ITEMID: 001-59986
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF C.G. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;No separate issue under Art. 6-2;No separate issue under Art. 6-3-c;No separate issue under Art. 6-3-d;No separate issue under Art. 13
JUDGES: Nicolas Bratza
TEXT: 9. For several years until January 1996 the applicant was employed as an accounts clerk at a fruit and vegetable wholesalers. It was her job to bank cash and cheques. In January 1996 she resigned after telling the company secretary (“S.”) that there was a shortfall in the accounts which had been caused by the theft in November 1995 of two bags containing GBP 3,700, which she said had been taken out of her possession at some time between her getting the money ready for banking at her place of work, visiting a local public house at lunchtime, and arriving at the bank. She said that she had not reported the theft earlier because she was afraid she would be held responsible and lose her job, and that she had made efforts to meet the shortfall from her own money, but that the strain had become too much. S. subsequently went through the accounts from 1 October 1995 and discovered a shortfall of approximately GBP 2,900. He also discovered that since October 1995 the applicant had been consistently banking the takings late and occasionally failing to bank all the cash received.
10. The applicant was charged with stealing GBP 2,905.21. She pleaded not guilty and, in April 1997, following a three-day trial in a Crown Court before a judge and jury, she was convicted of theft and sentenced to two years’ probation and one hundred hours’ community service. She was 27 years of age at the time and had no previous convictions.
11. The applicant appealed against conviction. Her grounds of appeal were, inter alia, that the judge had made frequent interruptions and persistently hectored defence counsel, thus depriving the applicant of a fair trial. In particular, it was submitted that during the defence counsel’s cross-examination of the main prosecution witness, S., the judge had intervened so frequently that defence counsel was prevented from testing the accuracy of a schedule of banking payments prepared by S. which was the basis of the prosecution case, or from developing possible lines of defence, such as that the loss had occurred prior to the commencement date in the schedule. In addition, the applicant complained that the judge had constantly interrupted her examination-in-chief, making it impossible for her to give her evidence in a coherent manner, and had hectored her counsel to such an extent that he had felt unable to continue and had curtailed the examination. The grounds of appeal referred to the transcript of the trial which showed interventions by the judge on almost every page of S.’s cross-examination and on twenty-two of the thirty-one pages of the applicant’s examination-in-chief.
12. In February 1998 the Court of Appeal dismissed the applicant’s appeal against conviction, finding as follows:
“The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine [S.] through to the time when the appellant was giving her evidence in-chief, throughout her cross-examination, and even up to the moment when he was addressing the jury on her behalf at the close of the evidence. He says that there were frequent interruptions and that on balance they were hostile to the defence case being presented. They had the effect of disturbing his concentration and diverting the attention of the jury and also the attention of the appellant who was thereby unable to present a coherent and consecutive account of what had happened.
We find that there is some substance in those criticisms. It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence. In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engel tells us, of disconcerting him. Likewise, so far as the evidence of [S.] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination far more often than could be justified on any view. We are not impressed with the complaint which is made about the interruption which occurred during Mr Engel’s speech to the jury. That was simply to clear one matter up; it could have occupied no more than about ten seconds out of a speech lasting 45 minutes or thereabouts, we are told. That complaint is unjustified.
We have to consider that ground and the criticisms which we feel have been made good in the context of the case as a whole. But we turn from that first ground of appeal to the second, which is to the effect that the summing-up was defective . ...
This was a very short summing-up. It might be said that it was somewhat laconic. But we have to consider whether or not there was a sufficient reference to the defence which was being put forward. In essence the learned judge dealt with the defence at pages 9 and 10 of the transcript. He said:
‘... the broad case is the defendant says that the money was taken from her, I think it is fair to say now in October rather than November, as she originally said, and that she believes now it may well have been taken from [her place of employment], and she seeks to support that by saying there have been other small thefts [there], which suggests somebody dishonest was there who might have taken this amount.’
... That was a very short way of putting the defence forward. It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified.
It is a further criticism that the judge erred in withdrawing from the jury a main line of defence to the effect that the loss may have occurred prior to October 1995, but we find that that ground of appeal is misconceived. The prosecution case was quite simply that the money must have gone after 1 October because it was the reconciliation of the cash received, with the amounts paid into the bank, which produced the deficiency of GBP 2,900. No part of that sum could have been stolen before 1 October.
Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S.]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account.
It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S.] that there was more than one paying-in book, and once again it appears that the judge was in error about that. So far as we have been able to see, he was not corrected subsequently.
Next it is said in further criticism of the summing-up that the judge told the jury that the appellant never made the suggestion that the money might have been stolen before she left her place of work on the day in question. That, too, was an error, but it was corrected by [prosecution counsel] at the close of the summing-up and in itself could not support a basis for quashing the conviction. ...
As we have observed, there are criticisms which can be made of the manner in which this trial was conducted. It does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena, sometimes for legitimate reasons and at other times perhaps without justification. It does seem to us also that counsel found himself incommoded and disconcerted by those interventions and interruptions. Counsel have to possess (and if they do not have them they have to grow) rather thick skins. There was never an occasion where the learned judge in the course of trial, so it appears to us, made a ruling to the effect that Mr Engel should not continue with the line of defence that he was attempting to develop either in cross-examination or through his own witness. It appears to us that perhaps Mr Engel was on this occasion a trifle oversensitive. That does not, of course, detract from the validity of the criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply.
The case was a strong one; indeed the evidence was overwhelming. The appellant on her account to the police and to the jury was admitting that a substantial sum of money had gone missing whilst it was in her possession. She had, by means of late banking, taken steps to cover up the deficiency. We have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.”
13. Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:
“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss an appeal in any other case.”
The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said:
“This new provision......is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”
14. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated:
“The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety
15. This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell, delivering the judgment of the court, stated that:
“The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read:
‘assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’.”
Later in his judgment, Lord Justice Mantell stated that:
“We are satisfied that [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The E.C.H.R. is charged with inquiring into whether there has been a breach of a Convention right. This Court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the E.C.H.R. leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree.”
16. The subject of judicial interventions at trial has arisen in a number of appeals. In R v. Hulusi (1973) 58 Criminal Appeal Reports 378 (Court of Appeal) the appellants complained that the conduct of the trial judge had made it impossible for counsel to conduct the case for the defence effectively. The judge had in particular made frequent interruptions to the examination-in-chief of the appellants and their witnesses. Lord Justice Lawton stated that:
“It is a fundamental principle of an English trial that, if an accused gives evidence, he must be allowed to do so without being badgered and interrupted. Judges should remember that most people go into the witness-box, whether they be witnesses for the Crown or for the defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness-box and are starting to tell their story, that the judge of all people is intervening in a hostile way, then, human nature being what it is, they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted.”
The court concluded that the judge must have given the impression that he was cross-examining on the evidence-in-chief as it was being given and that defending counsel was at times driven off-course by the judge’s interventions. The convictions were accordingly quashed.
17. In R v. Ahmed (unreported, 3 March 1995, Court of Appeal), Lord Justice Glidewell, delivering the judgment of the court, said that interventions by a judge in a criminal trial were generally undesirable for a number of reasons: (i) they might unsettle a witness; (ii) they might prevent counsel from pursuing a legitimate point; (iii) they might belittle counsel for the defence; and (iv) they might indicate a pre-conceived view by the judge. However, on the facts of the case, despite the inappropriate interventions by the judge, the court was satisfied that counsel for the defence had not been prevented from making the points he wished to make and that the conviction was not “unsafe or unsatisfactory” (which reflected the test contained in section 2 of the 1968 Act at that time). The appeal was therefore dismissed.
18. The Ahmed case was cited by the Court of Appeal in the context of the new test under the 1995 Act in R v. Roohi (Kambiz) (unreported, 11 July 1997). The court concluded that the Recorder conducting the trial had intervened “far too often” during the questioning of expert witnesses and that various of the undesirable consequences identified by Glidewell L.J. had followed. In all the circumstances, the court concluded that the verdict was unsafe on the basis that the appellant had not received a fair trial.
19. In R v. Frixou [1998] Criminal Appeal Reports 352 (Court of Appeal), the appellant complained that the Recorder had intervened with his examination-in-chief at trial to such an extent that he had been denied a fair trial. The court upheld the complaint and allowed the appeal, finding that the appellant had been effectively deprived of an opportunity to put his whole case before the jury in an ordered and structured form before that case was tested by the rigours of cross-examination.
20. Similarly, in R v. Roncoli [1998] Crim. LR 584 (Court of Appeal), the court found that the trial judge’s hostile interruptions of the appellant’s examination-in-chief had effectively constituted a cross-examination and concluded that the jury was bound to have thought that the judge was of the view that the appellant had no defence. The court stated that the fact that the prosecution case was a strong one did not deprive the appellant of his right to be tried fairly and thus allowed the appeal on the basis that the conviction was unsafe.
21. All of the cases cited at paragraphs 16 to 20 above were decided by the Court of Appeal before the appeal in the applicant’s case.
22. In R v. Kartal and others (unreported, 15 July 1999, Court of Appeal), Lord Justice Clarke, giving the judgment of the court, commented as follows:
“The key principle is that every person is entitled to a fair trial. That general principle is enshrined in Article 6 of the European Convention on Human Rights. This appeal involves a particular application of that general principle. The particular principles are summarised in ...Archbold 1999... under the heading ‘Conduct of Trial Judge’:
‘Interventions by the judge during a trial will lead to a quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing-up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they did not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way’ (...).
We have seen a transcript of the whole trial except for the opening and counsel’s closing submissions to the jury. The transcript shows that the judge intervened on a considerable number of occasions during the evidence. He did so in particular during the cross-examination of prosecution witnesses by defence counsel. It is clear from the transcript that he did so for a number of different reasons. For example, he took the view that counsel were cross-examining the witnesses at excessive length and that they were inclined to make comments to witnesses when they should have been asking questions.
It is the duty of counsel (...) both to cross-examine witnesses firmly, fairly and with reasonable dispatch and to avoid making comments which should be confined to submissions. It is equally the responsibility of the judge to do his or her best to ensure that counsel does not overstep the mark in these or indeed in other respects. Moreover, we see no reason why appropriate comments should not be made by the judge on these topics in the presence of the jury.
On the other hand, as we have already said, it is of the utmost importance that every defendant should have a fair trial and indeed that he must be seen to be having a fair trial. It is therefore important that any rebuke to counsel should be delivered in measured tones, especially if it is done in the presence of the jury, and nothing should be done which might have any adverse impact upon the fair presentation of the defendant’s case or which might lead the jury to conclude that the judge was unfairly prejudiced against the defendants (...).
It is submitted on behalf of the appellants that in this case on a number of occasions the judge unfortunately treated defence counsel in such a way as to make it difficult for them to put their client’s case fairly to the jury, and was such as might lead the jury to conclude that the judge was prejudiced against both defence counsel and the defendants.
We have regretfully reached the conclusion that there is considerable force in these submissions. (...)
(H)aving considered the transcript as a whole we have reached the conclusion that in the light of the judge’s approach to defence counsel and his frequent interruptions during the cross-examination of prosecution witnesses, none of which favoured the defence and many of which tended to favour the prosecution, together with his attitude to part, at least, of the defence case, these defendants did not receive a fair trial. An impartial observer at that time would, in our opinion, clearly have reached that conclusion. Yet, as we have already said, each defendant has a right to a fair trial. (...)
(W)e are quite unable to say that these verdicts are safe given the fact that these appellants did not receive a fair trial.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-115332
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DEBÚT ZRT AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: The applicants, DEBÚT Zrt., EGÚT Zrt. and Colas Dunántúl Zrt. are privately held companies limited by shares, registered under Hungarian law, with their seats in Debrecen, Eger and Zalaegerszeg, respectively.
The applicants are construction companies, against which the Competition Office conducted investigations on suspicion of an unlawful cartel agreement. The applicants and other companies were suspected of having shared the market for public road constructions between themselves.
Under section 65/A of the Act Prohibiting Unfair Market Practices, on 27 February 2004 the Budapest Regional Court authorised the Office’s investigators to enter the applicants’ premises and those of other related enterprises without prior notification and to search for direct evidence of their unlawful cartel agreement. No appeal lay against the authorisation.
The investigators carried out ‘dawn raids’ (that is, unannounced house searches very early in the morning) on the premises of several enterprises, including those of the applicants, and drafted an enquiry report on their findings. The applicants could have complained about the measure within three days but did not do so.
On 14 July 2005 the Competition Board, the decision-making body of the Office, published on the Office’s website its preliminary opinion drawn up on the basis of the report.
In its decision of 22 September 2005 the Competition Board established that the applicants and other companies had indeed divided the market between themselves and imposed substantial fines on them.
The applicants sought judicial review. They argued that the Board’s decision had been adopted in biased proceedings and based partly on documents which had been retrieved in a manner contrary to Articles 6 and 8 of the Convention.
On 6 February 2008 the Budapest Regional Court dismissed the action, holding that the Competition Office had conducted lawful proceedings and carried out properly reasoned and justified raids on the applicants’ business premises.
On 15 October 2008 the Budapest Court of Appeal upheld this judgment.
On 3 November 2009 the Supreme Court dismissed the applicants’ petition for review.
All three court instances addressed the merits of the applicants’ arguments about the admissibility of the documents as evidence and the lawfulness of the procedure.


ITEMID: 001-127613
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF MESUT DENİZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 4. The applicant was born in 1975 and is currently detained in Sincan prison.
5. On 5 October 1999 the applicant was arrested and taken into custody by police officers in Havza, a district of Samsun, in the course of a routine identity check. He was taken to the Havza police headquarters. According to the arrest and seizure report, the applicant was arrested at around 1.30 p.m., after he had tried to evade the police by jumping off the twometre high balcony of a café and was apprehended by the officers. According to the report, the applicant threw himself on the ground repeatedly and sustained various injuries. In particular, he had bruises and scratches on his back, on the left shoulder, on both arms and on the forehead. In the arrest and seizure report it was also noted that the applicant had false identity papers and, inter alia, a Kalashnikov rifle, bullets, night-vision binoculars and a walkie-talkie in his bag.
6. The applicant was subsequently taken to the Samsun police headquarters.
7. On the same day, at around 3.05 p.m., the applicant was examined by a doctor in Samsun who observed that the applicant was rather tired. He further observed the following injuries on the applicant’s person: ecchymoses on both the left and right sides of the forehead, on both the left and right scapulas and in the lumbar region; hyperaemic lesions on both the left and right sides of the neck, hyperaemia and ecchymoses on the left biceps, hyperaemia on the right biceps and ecchymoses on both calves.
8. On 6 October 1999, at around 9.25 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who noted that he was tired and weak and had bruises of various shapes and colours on his body. In addition to those noted in the medical report of 5 October 1999, the doctor observed the following injuries on the applicant’s body: ecchymoses, swellings and scratches of various sizes on the middle of the forehead, in the left zygomatic region, on his head, on the left clavicle, on the left side of the abdomen, on the left side of the crista iliaca region, on the outside of the left arm, on the inside of the left upper arm, on both thighs, on the right elbow and on both wrists. According to the report, there was also bleeding under both nipples, hyperaemia on the glans of the penis and three ecchymoses on the penis.
9. On 7 October 1999, at around 10.30 a.m., the applicant was examined by a doctor at the Samsun Forensic Institute who found no additional injuries on his body, apart from those recorded in the previous medical report of 6 October 1999.
10. On the same day, the applicant was transferred to the Ankara police headquarters.
11. On 12 October 1999 the applicant was examined by a doctor at the Ankara Forensic Institute who, in addition to the injuries noted in the previous reports, observed oedema on the palmar surface of the third finger and sensitivity on the first toe. The doctor asked for additional examinations to be carried out by the Department of Urology and Neurology at Ankara Hospital.
12. The applicant claimed that he had been subjected to various forms of ill-treatment during his arrest and subsequent detention at the Samsun police headquarters and the Ankara police headquarters. In respect of the treatment at the Samsun police headquarters, he claimed to have been beaten, given electric shocks, hung by his arms, hosed with cold water, had his genitals and fingers squeezed, been made to lie on an icy surface and been raped by one police officer with a hose.
13. Subsequent to his detention in police custody, the applicant was charged under the former Criminal Code with membership of an illegal organisation and attempting to undermine the constitutional order; he was remanded in custody.
14. On an unspecified date, the applicant’s lawyers lodged an official complaint with the Samsun public prosecutor’s office, claiming that the applicant had been subjected to various forms of ill-treatment while being held at Samsun police headquarters between 5 and 6 October 1999. They submitted that the applicant would be able to recognise the person who had given the orders, as well as some of the others involved. They said that the applicant had also been ill-treated in Ankara and that they would lodge a separate complaint to that effect.
15. On 9 June 2000 the applicant sent a handwritten letter to the public prosecutor claiming that he had been ill-treated during his arrest and subsequent detention at both the Samsun and Ankara police headquarters. He gave a detailed account of the treatment during his arrest, at the Havza police headquarters and at Samsun police headquarters. He again submitted that he would be able to recognise the person who had given the orders at Samsun police headquarters as well as some of the others involved. As regards his detention at the Ankara police headquarters, the applicant merely stated that he had been subjected to ill-treatment there also.
16. On 24 July 2000 a forensic medical expert, at the request of the applicant’s lawyer, lodged an opinion with the Ankara Medical Association on the basis of the medical reports issued in respect of the applicant. In that report he submitted that the injury details recorded in the arrest report had no medical significance since it had not been drafted by medically competent persons. He also criticised the fact that the applicant had not been transferred to the Department of Urology and Neurology at Ankara Hospital, as requested in the medical report of 12 October 1999. The medical expert concluded that it was not possible to determine the exact cause of the injuries noted in the medical reports.
17. On an unspecified date the applicant began a hunger strike in prison. In 2001 he began to suffer from a mental disorder. According to a report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital, the applicant presented psychotic symptoms. The experts could not determine whether these symptoms were due to the hunger strike (Wernicke-Korsakoff syndrome) or to schizophrenia.
18. On an unspecified date in 2000 the Samsun public prosecutor initiated an investigation into the applicant’s allegations.
19. On 14 November 2001 the Samsun public prosecutor filed a bill of indictment with the Samsun Criminal Court accusing a police officer, H.Ö., whom the applicant had identified through photographs, of ill-treatment under Article 245 of the former Criminal Code.
20. On 21 March 2002 the Samsun Criminal Court held the first hearing on the merits of the case.
21. On 17 July 2002 the first-instance court heard the accused police officer, who denied the allegations of ill-treatment.
22. On 28 February 2003 the applicant was brought before the Ankara Criminal Court in order to give evidence, acting on letters rogatory. However, he was not able make any statement, as he appeared to be suffering from a mental disorder.
23. On 16 April 2003 the Samsun Criminal Court convicted H.Ö. as charged and sentenced him to three months’ imprisonment and suspension from duty for a period of three months. The court then commuted the sentence to a fine and suspended its execution.
24. On 5 December 2005 the Court of Cassation quashed the judgment of 16 April 2003, holding that the police officer should have been charged with torture under Article 243 of the former Criminal Code and that therefore the case should have been heard by an assize court.
25. On 11 October 2006 the Samsun Criminal Court declined jurisdiction and transferred the case to the Samsun Assize Court.
26. On 22 November 2006 the Samsun Assize Court commenced the trial.
27. On 6 April 2007 H.Ö. made statements before the Assize Court and denied the charges against him.
28. On 30 July 2007 the applicant gave evidence before the Ankara Assize Court acting on letters rogatory. He waived his right to a lawyer. He reiterated that he had been ill-treated at the Samsun police headquarters and that, although he was not completely certain, the accused appeared to be one of the police officers who had ill-treated him. In this connection, the applicant claimed that about twelve police officers had illtreated him, but that at the time when he had been asked to identify the perpetrators he had been on hunger strike, depressed and suffering from health problems. He reiterated that he was not certain whether the accused was one of those who had ill-treated him and affirmed that he wanted those responsible to be prosecuted. In addition, he stated that he did not wish to join the proceedings as a civil party.
29. On 26 September 2007 the Samsun Assize Court acquitted H.Ö. of the charges against him. In its decision the court held that while the forensic medical reports established that the applicant had been illtreated between 5 and 6 October 1999, the applicant could not formally identify the accused as responsible and, as such, there was insufficient evidence to convict him.
30. On 7 January 2010 the applicant’s lawyer appealed against the firstinstance court’s decision. In particular, she maintained that since the applicant suffered from Wernicke-Korsakoff syndrome and schizophrenia he could not be deemed to have understood the consequences of waiving his right to a lawyer and not joining the proceedings as a civil party, and that therefore the court should have assigned him a lawyer. In addition, the lawyer submitted that the applicant and the accused should have been allowed to confront each other in order to give the former the opportunity to identify the latter. The applicant’s lawyer submitted a copy of the report dated 19 April 2002 issued by the Medical Board of the Ankara Numune Hospital in support of the appeal.
31. On 11 January 2010 the applicant’s lawyer applied to the Samsun Assize Court requesting it to annul its previous decision (eski hale getirme) to serve its judgment on the applicant, on the ground that it should have been served on his legal representative, and to disregard the applicant’s statement regarding his wish not to intervene in the proceedings as a civil party so as to enable him to lodge an appeal against the decision. In her application, the applicant’s lawyer also maintained that since the applicant suffered from Wernicke-Korsakoff syndrome, the rogatory court should have assigned him a lawyer, even if he had waived that right.
32. On 19 January 2010 the Samsun Assize Court held that the applicant could not lodge an appeal against the judgment of 26 September 2007 as he had not joined the proceedings as a civil party.
33. On 5 February 2010 the applicant’s lawyer lodged an appeal with the Court of Cassation against the Samsun Assize Court’s decision of 19 January 2010.
34. According to information obtained by the Registry from the website of the Court of Cassation, on 4 May 2012 the higher court dismissed the applicant’s appeal.
35. A description of the domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts).
VIOLATED_ARTICLES: 13
3


ITEMID: 001-87229
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHULEPOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1963. He is currently serving a sentence in a correction facility in Nizhniy Tagil, Sverdlovsk Region.
6. On 19 August 1999 the applicant was arrested on suspicion of murder.
7. On 20 August 1999 the local prosecutor remanded him in custody. The duration of the applicant’s detention was extended on several occasions; the applicant unsuccessfully challenged those orders.
8. On 30 June 2000 the Sverdlovskiy Regional Court convicted the applicant of aggravated murder and robbery and sentenced him to nineteen years’ imprisonment.
9. On 29 March 2001 the Supreme Court of Russia quashed this judgment and remitted the case to the first-instance court for a fresh consideration.
10. On 23 August 2001 the Sverdlovskiy Regional Court remitted the case for an additional investigation to the Prosecutor’s Office of the Sverdlovsk Region. The case was then twice more sent to the court and remitted for an additional investigation, being finally referred to the Dzerzhinskiy District Court of Nizhniy Tagil for examination in August 2002.
11. On 27 September 2002 the Dzerzhinskiy District Court, following adversarial proceedings in the course of which several witnesses, including co-defendants, gave evidence and forensic expert reports were examined, convicted the applicant of murder and theft and imposed a sentence of thirteen years’ imprisonment for murder and five years’ imprisonment for theft, the final sentence being determined by way of partial accumulation as fifteen years’ imprisonment. During the proceedings before the first-instance court the applicant was represented by a court-appointed lawyer.
12. On an unspecified date the applicant appealed against the judgment of 27 September 2002.
13. On 20 December 2002 the Sverdlovsk Regional Court upheld the judgment. The applicant appeared before the appeal court via videoconference from the detention facility. He was not represented by a legal-aid lawyer. According to the case file, the prosecutor was present in the courtroom but did not make any submissions. The court put only one question to the applicant during the hearing: it asked whether the applicant wished to amend his appeal.
14. In July 2003 the applicant lodged a request for supervisory review proceedings. On 5 December 2003 the Sverdlovsk Regional Court left this request without consideration, for the applicant’s failure to respect procedural formalities stipulated by law.
15. According to Article 69 of the Code, in cases of cumulative crimes, sentences shall be imposed separately for each crime. A final sentence shall be determined by partial or full accumulation of these sentences.
16. Article 105 § 1 of the Code sets out that murder shall be punishable by imprisonment for a term of six to fifteen years. Article 158 § 2 of the Code provides for penalties for theft including, inter alia, imprisonment for a term of two to six years.
17. Article 51 of the Code of Criminal Procedure establishes that counsel is appointed by the investigator, prosecutor or the court if, inter alia, the accused faces serious charges, carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Counsel is appointed by the investigator or court if the accused has not retained a lawyer.
18. Article 373 of the Code provides that an appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, an appeal court can directly examine evidence, including additional material submitted by parties.
19. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings.
20. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-23270
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MOND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, David Mond, is a United Kingdom national, born in 1945 and living in Cheshire. He is represented before the Court by Mr Andrew Livesey, a lawyer practising in Manchester.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a chartered accountant and a licensed insolvency practitioner. Having accepted an appointment as trustee in bankruptcy of the estate of a bankrupt on 8 October 1993, his appointment was confirmed by the Secretary of State on 13 October 1993. The purpose of his appointment was to ensure that substantial court damages due to the bankrupt were transferred to him as trustee for the benefit of the bankrupt’s creditors. He claims that on accepting the appointment the Assistant Official Receiver (“AOR”) had led him to believe, in a conversation on 13 October and in a letter of 14 October 1993 addressed to the bankrupt’s solicitors, a copy of which was sent to the applicant, that he (the AOR) had not waived the interest of the creditors in the award.
However, the bankrupt was of the view that the AOR had in fact waived all claims over the award of damages and therefore commenced proceedings in December 1993 against the applicant, as trustee, seeking a declaration that the applicant had no interest in the award. The applicant defended the proceedings because of the AOR’s assurances of October 1993. During the proceedings, the AOR confirmed the statements made in October 1993 in a letter to the applicant’s solicitors dated 27 January 1994 and in an affidavit filed for the purposes of the proceedings.
The bankrupt was successful. The judge held that he was satisfied that the AOR had disclaimed all right to the proceeds of the bankrupt’s claims and that the evidence satisfied him that the AOR was at the time very much overburdened with his general caseload of insolvency work. The bankrupt’s costs (approximately 114,000 pounds sterling (“GBP”)) were awarded against the applicant. The applicant’s own costs were in the region of GBP 80,000. The applicant was personally liable for the costs and, though he had a claim against the estate, this did not assist him as there were no other assets in the bankrupt’s estate.
The applicant commenced proceedings in his own name for negligent misstatement against the AOR and against the Department of Trade and Industry (“DTI”) as allegedly vicariously liable for the tort of the AOR. The defendants applied to the High Court to have the proceedings struck out as disclosing no cause of action or as being frivolous and vexatious and an abuse of process. They mainly argued that the statements of the AOR were made in his capacity as a potential witness and as a witness in proceedings (those of the bankrupt against the applicant) and that the AOR was entitled to immunity in that respect.
On 22 January 1997, the High Court found that the AOR was entitled to “immunity from suit” as a witness in respect of statements he had made as a potential witness in the bankrupt’s proceedings against the applicant. While that immunity did not apply to the statements of October 1993 as they were made prior to those proceedings even being contemplated, the pleadings did not disclose that those statements were negligent and there was, in any event, no causal link between those statements and the applicant’s loss.
On 16 July 1998, the Court of Appeal rejected the applicant’s appeal. Giving the principal judgment of the court, Beldam LJ. identified the main question as being whether the AOR was entitled to immunity from suit in respect of the statements made to the applicant. However, since the existence of a cause of action depended on proof that the statements were negligent and were relied upon by the applicant and that he had suffered loss by doing so, Beldam LJ examined those matters first. He found that the statement of claim did disclose a cause of action for negligent misstatement and that the claim should not have been struck out on the basis of a lack of a causal link between the statements and the applicant’s loss.
The next question identified by Beldam L.J. was whether the AOR owed a duty at law to take care in statements which he made to the trustee in bankruptcy. He noted that the High Court judge had found that the AOR owed such a duty and stated that, if the same arguments had been advanced to him, he would have similarly concluded. However, he considered the question to be “intimately connected with the question whether the [AOR] is entitled to immunity from action”. It therefore seemed convenient to consider the question of immunity first because if the AOR was exempt from suit (either as a witness as argued in the High Court or as an officer of the court as argued before the Court of Appeal), “there would be no duty enforceable at law on which the appellant could found his claim”.
Beldam LJ noted that bankruptcy proceedings were proceedings in a court of law, that throughout those proceedings the Official Receiver (“OR”), and consequently an AOR, was an officer of the court both in connection with the proceedings “in court” and as regards his powers, duties and functions in the bankruptcy generally. The question was whether the AOR in making the statements relied on in the present case was “liable to be sued in negligence”.
It was considered “well settled” that in a court of law, solicitors, counsel, witnesses and judges were “immune from action for statements made in the course of the proceedings, even if made maliciously”. As to whether an OR acting in the course of the liquidation of a company was similarly entitled to immunity from suit, reference was made to the case of Burr v. Smith ([1909] 1 K.B. 306) where the court held that a libel action could not be brought against an OR for a statement made in his capacity as OR and contained in the official report submitted under the companies’ legislation for the purpose of company liquidation proceedings, the performance of such a duty being absolutely privileged.
As to whether that immunity should extend to the statements in the present case (the statements made by an AOR to the trustee in bankruptcy in October 1993 about the AOR’s interest in the award), Beldam LJ reiterated that the courts should be slow to extend the scope of absolute privilege. He observed that, whenever a court denied a right of redress to a citizen who had suffered substantial loss on the grounds of public policy, it had to be recognised that the court was making a choice between the common interest and harm to the individual “on political rather than legal grounds”. A denial of the right to seek justice could only be justified on strong rational grounds and any policy arguments (such as a “floodgates” argument) demanded detailed analysis. He noted that the court in the Burr v. Smith case gave two reasons for the application of the immunity in that case: the duty of the OR to report with the greatest frankness all relevant matters ascertained by him and the fact that he was performing his duties as an officer of the court in connection with an inquiry which could be rightly considered judicial.
In the present case, Beldam LJ considered that the need for the greatest frankness was, of itself, sufficient justification for holding that statements made in the course of such a report should be entitled to absolute privilege and that the OR should be immune from action in respect of them. He also considered that the administration of justice would be seriously impeded if this were not the case, as in the case of statements which formed part of an investigation carried out by the Serious Fraud Office (Taylor v. Director of the Serious Fraud Office [1997] 4 All. E.R. 887). In this regard, he did not find the undoubted distinction between an action for defamation and an action for negligence sufficient to reject a claim to absolute immunity from action in the latter case.
Beldam LJ concluded:
“To be afforded immunity from suit in respect of the statements made, the official receiver must be acting in the course of the bankruptcy proceedings and within the scope of his powers and duties. In the preparation of his reports, which are to be accepted as prima facie evidence, statements which he makes are it seems to me as much in need of immunity as statements made by a witness in the preparation of a proof of evidence or in the course of investigating offences of fraud. In the present case the official receiver was acting pursuant to his duty ... “to give [the trustee in bankruptcy] all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee”.
The getting in of the assets of the bankrupt’s estate for the purpose of being distributed to the creditors is part of the bankruptcy proceedings and accordingly I would hold that in making the statements on which reliance is placed by the appellant the official receiver is entitled to immunity from suit.”
He went on to reject the contention that the DTI (the other defendant in the proceedings) was vicariously liable for statements made by the AOR and held that, in any event, given the AOR’s immunity from suit, the applicant could not establish a liability which would fall to be met vicariously.
In so concluding, Beldam LJ specifically responded to the argument that the law should encourage the use of all due care in the making of such statements and that the use of immunities did not have that effect. He replied:
“The answer to this submission is, I think, to be found in the observation of Fry L.J. in Munster v. Lamb, 11 Q.B.D. 588, 608:
“A court of justice has control over all proceedings before it: it has very great powers, to which I need not particularly refer, with regard to witnesses, solicitors and counsel; the court can always check improper conduct. If such actions were allowed, persons performing their duty would be constantly in fear of actions.”
Thus the need to encourage the greatest frankness of expression by the [OR] and the power of the court to control or check breaches of duty by him, for example in failing to take proper care in making statements in the reports, counterbalance any suggestion that to grant immunity from action might encourage laxity or carelessness.”
Leave to appeal to the House of Lords was refused on 18 January 1999.
The Official Receiver (OR) is appointed by the Secretary of State. Because of his statutory office, the OR is an officer of the courts to which he is attached. He is therefore answerable to the courts for carrying out the courts’ orders and for fulfilling his duties under law.
When an individual is declared bankrupt, the OR has initial responsibility for the bankrupt’s estate. He can in turn appoint an Assistant Official Receiver (AOR) who can represent the OR in all matters.
The trustee in bankruptcy (the person in whom the bankrupt’s property initially vests) is, generally speaking, the OR or the AOR when there is little property to administer in relation to the bankrupt’s estate. Where a substantial asset does emerge, it is the practice for the OR or the AOR to request a licensed insolvency practitioner to accept an appointment as the trustee in bankruptcy. Once accepted, the appointment of the trustee in bankruptcy will be made by the Secretary of State.
As described by Beldam LJ in the present case (judgment cited above), the OR is a key figure in bankruptcy proceedings, which are regarded as proceedings in a court of law. Amongst other functions, under section 73 of the Bankruptcy Act 1914, it is the OR’s duty to investigate and report on the debtor’s conduct, take part in his public examination and, in the case of a fraudulent debtor, to assist in his prosecution if directed by the Department of Trade and Industry to do so. Under rule 351(4) of the 1952 Rules, the OR is also under a duty to give the trustee in bankruptcy all such information respecting the bankrupt and his estate and affairs as may be necessary or conducive to the true discharge of the duties of the trustee.
“Throughout the proceedings in bankruptcy, therefore, the official receiver as an officer of the court will be required to make reports and statements on which the court, the trustee, committee of inspection, creditors and others will rely.”


ITEMID: 001-75410
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: UPTON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Timothy Upton, is a British national who was born in 1949 and lives in Bradford. The respondent Government are represented by their agent, Mr John Grainger, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s grandfather made a will in 1930 (and a codicil in 1935) in which he left his residuary estate (after payment of certain annuities) on trust for his children in varying shares in the first place and, after they died, for their children. If a branch failed, the estate was to pass to the other branches. The grandfather died in 1937.
The applicant’s grandfather had four children. The oldest was the applicant’s father, born in 1908. The second oldest, born in 1910, died in 1940 without issue. The third child, the only daughter, was born in 1915 and the youngest child was born in 1919.
In 1942, the youngest son married Leslie Jean Bray. Two children were born.
In 1946 Leslie Jean Upton (nee Bray) left her husband and went, with the two children, to live with his brother, the oldest son. The applicant was born to the couple in 1949. In 1953 the applicant’s mother died, and in 1955 the applicant was adopted by his father.
In 1997, the applicant’s grandfather’s daughter died without issue.
The applicant’s father died in 2000, providing in his will that all of his estate passed to his son, the applicant. He was entitled at his death to a three-fifths share of the income from his father’s estate.
The applicant claimed, in the High Court, to be entitled to his father’s three-fifths share of the income. The executors considered that he was not entitled to any share because, as he was illegitimate, he could not inherit as a “child” of his father under the 1930 will and codicil.
On 29 July 2004 in the Leeds District Registry of the High Court, Judge Behrens found that the applicant was not entitled to take any share under his grandfather’s will. He found that it was a well-established principle that a gift to a child or children was, apart from statute, to be construed as a gift to legitimate children unless it was possible to find a contrary intention in the will. Sections 1 and 19(1)(b) of the Family Law Act 1987, which improve the position of illegitimate children (including in the interpretation of wills), only apply to events after 4 April 1988, and so could not assist the applicant. Other statutes, which dealt with the effect of legitimation where a child’s parents married after he was born, did not assist the applicant as the applicant’s parents never married.
The Adoption Act 1926, which was in force at the time of the applicant’s grandfather’s will and codicil (1930 and 1935) provided that adoption did not confer any right to or interest in property as a child of the adopter, unless a contrary intention appeared in any disposition such as a will. There was no contrary intention and so at the date of death adopted children could not benefit under the will. Again, later amendments to the law were of no help to the applicant because they only applied prospectively.
Finally, Judge Behrens considered the points raised by the applicant in connection with the Convention. He noted that Article 1 of Protocol No. 1 applied only to existing possessions, but that the applicant had never been entitled to any of his grandfather’s estate. He also noted that the litigation was between private individuals, where the cases of Marckx and Inze had both involved claims against the State. Finally, he recalled that the legislation relating to adoption and illegitimacy had been changed so that there was now no discrimination on grounds of adoption or illegitimacy save in cases where the will was made before the relevant date. The applicant’s criticism was therefore criticism that the amending legislation was not retrospective so as to affect the interpretation of existing instruments. He considered that there were sound reasons, such as the need for legal certainty, for not making such legislation retrospective. He thus agreed with the applicant that the effect of the rules as to legitimacy and adoption in a case where the will was made in 1930 discriminated against him as an illegitimate son of his father, but he did not consider that the position was altered by the Human Rights Act 1998.
Judge Behrens therefore concluded that the applicant was not a legitimate child of his grandfather within the meaning of his grandfather’s will, and that the disputed share of the estate passed to the applicant’s grandfather’s youngest son. He also refused leave to appeal, but, according to the Government, extended the time for appealing.
On 26 January 2005, after the time limit for appealing had expired, the applicant filed an applicant’s notice with the Court of Appeal, seeking an extension of the time for filing a notice. On 31 January 2005 he sought a further lengthy extension of time in which to lodge a bundle of documents and generally to progress his application. An extension was granted to 17 February 2005. On 16 February 2005 the applicant wrote to the Civil Appeals Office, explaining that he would be unable to comply with the deadline as he had gone to Australia. He indicated that he wished to withdraw his application and sought a refund of his fee. He was sent “dismissal with consent” forms to complete and return, and was told that if the defects in his bundle were not remedied by 18 March 2005, his application would be dismissed unless he provided a sufficient reason. Nothing more was heard from the applicant, and on 23 March 2005 the application was dismissed for failure to complete the dismissal with consent forms, and for failure to progress the case within the Civil Procedure Rules and Practice Directions.
On 9 August 2005, the applicant sought permission to reinstate, and the Court of Appeal (Civil Division) dismissed the application after a hearing on 14 November 2005. Lord Justice Parker noted that the effect of reinstatement would be to grant an extension of time of over a year, and he could see no grounds for granting such a substantial extension. Time limits were there to be complied with unless there were good reasons for failing to do so, and the applicant had shown no good reasons. Lord Justice Parker also referred to the applicant’s reliance on the 12-month period for bringing proceedings under section 6 of the Human Rights Act. However, the action before the court was not a proceeding under sections 6 or 7 of that Act, and the 12-month period had no application. Lord Justice Parker did not accept the applicant’s submissions that it was not his fault that he was so substantially out of time, and refused to reinstate the earlier application which had been struck out. The judge mentioned in passing that he considered that the proposed appeal had no real prospect of success, and indeed that the judge’s conclusions as to the effect of English statute law were plainly right. He underlined, however, that the application was dismissed for failure to provide good reason for the substantial delay.
The Human Rights Act 1998, which entered into force on 2 October 2002, provides as follows:
“2. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-
(a) judgment ... of the European Court of Human Rights ...
... so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen ...
3. (1) So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation ...
4. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility ..
(6) A declaration under this section...-
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.”
In Wilson and others v. Secretary of State for Trade and Industry ([2003] UKHL 40), the House of Lords considered that the courts’ power to make a declaration of incompatibility in respect of legislation only arose where it was not possible to give effect to the statute in a manner compatible with the Convention. Further, Parliament had not intended section 3 (1) of the Human Rights Act 1998 to have the effect of altering the existing rights and obligations of parties to an agreement made before the section entered into force.


ITEMID: 001-88975
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VLADIMIR GEORGIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1976 and lives in Sofia.
6. On 19 November 1998 a criminal investigation was opened against the applicant on allegations of wilfully inflicting intermediate bodily harm on a former colleague of his at a construction site. On 15 February 1999 he was charged and ordered to pay bail. On 18 February 1999 he appealed to the Sofia District Prosecutor’s Office, asking for a reduction of the bail. On an unspecified date that office granted the request, but its decision was not notified to the applicant. As he was unaware of it, he did not pay the bail. Accordingly, on 21 April 1999 an order was made for him to be placed in pretrial detention. He was not notified of that order either.
7. At about 2.40 p.m. on 28 May 1999, following a visit by a police officer to his home earlier that day, the applicant appeared at the first district police department in Sofia. At about 5.30 p.m. he was formally taken into custody. Several days later the applicant’s lawyer lodged a request for his release with the Sofia District Court. On 8 June 1999 that court made an order to that effect and the applicant was set free on 10 June 1999.
8. According to the applicant’s allegations, some time after being taken into custody the applicant was taken to a room on the fourth floor of the police department, where he saw a uniformed and a plain clothes police officer. Shortly after that the investigator in charge of his case, Ms T., came in and asked him to sign certain papers relating to his pretrial detention and the criminal charges against him. The applicant refused, whereupon she started shouting at him. The applicant still refused to sign, as in the papers it was stated that he did not wish to give evidence, which was not the case. He said that the offence alleged against him was not an arrestable one. After a verbal exchange the uniformed police officer started kicking the applicant on the left tibia and beneath the right knee. The plain clothes officer punched him in the face and the chest and slapped him on the face. In the same time Ms T. insisted that the applicant sign the papers presented to him, which he eventually did.
9. After that another uniformed police officer entered the room and, together with the one already present, took the applicant out. They cuffed both of his hands to a pipe running at head level along the corridor. He spent about two hours in this position.
10. At about 7.30 p.m. the applicant was taken to the cell block, situated on the top floor of the police department. He was put in a cell with three other detainees, Mr G.M., Mr T.T. and Mr E.
11. On the morning of the following day, 29 May 1999, the applicant requested to contact his mother or a lawyer, or to be interviewed by the investigator. However, nothing ensued. As the applicant was persisting in his requests, on 30 May 1999 the guards apparently became annoyed with him.
12. According to the applicant’s allegations, on the evening of 30 May 1999 he was let out of his cell together with Mr G.M. to go to the toilet. On the way back, in the corridor, he waited for Mr G.M. to move away from him and closer to the cell, and broke the glass of one of the corridor’s windows. Hearing the noise, Mr G.M. turned to see what was happening. The applicant made him a sign to move away, and Mr G.M. went back to the cell. Then the applicant took a piece of broken glass and cut himself on the forearms, allegedly in protest against the way in which he was being treated in custody. Thereupon one of the guards, sergeant R.V., came out of the guards’ room, holding two truncheons. He hit the applicant on the forearms to make him drop the piece of glass. Then he kicked him into the toilet and started hitting his waist with the truncheons. After that he threw him to the ground and started kicking him. The applicant lost consciousness. Sergeant R.V. poured water over him to restore him to consciousness, pulled him upright and made him strip naked. Then he poured more water on the applicant to clean him. He put him back in the cell naked and handcuffed him lying on the floor, with his hands secured behind his back. The applicant spent two to three hours like this. At about 7 p.m. chief sergeant S.S. arrived and ordered that the handcuffs be secured in front of the applicant’s body, and that he be dressed and covered with a blanket.
13. On the morning of 31 May 1999, some time before 9 a.m., the applicant banged his head against the cell wall several times, allegedly to protest against his treatment. Thereupon sergeant R.V. dragged him out of the cell and hit his thighs with a truncheon. As a result of his being dragged along the floor the applicant’s back was grazed.
14. Later that day the investigator in charge of the applicant’s case, Ms T., was informed of the incident and ordered that the applicant’s handcuffs be removed and that he be examined by the inhouse doctor. As the applicant was unable to move alone, one of his cellmates, Mr T.T., helped him go there. The doctor, first lieutenant N.T., found that the applicant was uncommunicative and somnolent. Later the applicant was taken to a hospital operated by the Ministry of Internal Affairs, where he was examined by doctor K. After that he was taken back to the detention facility, where he remained until 10 June 1999.
15. On 11 June 1999, the day following his release, the applicant made colour photographs of his body. They showed a number of bruises.
16. On 12 June 1999 the applicant was examined by a doctor at the Chair of Forensic Medicine and Professional Ethics of the Sofia Medical Academy. The doctor noted the following marks on his body: (i) a grazing scar measuring 4 to 2.5 cm on the right upper part of the forehead, near the hair, accompanied by a very slightly pronounced yellowishviolet haematoma; (ii) a palerose scar of a healing wound, about 1 cm long, in the middle of the lower part of the chin; (iii) three oval yellowishviolet haematomas with diameters from 3 to 5 cm on the chest; (iv) an area measuring 28 to 20 cm covering the lower left third of the thorax, the flank and the buttocks, where one could observe a number of obliquely positioned stripshaped haematomas, almost parallel to one another, higher in the back and lower in the front; this area was almost diffusely swollen and filled with blood, but there existed distinct haematomas consisting of two dark strips around one light strip, each being about 0.5 to 1 cm wide and 8 to 15 cm long; (v) a number of yellowishviolet haematomas with various shapes and sizes (some stripshaped, others oval) on the right shoulder and the lateralback surface of both forearms; (vi) a multitude of palerose stripshaped scars on the internal side of the right forearm, along its length, and four such scars on the left forearm; some of those on the right one were crossed by transversal scars; the longitudinal ones, which were several millimetres wide, ran from the elbow to the wrist joint; (vii) spotted yellowishviolet haematomas on the highest third of the right forearm; (vii) a haematoma measuring 20 to 13 cm on the lateral surface of the upper part of the left thigh; (ix) a similar haematoma, measuring 19 to 16 cm, on the front surface of the right thigh; (x) a haematoma measuring 10 to 8 cm on the back surface of the right thigh; (xi) a number of yellowishviolet haematomas on both knees and on the front surface of both legs beneath the knee, almost diffusely from the knees to the ankles. The doctor was of the opinion that the injuries to the applicant’s body were consistent with the blows described by him. In his view, these injuries amounted to intermediate bodily harm within the meaning of the 1968 Criminal Code (see paragraph 25 below) and were the result of a number of blows made with considerable strength and causing pain for prolonged periods of time.
17. On an unspecified date the applicant complained to the Sofia Regional Military Prosecutor’s Office and requested the opening of criminal proceedings against the officers who had allegedly illtreated him. After conducting a preliminary inquiry, during which it gathered certain documents but carried out no interviews, in a decision of 19 October 1999 a prosecutor of that office rejected the applicant’s request. He stated that at the time of his arrest the applicant had not had any “healthrelated complaints”. The prosecutor further found that when the guards had tried to take away the piece of glass which the applicant had used to cut his veins, he had waved it towards them and his cellmates, which had compelled the use of force and handcuffs. He also briefly described the banging of the applicant’s head against the cell wall, but did not refer to any of the allegations of beating with truncheons and kicking, and did not mention the applicant’s injuries. He stated that the guards’ actions had been in line with the applicable legal provisions and therefore did not amount to a criminal offence.
18. The applicant appealed to the Military Appellate Prosecutor’s Office. In a decision of 29 December 1999 the deputy head of that office dismissed the appeal. He stated that the inquiry conducted pursuant to the applicant’s allegations had been “especially thorough and comprehensive”. The applicant had broken a window and had tried to cut his veins. When the guards had intervened, he had put up strong resistance, including reaching out with a piece of glass, which had driven the guards to forcibly handcuff him. Later on he had banged his head against the cell wall. All of this led to the conclusion that no criminal offence had been committed by the guards.
19. The applicant appealed to the Supreme Cassation Prosecutor’s Office. In a decision of 26 January 2000 a prosecutor of that office dismissed the appeal. He described the 30 May 1999 incident in some detail and noted that the guards had denied beating the applicant or using force against him beyond what had been necessary to restrain him and take the piece of glass away from him. As regards the 31 May 1999 incident, he did not make any mention of beating following the applicant’s banging his head against the cell wall. He also described the applicant’s injuries, as noted in the 12 June 1999 medical certificate, but said that they could have been the result of guards’ subduing his resistance and placing him on the ground. The injuries could have also been caused by the applicant’s cellmates. There was furthermore no indication that he had been medically examined on being taken into custody, whereas the medical certificate presented by him did not specify the time when the injuries had been sustained. The decision was sent to the applicant on 1 February 2000.
20. The applicant later lodged a criminal complaint with the Sofia District Court. In a decision of 22 May 2000 the court dismissed the complaint, holding that the facts alleged by the applicant amounted to a publicly prosecutable offence, which made it impossible to institute private criminal proceedings pursuant to them.
21. On an unspecified date the applicant complained to the Ministry of Justice. In a letter of 22 June 1999 the director of the pre-trial detention facilities directorate of the Ministry advised him that an internal inquiry had been carried out. It had found that in using force against the applicant the custodial staff had acted adequately and had not exceeded their powers. If the applicant disagreed with this conclusion, it remained open to him to issue proceedings under the 1988 State Responsibility for Damage Act (see paragraph 28 below). A second complaint by the applicant resulted in a letter dated 4 August 1999 by the same director, in which he stated that a second check had confirmed that the guards had not used excessive force. It invited the applicant to name the guards who had allegedly illtreated him.
22. Meanwhile, on 3 August 1999, the Ministry of Internal Affairs wrote to the applicant, apparently in reply to a complaint. It stated that there was no indication that the applicant had ever been taken to the First District Police Department in Sofia.
23. On 25 October 1999 the applicant wrote again to the Ministry of Justice, requesting an investigation of the incident. On 3 November 1999 the Deputy Minister of Justice replied that sergeant R.V. had denied hitting the applicant and had stated that he had used force only to the extent necessary to restrain him. There was no indication that the applicant had been subjected to degrading treatment. This was also confirmed by the decision of the Sofia Regional Military Prosecutor’s Office. If the applicant disagreed with this conclusion, it remained open to him to bring an action under the 1988 State Responsibility for Damage Act (see paragraph 28 below).
24. In reply to further complaints by the applicant, the Deputy Minister of Justice advised him in a letter of 16 March 2000 that the matter fell within the competence of the military prosecution authorities.
25. Articles 128, 129 and 130 of the 1968 Criminal Code make it an offence to cause minor, intermediate or grievous bodily harm to another. Article 131 § 1 (2) of that Code provides that if the harm is caused by police officers in the course of or in connection with the performance of their duties the offence is aggravated. The offence is publicly prosecutable (Article 161 of the Code).
26. Article 192 §§ 1 and 2 of the 1974 Code of Criminal Procedure, as in force at the relevant time, provided that proceedings concerning publicly prosecutable offences could be opened only by a prosecutor or an investigator. They had to open an investigation whenever they received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code). If the information given to the prosecuting authorities was not supported by evidence, they had to order a preliminary inquiry to determine whether the opening of a criminal investigation was warranted (Article 191 of the Code, as in force at the material time).
27. The offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the Code, as in force at the relevant time). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation was handled by military investigators and prosecutors.
28. Section 1 of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act (Закон за отговорността на държавата за вреди, причинени на граждани – “the SRDA”), renamed on 12 July 2006 the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди), as in force at the material time, provided that the State was liable for damage suffered by individuals as a result of the unlawful acts of civil servants committed in the course of or in connection with the performance of their duties. The State’s liability is strict, that is, no fault is required to be established on the part of the civil servants in the commission of these acts (section 4 in fine of the Act).
VIOLATED_ARTICLES: 3


ITEMID: 001-90446
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KONDRASHOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicants’ names and other details are indicated in the appended table. All the applicants were members of the Russian military forces and took part in peace-keeping operations in former Yugoslavia and/or in other military missions outside the Russian Federation.
6. In 2001 they sued the military unit no. 03611 before the Ryazan Garnison Military Court for payment of outstanding daily allowance allegedly due to them on account of their military missions abroad. The court granted the applicants’ claims (see dates of the judgments and sums awarded in the appended table). The judgments were not appealed against and became binding and enforceable on the dates indicated in the appended table.
7. The judgments of 11 December 2001 were not enforced. On 6 November 2002 the Presidium of the Moscow Circuit Military Court decided, upon its President’s request for supervisory review, to quash these judgments in view of an erroneous application of material law and sent the cases for a new consideration to the Ryazan Garnison Military Court (judgments Nos. 338п/г, 339п/г and 341п/г). The applicants did not attend the hearing. It does not appear from the case-file that the applicants or their counsel had been informed of the supervisory-review proceedings or that they were able to take part in these proceedings.
8. On 9 and 10 April 2003 the Ryazan Garnison Military Court reconsidered the cases and dismissed the applicants’ claims. These judgments were upheld on appeal by the Moscow Circuit Military Court on 10 and 17 June 2003 and thus became final.
9. The judgments of 13 and 20 December 2001 in favour of S. Panchenko were enforced on 3 April 2006 and 24 April 2003 respectively. On 2 June 2006 the Ryazan Garnison Military Court partially granted this applicant’s claim for compensation of the inflation losses due to the delay in the execution of the judgment of 13 December 2001. The court awarded compensation for the inflation losses occurred between 1 January 2006 and 31 March 2006, i.e. a sum of 12 428.64 RUB instead of 124,350.48 RUB claimed by the applicant for the total delay in enforcement.
10. The relevant domestic law as in force in the material time is summed up in the Court’s judgment in the case of Ryabykh (see Ryabykh v. Russia, no. 52854/99, § 31-42, ECHR 2003IX).
11. In 2001-2005 the judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-108500
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VULAKH AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicants are relatives of the late Mr Vitaliy Eduardovich Vulakh. The first two applicants are his father and mother, born in 1932 and 1939 respectively, and the third and fourth applicants are his children, born in 1985 and 1984 respectively. They lived in Kurganinsk in the Krasnodar Region.
6. On an unspecified date a criminal investigation was opened into several counts of murder, robbery and destruction of property committed by a criminal syndicate. It appears that Mr Vitaliy Vulakh was suspected of being the leader of the syndicate.
7. On 25 March 2002 Mr S., Mr N. and Mr K. were arrested on suspicion of membership of the gang. On learning of their arrest, Mr Vitaliy Vulakh shot dead his fiancée and committed suicide.
8. On 20 June 2002 the criminal prosecution of Mr Vitaliy Vulakh was discontinued as a result of his death.
9. On 3 October 2002 the Krasnodar Regional Court convicted Mr S., Mr N. and Mr K. of serious criminal offences and sentenced them to lengthy terms of imprisonment. The judgment mentioned that Mr Vitaliy Vulakh had been the leader of a criminal enterprise and had told the defendants to murder his business competitor Mr G. It read, in particular, as follows:
“The person who had been the leader of the gang (V[italiy] Vulakh) in respect of whom the case was discontinued because of his death, had money at his disposal, he funded the gang and paid each gang member to commit crimes: he bought cars, paid for their maintenance, petrol and travel expenses...”
10. In these proceedings the victims Mr G., Mr F., Ms B. and Ms V. brought civil claims against the three defendants, seeking compensation for pecuniary and non-pecuniary damage. The Regional Court indicated that these claims should be examined in separate civil proceedings.
11. On 14 October 2002 the first applicant lodged an appeal to the Supreme Court of the Russian Federation. He submitted that the decision on the discontinuation of criminal proceedings against his son had never been notified to him or to his son’s counsel, and that counsel had not been allowed to study the file or plead his son’s innocence.
12. On 6 November 2002 a judge of the Krasnodar Regional Court informed the first applicant that he had no right to lodge an appeal to the Supreme Court because he was not a party to the criminal case. The judge wrote to him that further appeals would also be rejected.
13. It appears that on 2 April 2003 the Supreme Court of the Russian Federation examined appeals by those convicted and upheld the judgment of 3 October 2002. A copy of this judgment was not made available to the Court.
14. On 5 March 2003 a notary public issued the four applicants with a certificate of succession on intestacy, according to which they inherited Mr Vitaliy Vulakh’s house.
15. On an unspecified date Mr G., Mr F., Ms B., Ms V. and a private company sued the four applicants and the Kurganinskiy dairy factory, of which Mr Vitaliy Vulakh had been a minority shareholder, for pecuniary and non-pecuniary damages.
16. On 4 September 2003 the Kurganinskiy District Court of the Krasnodar Region found against the applicants and the dairy factory, finding as follows:
“According to Article 42 of the Code of Criminal Procedure of the Russian Federation, the victim shall be compensated for the pecuniary damage caused by the crime, as well as for the costs incurred during the pre-trial investigation and trial...
According to Article 1064 of the Civil Code of the Russian Federation, damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage.
According to the judgment of the Krasnodar Regional Court of 3 October 2002 and the judgment of the Supreme Court of 2 April 2003, Mr V[italiy] Vulakh had organised an armed group (gang) composed of Mr S., Mr N. and Mr K. who had committed, under his leadership, serious crimes: the murder of the head of the Kurganinskiy District Council Mr V. and repeated attempts to murder the director general of [a] private company, Mr G.
According to Resolution no. 1 of the Plenary Supreme Court of the USSR of [unreadable] March 1979, entitled ‘On the case-law on application of provisions for compensation for pecuniary damage caused by crime’, those who cause damage through their criminal activities shall be jointly liable for that damage. Thus, Mr V[italiy] Vulakh, Mr K., Mr S., and Mr N. are jointly liable for the damage caused by their crimes.
According to Article 323 of the Civil Code, in cases of joint liability the creditor may claim satisfaction of debt, in full or in part, either from all the debtors or from each debtor individually.
Mr V[italiy] Vulakh should have borne liability for the pecuniary and non-pecuniary damage caused by the crimes, but he committed suicide during the pre-trial investigation.
The defendants Mr E. Vulakh, Ms V. Vulakh, Mr S. Vulakh and Ms V. Vulakh are heirs to Mr V[italiy] Vulakh after his death. According to Article 1175 of the Civil Code, heirs who have accepted an inheritance shall be jointly liable for the testator’s debts. Each heir is liable in proportion with the share of the inheritance he received.
Article 1152 of the Civil Code provides that the heir accepting a part of an inheritance is presumed to have accepted the entire inheritance, whatever its form or location... On 5 March 2003 [the four applicants] were issued with an inheritance certificate... in respect of the house.
According to Article 1176 of the Civil Code, the estate of a co-owner of a private company includes that co-owner’s part in the charter capital of the company. According to the audit report of 7 July 2003, the real value of Mr V[italiy] Vulakh’s part corresponds to 37.49% of the value of the net assets of the Kurganinskiy dairy factory, which amounts to 18,705,260 Russian roubles (RUB).
For that reason, the defendants who have accepted a part of Mr V[italiy] Vulakh’s estate in inheritance must be considered to have accepted his part in the charter capital of the Kurganinskiy dairy factory.
It follows that compensation in respect of pecuniary and non-pecuniary damage must be recovered from the Kurganinskiy dairy factory whose charter capital comprises a part of the estate inherited by [the applicants]...”
The District Court awarded 33% of Mr Vitaliy Vulakh’s share in the dairy factory to Mr G.’s company, 19.3% to Mr G., and 25.7% to Ms B., and ordered immediate enforcement of the judgment.
17. On 14 September 2003 the applicants lodged a statement of appeal. They submitted that that Mr Vitaliy Vulakh had not been found guilty by a court of law and should be presumed innocent. In the absence of a guilty verdict on Mr Vitaliy Vulakh there were no grounds to impose joint liability on his heirs. A civil claim should have been brought against him, and the court should have examined the matter of procedural succession. Furthermore, the dairy factory could not be held liable for the debts of its owners.
18. On 18 September 2003 the Krasnodar Regional Court examined the appeal and upheld the judgment, endorsing the District Court’s approach and rejecting the applicants’ arguments in the following terms:
“Although the prosecution of Mr V[italiy] Vulakh was discontinued in connection with his death, on 3 October 2002 Mr S., Mr N. and Mr K. were convicted and the conviction entered into legal effect. According to the judgment, Mr V[italiy] Vulakh had been the leader of an armed group (gang) which had committed, under his leadership, serious crimes: the murder of the head of the Kurganinskiy District Council, Mr V., and repeated attempts to murder the director general Mr G. This means that the conviction established that Mr V[italiy] Vulakh’s had been responsible for causing pecuniary and non-pecuniary damage to the plaintiffs.”
19. Criminal proceedings must be discontinued against a deceased person except where a continuation of the proceedings is necessary for his or her rehabilitation or for the reopening of the case in respect of others on account of newly discovered circumstances (Article 5 § 8).
20. The Civil Code provides as follows:
“1. A private company is a company founded by one or more persons; its charter capital is divided into parts described in its articles of association. Participants of a private company are not liable for its debts...”
“6. Shares in the charter capital of a private company are transferred to the heirs of the company’s participants... unless the articles of association provide that such a transfer requires the consent of the other participants...”
“1. Damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage...
2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his...”
21. The factual circumstances established by the final judicial decision in an earlier case, are binding on the court (Article 61 § 2). The final judicial decision in a criminal case concerning a particular person is binding on the court examining the civil-law consequences of that person’s actions only to the extent that the criminal court determined whether or not such actions had been committed and whether or not they had been committed by that person (Article 61 § 4).
22. On 13 June 2002 the Presidium of the Moscow City Court quashed the criminal judgment against three co-defendants in so far as it concerned the alleged participation of two other persons in the crimes. The Presidium held (decision reported in Bulletin of the Supreme Court, no. 9, 2003):
“In breach of Article 314 of the RSFSR Code of Criminal Procedure, the [trial] court erroneously declared Mr B. and Mr E. to have been accomplices to the crime. It follows from the case materials that, by the investigator’s decision of 16 July 1998, the case against them had been severed into separate proceedings in connection with Mr E.’s grave illness and the failure to locate Mr B. A reference to them in the text of the judgment, describing them as persons who had been complicit in the criminal offences committed by the convicts, is not justified because... the merits of the criminal case against them have not been examined by a court of law.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-2
P1-1
VIOLATED_BULLETPOINTS: P1-1-1