ITEMID: 001-85726
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NNYANZI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (in case of removal to Uganda);No violation of Art. 8 (in case of removal to Uganda)
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 6. The applicant, who was born in 1965, is a Ugandan national. Her mother and younger siblings live in Kenya. She is the daughter of Evaristo Nnyanzi, who was a government minister in Uganda between 1985 and 1986 and subsequently the TreasurerGeneral of the Democratic Party.
7. The applicant’s father has been detained since 1998 on treason charges. Her father was first arrested in 1986 when the present regime, the National Resistance Movement (NRM), took power. He was ultimately charged with treason and detained. In 1987 she was followed and arrested by two men when she went to visit her father in prison and detained for one day during which she was asked questions about her father’s political life. She escaped after claiming to be unwell and being allowed to visit a local hospital. She subsequently hid at a friend’s house until her father was acquitted and released later in 1987.
8. In October 1996 the applicant’s father disappeared. He was believed to have fled to Kenya, having been warned that he was likely to be rearrested. The family, including the applicant, also went to live in Kenya for a while, but she returned to Uganda in January 1997 hoping that the situation had improved. Towards the end of 1997 she was questioned about her father’s whereabouts and her passport was confiscated. She obtained another passport using her real name but a false date of birth. In July 1998 she again travelled to Kenya and then returned to Uganda.
9. In September 1998 the applicant obtained a ticket and tourist visa for the United Kingdom, originally planning to travel as a tourist.
10. On 21 September 1998 she was at home with family members when plain clothes police officers or soldiers raided the house, looking for evidence. They had brought the applicant’s father with them in handcuffs. The applicant stayed with a friend for a few days and then travelled to the United Kingdom via Germany.
11. On 27 September 1998 the applicant claimed asylum on arrival in the United Kingdom on the basis of her father’s political activities in Uganda.
12. On 21 November 1999 the Secretary of State refused her application for asylum on the ground that she had not herself been involved in any political parties or activities in Uganda and that she had not claimed to have experienced any arrests, detention or significant problems from the time of her father’s release in 1987 until the claimed raid on her home in September 1998. This was considered to be evidence that she would not be of any adverse interest to the Ugandan authorities. Furthermore, she had used the passport she had obtained from the Ugandan authorities through the correct channels in the name of Evelyn Allen Nakato to leave Uganda without apparent difficulties, having previously used this passport to visit Kenya in 1998 for a holiday after which she had returned to Uganda. Despite her claims that her passport in the name of Evarista Nnyanzi had been confiscated earlier by the authorities and that the date of birth on the passport with which she had left Uganda was false, the names were ones which she used and which her parents had given her and she had submitted letters of residence to obtain the passport from the authorities. It was considered that she would not have been able to leave Uganda through normal immigration channels had she been of any particular or adverse interest to the authorities.
13. On 5 July 2000 a Special Adjudicator dismissed the applicant’s appeal against the Secretary of State’s decision to refuse her asylum claim. He found that there was no evidence that she had been deeply associated with her father’s political activities. She held no personal political opinion, had not been politically active and had given no evidence at the hearing to demonstrate that she was any closer to her father than any other family members. Her arrest in 1987 had not occurred because of any imputed political opinion but was rather to inquire about her father. Following her release the authorities had shown no further interest in her. After returning from Kenya in 1997 she continued to live at home and was thus easy to locate. The applicant’s assertion that she was believed by the authorities in Uganda to be involved in rebel activities and to assist her father politically was emphatically rejected.
14. On 26 September 2000 the Immigration Appeal Tribunal (IAT), by a majority of two to one, refused her appeal against the determination of the Special Adjudicator. It found that the Special Adjudicator was not correct in stating that there was no evidence of individuals being at risk of persecution because of the political activities of their relatives, as he should have considered and made a finding on a letter from the Democratic Party before him which contained evidence to the contrary. The Special Adjudicator had also erred in stating that the applicant had claimed to have been followed but never accosted or apprehended after she returned from Kenya in 1997 and it would have been better if he had referred to the applicant’s claim to have gone into hiding when concluding that the authorities had shown no further interest in her after her release. Though the applicant was a credible witness and events in Uganda had given rise to a genuine fear of persecution on her part, she had not been seriously ill-treated when detained for a short time in 1986 and questioned about her father’s political activities. Her representative had conceded at the hearing that she had not been subjected to past persecution. There was no evidence that the authorities were looking for the applicant in the period between her being questioned and her father’s release in 1987. However, it was noted that this may have been because she was in hiding. After the applicant’s father disappeared in October 1997 there was a period before she went to Kenya during which the authorities could have found her at her home and arrested her if they had wanted to do so. They could have arrested her at any time between her return to Uganda in January 1997 and September 1998, except for a brief period from July 1998 during which she returned to Kenya. During this period, the applicant believed that she was being watched and followed. If this was the case and the authorities had as serious an interest in her as she claimed, it was difficult to understand why they had not arrested her. Whilst in late 1997 she was accosted by two men who asked her if she knew where her father was and confiscated her original passport, they did not arrest her or subject her to the persecution she claimed to fear. If she was correct and the authorities were looking for her father they were as likely to obtain information from her during that period as they would be during the period after he was detained.
15. The IAT also dismissed the applicant’s assertion that the authorities believed her to be involved in rebel activities and to have assisted her father politically. It considered that the authorities could have arrested the applicant either during the periods outlined above or in September 1998, when they brought her father to the house in handcuffs when she was present. There was no claim that the applicant or any other member of the family present at that time had been arrested. The evidence showed that the only real interest the authorities had in the applicant was in discovering her father’s whereabouts. They no longer needed this information since he was in custody. Though the applicant sought to argue that the Ugandan authorities might still wish to obtain information from her, which would assist the conviction of her father or his associates, it was likely that they were looking for incriminating evidence when they searched the home in September 1998. However they did not arrest the applicant. Having regard to the country information reports, the tribunal also found that there was no evidence that family members of political opponents were negatively associated or as a result persecuted in any way.
16. The two-member majority of the IAT did not find that the applicant had established a reasonable degree of likelihood that, as a family member of an opposition politician, she would herself be at risk of persecution. The minority member, however, considered that the applicant, because of her father’s political position, would be perceived by the Ugandan Government as a political opponent. Moreover, the Government might attempt, by use of force if necessary, to obtain evidence from her to be used against her father at trial. The majority of the IAT recommended on humanitarian grounds that the Secretary of State reconsider the applicant’s position, in the light of her genuine subjective fear of returning to Uganda.
17. On 16 October 2000 the IAT refused the applicant permission to appeal to the Court of Appeal on the basis that the grounds of appeal did not disclose any arguable point of law.
18. By a letter dated 13 February 2001 the applicant made further representations to the Secretary of State claiming that her removal from the United Kingdom would be a breach of the latter’s obligations under Articles 3, 5, 8, 9 and 10 of the Convention and the Human Rights Act 1998.
19. By a letter dated 4 June 2001 the Secretary of State rejected these representations, inter alia, on the basis that the Special Adjudicator and IAT had addressed all the reasons in their determinations and that the concerns raised under Article 8 in relation to difficulties the applicant might suffer in Uganda did not engage the United Kingdom’s obligations.
20. On 11 January 2005 an Adjudicator refused the applicant’s human rights appeal under section 65(1) of the Immigration and Asylum Act 1999 (“1999 Act”, see paragraph 27 below). He was of the opinion that as the applicant’s claim had been considered and dismissed by both a Special Adjudicator and the IAT, albeit on a majority decision, he needed to consider whether there were any circumstances that had arisen since the date of the IAT’s decision that would provide exceptional circumstances sufficient to engage Article 3. Though the current conditions in Uganda were certainly no better than they were at the time the applicant had left the country, there was nothing to suggest that they had seriously deteriorated or that the position of her father had worsened. The Adjudicator noted that the applicant’s cousin had informed her that the remainder of her family were well in Uganda and that her legal representative had conceded that there was no emphatic ground to contend that Article 3 would be breached should the applicant be returned to Uganda. He further observed that, with commendable honesty, the applicant’s legal representative had accepted that the Article 3 claim would be hard to uphold and had rather sought to concentrate on the Article 8 claim. As regards the applicant’s submissions under Article 8, the Adjudicator found that the applicant had established a private and not family life in the United Kingdom as the relationship she enjoyed with a male friend did not constitute family life. Though she had established a private life during her stay in the United Kingdom in excess of six years, revolving around her employment in a church and her accountancy studies, her removal to Uganda, however sympathetic one might be to her circumstances, would not be disproportionate.
21. In mid-February 2005 the applicant was detained with a view to effecting her removal from the United Kingdom and removal directions were set for her return to Uganda on 19 February 2005.
22. On the evening of 18 February 2005 the applicant’s solicitors obtained an injunction from a High Court judge over the telephone restraining the Secretary of State from removing the applicant from the United Kingdom.
23. On 19 February 2005 the applicant issued an application for permission to apply for judicial review of her removal directions on the basis that her removal would be in breach of her rights under the Convention.
24. By an order dated 1 April 2005, the applicant’s application for permission to apply for judicial review was refused by a High Court judge following consideration of the documents. The judge refused the application holding that it was an abuse of process and merely an attempt to frustrate her removal directions since there had been no application for permission to appeal against the Adjudicator’s determination dated 11 January 2005.
25. By a letter dated 27 March 2006 the Secretary of State refused the applicant discretionary leave to remain in the United Kingdom and found that the applicant’s further submissions did not amount to a fresh claim. All the points raised in her submissions had already been addressed when the applicant’s earlier claim had been determined and they were not significantly different from the material that had previously been considered. The applicant’s fears that she might be detained, tortured or subjected to degrading treatment given the manner of her escape were considered speculative as she had provided no evidence to support this claim. The applicant had failed to provide any evidence that the Ugandan authorities were of the opinion that she could assist them with any inquiries regarding her father. No new or compelling evidence had been provided. Article 8 had already been considered during her appeal against the refusal of her human rights application and all the issues she had raised in her current representations had also been raised before and considered thoroughly by the Adjudicator. Furthermore, the applicant had the opportunity to apply for permission to appeal against the Adjudicator’s determination of 11 January 2005 but had failed to do so.
26. Following the application of Rule 39 and communication of this case to the Government for their observations, the applicant was released from detention and granted temporary admission into the United Kingdom, with a requirement to report on a fortnightly basis. The Government confirmed in writing that, as a result of the Rule 39 indication, the applicant would not be removed from the United Kingdom pending the conclusion of the proceedings before the Court.
27. Paragraph 23 of the Immigration and Asylum Act 1999 (“1999 Act” in force at the relevant time) provided:
“(1) If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination.
(2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court.
(3) “Appropriate appeal court” means—
(a) if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and
(b) in any other case, the Court of Appeal.”
28. Section 65 under Part IV of the 1999 Act stipulates as follows:
“(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997.
(2) For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the [1998 c. 42.] Human Rights Act 1998.
(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.”
29. Paragraph 22 (1) of Schedule 4 to the 1999 Act provided:
“(1) Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under section 71 (removal of asylum claimants to safe third countries), to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
(2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made.”
30. Section 82 of the Nationality, Immigration and Asylum Act 2002 (“2002 Act”) reads, as relevant:
“1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part “immigration decision” means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act...”
31. Section 101 of the 2002 Act states that:
“A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.”
32. Regulation 3 of the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (“Commencement Order 2003”) provided:
“(1) Subject to Schedule 2, the new appeal provisions are not to have effect in relation to events which took place before 1 April 2003 and notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events.”
33. Regulation 4(3) of the Commencement Order 2003 specified that an event had taken place under the old Immigration Acts where inter alia (a) a notice was served or (b) a decision was made or taken.
34. The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) (Amendment) (No. 2) Order 2003 (“Commencement Amendment Order 2003”) amended the Commencement Order 2003. Article 4, which came into force on 9 June 2003, amended the transitional provisions for appeals by applying sections 101(1) to (3), 102 and 103 of the 2002 Act (which relate to further appeals by a party to an appeal to an Adjudicator, and to statutory review of decisions of the Immigration Appeal Tribunal upon applications for permission to appeal against an Adjudicator’s determination) in relation to an appeal under Part IV of the 1999 Act which was determined by an Adjudicator on or after 9 June 2003.
35. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
36. Paragraph 3.7.12 of the Home Office Operational Guidance Note on Uganda issued on 15 January 2007 states:
“Despite the relaxation on the rules governing political parties and the move towards multi-party politics, opposition political parties continued to face restrictions on their ability to assemble and organise and their supporters were subject to harassment and sometimes ill-treatment by the authorities. Some opposition supporters were detained by the security forces and some face charges of treason. However, others who were similarly detained were released without charge. In some cases particularly those of prominent members of political parties or those accused of treason who have been detained for long periods of time and who have suffered illtreatment at the hands of the Ugandan authorities a grant of asylum or Humanitarian Protection may be appropriate. However, in other cases such as that of a low level activist detained for few days and then released without charge the harassment suffered will not reach the level of persecution or breach Article 3 of the ECHR and therefore they will not qualify for grant of asylum or Humanitarian Protection.”
37. The U.S. State Department (USSD) Report on Human Rights Practices in Uganda released on 8 March 2006 states at paragraph 1(f) that:
“There were reports that the government punished family members of suspected criminals and political opposition members.”
However the next USSD Report on Uganda released on 6 March 2007 explains at paragraph 1 (f) that:
“Unlike in the previous year, there were no reports that the government punished family members of suspected criminals and political opposition members.”
38. The Immigration and Refugee Board of Canada’s report entitled “Uganda: Treatment of family members of political opponents and suspected members of rebel movements such as Allied Defence Forces (ADF) and the Lords Resistance Army (LRA)” published on 4 October 2000 cites the following incident:
“A mother of an alleged ADF rebel chief, Jamil Mukulu, whom security forces questioned several times regarding her son’s whereabouts, was reportedly harassed and tortured by members of the Directorate of Military Intelligence (The Monitor 16 August 1999).”
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-93308
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DURECH AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. Mr. Július Ďurech and Mr Pavol Ďurech were born in 1933 and 1940 respectively and live in Prešov. Ms Marta Máthéová was born in 1930 and lives in Košice. The applicants are siblings.
5. On 7 October 1987 the applicants requested a judicial determination of their ownership title to a house.
6. The first-instance court delivered judgments on 18 November 1987, 25 October 1988, 5 June 1990, 4 July 1995 and 3 March 1997. The court of appeal quashed those judgments on 26 May 1988, 22 December 1988, 28 February 1991, 5 March 1997 and 29 October 1999 respectively.
7. On 28 January 2004 the Constitutional Court found that the Košice II District Court had violated the applicants’ right under Article 6 § 1 of the Convention to a hearing within a reasonable time.
8. The Constitutional Court had jurisdiction to examine the length of the proceedings as from 15 February 1993, but it had regard to the stage which the proceedings had reached by that date. The case was not complex and the applicants by their conduct had not caused any delay. The overall length of the proceedings was in itself incompatible with the applicants’ right to a hearing within a reasonable time.
9. The Constitutional Court ordered the District Court to proceed with the case without further delay. It also awarded 100,000 Slovakian korunas (the equivalent of 2,465 euros at that time) to each applicant as just satisfaction in respect of non-pecuniary damage. The Constitutional Court ordered the District Court to reimburse the applicants’ costs.
10. On 1 February 2005 the District Court delivered a judgment. The Košice Regional Court quashed that judgment on 14 November 2005 on the ground that the District Court had failed to assess the relevant evidence and to give sufficient reasons for the conclusion reached.
11. On 28 November 2006 the District Court found against the applicants. The judgment was upheld on appeal by the Regional Court on 30 April 2008. The decision was served on the applicants’ lawyer on 2 July 2008.
12. On 24 November 2008 the applicants asked the Prosecutor General to lodge an extraordinary appeal on points of law against the above final decision on their behalf. No further information has been made available.
VIOLATED_ARTICLES: 6


ITEMID: 001-22153
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: EID v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Edward Eid, was born in 1958 and lives in Toledo (United States of America). He has double nationality (American and Lebanese).
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 29 August 1996 the applicant was arrested in Italy in execution of a warrant issued by the Michigan District Court on 5 November 1993. The applicant had been sentenced in the United States to forty-six months’ imprisonment for drug smuggling and money laundering.
A hearing before the Rome Court of Appeal was scheduled for 31 August 1996. On that occasion the applicant was assisted by a lawyer and an interpreter.
By an order of 31 August 1996, the Rome Court of Appeal validated the applicant’s arrest and placed him in detention with a view to extradition. It observed that the American authorities had declared their intention to apply for the applicant’s extradition according to the Bilateral Extradition Treaty between Italy and the United States of America (signed on 13 October 1983 and ratified by Italian law n° 225 of 26 May 1984). Taking into account the fact that the applicant had absconded for at least three years, the Court of Appeal considered that a restrictive measure was necessary to prevent him from fleeing pending trial. This decision was served on the applicant on 18 September in its Italian version only.
In the meantime, on 4 September 1996, the applicant was heard by a magistrate of the Rome Court of Appeal. He declared that he did not accept extradition to the United States.
On 14 October 1996 the applicant personally introduced a claim for immediate release before the Rome Court of Appeal. This claim, drafted in Italian, was based on Article XII of the Bilateral Extradition Treaty, according to which the provisional arrest of a person to be extradited should be revoked if an extradition request was not lodged with the competent executive authority within a forty-five day time-limit.
By an order of 16 October 1996, the Rome Court of Appeal dismissed the applicant’s claim. It observed that on 12 October 1996 the American authorities had filed with the Ministry of Foreign Affairs a request for the applicant’s extradition. The time-limit laid down in Article XII of the Bilateral Extradition Treaty had therefore been complied with. This order was served on the applicant on 29 October 1996.
On 9 November 1996 the applicant appealed on points of law. He alleged that the term “executive authority” contained in Article XII § 4 of the Bilateral Extradition Treaty could not be understood as a reference to the Ministry of Foreign Affairs, and considered that the request for his extradition should have been lodged with the Ministry of Justice or with the Court of Appeal itself. He also maintained that there was no evidence that the extradition had actually been requested.
The result of this appeal is not known.
On 17, 23, 28, 29 and 31 October, as well as on 2, 4, 5 and 9 November 1996, the applicant personally lodged a number of claims, drafted in English, with the Rome Court of Appeal. Invoking inter alia Articles 3, 5 § 2, 6 § 3 (a) and (d) of the Convention, he alleged that his arrest and detention were tantamount to torture or inhuman treatment, that none of the official documents concerning his deprivation of liberty had been translated into English and that he should be immediately released. He also observed that the doctor attached to the prison was unable to deal with his nerve, back and chronic ulcer problems and requested a visit from a specialised doctor, assisted by an interpreter, or a transfer to a private hospital for clinical tests. The applicant also requested the attendance and examination of a number of witnesses who could have testified that the United States wished to punish him by reason of his political beliefs.
On 11 November 1996 the applicant, relying inter alia on Articles 6 § 3 (b), (c) and (e) and 14 of the Convention, requested permission to defend himself in person, to have adequate time and facilities for the preparation of his defence, to have the free assistance of an interpreter and not to be discriminated against on grounds of language and national origin.
By an order of 12 November 1996, the Rome Court of Appeal declared the applicant’s claims inadmissible as they had been drafted in a foreign language. It observed that, according to the relevant provisions of the Code of Criminal Procedure (hereinafter the “CCP”), a person should be assisted by an interpreter at the trial hearing and that the only material which should be translated was that addressed to the person to be extradited or made in front of him or her by the authorities. No free translation was provided when, as in the present case, the person to be extradited was addressing, almost on a daily basis, various different claims to the judicial authorities. In any case, the person to be extradited was entitled, under Italian law, to the assistance of an Italian-speaking lawyer and/or to the consular assistance of his or her own Embassy. On 29 November 1996 this decision was served on the applicant in its Italian and English versions.
On 11 December 1996 the applicant appealed on points of law to the Court of Cassation against the order of 12 November 1996, which he considered to be discriminatory in nature and based on a misinterpretation of the CCP and the Convention. He also alleged that he had never been offered consular assistance from the United States Embassy. The result of this appeal is not known.
In the meantime, on 26 November 1996 the applicant personally introduced a claim, drafted in Italian, before the Rome Court of Appeal. He requested the appointment of a lawyer, the assistance of an interpreter and the translation of the Criminal Code (hereinafter, the “CC”), of the CCP and of all the documents received up to then.
By an order of 3 December 1996, the Rome Court of Appeal rejected this claim, pointing out that the applicant had already been provided with an English translation of all the relevant legal acts and that an interpreter had been appointed for the hearing on extradition scheduled for 19 December 1996. It also observed that the applicant was already assisted by a lawyer of his own choosing, who had a thorough knowledge of the Italian language. Italian law did not provide for the translation of the CC or the CCP. This decision was served on the applicant in English.
The hearing scheduled for 19 December 1996 was postponed. On 30 January 1997, the Rome Court of Appeal requested the American authorities to provide evidence showing that the charges against the applicant were not time-barred.
The hearing on the extradition request before the Rome Court of Appeal was scheduled for 17 April 1997. A copy of the summons for trial was served on the applicant in its English version. At the public hearing the applicant declared that the real aim of the extradition was to persecute him because of his political opinions.
By a judgment of 17 April 1997, filed with the registry on 12 May 1997, the Rome Court of Appeal ruled in favour of the applicant’s extradition in relation to the charge of financial transaction of goods originating from drug trafficking. It observed that the applicant had been convicted in the United States (on the basis, inter alia, of his confession) only for that crime and not, as wrongly indicated in the order of 31 August 1996, for drug trafficking. As to the merits of the request, the Court of Appeal noted that, according to the relevant provisions of the Bilateral Treaty, the American authorities had provided a copy of the applicant’s conviction and of the subsequent warrant for his arrest, a full description of the facts for which the extradition was requested and of their legal qualification in the American system. Moreover, nothing in the file showed that the extradition was aimed at persecuting the applicant on racial, religious or political grounds. As regards the alleged time-bar on the charge, it appeared from the documents produced by the American authorities that United States law prohibited the execution of a penalty only if the formal accusation was made more than five years after the date on which the offence had allegedly been committed. However, the crime for which the applicant’s extradition was requested had been committed on 19 February 1988, while the formal indictment had been issued on 1 February 1993. Therefore, the five year time-limit had not expired.
On 6 June 1997, this judgment was served on the applicant in its Italian and English versions.
The applicant appealed on points of law.
By an order of 4 September 1997, the Court of Cassation scheduled the hearing for 10 October 1997 and appointed a legal representative. This order was served on the applicant in Italian on 5 September 1997.
On 13 September 1997 the applicant requested the Court of Cassation to appoint an interpreter for the hearing of 10 October 1997. The proceedings were subsequently adjourned until 5 December 1997. The applicant alleges that on that date he was refused the assistance of a lawyer and/or of an interpreter.
By a judgment of 5 December 1997, the Court of Cassation rejected the applicant’s appeal.
On 6 December 1997 the applicant requested the Court of Cassation to declare that the extradition procedure was null and void, as he had been denied the assistance of a legal representative and an interpreter. The result of this claim is not known.
On 22 January 1998 the Ministry of Justice granted the United States’ extradition request.
On 27 February 1998 the applicant was extradited to the United States, where he was imprisoned until 23 December 1999, having served his sentence with remission.


ITEMID: 001-108931
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: PANOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Mr Yuriy Nikolayevich Panov, is a Russian national who was born in 1958 and lives in Sankt-Peterburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the 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.
On 27 May 1998 the Volkhovskiy Town Court of Leningrad Region ordered the applicant’s reinstatement at work as the managing director of a private company OOO “Valgomka” and awarded him payments of lost earnings, arrears on salary, vacation allowance, and compensation for psychological distress. Subsequently, the applicant submitted the writ of execution to the Bailiff’s Service of Volkhov and on 13 July 1998 the enforcement proceedings were initiated.
On 7 July 2002 the Volkhovskiy Town Court of Leningrad Region acting on the applicant’s complaint against the alleged inaction of the bailiffs ordered the Bailiff’s Service of Volkhov to enforce the abovementioned judgment.
On 6 December 2002 he was reinstated at work as the managing director of a private company OOO “Valgomka”. On 13 October 2004 the Federal Bailiff’s Service for the Volkhov District terminated the enforcement proceedings concerning the remainder of the judgment due to bankruptcy of the debtor.


ITEMID: 001-101213
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ZLATEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Zlati Svetoslavov Zlatev, is a Bulgarian national who was born in 1946 and lives in Aksakovo. He was represented before the Court by Mr B. Tsvetkov, a lawyer practising in Varna.
The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date a preliminary investigation for robbery was opened against the applicant. He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on 23 and 24 October 1991. On an unspecified date the preliminary investigation was suspended.
The preliminary investigation was resumed on 28 March 1996 and then again suspended on 30 April 1996.
The preliminary investigation against the applicant was again resumed on 23 February 1999. On an unspecified date in 1999 it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator.
The applicant was never formally charged with an offence.
In the course of the search of the applicant's apartment on 23 and 24 October 1991 the investigating authorities seized various items, such as a helm, an electric sander, a car radio, a stereo, thirty-two turbot fishing nets, three goby fishing nets, five bluefish and shad fishing nets, two fishing hooks, a car battery, six life jackets, a leather bag, nine signal rockets and a reversible boat coupling. According to the applicant the items were either new or of high quality. The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant.
On the instructions of the Varna district public prosecutor's office of an unspecified date part of the seized items were returned to four individuals who had reported them stolen and from whom they had apparently been stolen. The items were returned to their owners only after the authorities had verified the owners' claims on the basis of ownership documents and identification checks. The said transfers were effected on 27 November 1991, 8 and 16 January 1992 and 12 April 1996.
On 17 March 1999 the Varna regional public prosecutor's office invited the applicant to receive the remainder of the items in their possession. He refused to accept them as he claimed that most of the items were either missing, had been replaced with similar such of lower quality or had become unusable for their intended purpose.
On 4 June 1999 the Varna Regional Investigation Service invited the applicant to receive the helm. It is unclear whether he did so.
On an unspecified date in 1999 the applicant initiated an action for damages under section 2 (2) of the State Responsibility for Damage Caused to Citizens Act of 1988 (renamed on 12 July 2006 to the State and Municipalities Responsibility for Damage Act: “the SRDA”).
The applicant sought compensation in the amount of 22,453 Bulgarian levs (approximately 11,514 euros) for the missing, lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated. The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment, the preliminary investigation against him should also be considered to have been unlawful and subject to compensation, including, in particular, the damage resulting from the conducted search and seizure of his possessions.
In a judgment of 17 August 2001 the Varna Regional Court found that the applicant had no right of action under the SRDA against the authorities because he had never been indicted for an offence and, therefore, no liability arose for the investigation and the prosecution authorities under section 2 of the Act.
The applicant appealed against this judgment on 21 September 2001 arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him, such as the search and seizure of his possessions.
In a judgment of 19 February 2002 the Varna Court of Appeal found against the applicant and upheld the lower court's findings that he had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act.
On 19 March 2002 the applicant filed a cassation appeal against the judgment of the Varna Court of Appeal. He argued that the State's liability under the Act arose from the fact that there had been a preliminary investigation against him for robbery, subsequently discontinued, which amounted to having been subjected to unlawful criminal proceedings.
In a final judgment of 30 July 2003 the Supreme Court of Cassation found against the applicant and upheld the lower courts' judgments. It also found that the applicant had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. In so far as the applicant had never been charged, but had only been questioned as a suspect and then as a witness, the court found that no liability arose for the authorities in question. Moreover, the Supreme Court of Cassation noted that the investigation and the prosecution authorities could also not be held liable under the Act for any of their actions or inactions related to the safekeeping of the seized items.
The relevant domestic law and practice have been summarised in the judgments in the cases of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-45, 10 January 2008) and Atanasov and Ovcharov v. Bulgaria (no. 61596/00, §§ 30-42, 17 January 2008).


ITEMID: 001-95376
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ORAVECZ v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1950 and lives in Budapest.
5. Dismissed from the civil service, the applicant brought an action against the Budapest Municipality in August 1996. He sought reinstatement and compensation.
6. After several hearings, on 3 March 2004 the Budapest Labour Court partly found for him. On 20 October 2004 the Budapest Regional Court dismissed his appeal. On 16 February 2005 the Supreme Court dismissed his petition for review.
VIOLATED_ARTICLES: 6


ITEMID: 001-59722
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BRENNAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 and 6-3-c as regards deferral of access to lawyer;No violation of Art. 6-1 and 6-3-c as regards police interviews;Violation of Art. 6-3-c+6-1 as regards presence of police officer during interviews;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was arrested in the early morning of 21 October 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 in Strabane by police officers of the Royal Ulster Constabulary (“the RUC”) investigating the murder of a former member of the Ulster Defence Regiment. The applicant was transported to the special holding centre for terrorist investigations at Castlereagh, Belfast.
9. The applicant was interviewed for thirty-five hours on consecutive days by RUC police officers, beginning at 11.01 a.m. on 21 October until 25 October.
10. At the time when the applicant was arrested (1.50 a.m. on 21 October), there was an initial decision made to defer the applicant’s access to a solicitor by Superintendent M., the police officer in charge of the investigation. He communicated this decision to Castlereagh police station by telephone and confirmed this in writing when he arrived in Castlereagh. The applicant had by this time arrived in Castlereagh and had requested a solicitor. At a review at 9.15 p.m. on 21 October 1990, the applicant was informed that his right to see a solicitor had been delayed for twenty-four hours. The deferral was therefore effective until the morning of 22 October. His solicitor, Mr Fahy, was informed of the deferral but did not attend until 12.10 p.m. on 23 October. There was a period of time from early morning on 22 October when the applicant was not being denied access to his solicitor. He made relevant admissions that afternoon.
11. The applicant did not see his solicitor until the next day, namely 23 October. The applicant’s first interview with his solicitor lasted forty minutes until 12.50 p.m. and the applicant made no complaint of ill-treatment during that visit. The applicant saw his solicitor again at 3.15 p.m. on 25 October and again no complaint of ill-treatment was made in that interview, which lasted until 4.00 p.m. During the first interview with his solicitor, a policeman was present. The consultation took place within sight and hearing of the police officer who was in close proximity to the applicant and his solicitor. At the beginning of the interview, the police inspector told the solicitor in the presence of the applicant that no names were to be discussed or information conveyed which could assist other suspects and that the interview should be purely on legal advice.
12. The applicant was seen by doctors on a total of eight occasions during his stay in Castlereagh, beginning with an examination following his arrival in Castlereagh in the early morning of 21 October 1990. He made no complaint of ill-treatment to any of the doctors who examined him. The doctors found no evidence to indicate any ill-treatment or mental handicap.
13. The police alleged that the applicant admitted his involvement in the murder during an interview in the afternoon of 22 October. They further stated that in a later interview the applicant signed a statement to this effect and that thereafter he freely and voluntarily admitted additional terrorist activity and signed further statements.
14. The applicant alleged that he had not volunteered the statements freely but, instead, that all the verbal and written statements had been extracted by ill-treatment, threats of ill-treatment, threats to his family and other oppressive conduct. The allegations of ill-treatment were denied by the RUC.
15. All of the verbal and written statements made by the applicant had been obtained by the police officers after the administration by them of cautions pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms:
“You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.”
16. The applicant’s solicitor was never permitted to be present at any of the applicant’s interviews, nor was any independent person; nor were the interviews recorded on video or audiotape.
17. On 25 October 1990, at 7.30 p.m., the applicant was transferred from Castlereagh to Strandtown RUC station, where he was charged.
18. On 14 October 1993 the applicant was tried by a single judge, McCollum J, sitting without a jury, for a total of eighteen serious offences including, inter alia, murder, attempted murder, possession of firearms and ammunition with intent, possession of explosives with intent, false imprisonment, hijacking a motor vehicle, and membership of a proscribed organisation, namely the Provisional Irish Republican Army (the “IRA”). He was found guilty on all counts.
19. The disputed verbal and written statements by the applicant constituted the only evidence connecting the applicant to the charges brought. The admissibility of the statements was challenged by the applicant on the basis that they had been obtained by torture and inhuman or degrading treatment or, alternatively, should be excluded in exercise of the judge’s discretion. A voir dire (submission on a point of law in the absence of the jury) commenced and the applicant gave evidence over ten days which consisted of a highly detailed account of ill-treatment which he alleged he had experienced from the police. The officers denied ill-treating the applicant.
20. The events in the interviews had been filmed by television camera and the pictures relayed to a monitor screen in a special room at Castlereagh police station. At all times, an officer of the rank of inspector was on duty for the purpose of viewing the monitor screens. A number of officers gave evidence and all of them told the court that they had seen no evidence of impropriety of any kind occurring during the interviews with the applicant. Indeed, none of them had ever witnessed an example of bad behaviour by an interviewing officer.
21. The doctors, who examined the applicant a number of times in Castlereagh, gave evidence that the applicant had been cooperative and composed, that there were no signs of recent injuries and that the applicant did not complain of ill-treatment. Treatment had been given to the applicant in respect of his history of duodenal ulceration.
22. The applicant’s account of the interrogation was rejected by the trial judge, who said:
“Having heard the officers concerned who impressed me as being honest and conscientious officers, I am absolutely convinced that all of [the applicant’s] allegations of ill-treatment at this stage are completely unfounded ...
In my view if there had been any truth in the account of ill-treatment given by [the applicant] his distress would have been obvious to the doctors ... None of the medical evidence therefore gave any credence to the account given by [the applicant] in the witness box and all of that evidence is consistent with his being treated with absolute propriety ...
... I am satisfied ... that in no respect was [the applicant] subjected to any treatment which could be described as torture or inhuman or degrading treatment, violence or oppression in order to induce a confession from him. I am satisfied that he was not threatened in any way.”
23. At the trial, there was unchallenged independent medical evidence to the effect that:
1. The applicant had a full-scale intelligence quotient of 72.
2. The applicant was on the borderline of mental retardation.
3. The applicant had a reading ability equivalent to that of an average 10-year-old child.
4. His suggestibility was average but he had a high level of compliance.
24. Evidence was given later in the trial by a psychologist that
“[the applicant] is a psychologically vulnerable man and in my view would have required appropriate support in the context of police interviews. [The applicant’s] psychological vulnerabilities taken together with the lack of support from either the Solicitor or an appropriate adult during the police interviews and the prolonged and intensive nature of the interviews would in my opinion be of relevance to the reliability of his admissions”.
25. In convicting the applicant, the judge rejected this evidence, finding that the applicant had not needed any form of independent support during the interviews and the police had been entitled to treat him as an ordinary member of society. He noted that the applicant’s earliest admissions did not follow particularly prolonged or intensive questioning and that during those interviews he persisted with a consistent story told with an air of conviction. He also noted that no one thought to have the applicant’s mental capacity investigated prior to the commencement of the trial. The trial judge stated:
“... I am satisfied that [the applicant] was not suffering from such a degree of mental handicap that would have required the police to exercise any special consideration for him and that his memory, understanding and intellect were quite adequate to enable him to resist making any false confession under questioning in Castlereagh and that the questioning was, therefore, not in any respect unfair to him.
If he was an easier subject than others or more manageable I do not consider that that would be a matter which throws any doubt on the admissibility of any statements of confessions made by him”.
26. The police questioning which led to his confessions was therefore not unfair and the judge had no doubt about the reliability of the admissions made by the applicant.
27. In relation to the question of access to a solicitor, the judge observed that the deferral of twenty-four hours was effective until the morning of 22 October 1990. However, the applicant’s solicitor did not arrive until 12.10 p.m. on 23 October. The trial judge noted that there had been a suggestion that the solicitor may have been unintentionally misled as to the length of time of the deferral but found, having heard the solicitor and police officers concerned, that he was satisfied that the solicitor was accurately informed that the deferral was for twenty-four hours. He further noted that it might well have been convenient for the solicitor to delay his visit to Castlereagh until the next day because a number of other prisoners had had access deferred until then. In any event, it was not the deferral which prevented the applicant from seeing his solicitor after sometime early in the morning of 22 October but the fact that his solicitor did not arrive until 23 October. Incriminating admissions were made by the applicant at a time when he was no longer being denied access to a solicitor. The judge concluded that there was nothing improper in the decision to deny access for twenty-four hours, having regard to the police fears that messages might be passed through the solicitor with a view to alerting others implicated in offences.
28. The trial judge stated, inter alia:
“Having considered the extent of the strength of character of the accused, his intellectual shortcomings and his nature I am quite satisfied that he was not a person for whom the regime of questioning in Castlereagh would of itself be oppressive ...
I am further satisfied that nothing was said or done during his questioning the effect of which upon him would justify the exercise of a discretion to exclude the statement ...
I am satisfied that ... his admissions were made freely, and accept the police evidence that what triggered the making of admissions by this accused was the fact that the police were able to demonstrate to him that they had information available to them which discredited the alibi that he had given them ...
In my view the particular circumstances of this case provided ample grounds for the belief that other persons could be alerted if a solicitor had seen this accused within 24 hours. In any case [the applicant] made no admission during the 24 hours for which the solicitor had been deferred.
I am satisfied that the deferral was right and proper in this case and that in any case it was not the deferral that resulted in the accused not seeing his solicitor during the early part of 22 October.”
29. The judge further considered the applicant’s complaints that a police officer had been present during the first legal consultation with his solicitor and whether this had prevented him getting the full benefit of his solicitor’s advice. Evidence had been heard from the police inspector concerned who had stated that the purpose of sitting in to observe the interview was primarily to prevent information from being passed from the prisoner to the solicitor which might assist others suspected of involvement in the offence who had not yet been arrested. Under cross-examination, he stated that he had not been told of any codes that might be used and that it would be hard to identify such a code if it was used. The judge found, on the evidence of the applicant, his solicitor and the police officer, that the solicitor had not been in the least inhibited by the presence of the police officers and, according to the applicant, had been quite prepared to raise the crucial evidential issues with him. He was satisfied that an objective state of affairs existed justifying both the initial deferral of access and the supervision of the interview, namely, two other suspects were still at large whom the police wished to interview.
30. The judge concluded that he was satisfied beyond reasonable doubt that the confessions were made freely and voluntarily. There was no ground for exercising his discretion to exclude any of the oral or written statements made by the applicant. The judge was accordingly satisfied that the applicant knew that he was playing a part in a murder plot and was therefore, inter alia, guilty of murder.
31. The applicant appealed against conviction and sentence to the Court of Appeal of Northern Ireland. The Court of Appeal noted that the inspector had authorised the postponement of access to a solicitor before the applicant had made a request for a solicitor, which was in technical breach of the statutory provision. The Court of Appeal noted that there was no express sanction for breach of that provision. However, there was nothing unfair to the applicant as the deferral ran from the time of the arrest whenever the authorisation was given. The Court of Appeal was satisfied that substantial reasons existed for the police to postpone access to a solicitor in this particular case pursuant to section 45(8)(b) and (e) of the Northern Ireland (Emergency Provisions) Act 1991. In a judgment of 24 September 1996, the court dismissed the applicant’s appeal stating, inter alia:
“We have no doubt that the learned trial judge was at all times aware of the need to bear the psychological evidence very much in mind when forming his conclusions both at the direction stage and when finally deciding if the Crown had established [the applicant’s] guilt beyond reasonable doubt ...
We are entirely satisfied that the learned trial judge was entitled to refuse the application for a direction [regarding inadmissibility] and to rule the various statements to be admissible ... Equally our perusal of the evidence does not suggest that the learned judge should, in the exercise of his discretion have excluded the statements, or any of them, from evidence ...
This is an appeal in which the evidence was lengthy and detailed. We have carefully considered all the evidence and [the applicant’s counsel’s] closely reasoned submission. We have finally stood back from all the detail and looked at the case ‘in the round’ as [the applicant’s counsel] invited us to do. We are satisfied that [the applicant’s] guilt was fully established by his admission and that his convictions are neither unsafe nor unsatisfactory.”
32. On 28 July 1997 the applicant’s petition seeking leave to appeal to the House of Lords was dismissed.
33. Section 5 of the Northern Ireland (Emergency Provisions) Act 1987 provides in its relevant parts:
“(1) In any criminal proceedings for a scheduled offence, ... a statement made by the accused may be given in evidence by the prosecution in so far as:
(a) It is relevant to any matter in issue in the proceedings and
(b) It is not excluded by the court in pursuance of subsection (2) below or in the exercise of discretion referred to in subsection (3) below ...
(2) Where in any such proceedings:
(a) the prosecution proposes to give, or has given ... in evidence a statement made by the accused, and
(b) prima facie evidence is adduced that the accused was subjected to torture, inhuman or degrading treatment, or to any violence or threat of violence ... in order to induce him to make the statement
then, unless the prosecution satisfies the court that the statement was not obtained by so subjecting the accused, ... the court shall do one of the following things, namely:
(i) ... exclude the statement;
(ii) ... continue the trial disregarding the statement; or
(iii) in either case direct that the trial shall be restarted before a differently constituted court (before which the statement in question shall be inadmissible).
(3) ... in the case of any statement made by the accused and not obtained by subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion to do one of the things mentioned in subsection (2)(i) to (iii) above if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice ...”
34. The Criminal Evidence (Northern Ireland) Order 1988 includes the following provisions:
“(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2)
...
(7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”
“Circumstances in which inferences may be drawn from the accused’s failure to mention particular facts when questioned, charged, ...
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer,
...
(c) the court or jury, in determining whether the accused is guilty of the offence charged,
may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention ...”
35. Section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (formerly section 15 of the 1987 Act) deals with the right of access to legal advice and provides in its relevant parts:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies.
(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section ...
...
(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it –
...
(b) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or
...
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
i. to prevent an act of terrorism, or
ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ...”
36. The delay must be authorised by a police officer of at least the rank of superintendent and the detained person must be told the reason for the delay. The maximum delay is forty-eight hours. The officer may also give a direction that a person may only exercise his right to see a solicitor in the presence of a uniformed police officer, where he has reasonable grounds for believing that otherwise the consequences specified in section 45(8) might arise (see section 45(11)).
37. It was the practice of the police in Northern Ireland at the relevant time to refuse to permit the questioning of interviewees at Castlereagh holding centre to be:
1. witnessed by the interviewee’s lawyer;
2. independently witnessed and verified by any independent person; or
3. to be recorded and verified by video- or audio-recording.
38. The relevant parts of Article 8 provide:
“2. Every person accused of a criminal offence ... is entitled, with full equality, to the following minimum guarantees:
...
(d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.”
39. Article 93 provides:
“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”
40. Article 3 § 2 (c) of this Agreement, currently ratified by twenty-two Contracting States provides in its relevant parts:
“2. As regards persons under detention, the exercise of this right shall in particular imply that:
...
(c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77670
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SZWAGRUN-BAURYCZA v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. On 3 November 1975 the applicant’s parents requested a court to declare that they had acquired by prescription ownership of a plot of land which had been in their possession for more than 15 years. It appears that they were summoned by the court to identify the successors of the original owners and to indicate their addresses. The participation of these persons in the proceedings was necessary to preclude them from invoking their rights after the matter had been decided upon.
10. As the applicant’s parents had failed to establish the addresses of all the persons potentially concerned, the proceedings were stayed on 31 July 1976. The number of persons potentially affected by the outcome of the proceedings amounted at that time to thirty-eight, some of whom resided abroad.
11. On unspecified dates in 1977 the applicant’s parents died and the applicant and her sister inherited their estate.
12. Between 1975 and 1990, some of the original owners of the property or their successors died and the number of persons potentially affected by the outcome of the proceedings (as further successors of the original owners) increased.
13. On 15 October 1990 the applicant, being unable to identify all the successors of the original owners or to indicate their addresses, requested the Ostrów Wielkopolski District Court to publish a press notice summoning persons potentially interested in the outcome of the case and to resume the proceedings.
14. On 17 September 1993 the court decided to appoint a court officer (curator absenti) to represent persons potentially affected by the proceedings but whose addresses were unknown. The court also ordered the publication of a press notice to summon other persons potentially concerned.
15. At a hearing held on 29 April 1994 the court found that some of the other persons already involved in the proceedings had died. The court again instructed the applicant to indicate the addresses of their successors. The applicant failed to do so and by a decision of 13 January 1997 the court refused to resume the proceedings.
16. On 22 February 1999 the applicant again requested the court to resume the proceedings on the merits. Apparently, by that stage fifty-three persons were potentially interested in the outcome of the proceedings.
17. On 25 March 1999 the Ostrów District Court refused to resume the proceedings in view of the applicant’s failure to submit the addresses of all persons potentially affected. The court also decided to discontinue the proceedings, finding that more than three years had elapsed since the date of the last procedural step in the case.
18. On 2 April 1999 the applicant appealed against this decision and on 27 October 1999 the Kalisz Regional Court partly allowed her appeal. In particular, the court found that there were no grounds to discontinue the proceedings as some procedural steps had been taken during the preceding three years even though technically the proceedings had been stayed. Nevertheless, the court decided that the proceedings should remain stayed in view of the applicant’s failure to comply with the court order.
19. On 3 March 1999 the Ostrów District Court again summoned the applicant to indicate the current address of one of the potential litigants and the legal successors of another.
It appears that the applicant did not file with the court the addresses requested and on 2 February 2000 the trial court rendered a decision discontinuing the proceedings. The applicant appealed. On an unspecified date her appeal was allowed.
20. On 18 January 2002 the applicant was again summoned to submit the names and addresses of potential litigants, including one allegedly living in Ukraine, on pain of a stay of the proceedings. On 19 February 2002 the court stayed the proceedings, having regard to the applicant’s failure to indicate the legal successors of five litigants and to give the current addresses of a further seven litigants.
21. On 21 February 2005 the court discontinued the proceedings, having regard to the fact that the applicant had failed to request, within three years, that the stayed proceedings be resumed.
22. On 21 March 2005 the applicant appealed and objected to the obligation to identify and find the legal successors of former owners and to indicate their addresses. She submitted that the case would have been terminated long ago had the appointment of the curator absenti and the publication of press notice been properly used by the court. She requested the court to publish a press notice or appoint a curator again.
23. On 31 May 2005 the court summoned her to pay PLN 160 by way or a court fee for the appeal, to identify the legal successors of another six parties who had died and to submit fifty copies of her appeal. The applicant refused to pay the fee, arguing that she had paid this amount several times, but that this had not led to any progress in the resolution of the merits of the case. She also refused to identify the legal successors or addresses of sixteen persons referred to in the decision of 21 February and the summons of 31 May 2005 and reiterated that she had already repeatedly informed the court that she was unable to do so. She referred to her request to publish a press notice to summon potential parties to join the proceedings by way of a press notice.
24. On 15 June 2005 the court refused to entertain her appeal on the ground that she had refused to pay the court fee and refused to submit fifty copies of the appeal.
25. The applicant appealed against this decision, submitting that in the absence of the addresses of all potential litigants the requirement to submit fifty copies of her appeal was unreasonable because in any event these copies could not be served on them.
26. On 28 July 2005 the court summoned her to rectify her appeal by paying PLN 160, by submitting twenty six copies of the appeal, by indicating the legal successors of six deceased litigants and by giving the addresses of two further litigants.
27. In her pleadings of 12 August 2005 the applicant again submitted that publication of a press notice and the appointment of curator absenti provided for in Article 609 of the Code of Civil Procedure were specifically designated to address situations such as this which had arisen in her case.
28. On 12 August 2005 the court rejected her appeal against the decision of 15 June 2005, having regard to her failure to comply with the summons of 28 July 2005.
29. The applicant appealed against this decision, again submitting that she was unable to identify the names and addresses of the persons concerned.
30. On 21 September 2005 the court rejected her appeal on the ground that she had failed to pay a court fee in the amount of PLN 160 and to submit twenty six copies of her appeal.
31. Under Polish law, a request for a declaration that property had been acquired by prescription is examined in the so-called “non-litigious procedure”. However, the claimant is obliged to identify persons who are potentially affected by these proceedings, notably the original owners or their successors. Should these persons express their interest in the proceedings, they may be granted the status of a “party”.
32. If a claimant is objectively unable to identify persons who could be affected by the outcome of the proceedings, the court orders the publication of a press notice, summoning such persons to join the proceedings. If the identity of the persons is known but their current addresses cannot be established, the court shall appoint a court officer (curator absenti) to represent such persons.
33. Article 510 of the Code of Civil Procedure (Chapter on: Non-litigious proceedings: general provisions) provides as follows:
§ 1. Any person, whose rights and obligations are affected by the outcome of the proceedings, is an interested person; he or she may participate in the proceedings at any stage. If the person decides to participate, he or she becomes a party to the proceedings. An appeal is available against a refusal to be admitted as a party to the proceedings.
§ 2. If it turns out that a person concerned is not a party to the proceedings, the court will summon him or her to participate in them. Following the summons, a person becomes a party to the proceedings. If a need arises to appoint a court officer (curator absentis) to represent a party whose address is unknown, such appointment is made ex officio.
34. Article 524 § 2 of the Code of Civil Procedure (Non-litigious proceedings: general provisions) provides as follows:
An interested person who has not participated in the proceedings terminated by a final decision on the merits, may request that these proceedings be reopened. Provisions on the reopening on the grounds of being deprived of the possibility to act shall apply.
35. Article 609 § 2 of the Code of Civil Procedure (Acquiring property by prescription) provides as follows:
If a person who files a motion (for a declaration that property has been acquired by prescription) fails to indicate other interested persons, the decision (on the merits) may only be rendered after such persons are summoned by a press notice. A press notice may also be published in other circumstances where the court finds this necessary.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103812
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GAFTONIUC v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Ms. Dorina-Margareta Gaftoniuc, is a Romanian national who was born in 1968 and lives in Târgu Ocna. The Romanian Government (“the Government”) are represented by their Agent, Mr. Răzvan-Horaţiu Radu from the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 2003 the applicant initiated administrative proceedings against the Bacău County School Inspectorate (Inspectoratul Şcolar Judeţean Bacău) requesting her appointment on the position of English and French teacher, the annulment of the appointment decision of a third person for the aforementioned position and damages.
4. On 23 October 2003, the Bacău County Court partially allowed the applicant’s claim, ruling that she was to be appointed on the teaching position and that the defendant was to pay her damages of 100,000 Romanian old lei (ROL - the equivalent of around 3 euros (EUR)) per day, until the actual appointment.
5. By a judgement of 8 November 2004, the Bacău Court of Appeal allowed the appeals on points of law of both parties and submitted the case for re-adjudication to the Bacău County Court.
6. Upon rehearing of the case, by a judgement of 27 April 2005, the Bacău County Court partially allowed the applicant’s claim, ruling that she was to be appointed on the teaching position and that she was to receive court fees of ROL 1,900,000 (the equivalent of around EUR 52). The Bacău County Court dismissed the applicant’s claim for damages.
7. On 22 December 2005, the Bacău Court of Appeal upheld the Bacău County Court’s judgement as regards the applicant’s appointment and fixed the amount of the court fees at 569.8 Romanian new lei (RON - the equivalent of around EUR 154).
8. On 23 June 2006, upon the request of the applicant a bailiff summoned the defendant to comply with the above judgement. At an unspecified date, the bailiff informed the Bacău Treasury of the existent garnishment proceedings.
9. On 3 July 2006, the applicant was appointed as a teacher and on 22 November 2006 she signed the employment agreement.
10. On 8 November 2007, the Bacău County School Inspectorate paid the applicant an amount of RON 640.25 (EUR 177), representing court fees and enforcement expenses.
11. The relevant domestic law is described in Roman and Hogea v. Romania ((dec.), no. 62959/00, 31 August 2004) and Sacaleanu v. Romania (no. 73970/01, 6 September 2005).