown is seeking an extension of the time limit it must show that the need for the extension does not arise from lack of due expedition or due diligence on its part. It seems clear to me, however, that the requirement of due expedition or due diligence or both is not a disciplinary provision. It is not there to punish prosecutors for administrative lapses; it is there to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable. That is why due expedition is called for. The court is not in my view obliged to refuse the extension of a custody time limit because the prosecution is shown to have been guilty of avoidable delay where that delay has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date.”
50. Section 3(1) of the Human Rights Act provides that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-104814
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BOYLE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: The applicant, Mr John Boyle, is an Irish national who was born in 1957 and lives in Co. Antrim, Northern Ireland. He was represented before the Court by Mr F. Shiels of the Madden & Finucane firm in Belfast.
In 1977 the applicant was tried on the charges of possession of firearms and ammunition with intent to endanger life, and of membership of a proscribed organisation. The only evidence against him at trial was an admission recorded in the police notes of his interrogation. The applicant denied in court that he had made such admissions, and challenged the veracity of the police records. He further argued that he had been physically ill-treated and subjected to intimidation during his arrest. Two police officers took the stand to vouch for the truthfulness of what they asserted was a contemporaneous record of the interrogation. The applicant was convicted of the charges and received concurrent sentences of ten and two years. His appeal against conviction and sentence was dismissed the following year. The applicant spent seven years in prison.
In 1999 the applicant sought review of his conviction by the Criminal Complaints Review Commission (CCRC). It arranged for expert analysis of the interview notes, which established that these had been modified at some later stage. This was sufficient for the CCRC to refer the case to the Court of Appeal, which ruled on 29 April 2003 that the conviction could not be regarded as safe and quashed it accordingly.
The CCRC also referred the conduct of the two police officers to the Director of Public Prosecutions (DPP), who in turn asked the Police Ombudsman Service to investigate. The latter did so and recommended prosecution of the officers for perjury. The DPP did not follow the recommendation. When asked by the applicant’s solicitor to give reasons for this, he explained that an experienced lawyer within his office as well as an independent senior counsel had come to the view that there was no reasonable prospect of obtaining a conviction.
The applicant sought judicial review of the DPP’s refusal to give specific, detailed reasons. The matter was finally disposed of by the Court of Appeal in a judgment of 28 April 2006, which reiterated its previous case law that the DPP is not bound by the rules of procedural fairness and thus not required to provide reasons for not prosecuting in a particular case. The court considered itself bound to follow its previous case law that the general policy of not giving reasons was neither irrational nor aberrant. Nor could it be concluded that in this particular case that the DPP’s failure to depart from his general policy was unreasonable.
The applicant also advanced an argument based on Article 3 of the Convention. He contended that compelling him to serve a lengthy prison sentence on the strength of evidence that he knew to be false was inhuman and degrading. The Court of Appeal did not examine this argument, since it related to facts occurring long before the Human Rights Act came into force.
On 22 May 2007 the Appeal Committee of the House of Lords refused leave to appeal.
The applicant pursued a claim for compensation following the quashing of his conviction. The claim was rejected by the Secretary of State for Northern Ireland. The applicant has informed the Court that subsequently, in December 2010, the Minister of Justice decided to make an ex gratia payment to him.


ITEMID: 001-95270
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LYNCH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Vincent Lynch, is a Jamaican national who was born in Jamaica in 1963 and is currently serving a life sentence at HMP Full Sutton, York. He was represented before the Court by Ms Y. Aslan, a lawyer practising in Manchester.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was convicted on 13 March 1998 of murdering a man in a night club in Birmingham the previous July. He was also convicted of robbery and possession of a firearm with intent. The trial judge sentenced him to life imprisonment for the murder, with a recommended minimum term of 17 years. For the two other offences he was sentenced to terms of imprisonment of 15 years and 7 years respectively, to run concurrently. The Lord Chief Justice subsequently recommended a minimum term (“tariff”) of 17-18 years. In February 1999, the Secretary of State notified a tariff of 20 years to the applicant.
Subsequent to the enactment of the Criminal Justice Act 2003, the applicant applied to the High Court in February 2004 for the setting of a tariff in accordance with paragraph 3 of Schedule 22 of the Act (see under “Relevant domestic law” below). On 6 May 2004, his solicitors submitted representations for a reduction of three years in the applicant’s tariff. On 30 June 2004, the Crown Prosecution Service (CPS) was requested to seek the views of the victim’s family on the applicant’s request for a review of his tariff. The CPS being unable to assist, it was decided in September 2004 to enlist the help of Victim Liaison Officers in the Probation Service to contact the families of victims. On 11 March 2005, the Victim Liaison Officer for the West Midlands indicated that the victim’s family had not responded to the request for their views on the matter.
During 2004, the case of R(Hammond) v. Home Secretary was under consideration by the Divisional Court, which was asked to rule on whether the relevant provisions of Schedule 22 were to be construed as allowing for an oral hearing. In its decision of 25 November 2004, the Divisional Court ruled that an oral hearing was permissible in appropriate circumstances. This ruling was subsequently confirmed by the House of Lords. According to the Government, it was not considered appropriate to process any applications for review under Schedule 22 until the question of oral hearings had been dealt with. Once the Divisional Court had determined the issue, all prisoners in the High Court’s database received a letter inviting their views on the need for an oral hearing in their case. Such a letter was sent to the applicant on 6 December 2004, eliciting a reply on 6 January 2005.
The procedure therefore only began to operate in early 2005, at which point, according to the Government, there were more than 1,100 cases pending. This number included applications from prisoners whose tariff had been set by the Home Secretary, and from prisoners in respect of whom no tariff had yet been set.
In November 2006, the Courts Service, in answer to a letter from the applicant’s solicitor enquiring about the delay in dealing with his case, apologised for the situation and explained that in view of the great number of such applications pending before the High Court, priority was being given to cases in which the tariff would expire in 2010.
On 1 August 2008, the High Court (Mr Justice Grigson) rejected the applicant’s application. He concluded that the minimum period of 20 years notified by the Secretary of State could not be said to be manifestly excessive and so would not be reduced, apart from the period the applicant had spent in custody on remand (7 months and 15 days).
Following the Court’s judgment in the case of Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002IV, Parliament adopted the Criminal Justice Act 2003. Schedule 22 of the Act sets out a procedure whereby a prisoner who received a mandatory life sentence before the date the Act entered into force (18 December 2003) and who was notified by the Secretary of State of the minimum term to be served may apply to the High Court for a review of that tariff. The relevant provisions read as follows:
SCHEDULE 22
Mandatory Life Sentences: Transitional Cases
Existing prisoners notified by Secretary of State
2 Paragraph 3 applies in relation to any existing prisoner who, in respect of any mandatory life sentence, has before the commencement date been notified in writing by the Secretary of State (otherwise than in a notice that is expressed to be provisional) either—
(a) of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, or
(b) that the Secretary of State does not intend that the prisoner should ever be released on licence.
3 (1) On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either—
(a) order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or
(b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender.
(2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term.
(3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date).
(4) In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified.
4 (1) In dealing with an application under paragraph 3, the High Court must have regard to—
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,
(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and
(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to—
(a) the general principles set out in Schedule 21, and
(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.
(3) In this paragraph “the notified minimum term” has the same meaning as in paragraph 3.
...
Proceedings in High Court
11 (1) An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing.
(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.
...


ITEMID: 001-93577
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MÜCEK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1960 and lives in Kandıra.
5. On 26 November 1995 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, namely the Dev-Yol (Revolutionary Way). On 8 December 1995 he was brought before the investigating judge at the Istanbul State Security Court, who ordered him to be detained pending trial. On 9 May 1996 the public prosecutor at the Istanbul State Security Court filed an indictment against the applicant and twelve other accused. Invoking Article 146 of the Criminal Code, he accused the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State.
6. The trial commenced before the Istanbul State Security Court. In the subsequent hearings the court refused to release the applicant on account of the nature of the alleged offence and the state of the evidence. On 7 May 2004 the State Security Courts were abolished following a constitutional amendment, and the applicant’s case was transferred to the Istanbul Assize Court. On 30 November 2006 the applicant was released pending trial.
VIOLATED_ARTICLES: 5


ITEMID: 001-88291
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: POKUTNAYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Ms Praskovya Ivanovna Pokutnaya, is a Russian national who was born in 1950 and lives in Proletarskiy, a village in the Belgorod Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a shareholder of a private joint-stock road-building company “Rakityanskaya DSPMK” (“Ракитянская ДСПМК”). On an unspecified date in 2001 she applied to a court to oblige the company to redeem her 54 nominal shares.
On 15 October 2001 the Commercial Court of the Belgorod Region declared the company insolvent. On 18 February 2002 an insolvency administrator, Mr N., was appointed for the insolvency proceedings.
On 15 April 2002 the Rakityanskiy District Court obliged the company to redeem the 54 nominal shares held in the company by the applicant. On 2 July 2002 the Belgorod Regional Court upheld the judgment and it became final and enforceable.
On 5 August 2002 the applicant sought enforcement in court.
On 13 August 2002 the court sent the writ of execution to the local Bailiff’s Office.
On 16 August 2002 the bailiff served the writ of execution on Mr A. instead of Mr N., the administrator. However, Mr A. forwarded the writ to Mr N. without delay and the writ was received by Mr. N. on 22 August 2002.
As the shares were not redeemed by the company, the applicant complained about the bailiffs’ failure to act to the court and to the local Prosecutor’s Office.
On 26 November 2002 the applicant’s complaints were upheld by the Rakityanskiy District Court. The court reproached the bailiff for negligence in serving the writ on the wrong person and stated that as the applicant had lodged her claim with the court before the company went insolvent, the enforcement proceedings should have been carried out by the bailiff within the civil procedure in accordance with the Law on Enforcement Procedure (Закон РФ “Об исполнительном производстве”).
On 2 June 2003 the same court again upheld an identical complaint lodged by the applicant and ordered the bailiff to pursue the enforcement proceedings.
On 4 August 2003 the Commercial Court of the Belgorod Region closed the insolvency proceedings, having declared the creditors’ registered claims paid off. The company had not redeemed the applicant’s shares as she was fifth in the line of creditors and the company’s assets did not suffice.
On 16 October 2003 the Presidium of the Belgorod Regional Court quashed the decision of 2 June 2003 and discontinued the proceedings. The court found that the instruction contained in the operative part of the judgment of 15 April 2002 provided for service of the writ of execution on the company’s insolvency administrator for enforcement. This requirement had been fully complied with by the bailiff. The Presidium of the Belgorod Regional Court also found that there had been procedural flaws, noting, inter alia, that the Rakityanskiy District Court had disregarded the previous decision concerning the same complaint and pointed out that it had failed to indicate the legal grounds for upholding the applicant’s complaint.
Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within a period of two months.
The Russian Law on Enforcement Proceedings (no. 119-ФЗ of 21 July 1997) designates the court bailiffs’ service as the authority charged with enforcement of court decisions (section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of these are not considered to be the enforcement authorities (section 5).


ITEMID: 001-58023
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF MANTOVANELLI v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
TEXT: 8. On 27 January 1981 the applicants’ daughter, Jocelyne Mantovanelli, who was then 20, was admitted to the Nancy Orthopaedic and Accident and Emergency Clinic for an operation on a whitlow on her left thumb.
On the same day, she was transferred to the surgical ward of the Jeanne d’Arc Hospital (Nancy Regional Hospital Centre - "CHRN") at Dommartinlès-Toul, where she had a second operation the next day. For a year she received periodical treatment there and underwent surgery seven times in the form of repeat operations and skin grafts, and an arteriovascular examination.
Owing to an infection discovered in February 1982, Miss Mantovanelli was operated on again and a week later the second phalanx of her thumb was removed.
9. On 13 March 1982, having contracted jaundice, Miss Mantovanelli was transferred to the gastroenterology department of Brabois Hospital (CHRN) at Vand÷uvre-lès-Nancy. Her condition deteriorated and she fell into a hepatic coma. On 27 March she was transferred to the department for infectious diseases and neuro-respiratory intensive care, where she died two days later.
10. The surgical operations referred to above and the arterio-vascular examination Miss Mantovanelli underwent were carried out under a general anaesthetic. On each occasion a varying combination of seven different drugs was used which always included halothane.
11. Mr and Mrs Mantovanelli were convinced that their daughter’s death had been caused by excessive administration of halothane and applied to the administrative courts for a ruling that the CHRN was liable for her death.
12. On 29 November 1982 the applicants were granted legal aid and on 11 January 1983 their lawyer was appointed. On 26 April 1983 they applied to the Nancy Administrative Court for an interim order for the appointment of an expert and instituted proceedings to obtain a declaration that the CHRN was liable.
13. In their application Mr and Mrs Mantovanelli asked for the expert to be given the following tasks:
"1. Seek all the information on the circumstances in which Miss Jocelyne Mantovanelli was admitted to hospital, received treatment and underwent operations in different departments of the CHRN between February 1981 and the date of her death;
Read any document and interview any expert witness to that end;
2. Establish the circumstances surrounding her death and its causes; Provide this Administrative Court with ethical and other data such as to enable it to determine any liability incurred by identifying any failures to comply with accepted medical practice or any shortcomings in the functioning of the service;
3. Draw up a report on the foregoing and file it at the registry of this Court within the time to be allotted."
14. In an order of 28 April 1983 the president of the administrative court refused the application on the ground that allowing it would prejudice the trial of the merits and that the requisite urgency for ordering interim measures was lacking, seeing that the application for them had not been lodged until 26 April 1983 although the applicants’ lawyer had been appointed on 11 January 1983.
15. In their statement of claim Mr and Mrs Mantovanelli submitted:
"...
It is clear both from the report of Professor Dureux [head of the intensive care unit at the CHRN] and from the autopsy report that [Miss Mantovanelli’s death] ... was the result of hepatitis caused by halothane.
Halothane is an anaesthetic that was used for the surgical operations. Repeat use of halothane for anaesthetic after only a short interval is known to be very dangerous as there is a serious risk of causing serious or even occasionally fatal injury to the liver. Miss Mantovanelli was given halothane as an anaesthetic on several occasions, the last two being within a short interval of each other, and the hepatotoxicity followed which was to prove fatal.
The unit therefore displayed gross negligence in its complete disregard of the basic rules for administering halothane, making the CHRN liable to the applicants for the loss suffered as a result of their daughter’s death.
The plaintiffs therefore ask the Court to find the CHRN liable and to order that public body to pay each of them FRF 50,000 in compensation for the various losses suffered by them.
..."
16. On 21 September 1983 the CHRN filed their defence. The applicants replied on 11 October 1983 and renewed their application for an expert report.
17. On 28 March 1985 the administrative court delivered the following interlocutory judgment:
"...
As the parties disagree as to the facts and the Court has not found evidence in the case file to enable it to rule on the merits, it is necessary to order that an expert report which complies with the adversarial principle be carried out by an expert whose instructions are ... [to]:
...
(a) inspect Miss Jocelyne Mantovanelli’s full medical file, in particular the autopsy report and Professor Dureux’s report;
(b) describe the treatment the patient received, making it clear whether the complaint from which she was suffering was a common one or a rare one and how complex the operations were;
(c) indicate, if possible, the patient’s chances of recovery, having regard to her general condition and to the characteristics of her complaint;
(d) state whether halothane was used and in what circumstances; whether any such use was in accordance with accepted practice and whether the subsequent complications were linked to this use; and if so, whether such complications are common and, if possible, how common they are in statistical terms;
(e) make all the necessary findings and interview all the relevant witnesses and generally provide all the information needed to enable the Court to decide on the merits.
..."
18. On 4 April 1985 the expert appointed by the court, Professor Guilmet, took the oath.
He examined various medical files and interviewed five members of the medical staff at the CHRN, including the surgeon who had performed the last operation on Miss Mantovanelli and the anaesthetist.
His report, which was lodged with the court on 8 July 1985 and communicated to the parties on 19 July, contained the following findings:
"Although in most cases a whitlow is a minor ailment, Miss Mantovanelli presented with a whitlow that was unusually serious owing mainly to the delay in seeking effective medical treatment and, in particular, surgery.
I have discovered no concurrent deterioration in her general state of health or any progressive disease in her past history, or any special feature of the local germ in question that could have affected the intensity of the presenting picture.
From 27 January 1981 Miss Mantovanelli was cared for diligently in accordance with current scientific knowledge.
The unusual complexity and length of the treatment were related to the extent of the lesions and of damage to the tissue, which delayed the healing process, repair of the loss of matter and the remedying of the sequelae. A new infection finally led to complete failure.
When the patient was found to have jaundice fourteen months after the whitlow in question appeared, she was transferred to two specialist departments. The appropriate treatment she received there failed to halt a rapid worsening of her condition.
Before this unexpected complication, which proved fatal, Miss Mantovanelli had a foreseeable chance of recovering from her local lesion, albeit only in the long term. It does not appear that her general condition at the time put the prognosis for survival in doubt, despite the characteristics of her original complaint.
Halothane was used each time the patient was anaesthetised, as an adjunct to a number of other anaesthetics administered, in a way that was wholly appropriate and in accordance with accepted practice, without provoking any abnormal reaction.
There is no absolute certainty that the onset of hepatitis and the patient’s death are directly linked to the use of halothane alone.
However, there must have been an atopic susceptibility (that is to say a predisposition to sensitisation through medication without any revealing signs) triggered first by the Epontol, use of which was later discarded, and then by the halothane, and exacerbated in terms of enzymatic action by a third substance, Nesdonal.
This is a plausible diagnostic hypothesis, constructed after the event and which, given that there were no warning signs of intolerance, obviously cannot call in question the choice or rejection of one anaesthetic rather than another.
An idiosyncrasy, in other words a reaction peculiar to her as an individual, must therefore have been responsible for Miss Mantovanelli’s death, brought about by a particularly strong autoimmune process ... There are no frequency figures for such exceptional cases.
(Halothane’s toxicity does not appear to be implicated and is in any case still widely disputed today. However, in so far as halothane is still suspected of causing necrosis of the liver, statistics show that this phenomenon does not occur in more than 1 in 10,000 cases.)"
19. In a pleading registered on 30 July 1985 the applicants alleged that neither they nor their lawyer had been informed of the dates of the steps taken by the expert and that his report referred to documents which they had not been able to inspect. In their submission, there had thus been a breach of the principle of adversarial proceedings and this justified setting the expert report aside and ordering a new one.
On 3 October 1985 the CHRN filed a pleading in reply.
20. The administrative court held a hearing on 8 November 1988, and on 29 November 1988 it delivered the following judgment:
"...
While Mr and Mrs Mantovanelli are justified in submitting that there were irregularities in the production of the expert report on the medical file of their daughter who died in the [CHRN], seeing that they were not informed of the dates of the steps taken by the expert as required by Article R. 123 of the Administrative Courts and Administrative Courts of Appeal Code, they have not disputed the facts that appear from both their own evidence and the expert report. It must thus be taken as established that the hepatitis Miss Mantovanelli died from cannot definitely be attributed to the administration of halothane on the eleven occasions when she was given an anaesthetic and that, in any event, she presented no clinical signs of a contraindication against the use of that substance, which had been used in accordance with accepted practice and which only very rarely causes liver damage. No gross medical negligence can therefore be imputed to the [CHRN]. The action must therefore be dismissed.
..."
21. On 4 January 1989 Mr and Mrs Mantovanelli appealed to the Nancy Administrative Court of Appeal. They pointed out that the facts of the case were not disputed and that the purpose of the proceedings was to determine, after adversarial examination of all the evidence, the cause of the hepatitis from which their daughter had died in order to establish if the public hospital service was guilty of gross negligence. They maintained that they had been unlawfully deprived of the opportunity to make their own submissions on that point to the expert, submitted that the administrative court’s judgment and Professor Guilmet’s report should be set aside and asked the Court of Appeal to order that the report be removed from the case file and that a fresh one be produced.
On 17 May 1990 the CHRN produced a pleading in reply, to which the applicants replied on 12 December 1991.
22. The Nancy Administrative Court of Appeal held a hearing on 13 February 1992, and on 5 March 1992 it gave the following judgment:
"...
Where a court finds that an expert report has been produced in an irregular manner, it is not bound by any legal provision or general principle of law to order its removal from the case file and direct that a new report be drawn up. The fact that the expert report ordered did not comply with the adversarial principle as regards a party to the proceedings could not therefore prevent the judges at first instance from relying, in order to rule on the merits, on the facts in the report which they considered were not disputed by the applicants or were not seriously challengeable.
Mr and Mrs Mantovanelli had been given the expert report, which mentions all the evidence it is based on, and could therefore have challenged it but they have raised no valid objections to the findings or assessments in it. If they thought it inadequate, it was their responsibility to specify the points on which they considered further inquiries into the facts to be necessary. As they did not raise such an objection, the administrative court quite rightly held that, in view of the uncontradicted statements in the report, no gross negligence could be imputed to the hospital centre.
It is clear from the foregoing that Mr and Mrs Mantovanelli are not justified in maintaining that the Nancy Administrative Court was wrong to dismiss their action in the impugned judgment.
..."
23. On 14 April 1992 the applicants lodged an application for legal aid with the Legal Aid Office of the Conseil d’Etat, which refused the application on 16 December 1992 on the basis that the grounds for an appeal on points of law were not sufficiently strong. This decision was notified to the applicants on 20 January 1993. They did not bring an appeal on points of law.
24. The former Article R. 123 (now Article R. 164) of the Administrative Courts and Administrative Courts of Appeal Code provides:
"The parties must be given notice by the expert or experts of the dates and times of the steps taken to produce their reports. This notice must be given at least four days beforehand by registered letter.
...
The parties’ submissions during the preparation of the expert report must be recorded in the report."
25. In the Autunes v. Commune de Decazeville judgment of 1 July 1991 (Gazette du Palais, 8-9 April 1992, p. 41) the Conseil d’Etat stated:
"The expert appointed ... to examine Mrs Autunes carried out the medical examination without informing Decazeville Town Council of this beforehand and thus deprived it of the right to make submissions during the preparation of the expert report. That being so, the report was prepared in an irregular manner. That irregularity does not, however, prevent it from being adopted for information or preclude ruling on the merits without having to order a fresh expert report as the town council requested, since the latter was able to submit its observations during the written proceedings that followed the lodging of the report and the Conseil d’Etat now has the necessary information to decide the case.
..."
An irregularity in the preparation of an expert report is, however, a ground for setting aside a judgment where the latter was based on the report (Conseil d’Etat, 28 November 1988, Bruno Pierre Guy, Recueil Dalloz Sirey 1989, no. 129).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1