ITEMID: 001-72684
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF EVANS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8;Indication under Rule 39 continued until judgment becomes final or until further order
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 6. The applicant was born in October 1971 and lives in Wiltshire. The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 14 below), are as follows.
7. On 12 July 2000 the applicant and her partner, J, commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been married and had been referred for fertility treatment at the clinic with her husband in 1995, but had not pursued it because of the breakdown of her marriage.
8. On 10 October 2000 the applicant and J were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly, it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly.
9. The consultation of 10 October 2000 lasted approximately an hour in total. A nurse explained that the applicant and J would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraphs 27-30 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. Wall J found that J gave these assurances in good faith, because at that time he loved the applicant, genuinely wanted a child with her and wanted to support her during a very difficult period (see also paragraph 15 below).
10. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 29 below).
Immediately beneath the title to the form appeared the following words:
“NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.”
J ticked the boxes which recorded his consent to use his sperm to fertilise the applicant’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of 10 years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J, she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.”
11. On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus.
12. In May 2002 the relationship broke up. The future of the embryos was discussed between the parties. On 4 July 2002 J wrote to the clinic to notify it of the separation and to state that the stock of embryos should be destroyed.
13. The clinic notified the applicant of J’s withdrawal of consent to further use of the embryos and informing her that it was now under a legal obligation to destroy them, pursuant to section 8(2) of Schedule 3 to the 1990 Act (see paragraph 29 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings.
14. The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65 page judgment (Evans v. Amicus Healthcare Ltd and others, [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims.
15. He concluded that J had not given consent to the continuing treatment of the applicant on her own and that there had been no consent on his part to the use of the embryos irrespective of any change of circumstance. He rejected the applicant’s submission that J was estopped from withdrawing his consent, finding that both the applicant and J had embarked on the treatment in good faith on the basis that their relationship would continue. It did not, however, and in the changed circumstances of separation, it would be inequitable not to allow either party to change his or her mind and to withdraw consent to the treatment.
16. As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He did, however, accept that the relevant provisions of the 1990 Act did interfere with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child (see further paragraphs 26-27 below). He considered it entirely appropriate that the law required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman.
17. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 29 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man:
“If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.”
18. The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd, [2004] EWCA Civ 727).
The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. J was thus entitled to withdraw his consent as and when he did and such withdrawal prevented both the use and continued storage of the embryos. The court rejected the applicant’s argument that J had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J, and the other witnesses (see paragraphs 14-15 above). The Court of Appeal was also informed by J’s counsel that J’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection.
19. While there was an interference with the private lives of the parties, Lord Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons:
“The less drastic means contended for here is a rule of law making the withdrawal of [J’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the Human Fertilisation and Embryology Authority or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ...
... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.”
20. Lady Justice Arden stated, by way of introduction, that:
“The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.”
Arden LJ noted that neither the Warnock Report nor the Green Paper which had preceded the legislation had discussed what was to happen if the parties became estranged during treatment (see paragraphs 23-27 below). However, she went on to find:
“Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... . Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J’s] right is justified on the ground that interference is necessary is protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified.
The interference with [the applicant’s] private life is also justified under Article 8 § 2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J], especially as in the present case it will probably involve financial responsibility in law for the child as well.”
21. On the issue of discrimination, Lord Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests.
22. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment.
23. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.” The Committee reported in July 1984 (Cmnd 9314) and its recommendations, so far as they related to IVF treatment, were set out in a Green Paper issued for public consultation. After receipt of representations from interested parties, they were included in a White Paper, Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper noted “the particular difficulties of framing legislation on these sensitive issues against a background of fast-moving medical and scientific development”. Nonetheless, following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990.
24. The solution recommended and embodied in the 1990 Act was to permit, subject to certain express prohibitions, the creation and subsequent use of live human embryos produced in vitro, subject to a number of conditions, restrictions and time limits.
25. Thus, by section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3 (1) is an offence (created by section 41(2)(a) of the Act).
26. One of the policy objectives of the 1990 Act was to promote the welfare of the child. Thus, section 13(5) provides:
“A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.”
27. The second important policy objective of the 1990 Act was to ensure that both gamete providers (i.e. the providers of the sperm and eggs) continued to consent from the commencement of the treatment until the implantation of the embryos. The primacy of continuing bilateral consent had been central to the Warnock Committee’s recommendations about the regulation of IVF treatment and although neither the Warnock Report nor the Green Paper had discussed what was to happen if the parties became estranged during treatment, the White Paper emphasised that donors of genetic material would have the right under the proposed legislation to vary or withdraw their consent at any time before the embryos were used.
28. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with consent, shall be complied with.
29. Schedule 3 provides:
“Consents to use of gametes or embryos
Consent
1. A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn.
2. — (1) A consent to the use of any embryo must specify one or more of the following purposes—
(a) use in providing treatment services to the person giving consent, or that person and another specified person together,
(b) use in providing treatment services to persons not including the person giving consent, or
(c) use for the purposes of any project of research,
and may specify conditions subject to which the embryo may be so used.
(2) A consent to the storage of any gametes or any embryo must—
(a) specify the maximum period of storage (if less than the statutory storage period), and
(b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it,
and may specify conditions subject to which the gametes or embryo may remain in storage.
(3) A consent under this Schedule must provide for such other matters as the Authority may specify in directions.
(4) A consent under this Schedule may apply—
(a) to the use or storage of a particular embryo, or
(b) in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes,
and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos.
Procedure for giving consent
3.—(1) Before a person gives consent under this Schedule—
(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and
(b) he must be provided with such relevant information as is proper.
(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below.
Variation and withdrawal of consent
4.—(1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant.
(2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used—
(a) in providing treatment services, or
(b) for the purposes of any project of research.
Use of gametes for treatment of others
5.—(1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent.
(2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used.
(3) This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services.
In vitro fertilisation and subsequent use of embryo
6.—(1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above.
(2) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo.
(3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents.
(4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above.
Embryos obtained by lavage, etc.
...
Storage of gametes and embryos
8.—(1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent.
(2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents.
(3) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.”
30. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley as follows:
“(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) they must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) an embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) an embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.”
31. On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998), the situation in the various Member States of the Council of Europe would appear to be as follows. In Denmark, France, Greece and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in legislation; in the Netherlands, this rule is included in secondary legislation. In Belgium, Germany and Finland clinical practice appears to conform to this model, and it further appears that, as a matter of law or practice, in Iceland, Sweden and Turkey the male donor enjoys a similar power of veto to that afforded by the United Kingdom.
32. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in recognition of the fact that medically-assisted reproduction represents a far heavier burden for the woman than for the man, and absent any prior written agreement to the contrary, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria, Estonia and Italy the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman.
33. The field of medically assisted reproduction is not regulated at federal level in the United States, and since few States have introduced laws concerning the subsequent withdrawal of consent by one party, it has been left to the courts to determine how the conflict between the parties should be resolved. There is, therefore, a series of judgments by State Supreme Courts regarding the disposal of embryos created through IVF.
34. In Davis v. Davis, (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992:
“...disputes involving the disposition of pre-embryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.”
35. In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured.
36. In A.Z. v. B.Z, (2000, 431 Mass. 150 ; 725 N.E. 2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail.
37. This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them preserved for use with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, the court subscribed to the view taken in the Z. case regarding public policy and ordered that the wife’s wishes be observed.
38. In the final case in this series, Litowitz v. Litowitz, (48 P. 3d 261, 271), the Supreme Court of Washington decided in 2002 to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years.
39. In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)) a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos.
The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him.
40. The General Rule stated in the Article 5 of the Council of Europe Convention on Human Rights and Biomedicine States as follows:
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.”
41. Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI , 1989), stated:
“1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements...”
42. Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides:
“Article 6 – Consent
a) Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.
The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.”
NON_VIOLATED_ARTICLES: 14
2
8


ITEMID: 001-78289
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LACHOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1961 and lives in Rejowiec Fabryczny.
5. The applicant was arrested on 20 September 1999 on suspicion of homicide. On 22 September 1999 the Chełm District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody for a period of 3 months in view of a reasonable suspicion that he had committed homicide. It further held that the likelihood that he would be given a heavy sentence justified his detention on remand.
6. On 14 December 1999 the Lublin Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 19 March 2000. It relied on the reasonable suspicion of his having committed the offence in question and the likelihood of a heavy sentence being imposed on the applicant. In addition, it had regard to the need to obtain expert evidence and a psychiatric examination of the suspects.
7. On 8 March 2000 the Lublin Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 19 June 2000. It found that in the light of the evidence obtained there was a strong likelihood that the applicant had committed the offence. Furthermore, it relied on the severity of the likely sentence and the need to obtain further expert evidence. On 24 May 2000 the Court of Appeal prolonged the applicant’s detention until 4 September 2000, reiterating the grounds previously given. It appears that his detention was subsequently prolonged on an unspecified later date.
8. In the course of the investigation the Regional Prosecutor obtained voluminous evidence and took a series of investigative measures. On 10 July 2000 the prosecution service filed a bill of indictment with the Lublin Regional Court. The applicant was charged with two counts of homicide and armed robbery. There were four other defendants in the case.
9. On 20 March 2001 the Regional Court ordered that the applicant be kept in custody until 19 September 2001. It held that the gravity of the charges and the likelihood that the applicant would be given a heavy sentence confirmed the risk that he might obstruct the proceedings. It further held that the applicant’s detention on remand was the only measure which could secure the proper conduct of the proceedings. Lastly, when extending the applicant’s detention, the Regional Court had regard to its caseload.
10. On 19 September 2001 the Court of Appeal granted the Regional Court’s application and prolonged the applicant’s detention until 31 December 2001. It noted that the period of the applicant’s detention had reached the 2-year statutory time-limit (Article 263 § 3 of the Code of Criminal Procedure) and criticised the trial court for not having indicated any particular circumstances which would justify the prolongation beyond the statutory time-limit. However, it held that the prolongation was justified on account of other significant obstacles to progress in the proceedings, namely the fact that one of the defendants had failed to appear at the hearing which had led to the adjournment of the trial. The Court of Appeal also noted that although the bill of indictment had been filed on 10 July 2000, the trial court listed the first hearing only for 16 May 2001.
11. The applicant’s detention was subsequently prolonged on 28 November 2001 (until 15 March 2002), on 13 March 2002 (until 30 April 2002) and on 24 April 2002 (until 30 September 2002). In all those decisions the Court of Appeal relied on the same grounds as had been given in the earlier decisions.
12. The trial court held 20 hearings in the period from 16 May 2001 to 19 September 2002. On 23 September 2002 the Lublin Regional Court convicted the applicant as charged and sentenced him to 25 years’ imprisonment. The applicant, who remained in detention, appealed against the first-instance judgment.
13. On 22 October 2003 the Lublin Court of Appeal quashed the judgment of the Regional Court and ordered a retrial.
14. It appears that the applicant’s detention was prolonged on further unspecified dates. On 7 May 2004 the Regional Court ordered that the applicant be kept in custody until 31 December 2004. The applicant’s detention was subsequently prolonged on 3 December 2004 (until 31 March 2005), on 29 March 2005 (until 30 September 2005) and on 19 September 2005 (until 31 December 2005). In all those decisions, the Regional Court relied on the reasonable suspicion that the applicant had committed the offences in question and the likelihood of a heavy sentence being imposed.
15. The applicant appealed against the decision of 3 December 2004 to prolong his detention. He argued, in particular, that the Regional Court had failed to explain why other non-custodial measures were considered insufficient in his case. On 21 December 2004 the Court of Appeal upheld the contested decision. It agreed with the applicant that the reasons given by the Regional Court were very brief and general. However, referring to Article 5 § 3 of the Convention, it held that the applicant’s continued detention served the public interest of protecting society, given that the applicant had been charged with the homicide of two women, having first cruelly treated them.
16. In its decision of 20 April 2005 upholding the decision of 29 March on the prolongation of the applicant’s detention, the Court of Appeal held that his continued detention on the basis of Article 258 § 2 of the Code of Criminal Procedure remained valid. Having regard to the nature of the alleged offences, it held that Article 258 § 2 established a presumption to the effect that the likelihood of a severe penalty being imposed on an accused might induce him to obstruct the proceedings.
17. On 5 October 2005 the Court of Appeal, having examined the applicant’s appeal against the decision of 19 September 2005 on prolongation of his detention, ordered the applicant’s release under police supervision. It also imposed a ban on leaving the country. The Court of Appeal had regard to the excessive length of the applicant’s detention on remand and the fact that the process of hearing evidence was very advanced. In those circumstances, it was not necessary to prolong further the applicant’s detention. The Court of Appeal also noted that despite the significant length of the applicant’s detention, the Regional Court had failed to ensure the diligent conduct of the trial and, in particular, had not held hearings at reasonable intervals. Furthermore, it observed that the reasons for the continued detention as given by the Regional Court in its decision of 19 September 2005 were very terse. The applicant was released on 6 October 2005.
18. The Regional Court held 22 hearings in the period from 28 January 2004 to 11 April 2006. The proceedings are still pending.
19. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-86539
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KARG v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Dietmar Karg, is an Austrian national who was born in 1960 and lives in Dornbirn. He was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a farmer operating a strawberry farm.
On 13 June 1997 the Bregenz Works Inspection (Arbeitsinspektorat) inspected the applicant’s farm and came across three persons presumed to be Bosnian nationals who were working there.
Subsequently, on 30 July 1997, the Works Inspectorate laid a criminal information against the applicant for illegal employment of foreigners under the Alien’s Employment Act (Ausländerbeschäftigungsgesetz).
On 13 August 1997 the Bregenz District Administrative Authority fined the applicant ATS 49,500 (i.e. approximately EUR 3,600), with imprisonment in default, for illegal employment of three foreigners on his farm.
The applicant filed an appeal against this decision with the Vorarlberg Independent Administrative Panel (IAP) on 1 September 1997 and asked for an oral hearing to be held.
On 8 October 1998 the IAP summoned the applicant to a hearing, scheduled for 10 November 1998.
On 5 November 1998 the applicant’s counsel asked for that hearing to be adjourned until April 1999, as the applicant was absent from Austria. Therefore, on 17 March 1999, the applicant was summoned again to appear on 29 April 1999.
On 27 April 1999 the applicant again filed a request for adjournment of the hearing. He submitted that injuries he had suffered in an accident would leave him incapable to stand trial.
On 31 May 1999 the Bregenz IAP granted the applicant’s request, on condition that he submit a medical statement giving information on his state of health and his ability to follow the hearing.
The applicant presented an abridged medical report indicating his injuries on 10 May 1999 .
On 31 May 1999 the IAP scheduled a hearing for 22 June 1999.
Subsequently, on 21 June 1999, the applicant again filed a request for adjournment of the proceedings sine die.
On 22 June 1999 an oral hearing was held, at which the applicant’s counsel was present.
On 14 December 1999 the IAP acquitted the applicant in respect of one of the foreigners, while upholding the decision as regards the other two.
The applicant lodged a complaint with the Constitutional Court on 28 February 2000 and requested that suspensive effect be granted to his complaint. Moreover he asked for the hearing to be suspended until he had recovered from his injuries.
On 13 March 2000 the Constitutional Court refused to grant his complaint suspensive effect as the execution of the IAP’s decision would not impose a disproportionate loss on the applicant.
On 13 June 2000 the Constitutional Court refused to deal with the applicant’s complaint as it lacked prospects of success. On 4 September 2000, at the applicant’s request, it transferred the case to the Administrative Court.
On 16 November 2000 the applicant submitted further observations to the Administrative Court and requested an oral hearing. In addition he again filed a request for suspensive effect.
On 30 January 2001 the Vorarlberg IAP submitted it’s observations on the applicant’s complaint.
On 26 June 2003 the Administrative Court quashed the IAP’s decision and remitted the case back to the IAP. It found that the IAP should have verified the applicant’s capacity to attend an oral hearing.
Subsequently, on 23 September 2003, the applicant filed further observations on the case.
On the same day the IAP held an oral hearing. In the presence of the applicant’s counsel it took evidence from one of the labour officials who had conducted the on-site inspection on 13 July 1997.
On 29 September 2003 the IAP summoned the applicant to another hearing scheduled for 28 October 2003. It explicitly asked the applicant if he wanted to be questioned. In addition it asked him to disclose the address of one of the labourers, M., in order to have him summoned to the planned hearing.
On 2 October 2003 the applicant requested that the hearing be adjourned as his counsel was retained by other business.
On 15 October 2003 he again commented on the proceedings, submitting inter alia that it was for the prosecuting authority to investigate M.’s whereabouts.
On 30 October 2003 the IAP held a further hearing in which it summoned another labour official and one of the labourers. Although represented by counsel, the applicant himself did not appear before the IAP.
On 6 November 2003 the IAP partly granted the applicant’s appeal and, explicitly referring to Article 6 of the Convention, held that the proceedings had exceeded a reasonable time. It took this fact into account as a mitigating circumstance and reduced the fine to 50 per cent less than the lowest generally applicable fine. The fine was therefore reduced by two-thirds to EUR 363 for each count. Moreover, the IAP held that M. could not be summoned, because he had left Austria and it had no current address at which he could be contacted. The applicant failed to provide the name and address of the other witness and did not give any reasons for the request.
On 22 December 2003 the applicant, alleging inter alia violations of Articles 6 and 7 of the Convention and of Article 1 of Protocol 1, filed a complaint to the Constitutional Court. Furthermore he requested that his complaint be granted suspensive effect.
On 15 December 2003 he filed a further complaint to the Administrative Court, in which he repeated his arguments concerning an alleged violation of Article 6 of the Convention.
On 12 January 2004 the Constitutional Court rejected his request for granting suspensive effect.
On 21 January 2004 the Administrative Court, relying on Article 33a of the Administrative Court Act, declined to deal with the case since the aggregate amount of the two penalties did not exceed EUR 726 and no significant legal problem was at stake.
By decision of 24 February 2004 the Constitutional Court declined to deal with the case as it lacked prospects of success. The decision was served on the applicant’s counsel on 16 March 2004.


ITEMID: 001-100461
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VASILCHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible (Article 35-3-b - No significant disadvantage);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1959 and lives in Rostov-on-Don.
5. The applicant is a Russian Army colonel.
6. In September 1998 he was removed from his post.
7. On 2 October 1998 the applicant brought proceedings against his commanding officer claiming reinstatement, payment of salary and service-related benefits, and compensation of non-pecuniary damage sustained as a result of his removal.
8. On 26 October 1998 the Military Court of Rostov Garrison (“the Garrison Court”) dismissed his claims; the judgment was upheld on appeal.
9. In January 1999 a military disciplinary commission issued an appraisal report in respect of the applicant. The commission found that the applicant's performance was unsatisfactory. On this basis in March 1999 he was transferred from active military service to the reserve.
10. On 20 April 1999 the applicant challenged the transfer in court, but to no avail. On 10 November 1999 the Garrison Court dismissed his claim; the judgment was upheld on appeal.
11. On 27 April 2001 president of the Military Chamber of the Supreme Court of Russia granted the applicant's application for supervisory review and brought an extraordinary appeal against the above court decisions.
12. On 22 May 2001 the Military Chamber of the Supreme Court quashed the impugned decisions and remitted the cases for fresh examination.
13. On an unspecified date the Garrison Court joined the above cases.
14. On 21 January 2002 the Garrison Court granted the applicant's claims in part. It quashed the respective decisions of the applicant's superior officers and the appraisal report, reinstated him in his former post and awarded him non-pecuniary damages in the amount of 1,000 Russian roubles (RUB), to be recovered from the Ministry of Defence, and RUB 500 to be recovered from the Chief of the Headquarters of the North-Caucasus Military Command. The claims for pecuniary damages were rejected.
15. On 8 May 2002 the appeal court set aside the judgment in the part concerning rejection of the claims for pecuniary damages and required a new hearing. The remainder of the judgment was upheld.
16. On 27 September 2002 the Garrison Court issued a writ of execution in respect of the part of the judgment that had entered into force and forwarded it to the bailiff service of the Oktyabrskiy District of RostovonDon.
17. On 30 January 2003 the applicant was reinstated in his post. The damages in the amount of RUB 1,500 awarded by the judgment of 21 January 2002 remained unpaid.
18. On 19 June 2003 the Garrison Court granted the applicant's claims in part, awarding him RUB 650,510. However, on 11 February 2004 the appeal court overturned this judgment on procedural grounds and ordered the case for re-examination.
19. On 8 April 2004 the Garrison Court granted most of the applicant's claims. The court awarded him RUB 776,247 covering his salary, legal expenses and various service-related benefits due for the period of his necessary absence from work, in particular, compensation for clothing, food ration, sanatoria treatment and a lump-sum premium for 1997.
20. The court also found that the applicant's reinstatement ordered by the judgment of 21 January 2002 had been carried out with a significant delay, and that the applicant had not received RUB 1,500 awarded by the court in compensation of non-pecuniary damage. The applicant was awarded RUB 5,000 as compensation for the delayed enforcement.
21. This judgment was upheld on appeal by the Military Court of North Caucasus Command on 4 August 2004.
22. On 9 April 2004 the applicant received RUB 1,000 due to him under the decision of 21 January 2002. The award of RUB 500 remained unpaid.
23. On 30 August and 1 November 2004 the applicant received the amounts awarded to him by the court judgment of 8 April 2004.
24. The applicant brought proceedings claiming index-linking of the amounts paid to him with a delay.
25. On 28 January 2005 the Garrison Court granted his claims in part, awarding him RUB 2,750 as inflation losses resulted from the delay in the enforcement of the judgments of 21 January 2002 and 8 April 2004. However, without giving any specific reasons the court rejected the applicant's claim in the part concerning the failure to pay him RUB 500.
26. On 25 May 2005 the Military Court of North Caucasus Command upheld the judgment on appeal.
27. On 19 July 2005 the applicant received the amount awarded to him by the judgment of 28 January 2005. It appears that the applicant has not received the award of RUB 500 to date.
28. Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.
29. Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69498
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KARDAS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Mieczysław Kardaś, is a Polish national who was born in 1927 and lives in Kielce, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 September 1990 the applicant asked the Busko-Zdrój District Court (Sąd Rejonowy) for a judgment declaring that he had inherited his mother's estate.
The proceedings were terminated on 4 June 2001, when the Supreme Court (Sąd Najwyższy) refused to deal with the applicant's cassation appeal. On 12 January 2001, the date on which the application was lodged with the Court, they were pending before the Supreme Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-59887
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF McELHINNEY v. IRELAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. The applicant is a police officer (garda). At 11 p.m. on 4 March 1991, when off-duty, the applicant and two passengers, in a private car (described in subsequent police reports as a “jeep”) towing a van on a trailer, crossed from Northern Ireland into Ireland at a United Kingdom permanent vehicle checkpoint in County Derry. Precisely what occurred that night is disputed between the parties. It is not, however disputed that the applicant accidentally drove his car into the checkpoint barrier. The check-point was manned by armed British soldiers, one of whom, a corporal in the British Royal Military Police, approached the applicant after the accident. The Government contend that he asked the applicant to stop and was ignored. The applicant alleges that he did stop and that the soldier then waved him on. In any event, it would appear that the soldier moved towards the car and was hit by the vehicle being towed. He was thrown forward on to the tow-bar and dragged for a short distance until he managed to pull himself up into a standing position on the tow-bar. The applicant maintains that he was unaware of the soldier’s position and continued driving into Ireland. According to the report completed by the Irish Police in April 1991 following their investigation into the incident (see paragraph 9 below), the soldier fired six shots, one of which entered the car’s exhaust pipe, another of which went through the back windscreen and exited through the roof. The Government claim that some, at least, of these shots were fired in Northern Ireland. According to the applicant he heard the shots and, fearing a terrorist attack, continued driving until he reached a police station, where he considered he would be safe. He stopped the car about two miles from the border, in the village of Muff, in County Donegal, Ireland. According to the police report, at this stage the soldier, described by witnesses as in a state of “blind panic”, ordered the applicant and the two passengers to get out of the car and stand against the wall with their hands in the air. The applicant alleges that he turned to face the soldier, intending to explain that he was a police officer and that there was no cause for alarm. Again, according to the applicant, the soldier then aimed his gun at him and pulled the trigger twice, although the shots did not fire because the gun jammed.
8. The Irish police had been notified of the incident at the border and soon arrived at Muff. The applicant was arrested on suspicion of driving having consumed excess alcohol. He refused to comply with police requests to provide blood and urine samples.
9. As mentioned above, the Irish Police carried out an inquiry into the incident in the course of which 71 witnesses were interviewed. In his report the investigating officer concluded that the applicant had shown “a regrettable degree of recklessness” in leaving the scene of the accident at the check-point. The report continued:
“This was a most serious incident and one which could have resulted in the serious injury or death of one or more persons. First of all the soldier was at great risk, had he fallen off the draw-bar. The three occupants of the jeep may well have been shot by [the soldier] or his colleagues at the check-point. The safety of the bystanders at Muff was also put in jeopardy resulting from the presence of the armed and terrified soldier. This matter has been vigorously and thoroughly investigated and the only conceivable reason that I can find that would prompt Garda McElhinney to deliberately leave the scene of the accident would be because he was intoxicated ...”.
The applicant was subsequently prosecuted and convicted in Ireland for his refusal to provide blood and urine samples. No disciplinary proceedings were taken against him, but he was transferred to another area.
10. The applicant alleges that he feared for his life and suffered severe post-traumatic shock as a result of the above incident. On 29 June 1993 he lodged an action in the Irish High Court against the individual soldier and the British Secretary of State for Northern Ireland. He claimed damages, including exemplary and punitive damages, in respect of his allegation that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger.
11. On 5 November 1993 the United Kingdom Government’s solicitors wrote to the applicant’s solicitors as follows:
“... The Secretary of State for Northern Ireland bears no responsibility for the actions of the first defendant who is a soldier in the British Armed Forces under the authority of the Secretary of State for Defence in the United Kingdom and accordingly the Secretary of State for Northern Ireland is not a proper defendant to these proceedings. Even if the Secretary of State was the proper defendant, both it and [the soldier] contend that they are exempt from the jurisdiction of the Irish courts on the basis of the doctrine of sovereign immunity. If your client considers that he does have a valid claim there is nothing to prevent him from pursuing it in Northern Ireland against the proper body. ...”
The applicant’s solicitors replied in a letter dated 3 December 1993:
“... We have also sought advice on the issue of foreign sovereign immunity raised by you and have been advised that, in these circumstances, no such immunity would apply. That being so, our client prefers to seek his redress in the courts of this jurisdiction where the incident in question occurred. ...”
12. On 13 January 1994 the applicant applied for permission to substitute for the second defendant the United Kingdom Secretary of State for Defence. On 21 January 1994 the Secretary of State for Northern Ireland, claiming sovereign immunity, applied for the summons to be set aside.
13. On 15 April 1994 a High Court judge granted the Secretary of State’s request, on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign sovereign government.
14. The applicant appealed, arguing, first, that the doctrine of sovereign immunity did not apply to claims for damages for personal injury caused by torts taking place within the forum State’s jurisdiction. Secondly, he submitted that the principle of reciprocity should apply to prevent the Irish court granting immunity to the United Kingdom in circumstances in which British courts, applying the State Immunity Act 1978, would not grant immunity to Ireland. Thirdly, he put forward the argument that, even if the doctrine of state immunity applied, it should yield in his case since he alleged an infringement of the constitutionally protected right to bodily integrity.
15. The Supreme Court gave judgment on 15 December 1995, rejecting the applicant’s appeal. The applicant had relied on the Supreme Court’s judgment in Government of Canada v. the Employment Appeals Tribunal (1992) 2 IR 484, but the court held that that judgment was authority only for the proposition that the doctrine of immunity did not apply in respect of commercial or trading activities carried out by a foreign government. The facts alleged by the applicant did not relate to any commercial activity, and it was not established that, as a principle of public international law, immunity no longer applied in respect of personal injuries caused by the tortious act of a foreign State’s servant or agent acting within the sphere of sovereign activity (“de jure imperii”). In his judgment, Chief Justice Hamilton, with whom Justices O’Flaherty and Blayney agreed, observed:
“There can be no doubt but that the first defendant [the soldier] in carrying out his duties at the said checkpoint was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as ‘jure imperii’ even though alleged to have been committed within this jurisdiction.
It is submitted on behalf of the plaintiff that, as the acts complained of were tortious and caused personal injuries to him, the principle of foreign sovereign immunity should not apply to such acts and that it was a near-universally recognised principle of international law that claims for personal injuries allegedly inflicted in the forum state by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. In support of such submission, counsel for the plaintiff referred in particular to the United Kingdom State Immunity Act 1978; the Canadian State Immunity Act 1982; the Australian Foreign Sovereign Immunities Act 1985 and the European Convention on State Immunity 1972. ... The plaintiff relies on these statutes as indicative of a recognised principle of public international law. ... Distinction must be drawn between the provisions of legislation in a number of states and the provisions of public international law, and the principles set forth in individual state legislation cannot be regarded as establishing principles of public international law. The provisions of statutes cannot be used as evidence of what international law is: statutes are evidence of the domestic law in the individual states and not evidence of international law generally. Article 11 of the European Convention on State Immunity provides that:- ‘A Contracting Party cannot claim immunity from the jurisdiction of a court of another contracting party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’ I do not have to decide, in the circumstances of this case, whether the terms of the Convention are part of the domestic law of this State because even if it were, the plaintiff’s claim herein would fail by virtue of the terms of Article 31 of the said Convention, which provides that:- ‘Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by, or in relation to its armed forces when on the territory of another Contracting State.’ The terms of Article 31 recognise that, as a matter of international law, immunities and privileges in respect of anything done or omitted to be done by or in relation to armed forces, when on the territory of another Contracting State, exist. ... Despite the Herculean efforts of the plaintiff’s legal advisers in making available to the court copies of all relevant decisions, articles and draft Conventions, and the cogent arguments of counsel, I am not satisfied that it is a principle of public international law that the immunity granted to sovereign states should be restricted by making them liable in respect of tortious acts, committed on their behalf by their servant or agent, causing personal injuries to the person affected by such act or omission, when such act or omission is committed jure imperii and I would dismiss the appeal on this point ...”
16. The applicant did not pursue his action against the individual soldier who had allegedly assaulted him.
17. In his judgment in the Government of Canada case (cited in paragraph 15 above), Justice Hederman described the position of sovereign immunity in Irish law as follows:
“The doctrine of sovereign immunity is one of the generally recognised principles of international law, which, by Article 29, s.3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states .... [T]he Oireachtas [the National Parliament] has never sought to qualify or modify this position ...”.
18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal), but has not been signed or ratified by Ireland. It provides in Article 11:
“A Contracting Party cannot claim immunity from the jurisdiction of a court of another Contracting Party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred. ”
Article 31 of the same Convention provides:
“Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by or in relation to its armed forces on the territory of another Contracting State.”
19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 12 that:
“... a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”
In its commentary on that passage, the ILC noted that the “physical injury ... appears to be confined to insurable risks. The areas of damage envisaged in Article 12 are mainly concerned with accidental death or physical injuries to persons ... involved in traffic accidents ... Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60713
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ALLAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 8. On 3 February 1995 Mr David Beesley, store manager, was shot dead in the manager's office of a Kwik-Save supermarket in Greater Manchester.
9. On 18 February 1995 the applicant and another man, by the name of Leroy Grant, were arrested on suspicion of having committed a robbery at the Late Saver shop, Cheadle. At the time, they were in possession of an 8-mm Beretta replica handgun. Charged in connection with this offence, Mr Grant admitted to the offence and several other late-night shop robberies. The applicant denied involvement in any of the offences. On or about 20 February 1995 an anonymous informant told the police that the applicant had been involved in the murder of David Beesley.
10. On 20 February 1995 the applicant and Leroy Grant appeared in custody at the Stockport Magistrates' Court and were further remanded in custody to reappear on 23 February 1995. On 20 February 1995 Detective Chief Inspector Dunn requested permission for the cell and the visiting areas used by the applicant and Leroy Grant to be bugged with audio and video technology, alleging that all regular methods of investigation to identify David Beesley's murderer had failed. The Chief Constable of the Greater Manchester Police granted authority on the same day for an unlimited period for both the police stations at Stockport and Cheadle Hulme. On 13 March 1995 similar authority was sought and obtained for the installation of a listening device with video system to be placed in the visiting area of Stretford police station, where the applicant was then held.
11. On 8 March 1995 the applicant was arrested for the murder and questioned. In the interviews with the police which followed, the police told the applicant that he was not obliged to say anything. He availed himself of that right.
12. During this time visits to the applicant by his female friend, J.N.S, were recorded on audio and videotape in the prison visiting area between 12 and 28 March 1995. The applicant and Leroy Grant were held for long periods in the same cell and recordings of their conversations were made from 20 February to 12 March 1995.
13. On 23 March 1995 H. was brought to Stretford police station. H. was a long-standing police informant with a criminal record who had been arrested on 21 March 1995 for unrelated offences. He was placed in the applicant's cell for the purpose of eliciting information from the applicant. As asserted by the applicant, H. had every incentive to inform on him. Telephone conversations between H. and the police included comments by the police instructing H. to “push him for what you can” and disclosed evidence of concerted police coaching. After 20 April 1995 he associated regularly with the applicant who was remanded at Strangeways Prison.
14. On 28 June 1995 the applicant was taken away from the prison to be interviewed by the police concerning the Kwik-Save robbery. He was attended and advised by his solicitor. During the course of the interview, the applicant was invited to comment on the recordings made in February and March 1995. He made no comment to any question. According to the applicant, he was interrogated at length by the police in an attempt to “rattle” or unsettle him, such that he would be more talkative and vulnerable to H. upon his return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at the applicant's trial.
15. The applicant was interviewed again in the presence of his solicitor on 29 June and 26 July 1995 and remained silent when faced with the allegations.
16. On 25 July 1995 H. made a 59- to 60-page witness statement detailing his conversations with the applicant and was released on bail on 4 August 1995. His sentence was postponed until after he had given evidence at the applicant's trial. The high point of H.'s evidence was the assertion that the applicant had admitted his presence at the murder scene. This asserted admission was not part of the recorded interview and was disputed. The thrust of the applicant's case was that he was discussing robberies and did not accede to H.'s efforts to channel their conversation into a discussion of the murder. The audio- and video-recordings (or transcripts thereof) were utilised in the trial of the applicant. No evidence, other than the alleged admissions, connected the applicant with the killing of Mr Beesley.
17. In January 1998 the applicant's trial on one count of murder and a count of conspiracy to rob began before a jury. He was represented by leading counsel.
18. During his trial, the applicant's counsel challenged the admissibility of extracts from covert audio- and video-recordings of conversations of the applicant with Leroy Grant and J.N.S., under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE). The judge concluded that there was evidence on the tapes from which the jury could infer that the applicant was involved in the events of 3 February 1995, and it was not so unreliable that it could not be left to the jury to assess for themselves. The judge also rejected the applicant's counsel's arguments under sections 76 and 78 of PACE that the evidence from H. was obtained by oppression or by such impropriety as to render it inadmissible. He considered that the use of an informant to talk and listen to the accused over a substantial period of time did not result in any unfairness to the accused. The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence. The evidence was accordingly admitted before the jury. The judge's ruling on the admissibility of the evidence was given on 26 January 1998, after a voir dire (submissions on a point of law in the absence of a jury) and consisted of a judgment of eighteen pages.
19. In his summing-up to the jury on 10 and 11 February 1998, the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence. He told them that they were to judge whether the police had deliberately wound up the applicant during the interview on 28 June 1995 and how to approach the evidence put forward by H.:
“So at the end of the day with regard to H. you have his evidence about the conversations that he had with [the applicant] and what [the applicant] said. You have the tape recordings of the conversations on 28 June when H. had been wired up, between [the applicant] and H., and you have the transcripts of the conversations between H. and the police. I suggest ... that you approach the evidence of H. with the very greatest caution and care. He is a professional criminal. He behaved, and has behaved as he acknowledged, dishonestly and criminally for years. He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive. You have heard that he has not yet been sentenced on matters for which he was in custody in early 1995. The defence say if you consider the whole picture you simply cannot rely upon H.; quite unsafe to do so. The prosecution say the contents of the tapes of 28 June can be relied on and are consistent with what H. says [the applicant] had said to him previously, before he, H., was wired up. Of course tapes of ... conversations cannot possibly constitute any independent confirmation of what H. says about what [the applicant] had said to him previously, because, and you will understand the logic of that, the information is all coming from one source, namely H. and the witness cannot strengthen his own evidence essentially by repetition.
So, ladies and gentlemen, at the end of the day how do you regard H.? Was he or may he have been lying, or are you sure that he was telling the truth? If you are sure, for example, in relation to things said on the tapes of 28 June or other aspects of H.'s evidence that his evidence is true, that [the applicant] did say a number of things, what do those things mean? Do they point to his guilt, to his presence at Kwik-Save on 3 February 1995, or are they capable of meaning something else? ...”
20. The judge also directed the jury concerning the possible drawing of inferences from the applicant's silence in police interview on 28 and 29 June and 26 July 1995, pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He reminded the jury that the defence had contended that the applicant's silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used.
21. On 17 February 1998, after the jury had deliberated for a total of twenty-one and a half hours, the applicant was convicted of murder before the Crown Court at Manchester by a majority of ten to two and sentenced to life imprisonment. The applicant thereafter lodged a notice of appeal, asserting, inter alia, that the judge ought to have excluded evidence of the audio- and video-recordings of his conversations with Leroy Grant and J.N.S. and the evidence put forward by H. He also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from the applicant's failure to respond to police questions in interviews of 28 and 29 June, when the police strategy was to “spook” the applicant into a state of garrulousness when he returned to prison, where he had a conversation with H.
22. On 31 July 1998 he was refused leave to appeal against his conviction by a single judge. His renewed application was refused by the Court of Appeal (Criminal Division) on 18 January 1999
23. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. They provide, inter alia:
“4. In each case, the authorising officer should satisfy himself that the following criteria are met:
the investigation concerns serious crime;
normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried;
there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;
use of equipment must be operationally feasible.
5. In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.”
24. The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.
25. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, came into force on 22 February 1998.
26. Since 25 September 2000 these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.
27. Section 76 provides:
“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession that might be made by him in consequence thereof,
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it might be true, was not obtained as aforesaid.”
28. Section 78(1) provides:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
29. The parties have referred to cases concerning the use of informers to obtain incriminating statements from persons in police custody.
30. In R. v. Hebert ([1990] 2 Supreme Court Reports 151), the accused had relied on his right to silence when questioned by the police. He had then been placed in a cell with an undercover police officer to whom he made statements implicating himself in a robbery. The Supreme Court held that the statements of the undercover officer should have been excluded at trial. McLachlin J said, inter alia:
“The common-law rules related to the right to silence suggest that the scope of the right in the pre-trial period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent ...
When the police use subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them, they are improperly eliciting information that they were unable to obtain by respecting the suspect's constitutional right to silence: the suspect's rights are breached because he has been deprived of his choice. However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused's right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.”
31. In R. v. Broyles ([1991] 3 Supreme Court Reports 595), B. was arrested and held for questioning in respect of a suspicious death. He had spoken to a lawyer who had advised him to remain silent. The police arranged for a friend to visit B. in custody while carrying a body-pack recording device. The friend questioned B. about his involvement in the murder and in the words of the Supreme Court “sought to exploit the [accused's] trust in him as a friend to undermine the [accused's] confidence in his lawyer's advice to remain silent and to create a mental state in which the [accused] was more likely to talk”. The Supreme Court held that it was wrong to admit the evidence obtained by the friend that the accused knew the time of the deceased's death. According to the headnote of the reported case:
“The right to silence is triggered when the accused is subjected to the coercive powers of the State through his or her detention. The right protects against the use of State power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a State agent, the analysis must focus on both the relationship between the informer and the State and the relationship between the informer and the accused. The right to silence will only be infringed where the informer was acting as an agent of the State at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Accordingly two distinct inquiries are required. First ... was the evidence obtained by an agent of the State? Second, was the evidence elicited? The right to silence ... will be violated only if both questions are answered in the affirmative.
Applying the above principles to the facts of this case, it is clear that the informer was an agent of the State for the purposes of the right to silence in section 7 [of the Canadian Charter of Rights and Freedoms]. The conversation here would not have occurred or would have been materially different but for the authorities' intervention. Furthermore, the impugned statement was elicited. Parts of the conversation were functionally the equivalent of an interrogation and the appellant's trust in the informer as a friend was used to undermine the appellant's confidence in his lawyer's advice to remain silent and to create a mental state in which the appellant was more likely to talk.”
32. In R. v. Liew ([1999] 3 Supreme Court Reports 227), the accused was arrested in connection with a cocaine deal and the police also pretended to arrest the undercover officer who negotiated the transaction. They were placed together in an interview room where the accused initiated a conversation referring to the arrest. The undercover officer asked the accused: “What happened?”, and stated: “Yeah. They got my fingerprints on the dope.” The accused replied: “Lee and me too.” The Supreme Court found nothing to suggest that the exchange was the functional equivalent of an interrogation. It was of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified or lied, so long as the responses were not actively elicited or the result of interrogation. In this case the conversation had been initiated by the accused and the police officer picked up the flow and content of the conversation without directing or redirecting it in a sensitive area. Nor was there any relationship of trust between the accused and the officer or any appearance that the accused was obligated or vulnerable to the officer.
33. In R. v. Swaffield and Pavic ([1998] High Court of Australia 1), the accused Swaffield was one of the targets of an undercover operation aimed at identifying drug suppliers and also suspected of arson. An undercover officer held a conversation with the accused pretending that his own brother-in-law was suspected of arson and the accused made admissions of his own involvement in a fire. The High Court of Australia found that the admissions should not have been admitted at trial as they had been elicited by a police officer in clear breach of the accused's right to choose whether or not to speak. The accused Pavic had been questioned by the police about a disappeared person and remained silent. After his release from custody, Pavic made incriminatory statements to a friend called C., who had been fitted with a listening device by the police. The High Court found that there was no impropriety involved and the admissions were reliable and should be admitted. C. had not been a police officer or a person in authority over Pavic. The fact that C. was regarded as trustworthy by Pavic was an indicator of the reliability of the admissions; a serious crime had been committed and there was no public interest to be served by rejecting the admissions. Kirby J stated:
“Subterfuge, ruses and tricks may be lawfully employed by the police, acting in the public interest. ... The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.”
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1