ITEMID: 001-112706
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VUČKOVIĆ AND OTHERS v. SERBIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicants were all reservists who had been drafted by the Yugoslav Army in connection with the North Atlantic Treaty Organisation’s intervention in Serbia. They remained in military service between March and June 1999, and were thus entitled to a certain per diem, as recognised in a number of decisions and orders of April 1999 signed by the then Chief of Staff of the Yugoslav Army. These decisions and orders were themselves based on the relevant bylaws adopted in accordance with the armed services legislation, specifically the Rules on Travel and Other Expenses in the Yugoslav Army (Pravilnik o naknadi putnih i drugih troškova u Vojsci Jugoslavije) as amended in March 1999.
7. However, following the demobilisation the Government refused to honour their obligation to the reservists, including the applicants.
8. The reservists subsequently organised a series of public protests, some of which ended in open confrontation with the police. Ultimately, following protracted negotiations, on 11 January 2008 the Government reached an agreement with some of the reservists, in particular those residing in the municipalities of Kuršumlija, Lebane, Bojnik, Žitorađa, Doljevac, Prokuplje and Blace, whereby the latter were guaranteed payment in six monthly instalments. This payment was to be effected through their respective municipalities, aggregate sums having been specified per each municipality. The said municipalities were chosen because of their “underdeveloped” status, implying the reservists’ indigence. For their part, the reservists in question accepted to renounce all of their outstanding claims based on their military service in 1999 which were still pending before the civil courts, as well as any other claims in this connection. It was, lastly, stipulated that the criteria for the distribution of the “financial aid” in question shall be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves.
9. The applicants, just like all other reservists without a registered residence in the listed municipalities, could not benefit from the agreement of 11 January 2008.
10. On 26 March 2009 the applicants therefore filed a civil claim against the respondent State, seeking payment of their per diems and alleging discrimination.
11. On 8 July 2010 the Court of First Instance (Osnovni sud) in Niš ruled against the applicants. In so doing, it acknowledged the valid legal basis of their claim but noted that, as pointed out by the respondent, the applicable prescription period had been three years as of their demobilisation, in accordance with Article 376 § 1 of the Obligations Act. The applicants’ claim had thus been filed out of time.
12. On 16 November 2010 the Appeals Court (Apelacioni sud) in Niš upheld this judgment on appeal, and it thereby became final. In its reasoning the Appeals Court noted that both the three-year and the five-year prescription periods provided in Article 376 §§ 1 and 2 of the Obligations Act had already elapsed before the applicants filed their civil claim (see paragraph 40 below).
13. Having been served with the Appeals Court’s decision, on 21 January 2011 the applicants lodged a further appeal with the Constitutional Court (Ustavni sud). Therein they maintained, inter alia, that the impugned judgment of the Appeals Court in Niš was inconsistent with numerous judgments adopted by the other appellate courts in Serbia – i.e. the district courts (okružni sudovi) while they existed, as well as the high courts and the appeals courts (viši i apelacioni sudovi) thereafter – which on the same facts applied a longer, ten-year, prescription period and thus ruled in favour of the plaintiffs (see Article 371 of the Obligations Act at paragraph 39 below). The applicants also referred to the agreement concluded between the Government and some of the reservists of 11 January 2008, which agreement excluded all of the remaining reservists including themselves.
14. The proceedings before the Constitutional Court are still pending.
15. Between 2002 and early March 2009 the first instance and appellate courts across Serbia ruled both in favour of the reservists in a situation such as the applicants’ and against them, relying on the three-year/five-year or the ten-year prescription periods respectively.
16. In the meantime, in 2003 and 2004, the Supreme Court adopted two legal opinions (pravna shvatanja), both of which implied that the applicable prescription period should be three/five years pursuant to Article 376 §§ 1 and 2 of the Obligations Act (see paragraphs 40, 43 and 44 below).
17. It was also alleged by the Government that the Supreme Court had adopted a further legal opinion on the matter in 2009, to the same effect but in more specific terms, but no such opinion has ever been published in its official Bulletin (Bilten sudske prakse).
18. Between 25 February 2010 and 15 September 2011 various appellate courts substantively ruled in compliance with the Supreme Court’s opinions of 2003 and 2004 (see, for example, the decisions of the High Court in Kraljevo, Gž. 1476/11 of 15 September 2011; the High Court in Valjevo, Gž. 252/10 of 25 February 2010, 806/10 of 27 May 2010, 1301/10 of 30 September 2010, 1364/10 of 4 November 2010 and 355/11 of 24 March 2011; the High Court in Kruševac, Gž. 38/11 of 27 January 2011, 282/11 of 7 April 2011 and 280/11 of 26 April 2011; as well as the Appeals Court in Niš, Gž. 2396/10 of 23 June 2010, 3379/2010 of 2 July 2010, 2373/2010 of 21 July 2010 and 4117/2010 of 30 November 2010).
19. Between 17 June 2009 and 23 November 2011 there were also a number of decisions where the appellate courts ruled against the reservists, albeit on a different ground. Specifically, their claims, unlike the claims of the applicants in the present case, were rejected as administrative in nature, and as such outside the competence of the civil courts (see the decision of the District Court in Belgrade Gž. 7773/09 of 17 June 2009, as well as the decisions of the High Court in Belgrade Gž. 11139/10, 11636/10 and 10897/10 of 17 November 2010, 23 November 2011 and 23 November 2011 respectively).
20. On 17 July 2010 the Court of First Instance in Leskovac adopted a default judgment in favour of a reservist (P.br. 1745/07). According to the information provided by the parties, there is no evidence that this judgment had ever become final.
21. On 17 January 2008 the Government endorsed the agreement of 11 January 2008, and decided to pay to the municipalities in question the amounts specified therein.
22. On 28 August 2008 the Government set up a working group tasked with addressing the requests of all other reservists, i.e. those not resident in the said seven municipalities. However, having discussed the issue with various groups of reservists, this working group ultimately concluded that their demands were not acceptable, inter alia, because: (i) they had not harmonised or specified their requests; (ii) some of their representatives had had dubious standing to represent them; (iii) there had been a lack of State funds which could be used for this purpose; and (iv) in most cases, war per diems had already been paid to the reservists.
23. On 26 July 2011 the Commissioner for the Protection of Equality (Poverenica za zaštitu ravnopravnosti), an Ombudsman-type office established on the basis of the Prohibition of Discrimination Act (published in OG RS no. 22/09), considered the complaints brought by an organisation representing the interests of reservists in a situation such as the applicants’. In so doing, she concluded that they had been discriminated against on the basis of their registered residence, i.e. as non-residents of the seven privileged municipalities, and recommended to the Government to take all necessary measures in order to ensure that all reservists be afforded the payments recognised by their decision of 17 January 2008. The Government was also invited to provide the Commissioner with an appropriate “action plan” within a period of thirty days. In its reasoning, the Commissioner’s decision noted, inter alia, that the payments in question were per diems, notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need (socijalna pomoć), and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems as well as the fact that the individual reservists resident in the seven municipalities at issue were never under an obligation to prove their indigence (imovinsko stanje i socijalnu ugroženost). This being so, there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their residence.
24. On 7 December 2011 the Ministry for Labour and Social Affairs (Ministarstvo rada i socijalne politike) noted that the discussions should continue with the various groups of reservists and that, if possible, financial support should be offered to the most indigent among them.
25. On 16 March 2009 the Ministry of Economy and Regional Development (Ministarstvo ekonomije i regionalnog razvoja) sent a memorandum to the Ministry of Justice (Ministarstvo pravde), stating, inter alia, that there were numerous employment-related civil suits, brought against current or former socially-owned companies, which could endanger the country’s economic stability. It thus urged the Ministry of Justice to review the possibility of advising the courts to suspend certain types of these suits until the end of 2009, as well as to desist from the enforcement of any final judgments already adopted in these proceedings. According to numerous media reports, having received it, the Ministry of Justice forwarded the memorandum to the Supreme Court (Vrhovni sud), which then faxed it to the presidents of the appellate courts for information.
26. On 23 March 2009 the Supreme Court informed the public that it had rejected the recommendation of the Ministry of Economy and Regional Development. In so doing, it noted, inter alia, that the Serbian judiciary was independent of the executive as well as the legislative branches of Government.
27. The relevant provisions of the Constitution read as follows:
“Everyone shall have the right to equal legal protection, without discrimination.
All direct or indirect discrimination based on any grounds, particularly on the grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability shall be prohibited.”
“Everyone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his [or her] rights and obligations ...”
“Equal protection of rights before the courts of law ... shall be guaranteed.”
“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
28. On 9 June 2010 and 17 February 2011 the Constitutional Court rejected two separate constitutional appeals lodged by reservists who were in a situation such as the applicants’. The said court noted, inter alia, that the civil courts’ decisions rendered against them, respectively, had been “based on the applicable domestic legislation”. The appellants, however, never specifically complained about the inconsistency of the relevant case-law or being discriminated against (Už. 460/08 and Už. 2293/10).
29. On 17 February 2011, in another case such as the applicants’, the Constitutional Court, inter alia, effectively ignored a complaint about the differential treatment of the two groups of reservists stemming from the agreement of 11 January 2008. In particular, it offered no substantive assessment of the issue raised by the appellants, noting further that they had not offered adequate proof as regards the existence of inconsistent case-law on the matter (Už. 2901/10).
30. On 7 April 2011, in yet another case such as the applicants’, the Constitutional Court ruled against the appellants as regards their complaint about the outcome of their case before the lower courts. There was no reference in the decision itself to the agreement of 11 January 2008 and it remains unclear as to whether this issue was ever raised by the appellants (Už. 4421/10).
31. On 8 March 2012, in a case such as the applicants’ but where the civil courts had rejected the reservists claims as being outside of their competence ratione materiae (see, for example, paragraph 19 above), the Constitutional Court ruled in favour of the appellants who had alleged inconsistent case-law (between the judgments adopted in their cases and several other judgments adopted by the courts in 2002) and ordered that the impugned civil proceedings be re-opened. As regards the appellants’ discrimination complaint, the Constitutional Court reasoned that the said inconsistency did not amount to discrimination since the impugned court decisions had not been rendered on the basis of the appellants’ personal status (ličnog svojstva). There was also no reference in the court’s reasoning to the agreement of 11 January 2008 (Už. 2289/09).
32. In decision Už. 61/09, adopted on 3 March 2011, and decisions Už. 553/09, 703/09 and 792/09, all adopted on 17 March 2011, as well as in decisions Už. 2133/09, 1928/09, 1888/09, 1695/09, 1578/09, 1575/09, 1524/09, 1318/09 and 1896/09, rendered between 7 October 2010 and 23 February 2012, the Constitutional Court noted the existence of inconsistent domestic case-law in the civil context and then went on to find that this had been in breach of the principle of judicial certainty as an integral part of the appellants’ right to a fair trial. The appellants’ complaints to the effect that the same situation had also resulted in discrimination against them, was rejected by the Constitutional Court as manifestly ill-founded, since the impugned court decisions had not been rendered on the basis of the appellants’ personal status. No re-opening of the proceedings was ordered. The above-cited decisions concerned matters which were factually unrelated to the applicants’ situation in the present case.
33. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights.
34. Article 476 sets out the circumstances in which a default judgment (presuda zbog izostanka) may be adopted, based on, inter alia, the respondent’s failure to appear before the court despite being duly served with the summons.
35. Article 422.10 provides that a case may be reopened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue.
36. Article 40 §§ 2 and 3 provides, inter alia, that a meeting of a division (sednica odeljenja) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions (pravna shvatanja) adopted thereupon shall be binding for the panels (veća) of the division in question.
37. These Rules set out the relevant details concerning the reimbursement of expenses incurred in connection with military service.
38. Article 360 § 3 provides that courts may not, in the course of proceedings before them, take into account negative prescription periods unless an objection to this effect has been made by the debtor.
39. Article 371 states that the general negative prescription period for civil claims shall be ten years, unless provided otherwise.
40. Article 376 §§ 1 and 2 provides, inter alia, that the negative prescription period for seeking civil compensation shall be three years as of when the claimant learned of the damage in question, but that, in any event, the absolute deadline shall be five years as of when the damage occurred.
41. Articles 387 and 388 provide, inter alia, that the running of a negative prescription period shall be interrupted by the debtor’s acceptance of the claim at issue, directly or indirectly, as well as by the claimant’s lodging of a civil action in this respect.
42. Article 392 §§ 1-3 provides, inter alia, that the effect of such an interruption shall be that the applicable period shall start running anew as of the debtor’s acceptance of the claim in question and the conclusion of the civil suit, respectively.
43. On 26 May 2003 the Supreme Court held, inter alia, that, quite apart from the competence of the administrative authorities in respect of the reservists’ claims concerning their per diems, civil courts shall have jurisdiction to rule on the merits in all related cases where they seek damages (see paragraph 40 above) based on the State’s alleged malfeasance (pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije utvrđeno na sednici od 26. maja 2003. godine, published in the Supreme Court’s Bulletin no. 1/04).
44. On 6 April 2004 the Supreme Court essentially reaffirmed the opinion of 26 May 2003, extending its application to certain other “military entitlements”. It also noted that there have been some inconsistencies before the courts in the meantime (pravno shvatanje Građanskog odeljenja Vrhovnog suda Srbije utvrđeno na sednici od 6. aprila 2004. godine, published in the Supreme Court’s Bulletin no. 1/04).
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-60019
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF A.B. v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 8 in respect of control of correspondence with the Commission and with lawyer;No violation of Art. 8 in respect of other correspondence;Violation of Art. 13
JUDGES: Gaukur Jörundsson
TEXT: 9. On 8 May 1996 the applicant was arrested in New York (USA) and placed in detention on the basis of a extradition request from the authorities of the Netherlands Antilles where he had been charged with embezzlement and forgery. He was extradited to the Netherlands Antilles on 30 May 1996 and detained in the Pointe Blanche Penitentiary on the island of St. Maarten.
10. In a document dated 18 June 1996 bearing the applicant’s signature, it is stated that the applicant appointed Mr D. Gebhardt as the:
“true and lawful Attorney in my name, place and stead and for my use and benefit: To exercise any or all of the following powers as to my criminal case in the Netherlands Antilles, any interest therein and thereon. To appoint or terminate lawyers, receive and take possession of documents, to ask demand, sue for, recover, collect and receive all necessary documents in my criminal case, and appeal any decision, file complaints and whatsoever. Giving and granting to my said Attorney full powers and authority ... until this power is revoked.”
11. On 11 December 1996, following adversarial proceedings during which the applicant was assisted by Mr R. – a local legal aid lawyer to whom the case had been assigned –, the First Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles convicted the applicant of embezzlement and fraud and sentenced him to three years and nine months’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba.
12. On 7 October 1997, following adversarial proceedings during which the applicant was represented by Mr J. – a local lawyer –, the Joint Court of Justice quashed the judgment of 11 December 1996, convicted the applicant of embezzlement and forgery and sentenced him to three years’ imprisonment. Although on 13 October 1997 the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), he subsequently withdrew this appeal. Consequently, the Joint Court of Justice’s judgment of 7 October 1997 became final. On 27 February 1998, after having served his sentence, the applicant was released from prison.
13. On 21 September 1996 the applicant sent a letter of complaint about the conditions of detention in the Point Blanche Penitentiary, where he was held, to one of the judges of the First Instance Court of St. Maarten, in the latter’s capacity as a member of the Prisons and Remand Centres Supervisory Board (Commissie van Toezicht Gevangeniswezen en Huizen van Bewaring).
14. In this letter, in which the applicant referred to a conversation he had had with this judge on 20 September 1996, the applicant explained, among other things, that inmates were locked in their cells for 21 hours a day with nothing to do, that after ten days’ detention in Point Blanche an inmate was permitted on the following Saturday a maximum of four sheets of paper and four envelopes, that there were no telephone facilities apart from previously announced incoming telephone calls not exceeding fifteen minutes, that inmates had to provide for their own clothing and bed linen, which they had to wash in the showers or primitive sinks during recreation, that toilets did not flush and that shower taps and pipes were leaking. In his letter the applicant suggested practical solutions for these matters and explained why such solutions would be beneficial for all concerned.
15. On 13 January 1998, the applicant informed the European Commission of Human Rights (“the Commission”) that he had been transferred to the Koraal Specht Prison on the island of Curaçao for medical reasons and had been admitted to the infirmary there. The applicant stated that, apart from the bathroom, the infirmary had no lights after sunset and inmates remained locked in for 23 hours a day.
16. In his letter of 5 February 1998, the applicant informed the Commission that, on 31 January 1998, he had been transferred from the infirmary to the adjacent old infirmary building, where he was detained in a cell of about 5 metres long and 3 metres wide. He shared this cell with three other persons. Two slept on temporary beds, two others on the floor. He was provided with a foam mattress. No sheets or blankets were provided and he was not allowed to retrieve his own sheets from his personal belongings. He stated that he used a towel as a cover.
17. By letter of 7 April 1997, Mr D. Gebhardt, who initially represented the applicant in the proceedings before the Commission and subsequently the Court, complained to the Director of the Point Blanche Penitentiary that his letters to the prisoners there, including the applicant, had been opened and withheld by the prison authorities although these letters were marked “from lawyer to client”. Mr Gebhardt drew the Director’s attention to the Court’s judgment of 25 February 1992 in the case of Campbell v. the United Kingdom (Series A no. 233). He requested the Director to ensure that his earlier letters, which had been withheld in the past, be delivered to the addressees and that his clients be provided with official letter paper for their correspondence with him.
18. By letter of 9 April 1997, enclosing a copy of his letter of 7 April 1997 to the Director of the Point Blanche Penitentiary, Mr Gebhardt filed a complaint against the Director of the Point Blanche Penitentiary with the Governor (Gouverneur) of the Netherlands Antilles. Apart from other general problems concerning this Director’s activities, Mr Gebhardt complained that the Point Blanche prison authorities had restricted the applicant’s possibilities to acquaint himself with the contents of his case-file, a copy of which his defence lawyer had given him. On the basis of these restrictions, the lawyer retrieved the documents, as the lawyer-client privilege was not guaranteed. Mr Gebhardt requested the Governor to ensure that the principle of confidentiality between lawyers and their clients be respected by issuing the necessary instructions to the Director of the Point Blanche Penitentiary.
19. On 22 July 1997, the Cabinet of the Governor informed Mr Gebhardt that the Governor had received a report on these matters from the Minister of Justice and that the latter had been requested on 13 June 1997 to answer Mr Gebhardt’s letter. On 25 September 1997, the Cabinet of the Governor informed Mr Gebhardt that the Minister of Justice had been reminded to answer Mr Gebhardt’s letter.
20. On 1 September 1997, Mr Gebhardt informed the Governor of the Netherlands Antilles that he had not yet received any response from the Minister of Justice of the Netherlands Antilles. Mr Gebhardt further stated the applicant had appointed him to represent him in proceedings before the Commission, in which context the applicant needed to sign a power of attorney sent to Mr Gebhardt by the Commission’s Secretariat. With reference to his letter of 9 April 1997, Mr Gebhardt stated that, contrary to Article 8 of the Convention, the prison authorities were blocking his access to the applicant. Mr Gebhardt therefore requested the Governor to ensure that the applicant would receive and return the Commission’s standard letter of authority.
21. On 27 September 1997, the public prosecutor of St. Maarten, to whom Mr Gebhardt’s letter of 1 September 1997 had been forwarded, sent the power of attorney signed by the applicant to Mr Gebhardt.
22. As in the meantime Mr Gebhardt had also informed the Commission’s Secretariat that he had had difficulties obtaining access to the applicant, the Secretariat of the Commission sent a letter on 1 October 1997 to the applicant directly, requesting him to complete, sign and return a power of attorney for his representation by Mr Gebhardt in the proceedings before the Commission.
23. On 28 October 1997, the Commission’s Secretariat received the completed and signed letter of authority from the applicant directly. The letter was stamped by the St. Maarten prison authorities and bore an illegible mark written by hand with a red ink ballpoint pen, which appeared to be a prison officer’s visa. In the accompanying letter, the applicant informed the Commission that the prison authorities had opened the Commission’s letter of 1 October 1997.
24. By letter of 14 November 1997, the Commission’s Secretariat requested the applicant to provide further details as to the opening of the Commission’s letter of 1 October 1997 and the control exercised by the prison authorities of correspondence between the applicant and the Commission.
25. On 12 December 1997, the Commission received the applicant’s reply, stating that he had also received the Commission’s letter of 14 November 1997 after it had been opened by the prison authorities. When the letter was given to him, he was told that it had been opened by mistake and that, after it had been read, it had not been stamped. The applicant submitted the original of the Commission’s letter of 1 October 1997 – which carried the same stamp and red ballpoint mark as the authority form – and the original letter of 14 November 1997 which carried no stamp or other mark.
26. In his letter, the applicant explained that the prison stamp on his letters to the Commission had been placed on blank paper prior to his writing on it. He had addressed this letter to the President of the European Commission and had sealed the envelope himself, as only letters addressed to the President of the European Commission were exempted from control by the prison authorities and, consequently, could be sealed by inmates themselves. He further stated he was not allowed to personally seal his mail to his lawyer.
27. On 20 December 1997, Mr Gebhardt addressed a complaint to the Office of the Public Prosecutor of St. Maarten about problems at the Point Blanche Penitentiary in respect of his correspondence with various detainees there. The applicant was not included in the list of detainees cited. Referring to Article 8 of the Convention, Mr Gebhardt requested the public prosecutor to ensure that any correspondence between detainees and the Commission and between detainees and himself be treated as confidential by the Point Blanche Prison authorities.
28. In his letter of 5 February 1998, the applicant informed the Commission that on 20 January 1998 he had received a letter from his lawyer which had been opened.
29. On 10 June 1997, Mr Gebhardt addressed a letter concerning the applicant’s case to the Queen of the Netherlands. On 24 July 1997, Mr Gebhardt was informed by the Minister for Netherlands-Antillean and Aruban Affairs that the letter of 10 June 1997 had been forwarded to this Ministry. Since the applicant’s case was still sub iudice, the Minister stated that:
“the Antillean judicial authorities still have to judge your defence statement, in which your refer to the treatment of your client. I have full confidence in the judgment of these authorities.”
Mr Gebhardt was further informed that a copy of his letter had been sent to the Governor of the Netherlands Antilles, requesting the latter to bring the matter to the attention of the Minister of Justice.
30. On 26 August 1997, Mr Gebhardt addressed a petition to the Queen of the Netherlands requesting the applicant’s release, arguing that the applicant was being unlawfully detained in inhuman conditions.
31. On 5 December 1997, Mr Gebhardt addressed a further letter to the Queen of the Netherlands in which he gave an account of the applicant’s state of health while in detention and, among other things, complained of the lack of response to these problems from the authorities. He requested the Queen to intervene in order to obtain medical parole for the applicant.
32. On 23 December 1997, with reference to the letter of 24 July 1997, Mr Gebhardt informed the Minister for Netherlands-Antillean and Aruban Affairs that neither the Governor of the Netherlands Antilles nor the Minister of Justice of the Netherlands Antilles had replied.
II. RELEVANT DOMESTIC LAW AND PRACTICE
33. Under Article 50ter of the former Code of Criminal Procedure (Wetboek van Strafvordering) of the Netherlands Antilles, as in force at the relevant time, every practising lawyer registered with the Joint Court of Justice of the Netherlands Antilles and Aruba is competent to represent accused persons in criminal proceedings in the Netherlands Antilles. When absolutely necessary (“volstrekte noodzakelijkheid”) other suitable persons, such as foreign lawyers, may be allowed to act as counsel.
34. Pursuant to Article 46 of the National Decree <on Prison Administration> (Landsbesluit – Official Bulletin of the Netherlands Antilles (PB) 1958 no. 18) and Articles 67-69 of the Rules of Order and Discipline for Prisons and Remand Centres (Reglement van Orde en Tucht voor de Strafgevangenis en de Huizen van Bewaring – Official Bulletin of the Netherlands Antilles (PB) 1958 no. 19), which were in force at the material time, detainees were entitled to write letters on Sundays and to receive letters at all times. The prison governor ensured that detainees’ letters, which could only be written with materials provided free of charge by the prison authorities, were posted without delay. The prison authorities also paid the costs of postage. Apart from detainees’ letters addressed to the Governor of the Netherlands Antilles, the Minister of Justice, the Prisons and Remand Centres Supervisory Board, the First Instance Court, the Joint Court of Justice, the Public Prosecutor, the Procurator-General and the Lieutenant Governor (gezaghebber), all correspondence of detainees was subject to control by the prison authorities.
35. The Rules of Order and Discipline for Prisons and Remand Centres were replaced by a new National Ordinance on Prisons in the Netherlands Antilles (Landsverordening Beginselen Gevangeniswezen), which entered into force on 13 August 1999. New Prison Regulations (Gevangenismaatregelen) and Internal Prison Rules (Huishoudelijke Reglementen) are currently being prepared.
36. The National Decree (Landsbesluit) of 29 December 1962 (PB 1962 no. 160), in force at the relevant time, set up the Prisons and Remand Centres Supervisory Board. This Board was responsible for the supervision of all matters relating to penal establishments, with particular reference to the treatment of detainees and compliance with regulations. However, under the system established under this National Decree, detainees had no formal right of complaint.
37. This situation changed with the entry into force of the new National Ordinance on Prisons in the Netherlands Antilles, which provides detainees with a limited right of complaint and by which the mandate of the Prisons and Remand Centres Supervisory Board includes supervising the execution of custodial sentences, examining detainees’ complaints and considering other grievances presented by detained persons. Under Article 44 § 6 of the new National Ordinance, compensation may be granted where the Supervisory Board finds a complaint to be partially or wholly well-founded.
38. Under the system in force at the material time, problems relating to conditions of detention could also be reported to the Office of the Procurator-General. In the case of unacceptable behaviour taking place in a detention facility, the Procurator-General could order an inquiry to be carried out by the National Criminal Investigation Department (Landsrecherche).
39. The first paragraph of Article 50sexies of the former Code of Criminal Procedure of the Netherlands Antilles, in so far as relevant, provided as follows:
“Counsel has free access to a lawfully detained suspect, can speak with him in private and exchange letters with him without others reading them, . “
40. Under the second paragraph of Article 250sexies of the former Code of Criminal Procedure of the Netherlands Antilles, the public prosecutor or, if involved, the investigating judge (rechter-commissaris) may, during the preliminary criminal investigation (voorbereidend onderzoek) and in the interests of this investigation, order restricted contacts between a suspect and his lawyer, namely a denial of access to the suspect, non-private consultations or the withholding of correspondence and/or other documents. Such restrictions can only be ordered for a maximum period of six days and, pursuant to Article 250sexies § 3, are subject to review by the Joint Court of Justice.
41. The wording of Article 70 of the Code of Criminal Procedure of the Netherlands Antilles, which entered into force on 1 October 1997, is almost identical to Article 250sexies of the former Code of Criminal Procedure.
42. If no legal remedy exists under administrative law, the Netherlands Antilles civil courts have traditionally had competence to grant relief against the administration. This competence is based on Article 2 of the Uniform National Ordinance on the Organisation of the Judiciary (Eenvormige Landsverordening op de Rechterlijke Organisatie), which reads:
“Jurisdiction in civil cases involves hearing all disputes over civil rights and debt claims.”
43. In accordance with the Netherlands Supreme Court’s findings in its leading judgments of 31 December 1915 and 18 August 1944 (Nederlandse Jurisprudentie (NJ) 1916, p. 407, and NJ 1944/45, no. 598) on a similar provision in the Netherlands Act on the Organisation of the Judiciary (Wet op de Rechterlijke Organisatie), the Netherlands Antilles courts permit themselves a broad interpretation of the notion of “civil rights”. The right claimed by a plaintiff, and not the relationship between the parties, determines the competence of the civil courts (Joint Court of Justice, Dirksz v. the Netherlands Antilles, judgment of 28 June 1955). This means that civil courts are competent to hear disputes under civil law as well as under public law, provided that the protection of a civil right is being sought.
44. The civil courts’ competence as to the lawfulness of acts of the administration is, however, limited where a remedy offering sufficient guarantees for a fair procedure is available under statutory administrative law. Whilst in principle remaining competent, civil courts are to refrain from examining the lawfulness of an administrative act or decision against which an administrative appeal lies. Examination of the lawfulness of such an act or decision is not, however, excluded if the administrative appeal does not offer sufficient guarantees for a fair procedure.
45. On this basis the Netherlands Antilles civil courts consider themselves competent to rule on the lawfulness of acts of the administration when these relate to or are directed against persons in detention.
46. Claims against the administration submitted to the civil courts are, generally speaking, brought in the form of an action for tort (onrechtmatige daad) within the meaning of Article 1382 of the Civil Code (Burgerlijk Wetboek) of Aruba and the Netherlands Antilles. An act of the administration is unlawful and constitutes a tort under Article 1382 when it is contrary to a rule of international or domestic law which seeks to protect the plaintiff’s interests, or to the general principles of proper administration (algemene beginselen van behoorlijk bestuur), which in the Netherlands Antilles are for the most part unwritten legal standards with which acts of the administration must comply. Where civil courts are competent, it is possible to request the court, in summary civil proceedings (kort geding), to take an interim measure.
47. The Convention, which according to the domestic courts’ case-law is directly applicable in the legal order of the Netherlands Antilles, is frequently used by the civil courts in their examination of claims that an act of the administration is unlawful.
48. In a decision taken on 17 July 1991 in summary civil proceedings brought by 23 inmates of the Koraal Specht Prison, the First Instance Court of Curaçao reviewed inter alia a claim for unlimited correspondence rights under Article 8 of the Convention (Rietwijk et al. v. the Netherlands Antilles, KG 209/1991). It held on this claim:
“For the time being it has not been established that the interference with the fundamental right of respect for correspondence provided by <Article 46 of the National Decree on Prison Administration and Articles 67-69 of the Rules of Order and Discipline for Prisons and Remand Centres> exceeds the boundaries set out in the second paragraph of Article 8 of the Convention. The special position of detainees simply renders such interference necessary.
It has been established that the <prison> direction does not allow detainees from the Netherlands Antilles to write more than two letters per week and that, for detainees from abroad, the maximum amount has been set at three per week. It is further the rule for all detainees that they may send two Christmas cards per year at public expense and ten extra at their own expense.
Also in the assessment of these limitations, the special position of detainees may be taken into consideration. The circumstance that all letters, both incoming and outgoing, must be censured constitutes a ground of justification for the limitations submitted. It has been established that the director, by virtue of Article 46 § 1 of <the National Decree>, is empowered to limit the fundamental right in this sense. The claim is consequently rejected.”
The First Instance Court did, however, find in favour of the detainees on a number of other claims: It ordered the defendant to allow each detainee to have visits of 30 minutes per week, to cover an open sewer in the prison’s courtyard and to ensure the availability of health care services for at least 15 hours per week. It further prohibited the defendant from placing detainees in a punishment cell for more than two weeks. Such cells must anyway have daylight and a water supply.
49. In a decision taken on 6 December 1995 in summary proceedings taken by two detainees who did not explicitly invoke the Convention, the First Instance Court of Curaçao set out the conditions under which a person could be held in pre-trial detention (voorlopige hechtenis) in the Rio Canario police cell complex. As these conditions were not met, it issued an interim measure prohibiting the defendant from keeping one of the two plaintiffs (the other one having been transferred already) in detention in this complex. It ordered his transfer to the Curaçao remand centre within six hours or, if this was not possible, to release him (Balentien and Geertruida v. the Netherlands Antilles, KG 568/94).
50. In a decision taken on 9 February 1996 in summary proceedings brought by a detainee, the First Instance Court of Curaçao ruled that to hold a person in custody (inverzekeringstelling) for nearly three days in a police cell – that he shared with another person – of three square metres without sanitary facilities and without a possibility of outdoor exercise, was contrary to Article 3 of the Convention, and ordered the immediate release of the plaintiff (Moesquit v. the Netherlands Antilles, KG 66/1996).
51. In a decision taken on 14 November 1997 in summary proceedings brought by six detainees (Damon et al. v the Netherlands Antilles, KG 426/97), the First Instance Court of Curaçao held
“1. The plaintiffs ... claim against the defendant, the <Netherlands Antilles authorities>,
- six orders, described in their petition, identical to the orders already issued by the First Instance Court by judgment of 23 September 1996 (AR 1464/93 against the <Netherlands Antilles authorities> at the suit of five other plaintiffs, and which orders all concern facilities of an elementary hygienic and humanitarian nature;
- a prohibition on imposing collective punishments in the form of a denial of visits, mail or access to the canteen;
- a prohibition on administering corporal punishments to detainees, in particular “circle ill-treatment” (kringmishandelingen) and the “soultrain”;
all of this on penalty of a default fine of 10,000 Netherlands Antilles Guilders (NAF) for each day that the <Netherlands Antilles authorities> violate one of these orders or prohibitions as regards one of the plaintiffs, with a maximum of NAF 250,000 per plaintiff. ...
4.1. <It has been> established that none of the humanitarian and sanitary facilities which the authorities of the Netherlands Antilles had been ordered to execute, following this court’s judgment of 26 September 1996, have materialised, so that <the plaintiffs> justly claim that the <Netherlands Antilles authorities> be ordered once again to do so.
4.2. Indeed:
- it has not been argued nor does it appear that nutritional plans have been drawn up by a dietician, whereas ... these should have been available more than a year ago. This is not altered by the recent activities of a dietician since these have not actually resulted in the practical introduction and implementation of menus.
- it has been argued but not shown that up to now sufficient pest control ... <by placing anti-cockroach devices in cells> has taken place;
- the <Netherlands Antilles authorities> recognise that an increase in the number of visiting cells by three has not yet taken place, and no well-founded reason for this has been given; it is understandable that security demands render that increase laborious and time-consuming, but after one year it should have been completed;
- the <Netherlands Antilles authorities> do not deny in so many words that placements in a punishment cell take place without <a prior> hearing of the detainees concerned; the reference to the sanctions that may be applied where the instruction to hear is not respected does not constitute rebuttal;
- the <Netherlands Antilles authorities> have submitted that there is now sufficient natural light and air in the punishment cell, but this is not plausible and the court fails to see, if this was indeed the case, why <the plaintiffs> would make a claim to this end, and why, in addition, an order with a default fine could therefore harm the <Netherlands Antilles authorities>;
- the <Netherlands Antilles authorities> have not really denied that the punishment cell is not or only partially equipped with a mattress, bedding, a table and a chair.
5.1. The requested prohibition on imposing collective and corporal punishments shall also be ordered.
5.2. The <Netherlands Antilles authorities> have not denied that collective punishments have been applied, but have pointed out an emergency situation that may occur. That it is sometimes impossible to find out who in a shared cell has committed a prosecutable offence is no justification for punishing everyone concerned; in this way innocent people are knowingly punished, and that can never be justified.
5.3. And it is further established that corporal punishments have been administered, not only on the basis of declarations made during the trial that have been hardly disputed, but also on the basis of the Paula Report the contents of which have not been disputed. Corporal punishments are prohibited under conventional-law provisions.
6.1. The claims will therefore be granted. Given the nature of the prohibition, no maximum limit shall be fixed for the default fine concerning the prohibition on corporal punishment.
6.2. In this connection it is further considered that, in so far as the interests of <the plaintiffs> in granting <their claims> do not lie in offences already committed, their interests lie in the prevention thereof since the danger that these <offences> will reoccur is apparently real.
7.1. The question remains whether a default fine must be attached to this ruling.
7.2. The defence of the <Netherlands Antilles authorities> that they will voluntarily comply with judicial ruling is not credible; the <Netherlands Antilles authorities> have apparently done nothing about the orders contained in the judgment of 23 September 1996. This pleads in favour of imposing default fines.
7.3. ... nothing has induced the <Netherlands Antilles authorities> to do something about the worrisome wrongs in the Koraal Specht Prison. In the entire country and Kingdom there is unanimous agreement that the prison by far does not comply with the norms that are internationally recognised and set out in Treaties, – also the <Netherlands Antilles authorities> through their Minister continuously recognises this – but nothing happens.
7.4. If the <Netherlands Antilles authorities> realise that a wide variety of measures are required to guarantee the physical security and the mental and physical health of detainees ... then they receive a judicial order and nevertheless fail to do what is urgently required of them, the question arises whether a default fine would be of any help.
8. Nevertheless, the reason to impose a default fine is that, within the framework of the present summary proceedings, no other coercive measure is available and <the plaintiffs> cannot be denied the right to try now to obtain enforcement of the orders which have been granted ...”
The First Instance Court found in favour of the plaintiffs on all claims and set a default fine of NAF 10,000 for each day of failure to respect any of the orders or prohibitions to the detriment of one of the plaintiffs up to a maximum of NAF 250,000 per plaintiff, and a default fine of NAF 50,000 for each time the prohibition on corporal punishment was not respected as regards any of the plaintiffs.
52. Following a violent incident on 14 July 1998 at the Koraal Specht Prison in Curaçao (see paragraph 57 below), five detainees brought tort proceedings against the authorities of the Netherlands Antilles. In its decisions of 6 December 1999, the Court of First Instance of Curaçao held that the plaintiffs had been subjected to treatment contrary to Article 3 of the Convention and awarded them damages varying from NAF 10,000 to NAF 22,500 (Arrindel v. the Netherlands Antilles, A.R. nr. 1598/99, Thodé v. the Netherlands Antilles, A.R. nr. 1599/99, Bart v. the Netherlands Antilles, A.R. nr. 1600/99, Jops v. the Netherlands Antilles, A.R. nr. 1601/99, and Dovale v. the Netherlands Antilles, A.R. nr. 1696/99).
53. In its Report of 18 January 1997, the European Committee for the Prevention of Torture and Inhuman Treatment (“CPT”) on its visit to the Netherlands Antilles from 26 to 30 June 1994, found that the conditions of detention in the Koraal Specht Prison amounted to inhuman and degrading treatment. This finding led the CPT’s delegation to send a letter on 10 August 1994 to the Minister of Justice setting out a number of urgent measures which had to be taken to improve conditions of detention there.
54. According to this Report, the Koraal Specht Prison regulations make no provision for the use of telephones by prisoners and that, in practice, it appeared that prisoners who are resident in the island of Curaçao could make calls once a week and foreign nationals once a month. Calls were apparently limited to about ten minutes and were monitored by prison staff. As to the visiting facilities, the CPT recommended their complete review in order to establish more open arrangements for ordinary visits.
The CPT further observed that placements in the punishment cell, with only bread and water on alternate days, was current practice, and recommended that the Netherlands Antilles take immediate steps to prohibit the placement of prisoners in punishment cells on a bread and water diet. The CPT further found that the amount of time that two general medical practitioners spent in the prison – 15 hours per week for about 500 prisoners – was inadequate.
55. The CPT Report of 10 December 1998 on its second visit to the Netherlands Antilles from 7 to 11 December 1997, in which the ruling of 14 November 1997 by the First Instance Court of Curaçao (see paragraph 51 above) is mentioned, concluded that the material conditions of detention in the Koraal Specht Prison remained unsatisfactory and the CPT called upon the Netherlands Antilles authorities to take immediate steps to draw up a comprehensive strategy to combat violence in all its forms at Koraal Specht Prison and that this strategy be vigorously implemented without delay. It also recommended that the Netherlands Antilles authorities redouble their efforts in inter alia reducing the overcrowding and improving the overall state of repair of the detention areas (including the sanitary facilities). The CPT further recommended that immediate steps be taken to ensure that every prisoner would be supplied with a mattress at night.
56. Certain positive developments concerning prisoners’ contacts with the outside world were noted by the CPT delegation, particularly as regards improved access to a telephone and the possibility offered to some prisoners of having supervised open visits. Nevertheless, many complaints were heard from prisoners about lengthy delays before they were granted access to a telephone and about such access often being refused arbitrarily; complaints were also heard about the delayed distribution and/or forwarding of correspondence.
57. The CPT Report of 25 May 2000 on its third visit to the Netherlands Antilles from 25 to 29 January 1999 records that, as had been the case in 1997, health care staff insisted that many cases of violence went unreported and that apparently efforts to keep a precise record of cases of violence waned during the second half of 1998. The Report also mentions an incident having occurred on 14 July 1998 at the Koraal Specht Prison. The information gathered by the CPT delegation suggested that police officers had beaten prisoners who had already been brought under control; the prisoners were naked and handcuffed behind their backs. The matter had not been immediately reported by the prison staff to their own hierarchical superiors (the director of the prison) or to the National Criminal Investigation Department and, more than half a year later, investigations into the conduct of the police and prison officers involved were still at an embryonic stage. It further appeared that those same police officers continued to be deployed in the prison.
58. The CPT further noted that, by a Decree of 2 November 1998, an independent Commission was established (“the Kleinmoedig Commission”) to guarantee the physical integrity of persons deprived of their liberty and to investigate any abuse that might occur.
59. The CPT also observed that the measures adopted to address the acute problem of unauthorised prison staff absenteeism, resulting in levels of prison officer presence on the wings being considerably lower than necessary for the proper and safe functioning of the establishment, had failed, that no target date had been set for strengthening the enforcement of those measures and that apparently no alternative policy was being considered.
60. As regards the conditions of detention in the Koraal Specht Prison, the CPT noted the efforts made to improve the material environment, but also observed that the prison continued to suffer some degree of overcrowding, that problems in providing prisoners with adequate food at regular times and ready access to drinking water continued to persist, and that the health care services had worsened in comparison with its second visit in December 1997. The CPT delegation was further told that there was a shortage of mattresses, despite the fact that budgetary means were available.
61. In its response to the CPT report on its third visit, the Netherlands Antilles authorities confirmed that, as to the alleged irregularities said to have taken place on 14 July 1998, a preliminary judicial investigation had commenced, in the course of which a number of witnesses were being heard by the investigating judge. The CPT was further informed that the water problem (inadequate pressure) had been resolved, that the arrangements for supplying meals were satisfactory and that there was no question now of a shortage of mattresses. The response further stated that the medical service had been restructured on 1 April 1999 in accordance with the recommendations of the CPT.
62. On 10 February 2000, in accordance with the National Decree No. 756/JAZ, an Investigation Commission was established to investigate a number of elements contained in the last CPT report, including conditions of detention. This Commission was presided over by Mr M. Gumbs, the then State Secretary of Justice of the Netherlands Antilles. In the course of its activities, the Investigation Commission conducted a visit to the Point Blanche Penitentiary.
In its report the Commission recorded that inmates at the Point Blanche Penitentiary, as well as the judicial authorities, had indicated that there were still cases of ill-treatment of inmates by prison guards. A complaint about this had been filed with the public prosecutor (Officier van Justitie) in the meantime. The judicial authorities indicated to the Commission that they had strong suspicions that ill-treatment had in fact occurred. The Commission noted that it was unclear what was being done to prevent ill-treatment. It also noted that inmates could file a written complaint to the public prosecutor through the prison director.
Inmates indicated to the Commission that there are no educational or recreational programmes for detainees, thus forcing detainees to remain idle all day. According to the detainees, it depended on who of the prison guards were on duty whether something was done with the detainees.
The Commission observed that in the recreation rooms, which were in a good state, several activities took place such as music lessons given by an inmate. It further noted that computers could be used and that there was a possibility to play table-tennis and watch television. It noted that, for lack of staff (only one staff member) and means to develop activities, there was only a limited use of the workshops.
The Commission recorded that the Point Blanche Penitentiary had a maximum capacity of 120 places which were constantly occupied. Although there were 32 members of staff, in practice only 16 were available daily. The reason for this considerable absenteeism was reportedly the failure to deal quickly enough with staff matters (payment of overtime, child allowances, salary adjustments, posting allowances, maintenance costs, etc.). As staff had already been waiting for these matters to be dealt with for years, they were threatening with actions if this situation did not improve soon.
In most cells – each having a surface of 12.8 m² and designed for one to three persons – furnishings such as chairs, tables and mattresses were either lacking or in bad condition, and sanitary facilities were in disrepair and dilapidated, sometimes to such an extent that inmates had to use buckets to shower and flush toilets. It recommended replacing the toilet flushes and the replacing the shower heads and taps with vandal-proof materials. The report further states that:
“the (natural) ventilation is “too” good. During hurricanes and during certain periods of the year, inmates must protect themselves against the strong winds (from hurricanes) and the humidity caused by condensation. To this end cardboard boxes are hung around the beds.”
The Investigation Commission further found the kitchen of the Point Blanche Penitentiary, where 120 meals are prepared daily, to be in an unacceptable state of dilapidation and disrepair, as well as freely accessible to vermin, including rats. It noted, inter alia, that for technical reasons (the need of repair) two cold-storage rooms were out of use for 2 and 6 years respectively, and that a much smaller cold-storage facility was being used, as a result of which only limited food supplies could be stored. This caused problems after the island had been hit by a hurricane and food was difficult to obtain. It recommended that the entire kitchen, including all the appliances, be replaced.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-67226
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 12. The first applicant was born in 1946 and lives in Woking.
13. On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years’ imprisonment.
14. The first applicant’s defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man introduced to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day.
15. The following morning he was told that the plans had changed, as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently addressed as “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing 125,000 pounds sterling (GBP). They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin.
16. At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway on a mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room.
17. According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis Hotel. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom, and when he came out Graham was ready to go. They returned to the van, where the briefcase was opened, and within moments the applicant was arrested.
18. Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard, he considers it relevant that, at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large-scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant’s case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway’s trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant’s own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction.
19. Prior to the commencement of the applicant’s trial, the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 37 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the proceedings before the Chamber, the Government revealed for the first time that the material placed before the trial judge had included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 39 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure.
20. Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (PACE – see paragraph 32 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure.
21. Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant, it was, however, difficult for the defence to undermine Graham’s credibility because his full name and other identifying details were not disclosed.
22. Following his conviction, the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996, the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”.
23. The second applicant was born in 1953 and lives in Tonbridge. Prior to the events in question, he had been of good character and employed as accounts director in a firm which had gone into liquidation a year earlier. At the time of his arrest in July 1995, he was unemployed and in considerable debt.
24. The applicant’s version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995, Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged banknotes.
25. Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who put a certain amount of pressure on him to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched.
26. The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impaired. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, Terry or “Tel”, Jazz or Jag were participating informers or undercover police officers.
27. Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that Chris had been coaxing the applicant, there was no evidence of pressure having been applied.
28. A second submission was then made on the applicant’s behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – Chris and Ian –defence counsel sought guidance from the judge as to the areas of cross-examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross-examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996.
29. On 20 November 1996 he was sentenced to a total of four and a half years’ imprisonment.
30. On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that:
“Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.”
31. The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney-General’s Reference (no. 3 of 2000) ([2001] United Kingdom House of Lords Decisions 53), a judgment which followed and approved earlier case-law, including case-law which applied at the time of the applicants’ trials (for example, the judgment of the House of Lords in R. v. Latif [1996] 1 Weekly Law Reports 104).
In Looseley, Lord Nicholls of Birkenhead explained (§ 1):
“My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the State. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the State through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of State power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which State conduct of this nature could have are obvious. The role of the courts is to stand between the State and its citizens and make sure this does not happen.”
32. In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without police incitement (see R. v. Smurthwaite; R. v. Gill (1994) 98 Criminal Appeal Reports 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court’s process and should not have been brought in the first place.
33. In Looseley, the House of Lords agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “State-created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law-enforcement agency was so seriously improper as to bring the administration of justice into question. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement offered by the police, and the more forceful and persistent the police overtures, the more readily a court might conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 2629; Lord Hoffmann, §§ 50-71).
34. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence.
35. In December 1981 the Attorney-General issued guidelines, which did not have force of law, concerning exceptions to the common-law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports 302 – “the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
36. In R. v. Ward ([1993] 1 Weekly Law Reports 619), the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
37. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would then have the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
38. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that, even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.
39. The leading case on disclosure at the time of the applicants’ trials was the judgment of the Court of Appeal in R. v. Keane ([1994] 1 Weekly Law Reports 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.
40. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.
41. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...”
42. The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (CIPA), which came into force in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
43. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998IV), the United Kingdom introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney-General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000).
44. In December 1999 the government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Auld Report as follows (footnotes omitted):
“193. The scheme [developed by the common law since R. v. Ward and reflected in the Criminal Procedure and Investigations Act 1996: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant’s interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘special independent counsel’. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias.
194. In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution.
195. The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a ‘third’ or ‘special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas.
196. The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court’s reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury’s verdict into underestimating the significance of the undisclosed material.
197. However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system.
I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.”
45. In R. v. H.; R. v. C. [2004] United Kingdom House of Lords Decisions 3, decided on 5 February 2004 after the Chamber judgment in the present case, the Judicial Committee of the House of Lords held, inter alia:
“The years since the decision in R. v. Davis [see paragraph 37 above] and the enactment of the CIPA [see paragraph 42 above] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests. ...
There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII [public interest immunity from disclosure] matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1