ITEMID: 001-68148
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PANCHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1962 and lives in St. Petersburg.
10. On 29 August 1995 the North-Western transport prosecutor’s office instituted criminal proceedings against several police officers of the St. Petersburg transport police department where the applicant, in the rank of police major at that time, held the position of senior operational officer. The investigation established that the applicant had colluded with other police officers to detain individuals who had just arrived in St. Petersburg on the pretext of an identity check and to misappropriate their money.
11. On 31 August 1995 the applicant was detained on remand.
12. On 7 September 1995 the applicant was charged with criminal offences under Articles 144 § 2 (concerted theft), 145 § 3 (concerted large-scale robbery), 148 § 3 (large-scale extortion) and 170 § 1 (abuse of power or office) of the RSFSR Criminal Code, committed on several occasions between 1992 and 1995, in collusion with two other police officers.
13. On 18 June 1996 the case was referred to the Smolninskiy District Court of St. Petersburg for trial.
14. On 9 October 1996 the Smolninskiy District Court found that the bill of indictment was incomplete and remitted the case to the prosecutor’s office for additional investigation.
15. On 24 December 1996 the St. Petersburg City Court quashed the decision of 9 October 1996 and remitted the case to the Smolninskiy District Court for examination on the merits.
16. On 24 February, 31 March and 15 September 1997 the Smolninskiy District Court dismissed the applicant’s requests for release from custody, each time referring generically to the gravity of the charges against him and to his personal characteristics.
17. According to the Government, on 10 February 1997 the applicant refused to go to the court and the hearing was adjourned until 24 February. The applicant refuted the allegation. He contended that as a detainee he had had no choice whether to be escorted to the court house or not.
18. The parties agreed that subsequent hearings had been held on 24 and 25 February, 31 March and 1 April 1997.
19. On 15 September 1997 the Smolninskiy District Court granted the applicant’s request for additional time to read the case file and transcripts of the court hearings. The Government alleged that at that hearing the applicant had prevented the court from examining witnesses and victims, falsely accusing them of criminal offences and perjury. The applicant contested this allegation as not supported by any documents. The next hearing was fixed for 11 December 1997.
20. On 11 or 22 December 1997 the applicant challenged the presiding judge, alleging that he had had an intimate relationship with her. The challenge was dismissed as unsubstantiated. The hearing was then adjourned until 9 February 1998 because the applicant fell ill.
21. Subsequent hearings in the Smolninskiy District Court took place on 9, 11 and 12 February 1998.
22. On 12 February 1998 (8 February, according to the Government) the Smolninskiy District Court suspended the proceedings and ordered a forensic psychiatric examination of the applicant.
23. On 5 May 1998 the Convention entered into force in respect of the Russian Federation.
24. On 22 May 1998 the experts found the applicant to be of sound mind at the time of examination and at the time when the incriminated acts had been committed. On 1 July 1998 the proceedings were resumed.
25. On 17 July 1998 the Smolninskiy District Court refused the applicant’s request for release from custody, finding that his placement in custody had been “imposed in accordance with the law” and that “at this stage of the proceedings (the court investigation is about to be finished)... a change of the preventive measure is not opportune (нецелесообразно)”.
26. On the same day the Smolninskiy District Court delivered a judgment in the applicant’s case. It found him guilty on most counts and sentenced him to six years’ imprisonment, including the time already served, and also ordered confiscation of his property.
27. The applicant appealed against the judgment to the St. Petersburg City Court.
28. On 26 October 1998 the Smolninskiy District Court advised the applicant that the appeal hearing would take place on 17 November 1998. However, on 11 November 1998 (29 October, according to the Government) the St. Petersburg City Court returned the case-file to the Smolninskiy District Court because the applicant had not had adequate time and facilities to study it after the judgment had been given.
29. The Government submitted that between November 1998 and January 1999 the Smolninskiy District Court had “taken measures” to examine the applicant’s requests. They did not provide any details about the nature of these measures. The applicant disagreed. He contended that during that period the Smolninskiy District Court had not taken any steps to grant him access to the file and that it had not decided on his requests. He indicated that he had been first granted access to the requested materials on 22 February 1999, after seven months of procrastination on the part of the court, and then he had only had access to the file for 21 non-consecutive days until 8 April 1999.
30. On 18 April 1999 the applicant filed an addendum to his points of appeal. The appeal hearing was listed for 11 May 1999, but later adjourned until 3 June.
31. On 3 June 1999 the St. Petersburg City Court quashed the judgment of 17 July 1998 on procedural grounds and remitted the case for a new examination. The court ruled that the applicant was to remain in custody pending trial, without giving any reasons for the continued detention.
On the same day the City Court issued a “special finding” (частное определение) acknowledging that the length of the trial had been excessive and ordered the President of the Smolninskiy District Court to pay special attention to this fact and to take measures to remedy the situation.
32. On 26 July 1999 the Smolninskiy District Court examined the prosecutor’s application to return the case for additional investigation to the North-Western transport prosecutor’s office in order to remedy certain procedural defects. The applicant and his counsel agreed with the prosecutor’s application and filed a request for the applicant’s release, arguing that there were no grounds justifying his continued detention.
33. The court granted the application and remitted the case for additional investigation, but refused the request for release on the following grounds: the applicant’s detention had been extended in accordance with the law, he was charged with a serious criminal offence and he could obstruct the additional investigation and trial or flee from justice, including by leaving Russia.
34. On 29 July and 1 August 1999 the applicant and his lawyer lodged appeals against the decision of the Smolninskiy District Court.
35. According to the Government, the St. Petersburg City Court had originally fixed the hearing date for 24 August 1999. However, the applicant’s lawyer failed to appear and the hearing was adjourned until 31 August. On 31 August 1999 the applicant informed the court that his lawyer was on leave and requested an adjournment of the hearing. His request was granted and the new date was fixed for 28 September 1999. It appears that on 28 September 1999 the hearing before the St. Petersburg City Court took place. According to the Government, the court established that it needed the materials in the case file that was at that time in the North-Western transport prosecutor’s office pending completion of the additional investigation. The proceedings were suspended until such time as the case file was made available to the court.
36. On 21 September 1999 the North-Western transport prosecutor’s office accepted the case for an additional investigation. On 28 September 1999 the acting North-Western transport prosecutor set a time-limit for the additional investigation and extended the applicant’s detention for one month, i.e. until 28 October 1999.
37. On 18 October 1999 the Smolninskiy District Court informed the applicant that his case-file was with the North-Western transport prosecutor’s office for an additional investigation.
38. On 19 October 1999 the applicant complained to the prosecutor’s office that the re-opening of investigation had been unlawful because his appeal against the decision of 26 July 1999 was still pending.
39. On 26 October 1999 the North-Western transport prosecutor’s office reversed the decision of 28 September 1999 on the ground that the court decision of 26 July 1999 had not yet become final and the appeal was pending. On the same day the case-file was forwarded to the Smolninskiy District Court to be joined with the appeal and sent to the St. Petersburg City Court.
40. On 2 November 1999 the St. Petersburg City Court upheld the decision of 26 July 1999, finding as follows:
“The [city court] does not see any substantial violations of the requirements of the RSFSR Code on Criminal Procedure [“CCrP”] during the examination, by the [district] court, of the issues related to the preventive measure imposed on [the applicant], adjournment of hearings, examination of applications for release and appointment of an expert study...
Judging from the case materials, the [district] court had no grounds to revoke or amend the preventive measure... The norms of the CCrP... do not provide for any time-limits for detention on remand pending trial; they regulate the time-limits for fixing the first hearing and beginning of the trial, yet non-compliance with these time-limits is not an unconditional ground for revoking the preventive measure...
The [city court] comes to the conclusion that during the preliminary investigation and trial, there were no violations of the rules of criminal procedure as regards the examination of issues related to the preventive measure. When remitting the case for additional investigation and deciding on the preventive measure, [the district court] correctly referred to the absence of any grounds for revoking the preventive measure, taking into account that, once released, [the applicant] could abscond or interfere with the additional investigation or judicial examination; [the district court] correctly had regard to [the applicant’s] personality and to the nature of the charges against him.”
41. On 17 November 1999 the North-Western transport prosecutor’s office accepted the case for investigation and requested an extension of the applicant’s detention. The request was granted by the acting North-Western transport prosecutor on the same day, for a period of one month, i.e. until 17 December 1999.
42. The applicant appealed against the extension order. He argued, in particular, that it had been the second time that his detention in connection with the additional investigation had been extended for one month.
43. On 26 November 1999 the Oktyabrskiy Court of the Admiralteyskiy District of St. Petersburg upheld the order of 17 November 1999, finding as follows:
“Article 96 § 2 of the CCrP provides that persons charged with serious criminal offences may be detained on remand on the sole ground of the dangerousness of the offence. Furthermore, for an extension of [the applicant’s] detention on remand, there are of relevance such grounds as the defendant’s potential to free from investigation or trial and to interfere with the establishment of the truth”.
44. On 17 December 1999 the bill of indictment was served on the applicant and his lawyer and they were given several hours to study the materials of the additional investigation. On the same day a prosecutor of the North-Western transport prosecutor’s office refused the applicant’s requests for release pending trial and for additional time to study the case-file.
45. On 20 December 1999 the case was referred to the Smolninskiy District Court for trial.
46. On 30 December 1999 the Smolninskiy District Court again remitted the case to the prosecutor’s office for additional investigation because the prosecutor had failed to respect the applicant’s right to study all of the case materials and not just new ones. The court confirmed that the applicant was to remain in custody. The court grounded the applicant’s detention as before: the applicant was charged with a serious criminal offence and, in view of his personal circumstances, he could obstruct the investigation or flee from justice, including by leaving Russia. The applicant appealed against this decision.
47. On 29 February 2000 the St. Petersburg City Court quashed the decision of 30 December 1999 and ordered the applicant’s release from custody against his undertaking not to leave the city. The court noted that the applicant had already spent more than four years in custody while procedural delays in the examination of the case could not be attributed to his conduct. The court noted that the applicant had a permanent residence and family, that he had received positive references at his former place of work, that he had no criminal record and that there were no indications that the applicant would abscond or interfere with the establishment of the truth. On the same day the court also quashed the decision of the Oktyabrskiy District Court of 26 November 1999 and remitted the matter for a new examination because of a procedural defect in the trial record.
48. On or about 29 February 2000 the applicant was released from custody.
49. It appears that on 6 March 2000 the North-Western transport prosecutor’s office accepted the case for an additional investigation ordered by the Smolninskiy District Court on 30 December 1999. The investigation was completed on 23 August 2000 and the case was referred to the trial court.
50. On 5 April 2000 a prosecutor with the North-Western transport prosecutor’s office granted the applicant permission to pay a visit to his parents in Kharkov, Ukraine, from 6 to 11 April 2000.
51. On 13 April 2000 the Oktyabrskiy Court examined the applicant’s complaint concerning the lawfulness of his detention after 21 September 1999. The applicant supplemented his initial complaint with a request to declare inadmissible all evidence obtained by the investigation between 21 September and 26 October 1999 and between 17 November and 20 December 1999. The court held that the order of the prosecutor’s office of 26 October 1999, by which the order of 28 September 1999 had been reversed, amounted to an admission of the fact that the investigation between 21 September and 26 October 1999 had been unlawful. As to the admissibility of evidence obtained during that period, the court referred this issue to the trial court.
52. On 22 August 2000 the North-Western transport prosecutor’s office gave the applicant a new permit to visit his parents in Kharkov, Ukraine, provided that he returned by 30 August 2000.
53. On 10 January 2001 the Smolninskiy District Court, at the applicant’s request, ordered the case to be remitted for an additional investigation. The court established that the applicant had not been given adequate time to have access to the case file and that the investigator had failed to decide on his requests. The court referred the remainder of the applicant’s complaints concerning admissibility of evidence to the trial court. Following the appeal of the North-Western transport prosecutor against the decision, on 13 February 2001 it was upheld by the St. Petersburg City Court.
54. It appears that at that time the North-Western transport prosecutor’s office was undergoing reorganisation and its staff were transferred to the St. Petersburg city prosecutor’s office. On 26 March 2001 the applicant was advised about a transfer of his case to the St. Petersburg city prosecutor’s office. On 19 April 2001 a senior investigator with the anti-corruption and economic crimes unit of the Department for especially important cases of the St. Petersburg prosecutor’s office accepted the case for the additional investigation.
55. On the same day a deputy prosecutor of St. Petersburg authorised an extension of the investigation for one additional month.
56. On 11 May 2001 a deputy Prosecutor General authorised a further extension until 19 July 2001, i.e. for a total of 13 months and 23 days.
57. On 17 July 2001 the first deputy Prosecutor General extended the investigation until 19 September 2001, i.e. for a total of 15 months and 23 days.
58. On 18 September 2001 the first deputy Prosecutor General authorised an extension until 19 November 2001, i.e. for a total of 19 months and 23 days.
59. The applicant’s lawyer challenged the orders extending the investigation, in court. He complained about the excessive length of the proceedings and contested the lawfulness of the extensions, alleging that the case was of average complexity and that there were no exceptional circumstances of the kind required by the domestic law to justify such a lengthy investigation. He also requested the court to find a violation of Article 6 § 1 of the Convention in that the applicant had been denied a fair trial within a reasonable time.
60. On 22 October 2001 the Oktyabrskiy Court rejected the complaint. On 27 November 2001 the St. Petersburg City Court, on the applicant’s appeal, quashed and remitted that decision for a new examination. The court found that the first instance court had failed to take into account certain periods of the pre-trial investigation.
61. On 18 May 2002 the Oktyabrskiy Court examined the matter de novo and dismissed the complaint again. As regards the authorities’ compliance with the “reasonable time” requirement, the court pronounced as follows:
“...Having regard to the fact that the court has not established any violations of the rules of criminal procedure in the extensions of the time-limit for the preliminary investigation to 13 months and 23 days, 15 months and 23 days, and 17 months and 23 days, and taking into account that the contested extension orders were justified, the court considers that the extensions of the said time-limits were lawful and justified. In this connection, the court also considers that the additional investigation was completed within a reasonable time because the additional investigation was needed and it did not violate the defendant’s right under Article 6 § 1 of the ECHR... This conclusion of the court is also grounded on the fact that the overall duration of the preliminary investigation was 17 months and 23 days, of which seven months were used for an additional investigation by the St. Petersburg prosecutor’s office. The latter time period, as established in the court hearing, was required to carry out many investigative actions in the light of the substantial size of the criminal case, the remoteness [in time] of the criminal offences and the extent of the charges, and it was reasonable and necessary for the establishment of the truth and, in particular, for the protection of the victims’ rights.”
62. On 10 September 2002 the St. Petersburg City Court, on the applicant’s appeal, upheld the decision of 18 May 2002.
63. On 27 September 2001 the applicant was charged with repeated and concerted bribery, fraud, theft, robbery, abuse of power, and document forgery. In particular, the applicant was accused of illegal detention of persons whom he had stopped for identity checks at the railway station, taking or stealing their money and valuables and using forged documents to obtain social benefits. On 19 October 2001 the bill of indictment, with some textual amendments, was served again on the applicant.
64. Subsequently the applicant was given access to the case file. It appears the applicant and his lawyer had access to the case file for the first time on 5 November 2001.
65. On 11 April 2002 an investigator with the St. Petersburg city prosecutor’s office established that the applicant had intentionally procrastinated in reading the file and ordered that the reading should be completed by 1 June 2002. On 3 June 2002 the investigator refused the applicant’s request for additional time for access to the file.
66. On 17 June 2002 the case file comprising 20 volumes was forwarded to the St. Petersburg City Court for trial.
67. In July-August 2002 the judge to whom the case had been assigned went on annual leave.
68. On 30 October 2002 the judge fixed the first preliminary hearing for 18 November 2002.
69. On 26 November 2002 the court discontinued the criminal proceedings in the part concerning the charges in respect of which the prosecution had become time-barred and declared some evidence inadmissible. The applicant was afforded two months to study the case-file. The next hearing was fixed for 27 January 2003.
70. On 27 January 2003 the hearing was adjourned to 17 February 2003 because victims and witnesses did not appear. Between 17 February and 22 September 2003 further hearings were scheduled and adjourned for various reasons, such as the counsel’s medical treatment and annual leave, and absence of witnesses. From 22 July to 12 September 2003 the applicant was on annual leave in Kharkov and Khost.
71. On 22 September 2003 the proceedings were stayed pending the applicant’s in-patient treatment. Following his convalescence, a hearing was fixed for 24 December 2003. On that day it was adjourned until 5 January 2004 at the requests by the prosecutor and the applicant’s lawyer.
72. On 5 January 2004 the court discontinued the proceedings in respect of certain other charges which had meanwhile become time-barred. Between 9 January and 4 February 2004 further hearings were held.
73. On 4 February 2004 the St. Petersburg City Court made a decision to close the criminal case against the applicant (постановление о прекращении уголовного дела). Several charges against him were dropped by the prosecution and, as to the remainder, the court established that the prosecution was time-barred. The decision was not appealed against and on 17 February 2004 it became final.
74. The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (“the old Code”) of 27 October 1960 (effective until 30 June 2002) listed as “preventive measures”, inter alia, an undertaking not to leave a specified place and placement in custody (Article 89).
75. A decision to order detention on remand could only be taken by a prosecutor or a court (Articles 11, 89 and 96). In making this decision the relevant authority was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re-offend (Article 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his (her) profession, age, state of health, family status and other circumstances (Article 91).
76. Until 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the Code was amended to provide for placement in custody if the charge carried a sentence of at least two years’ imprisonment or if the defendant had previously defaulted or if he had no permanent residence in Russia or if his identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted the defendant’s placement in custody on the sole ground of dangerousness of the criminal offence imputed to him.
77. A prosecutor’s order, or a court decision, ordering detention on remand was to be reasoned and justified (Article 92). The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it (Article 92).
78. The Code distinguished between two types of detention on remand: one was “pending the investigation”, i.e. when an authorised agency – the police or a prosecutor’s office – undertook investigative measures, and the other was “before the court” (or “pending the trial”), i.e. when a trial court examined the case. Although there was no difference in practice between them (the detainee was normally held in the same detention facility), the calculation of the time-limits was different.
79. After arrest the person was placed in custody “pending the investigation”. The maximum permitted period of the detention “pending the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels, up to the Prosecutor General of the Russian Federation. No extensions beyond eighteen months were permitted (Article 97).
80. The time-limit of detention “pending the investigation” was calculated until the day when the investigation was considered completed and the defendant was given access to the case file (Articles 97, 199, 200 and 201). The access was to be granted no later than one month before the authorised detention period expired (Article 97). If the defendant needed additional time to study the case-file, a judge acting on a request by a prosecutor could grant an extension of the defendant’s detention on remand until such time as the reading of the file was completed, but for no longer than six months.
81. The case could also be remitted for “additional investigation” by the trial court if it established procedural defects that could not be remedied during the trial. In such case the person’s detention was again “pending the investigation” and the running of the time-limits “pending the investigation” resumed. If, however, the case was remitted for additional investigation, but the investigators had already used up all the time authorised for the detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the day he received the case. Any subsequent extension could only be granted if the detention “pending the investigation” had not exceeded eighteen months.
82. Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file, the file was transferred to a trial court. From that day the defendant’s detention was “before the court” (or “pending the trial”). Until 14 March 2001 the Code set no time-limit for detention “pending the trial”.
83. The detainee or his (her) counsel or representative could challenge the detention order, and any subsequent extension order, in court (Article 2201). The judge was required to review the lawfulness and justification of a detention or extension order no later than three days after receipt of the relevant materials. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his own initiative. The judge could either dismiss the challenge or revoke the detention on remand and order the detainee’s release. A judge’s decision was to be reasoned (Article 2202).
84. After a judge received the case-file and before the trial began, the judge had to decide, in particular, whether the defendant was to stay in custody or to be released pending trial (Article 222 § 5) and to rule on the defendant’s application for release, if submitted (Article 223). If the application was refused, it could be re-introduced after the beginning of the trial (Article 223).
85. At any moment during the trial the court could order, amend or revoke any preventive measure, including detention on remand (Article 260). Such decision was to be delivered in the form of a procedural order signed by all judges on the bench (Article 261).
86. Pursuant to the ruling of the Constitutional Court of 2 July 1998, all procedural orders made during the trial and having the effect of extending the applicant’s detention on remand could be appealed against to a higher court, separately from the judgment on the merits.
87. The time-limits for examination of the appeal against the procedural order rejecting the application for release were the same as those established for appeals against the judgment (see § 89 below) (Article 331 in fine).
88. The case examination was required to start no later than fourteen days after the judge issued a procedural order fixing a hearing date (Articles 2231 and 239). The duration of the trial was not limited in time.
89. The appeal court was required to examine an appeal against the first-instance judgment within ten days upon its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court of the Russian Federation this time-limit could be longer, up to two months (Article 333). No possibility of further extensions was provided for.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-82711
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF WIESER AND BICOS BETEILIGUNGEN GMBH v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (first applicant);Costs and expenses - partial award (first applicant)
JUDGES: Elisabeth Steiner;Giovanni Bonello;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 5. The first applicant, who was born in 1949, is a lawyer practising in Salzburg. He is the owner and general manager of the second applicant, a holding company which is, inter alia, the sole owner of the limited liability company Novamed.
6. On 30 August 2000 the Salzburg Regional Court (Landesgericht), upon a request for legal assistance (Rechtshilfeersuchen) by the Naples Public Prosecutor’s Office, issued a warrant to search the seat of the applicant company and Novamed. Both companies have their seats at the first applicant’s law office.
7. The court noted that in the course of pending criminal proceedings concerning, inter alia, illegal trade in medicaments against a number of persons and companies in Italy, invoices addressed to Novamed, owned 100% by the applicant company, had been found. It therefore ordered the seizure of all business documents revealing contacts with the suspected persons and companies.
8. On 10 October 2000 the search of the seat of the applicant company, which is also the first applicant’s law office, was carried out by eight to ten officers of the Economic Crimes Department of the Salzburg police (Wirtschaftspolizei) and data-securing experts (Datensicherungsexperten) of the Federal Ministry of the Interior.
9. One group of officers searched the law office for files concerning Novamed or Bicos in the presence of the first applicant and a representative of the Salzburg Bar Association. All documents were shown to the first applicant and the representative of the Bar Association before seizure.
10. Whenever the first applicant objected to an immediate examination of a document seized it was sealed and deposited at the Salzburg Regional Court as required by Article 145 of the Code of Criminal Procedure (Strafprozeßordnung – see paragraph 33 below). All seized or sealed documents were listed in a search report which was signed by the applicant and the officers who had carried out the search.
11. Simultaneously, another group of officers examined the first applicant’s computer systems and copied several files to disks. According to his statement before the Independent Administrative Panel (see paragraph 25 below), the IT specialist who normally serviced the computer systems was called upon to provide some technical assistance but left again after about half an hour. The representative of the Bar Association was informed about the search of the computer systems and was also temporarily present. When the officers had terminated the search of the computer systems, they left without drawing up a search report and, apparently, also without informing the first applicant about the results of the search.
12. Later the same day the police officers involved in the search of the applicants’ electronic data drew up a data securing report (Datensicherungsbericht). Apart from a number of technical details concerning the first applicant’s computer systems, the report states that a complete copy of the server was not made. The search was carried out using the names of the companies involved and the names of the suspects in the Italian proceedings. A folder named Novamed containing ninety files was found plus one further file containing one of the search items. All the data were copied to disks. In addition, the deleted items were retrieved and numerous files which corresponded to the search items were found and also copied to disks.
13. On 13 October 2000 the investigating judge opened the sealed documents in the presence of the first applicant. Some documents were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on the first applicant’s duty of professional secrecy.
14. The disks containing the secured data were transmitted to the Economic Crimes Department who printed out all the files. Both the disks and printouts were then handed over to the investigating judge.
15. On 28 November 2000 and 11 December 2000 respectively, the first applicant and the applicant company lodged complaints with the Review Chamber (Ratskammer) of the Salzburg Regional Court.
16. They submitted that the first applicant was the owner and manager of the applicant company but also the lawyer for a number of companies in which the latter held shares. They complained that the search of their premises and the seizure of electronic data had infringed the first applicant’s right and duty of professional secrecy under section 9 of the Lawyers Act (Rechtsanwaltsordnung) in conjunction with Article 152 of the Code of Criminal Procedure as some officers had proceeded unobserved to examine and subsequently copy electronic data. The applicants submitted that the data contained the same information as the documents which had been examined in the presence of the first applicant. However, with regard to the electronic data, the first applicant had not been given an opportunity to object and have the disks sealed.
17. They further submitted that the search report did not mention that part of the search, nor did it mention which electronic data had been copied and seized. Furthermore, the search report had only been signed by three of the officers, but did not mention the names of all the officers who had been present at the search, omitting in particular the names of the data-securing experts of the Federal Ministry of the Interior.
18. On 31 January 2001 the Review Chamber dismissed the applicants’ complaints.
19. It observed that the first applicant’s computer data had been searched with the aid of particular search criteria. Files which corresponded to these search criteria had been copied to disks which had been seized.
20. However, there was no ground for holding that this seizure circumvented Article 152 of the Code of Criminal Procedure: the search of the first applicant’s law office concerned exclusively documents which the first applicant had in his possession as an organ of Novamed and Bicos, and therefore did not concern a lawyer-client relationship.
21. It further observed that the search of the first applicant’s law office was based on a lawful search warrant which included the search and seizure of electronic data. The procedural safeguards laid down in Article 145 of the Code of Criminal Procedure, namely the right of the person concerned to object to an immediate examination and to request the deposit of data seized with the Regional Court and a decision by the Review Chamber, also applied to the search of electronic data.
22. In the present case, however, the officers had, whenever asked, complied with the first applicant’s requests to seal certain documents and deposit them with the Regional Court. Some of these documents had been returned by the court in order to ensure compliance with the applicant’s duty of professional secrecy.
23. It therefore concluded that the applicants’ complaints were unfounded. The Review Chamber’s decision was served on 7 February 2001.
24. In the meantime, on 20 and 21 November 2000 respectively, the first applicant and the applicant company lodged complaints with the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat). They submitted that the search and seizure of electronic data in the first applicant’s office had been unlawful.
25. On 2 April, 11 June and 11 July 2001 the Independent Administrative Panel held public hearings at which it heard evidence from a number of witnesses.
The IT specialist in charge of the first applicant’s computer facilities said that he had been called and had arrived at the office when the search of the premises was already under way. He had left again after half an hour. The officer in charge of the search stated that the first applicant had been informed about the search of his computer data. Two other officers stated that the search of the first applicant’s computer systems had not begun until the arrival of his IT specialist and that the representative of the Bar Association had been temporarily present. This was confirmed by the representative of the Bar Association.
26. On 24 October 2001 the Salzburg Independent Administrative Panel dismissed the applicants’ complaints. It found that they concerned alleged breaches of certain provisions of the Code of Criminal Procedure regulating searches. The officers who had carried out the search had possibly not fully complied with these provisions. They had, however, acted on the basis of the search warrant and not exceeded the instructions of the investigating judge. The search was therefore imputable to the court. Consequently, a review of lawfulness did not fall within the competence of the Independent Administrative Panel.
27. Articles 139 to 149 of the Code of Criminal Procedure (Strafprozeßordnung) concern the search of premises and persons and the seizure of objects.
28. Article 139 § 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects there the possession or examination of which is relevant to a particular criminal investigation.
29. Pursuant to Article 140 §§ 1 and 2 a search should in general only be carried out after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons leading to the search have not been eliminated. No such questioning is required where there is danger in delay.
30. Article 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge.
31. Pursuant to Article 142 §§ 2 and 3 the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, shall be present during the search. A report is to be drawn up and to be signed by all those present.
32. Article 143 § 1 of the Code of Criminal Procedure provides that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safe keeping or seized. It refers in this respect to Article 98, pursuant to which objects in safe keeping have to be put into an envelope to be sealed by the court, or be labelled so as to avoid any substitution or confusion.
33. Article 145 reads as follows:
“1. When searching through documents steps must be taken to ensure that their content does not become known to unauthorised persons.
2. If the owner of the documents does not want to permit their being searched, they shall be sealed and deposited with the court; the Review Chamber must determine immediately whether they are to be examined or returned.”
34. According to the courts’ case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of disks or hard disks on which data is stored objects to their being searched, the data carriers are to be sealed and the Review Chamber must decide whether they may be examined.
35. Section 9 of the Austrian Lawyers Act (Rechtsanwaltsordnung) regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy.
36. Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession.
37. It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation.
38. According to an instruction (Erlaß) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer’s office in order to ensure that the search does not encroach on professional secrecy.
39. By virtue of section 67a(1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt).
40. Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them. Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by an Independent Administrative Panel.
VIOLATED_ARTICLES: 8


ITEMID: 001-109581
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF AUSTIN AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)
JUDGES: Angelika Nußberger;Dean Spielmann;Erik Møse;Françoise Tulkens;Ganna Yudkivska;Giorgio Malinverni;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Lech Garlicki;Ledi Bianku;Luis López Guerra;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 8. The first applicant was born in 1969 and lives in Basildon; the second applicant was born in 1949 and lives in London; the third applicant was born in 1972 and lives in London; and the fourth applicant was born in 1963 and lives in Wembley.
9. The facts of the case may be summarised as follows.
10. On 1 May 2001, during a demonstration in central London, the applicants were contained within a police cordon at Oxford Circus (the junction between Regent Street and Oxford Street).
11. The first applicant, Ms Lois Austin, is a member of the Socialist Party and had been on many demonstrations, including previous May Day demonstrations. On 1 May 2001 she left her 11-month-old daughter at a crèche, planning to collect her at 4.30 p.m., and travelled from Essex to central London with her partner. They attended a protest against globalisation outside the World Bank before walking with other protesters to Oxford Circus, arriving at about 2 p.m. Around 3.45 p.m. Ms Austin needed to leave the demonstration to collect her daughter from the crèche. She explained her situation to two police officers maintaining the cordon but was told that she could not leave and that it was not known how long it would be before she would be able to leave the area. Ms Austin therefore arranged for a friend to collect the child from the crèche. She was finally allowed to leave at about 9.30 p.m.
12. Between 2 and 2.30 p.m. on 1 May 2001, the second applicant attempted to cross Oxford Circus to go to a bookshop on Oxford Street. He was told by a police officer that he could not walk down Oxford Street because of the approaching crowd of demonstrators and was advised to take Margaret Street, a parallel road to the north. The applicant followed this advice but between Margaret Street and Regent Street he was met by a wall of riot police with shields and helmets moving south. The applicant was forced into Oxford Circus at about 2.30 p.m. He immediately asked to be allowed out of the cordon and was informed that there was an exit for nonprotesters at the Bond Street side of Oxford Circus; when he went there he was told that there was no exit. The applicant was not able to exit the cordon until 9.20 p.m.
13. The third applicant had no connection with the demonstration. She worked in the Oxford Circus area and was on her lunch break at 2.10 p.m. when she was prevented from returning to her workplace by a line of police officers blocking the road. She turned and tried to pass in another direction but found that that exit was also now blocked by police officers, who began to advance towards her. She was held within the cordon at Oxford Circus until 9.35 p.m. She and others repeatedly requested to be allowed to leave the cordoned area but was told by the policemen she approached that they were under orders to allow no one to pass.
14. The fourth applicant also worked in the Oxford Circus area and was also caught up in the cordon while walking through Oxford Circus on his lunch break. He was able to leave at approximately 8 p.m.
15. Following the events on 1 May 2001, approximately 150 people who had been confined in Oxford Circus contacted various firms of solicitors with the intention of commencing proceedings. The various potential applicants, their legal representatives and the representatives of the Metropolitan Police entered into correspondence with a view to progressing the claims in an efficient manner. It was agreed that the first applicant and Mr Geoffrey Saxby, who was a passer-by caught up in the cordon, would act as “test” claimants. They commenced proceedings in the High Court, claiming damages for false imprisonment and under the Human Rights Act 1998 for breach of the right to liberty guaranteed by Article 5 of the Convention. The first applicant also initially advanced a claim for interference with her rights of freedom of expression and assembly contrary to Articles 10 and 11 of the Convention, but she subsequently abandoned these claims. The Metropolitan Police provided undertakings to the legal representatives of the other claimants (including the second, third and fourth applicants) that they would not raise any limitation argument if they brought claims in the domestic courts after the test case had been determined.
16. The hearing in the High Court before Tugendhat J lasted three weeks, including six days of oral evidence. He considered live evidence from 18 lay witnesses and two experts, statements from a further 138 witnesses, thousands of pages of documentary evidence and video footage from hand-held and security cameras and police helicopters. In his judgment, delivered on 23 March 2005 ([2005] EWHC 480 (QB)), Tugendhat J devoted 500 paragraphs to his assessment of the evidence and findings of fact. His factual findings can be summarised as follows.
17. Tugendhat J found that on 18 June and 30 November 1999 and May Day 2000 there had occurred very serious breakdowns in public order in London, which the police feared would be repeated in 2001. The theme of all three demonstrations was protest against capitalism and globalisation. The organisers of the event on 18 June 1999 had failed to cooperate with the police and had distributed publicity material similar to that distributed by the organisers of the May Day 2001 demonstration. During the afternoon of 18 June 1999 a crowd of some 3,000 to 5,000 people, wearing masks, caused approximately 2 million pounds sterling worth of damage and injury to members of the public and police officers, eleven of whom required hospital treatment. Demonstrations on these themes had also resulted in serious breakdowns in public order in other countries at about this time, including in Seattle on 30 November 1999 (the World Trade Organisation meeting), in Washington DC on 16 April 2000 (the International Monetary Fund meeting), in Melbourne on 11 to 13 September 2000 (World Economic Forum Asia Pacific summit), in Prague on 26 September 2000 (another International Monetary Fund meeting), and on 22 April 2001 in Quebec (a Summit of the Americas meeting). The planning for May Day 2001 reflected experience at these and earlier demonstrations, particularly in London, and recommendations made in the light of them.
18. For 1 May 2001, two events had been notified to the police, namely a trade-union May Day March and Rally and a Young Socialist Students March, taking place in different parts of London. In addition, intelligence indicated that activists representing a broad coalition of environmentalist, anarchist and left-wing protest groups intended to stage various protests at twenty-four locations across London based on the squares of “Monopoly”, a boardgame. The final event was to be a rally at Oxford Circus at 4 p.m. The organisers of the “May Day Monopoly” protest did not make any contact with the police, nor attempt to seek authorisation for the demonstrations, and attempted to maintain secrecy about the locations and nature of the protest. Protesters were directly and indirectly encouraged to wear masks and to engage in looting and violence (see Tugendhat J’s judgment, §§ 20625). The intelligence available to the Police Special Branch was that there would be “500 to 1,000 hard-core demonstrators looking for confrontation, violence and to cause public disorder”. The Special Branch assessment was that the protest would involve one of the most serious threats to public order ever seen in London, with a real risk of serious injury and even death, as well as damage to property, if they did not effectively control the crowd. Those at risk included members of the public, police officers and other demonstrators. On 24 April 2001 the Mayor of London wrote an article in the principal London evening newspaper, expressing the view that the organisers of the May Day protest deliberately sought to create destruction and urging Londoners to stay away. Similar warnings were reported in a number of other newspapers in March and April 2001.
19. The police plan for the day involved the deployment of nearly 6,000 officers on foot wearing high-visibility jackets, in addition to mounted police officers. At that time, this was probably the largest number of police officers that had ever been deployed in London. The policemen and women responsible for policing on May Day 2001 were the most experienced public-order officers in England. Since it was foreseen that the final event would be a gathering at Oxford Circus at 4 p.m., a speaker system was installed there. The strategic intentions of the police operation were stated as being to provide public reassurance and ensure public safety; facilitate and police all legitimate protest; prevent public disorder and protect key buildings such as Buckingham Palace and the Houses of Parliament; prevent crime and take all reasonable steps to apprehend offenders if crime was committed; and generally minimise disruption. However, the police had little idea of what to expect or how they would react to it if and when it happened.
20. During the morning of 1 May 2001 there were a number of fairly small demonstrations across London. At around 1 p.m. demonstrators started gathering outside the offices of the World Bank in the Haymarket area. They walked towards Piccadilly Circus then up Regent Street to Oxford Circus. By 2 p.m. it was estimated that there were over 1,500 people in Oxford Circus and that more were steadily joining them. A number of people moving up Regent Street were wearing face masks. The police intelligence had indicated that the gathering at Oxford Circus was to take place at 4 p.m. and the size of the crowd there at this time took them by surprise, with insufficient officers in the area to prevent more people entering it.
21. At approximately 2 p.m. the police decided to put up a cordon to contain the crowd. The decision was based on the available intelligence, which had estimated that 500 to 1,000 individuals intent on violence would take part in the May Day protest and on what had occurred at previous similar demonstrations, rather than on the behaviour of the crowd up until that point. The decision was made in conscious exercise of common-law powers to prevent a breach of the peace. Once the decision to put in a cordon was made, it took five to ten minutes to put in a loose cordon and, as more police officers arrived, twenty to twenty-five minutes to put in a full cordon. There was sufficient space within the cordon for people to walk around and there was no crushing. Nonetheless, as the afternoon progressed, conditions became uncomfortable. The weather was cold and wet. No food or water was provided and there was no access to toilet facilities or shelter.
22. No announcement was made to the crowd when the cordon was first put in place because of police concern that it would not be strong enough to resist a concerted effort by the crowd to break through. The first announcement through the public-address system was made at 4 p.m., informing the crowd that they were being contained to prevent a breach of the peace. It was accepted by the Police Commander in evidence before the domestic courts that the announcement to the crowd could have been made earlier, perhaps at 3.15 or 3.30 p.m.
23. At 2.25 p.m., five minutes after the full cordon was put in place, the Chief Superintendent commanding the operation planned to commence a controlled release from within the cordon up Regent Street north. However, release had to be delayed when members of the crowd both within and outside the cordon started to throw missiles and use violence against the police and when there was an attempt by the crowd to break through the cordon into Regent Street. At 2.55 p.m. a dispersal north was again planned but suspended because of violence by protesters on both sides of the cordon. At around this time more people started moving towards Oxford Circus to take part in the event which had been planned to take place there at 4 p.m. By 3.40 p.m. the police situation report was that officers were sandwiched between crowds, with pushing and shoving and bottles being thrown. At 4.30 p.m. there was a crowd of between 400 and 500 people outside the cordon following a samba band, which made dispersal into Oxford Street difficult. The situation was reviewed at 4.55 p.m. but collective release was ruled out because of the risk of violence and disorder. At 5.15 p.m. there was serious disorder in Oxford Street caused by a core of about twenty-five masked protesters which attracted a crowd of several hundred. At 5.20 p.m. the crowd within the cordon was calm but the police were not willing to risk collective release because of the presence of other large, disorderly crowds nearby.
24. At 5.55 p.m. the decision was taken to disperse the crowd within the cordon. However, the crowd became violent again and at 6.15 p.m. the decision to release was reversed. At 7 p.m. release was commenced, with small groups and individuals being escorted away from the containment. However, at 7.20 p.m. the release was put on hold because of the difficulty in policing the crowds outside the cordon, some of whom were throwing large bits of masonry and burning missiles at the police, and because demonstrators released from the cordon were remaining in the vicinity. At 7.30 p.m. the collective dispersal was resumed, with additional police resources to escort those released from the cordon. However, the dispersal was soon halted again because it became apparent that those being released from Oxford Circus were joining another large crowd, which had previously been violent, to the north in Great Portland Street. By 8 p.m. Portland Place was clear and the collective release of the Oxford Circus crowd recommenced, in groups of ten. By 9.45 p.m. the dispersal was almost complete. Over 100 people were arrested as a result of the disorder in Oxford Circus and the surrounding area. It was part of the collective-release policy to search some or all of those released, take a record of their names and addresses and photograph them.
25. The police estimated that there were a maximum of 2,000 people within the cordon at the peak time and 1,000 in the crowd outside it. Analysis of the documentary and video evidence admitted at trial indicated that, over the course of the afternoon, some 392 people were released individually. It was accepted that this figure was unlikely to be accurate, but Tugendhat J found that the number of individual releases was likely to be “nearer 400 than 200”. Of these, most were from the north and south sides of Oxford Circus, with very few people being released to the east and west. Most of the recorded releases were before 4 p.m.; 12 were between 4 p.m. and 5 p.m.; 89 between 5 p.m. and 6 p.m.; 59 between 6 p.m. and 7 p.m.; and 12 individual releases after 7 p.m. It was difficult for police officers to identify members of the crowd for individual release on the basis that they posed no threat of violence. Some of those released were identified in police records as being bystanders caught up in the demonstration. Others were described as being in physical distress, pregnant women, elderly people or children.
26. The judge concluded that, in the light of the violence which had occurred at previous demonstrations, the intelligence available to the police, the lack of cooperation from the organisers and the conduct of certain sections of the crowd, the police had reasonable grounds to believe that there was a real risk of damage to property, serious physical injury and even death. The main risks were from crushing and trampling, but there were also risks from missile throwing. Given the situation at Oxford Circus, if they were to prevent violence and injury, the police had no alternative at 2 p.m. but to impose an absolute cordon and this was, therefore, a proportionate response by the police to the presence of the crowd. The principal purpose of the containment was to ensure the safety of persons (including those within the cordon), the preservation of property in Oxford Street and the protection of other rights of third parties. The police also intended to segregate some members of the crowd from others, if appropriate by asking them questions or by searching them.
27. From 2.20 p.m., no one in the crowd was free to leave without permission. The measure was a close confinement, with minimal liberty in Oxford Circus, and its effects were severe, increasingly so as time went by. However, it was never expected that the containment would last so long and the possibility of safely releasing the crowd was kept under review at all times.
28. It was not practicable for the police to release the crowd collectively earlier than they did. There were periods when the dispersal route was blocked by other crowds attempting to get into Oxford Circus. It would not have been reasonable or safe to allow these crowds to join each other without controlling their movement. In addition, there were long periods during which the police did not have the resources to provide for safe dispersal, and it was not suggested that the Commissioner of the Metropolitan Police could or should have made available more police officers than he had on the streets that day. One reason the resources were inadequate was that a substantial proportion of the crowd was not cooperating with the police on the cordons around them. The judge estimated that about 40% were actively hostile at any given time, pushing and throwing missiles, and otherwise showing a lack of cooperation. Those not pushing or throwing missiles were not disassociating themselves from the smaller minority who were. As a result the cordon had to be manned by enough officers to resist a concerted push by these people to break out. A cooperative crowd could have been contained by fewer officers, leaving others available to control the dispersal. The other reason why there were insufficient resources was that other crowds outside the containment were refusing to accept control by or directions from the police. The police were doing the best that they could in the most difficult circumstances. The resources they needed to control the dispersal of the crowd in Oxford Circus were necessarily and properly deployed elsewhere. That did not mean that the police had to allow the crowd in Oxford Circus to disperse without control. According to the judge, that would have been an abnegation of their duty to prevent a breach of the peace, and of their duty of care and the positive obligation incumbent upon them to protect the members of the crowd and third parties, including police officers, from the risk of serious injury, as well as to protect third parties from risk of damage to property.
29. In the circumstances that existed in Oxford Circus, and in particular the difficulty for the police to distinguish between peaceful and violent or potentially violent individuals within the cordon, the judge was unable to find any individual release policy, other than that applied, which would have been workable. Once the cordon was in place, any measure of controlled release was bound to have taken a considerable time before all of the crowd was released. It was impossible to say how long it would have taken if there had been no searches or evidence gathering, but it would have been more than a matter of twenty minutes. If a release was to be combined with searches and evidence gathering, it was bound to take as long as this one took from the time it restarted at 7.30 p.m., that is about one to two hours at least.
30. As regards the false-imprisonment claim, Tugendhat J held that the defence of necessity was available and that the police action was necessary.
31. In connection with Article 5, the judge found that containment within the cordon amounted to deprivation of liberty within the meaning of Article 5 § 1. Although he found that there was never an intention on the part of the police to bring everyone contained at Oxford Circus before a judge, the purpose was to contain the crowd so that the police could arrest and bring before a judge all those they reasonably considered had committed offences and those whose arrest was necessary to prevent them committing offences, and that this was sufficient for the requirements of Article 5 § 1 (c).
32. In addition, Tugendhat J found that, on the unusual facts of the case, there had been no interference with the rights of freedom of speech and assembly. None of the witnesses was able to explain what the purpose of the procession to Oxford Circus was or what it was proposed should have happened either there, or anywhere else, if the police cordon had not been imposed. He found that the literature distributed in advance by the organisers was intended to encourage at least a substantial minority of those present to engage in some form of disorderly and criminal activity, probably including public-order offences such as affray, criminal damage and theft. If there had been no cordon, it would in practice have been impossible in this environment of disorder for anyone intending to carry out lawful acts of protest to do so. Moreover, there was no evidence that anyone at Oxford Circus intended to exercise any rights of speech that they did not in fact exercise. Tugendhat J therefore concluded that the case was about public order and the right to liberty, and not about freedom of speech or freedom of assembly, and he dismissed all the plaintiffs’ claims.
33. Tugendhat J granted Ms Austin and Mr Saxby leave to appeal against his findings as regards the claims for false imprisonment and under Article 5 of the Convention. In a judgment delivered on 15 October 2007 ([2007] EWCA Civ 989), the Court of Appeal dismissed the appeal.
34. In connection with the claim of false imprisonment, the Court of Appeal held that, in order to prevent a breach of the peace threatened by others, the police could lawfully take action which interfered with or curtailed the lawful exercise of the rights of innocent third parties, but only where all other possible steps had been taken to avoid a breach of the peace and to protect the rights of third parties, and where the action taken was reasonably necessary and proportionate. Applying this test, in the circumstances of the demonstration at Oxford Circus, Ms Austin’s containment was lawful because it was necessary to prevent an imminent breach of the peace by others.
35. In connection with the claim under Article 5, the Court of Appeal concluded that the detention did not amount to a deprivation of liberty. Sir Anthony Clarke MR, giving the judgment of the court, held as follows.
“102. ... [T]he first question is whether the appellants were deprived of their liberty from the outset. In our opinion they plainly were not. The position at that time was not markedly different in terms of detention from a number of different types of confinement or detention to which the judge referred which would not be regarded as a deprivation of liberty within Article 5 § 1. A good example is perhaps a football crowd. It is commonplace for such a crowd to be contained for what may turn out to be quite long periods, partly for the protection of individuals in the crowd and partly (in some cases) to avoid crowd violence, perhaps as between groups of opposing supporters ... Other examples would be ... for example where motorists are unable to leave a motorway, perhaps for many hours, because of police action following an accident. In such cases it may be necessary for police to confine individuals in particular areas for what may be much longer than originally intended.
103. In our opinion this was plainly such a case. On the judge’s findings of fact, the police had no alternative but to impose the cordon which they did. They anticipated orderly release over two or three hours in order to avoid violence. The judge identified their various purposes, which included safety and the prevention of crime by individuals in the crowd many of whom could not be identified. In these circumstances the original imposition of the cordon could not, in our judgment, properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of Article 5 § 1. For these reasons we hold that the judge erred in principle in concluding that the appellants were unlawfully detained as from 2.20 p.m.
104. On that basis, it is for us to consider afresh the remaining question, namely whether they were unlawfully detained thereafter. In our judgment the answer to that question is ‘No’. So for example, ... on a number of occasions during the afternoon the police gave the order to commence controlled release, only to find that they could not safely carry it through ... On three occasions the decision to commence controlled dispersal north had to be reviewed or suspended because of the conduct of protesters either inside or outside the contained area, with the result that the final release phase did not begin until 8.02 p.m. ... During the whole period there was very considerable violence, although not it must be stressed by the appellants ... As the judge concluded ... this was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for seven hours. It was a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it.
105. In these circumstances it could not sensibly be held that there came a time in which what was originally something less than a deprivation of liberty subsequently became a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. We therefore hold, contrary to the conclusion of the judge, that, if all the relevant circumstances are taken into account, there was not here the kind of arbitrary deprivation of liberty contemplated by the Convention.”
36. Ms Austin, like Mr Saxby, was granted leave to appeal by the House of Lords in connection with the issues under Article 5 § 1 of the Convention. The case was heard on 24 and 25 November 2008, and on 28 January 2009 a unanimous judgment was delivered, dismissing the appeal on the ground that Article 5 § 1 did not apply since the applicant had not been deprived of her liberty ([2009] UKHL 5).
37. Lord Hope of Craighead, with whom all the other Law Lords agreed, explained his approach to the interpretation of “deprivation of liberty” as follows.
“23. The application of Article 5 § 1 to measures of crowd control is an issue which does not appear so far to have been brought to the attention of the court in Strasbourg. So there is no direct guidance as to whether Article 5 § 1 is engaged where the police impose restrictions on movement for the sole purpose of protecting people from injury or avoiding serious damage to property. The need for measures of crowd control to be adopted in the public interest is not new, however. It is frequently necessary, for example, for such measures to be imposed at football matches to ensure that rival fans do not confront each other in situations that may lead to violence. Restrictions on movement may also be imposed by the police on motorists in the interests of road safety after an accident on a motorway, or to prevent local residents from coming too close to a fire or a terrorist incident. It is not without interest that it has not so far been suggested that restrictions of that kind will breach Article 5 § 1 so long as they are proportionate and not arbitrary.
24. The restrictions that were imposed by the police cordon in this case may be thought, as compared with the examples that I have just mentioned, to have been greater in degree and intensity. But Lord Pannick QC for the respondent submitted that one could not sensibly ignore the purpose of the restriction or the circumstances. Detention in the paradigm sense was not in the minds of anyone. There would have been no question of there being a deprivation of liberty if the cordon had remained in place for only twenty minutes. The fact that it remained in place for much longer ought to make no difference, as the fact that it was not possible to release everyone from the cordon earlier was due to circumstances that were beyond the control of the police. This was a case, he said, where the answer to the question whether what was done was within the scope of Article 5 § 1 was to be determined by striking a fair balance between the rights of the individual and the interests of society. It was, of course, necessary to give full effect to the fact that Article 5 was a fundamental right whose importance was paramount. But the fact that infringement was not open to justification except in the cases listed in sub-paragraphs (a) to (f) pointed to the need for care to be taken to identify the limits of its application.
25. Ms Williams QC for the appellant, on the other hand, said that the purpose for which the measure was employed was irrelevant. The fact that it was a necessary response and was proportionate was a pre-condition for establishing the measure’s legality for the purpose of sub-paragraphs (a) to (f) of Article 5 § 1. But it went no further than that. There was no balance to be struck when consideration was being given to the initial question whether Article 5 § 1 applied to the measures adopted by the police. Questions of purpose and balance only arose when consideration was being given to the cases listed in sub-paragraphs (a) to (f).
Is purpose relevant?
26. The decision whether there was deprivation of liberty is, of course, highly sensitive to the facts of each case. Little value can be derived therefore from decisions on the application of Article 5 that depend entirely on their own facts. But they are of value where they can be said to illustrate issues of principle. In the present context some assistance is to be derived from the cases as to the extent to which regard can be had to the aim or purpose of the measure in question when consideration is being given as to whether it is within the ambit of Article 5 § 1 at all.
27. If purpose is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual. The proposition that there is a balance to be struck at the initial stage when the scope of the Article is being considered was not mentioned in Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or Guzzardi v Italy (1980) 3 EHRR 333. Nor can it be said to be based on anything that is to be found in the wording of the Article. But I think that there are sufficient indications elsewhere in the court’s case-law that the question of balance is inherent in the concepts that are enshrined in the Convention and that they have a part to play when consideration is being given to the scope of the first rank of fundamental rights that protect the physical security of the individual.”
Lord Hope then reviewed a number of judgments and decisions of the Court and Commission, including X. v. the Federal Republic of Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) 24, p. 158; Guenat v. Switzerland, no. 24722/94, Commission decision of 10 April 1995, DR 81-B, p. 130; H.M. v. Switzerland, no. 39187/98, ECHR 2002II; Nielsen v. Denmark, 28 November 1988, Series A no. 144; Soering v. the United Kingdom, 7 July 1989, Series A no. 161; O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, ECHR 2007III; and N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008. He concluded:
“34. I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances. No reference is made in Article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to Article 10 § 2, which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of Article 5 to measures taken in the interests of public safety is indicated by Article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other. The ambit that is given to Article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person’s right to liberty must not be arbitrary. If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them.”
Lord Neuberger of Abbotsbury agreed that there had been no deprivation of liberty, and observed as follows.
“58. The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances. Thus, if a deranged or drunk person was on the loose with a gun in a building, the police would be entitled, indeed expected, to ensure that, possibly for many hours, members of the public were confined to where they were, even if it was in a pretty small room with a number of other people. Equally, where there are groups of supporters of opposing teams at a football match, the police routinely, and obviously properly, ensure that, in order to avoid violence and mayhem, the two groups are kept apart; this often involves confining one or both of the groups within a relatively small space for a not insignificant period. Or if there is an accident on a motorway, it is common, and again proper, for the police to require drivers and passengers to remain in their stationary motor vehicles, often for more than an hour or two. In all such cases, the police would be confining individuals for their own protection and to prevent violence to people or property.
59. So, too, as I see it, where there is a demonstration, particularly one attended by a justified expectation of substantial disorder and violence, the police must be expected, indeed sometimes required, to take steps to ensure that such disorder and violence do not occur, or, at least, are confined to a minimum. Such steps must often involve restraining the movement of the demonstrators, and sometimes of those members of the public unintentionally caught up in the demonstration. In some instances, that must involve people being confined to a relatively small space for some time.
60. In such cases, it seems to me unrealistic to contend that Article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable, and any confinement is restricted to a reasonable minimum, as to discomfort and as to time, as is necessary for the relevant purpose, namely the prevention of serious public disorder and violence.
61. It was suggested on behalf of the appellant that, at any rate in some of the examples I have given, consent to being confined could be imputed to the people concerned. I am not sure that that is a satisfactory analysis, not least because, unless the consent is to be treated as being involuntary or irrebuttably deemed to be given, it would not deal with the case of a person who informed the police that he objected to being confined. However, if imputed consent is an appropriate basis for justifying confinement for Article 5 purposes, then it seems to me that the confinement in the present case could be justified on the basis that anyone on the streets, particularly on a demonstration with a well-known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence.
62. So, in agreement with the Court of Appeal, I would hold that, in the light of the findings of the Judge, as summarised in para [57] above, the actions of the police in the present case did not give rise to any infringement of the appellant’s Article 5 rights. The feature of the present case which gives particular cause for concern is the length of the period of confinement, nearly seven hours. However, having reached the conclusion that reasonable and proportionate constraint, which is requisite to prevent serious public disorder and violence, does not infringe Article 5, it seems to me hard to contend that the mere fact that the period of constraint was unusually long can, of itself, convert a situation which would otherwise not be within the ambit of Article 5 into one which is. I think that some support for that view can be found in cases where it has been held that detention in prison is not taken out of Article 5 because it was only for a short time – see e.g. Novotka v Slovakia (Application No 47244/99) 4 November 2003.
63. As already indicated, it appears to me that the intention of the police is relevant, particularly in a non-paradigm case, such as this, and where the intention is manifest from the external circumstances. If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or ‘to teach a lesson’ to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of Article 5. However, as is apparent from the clear and careful findings made by the Judge, which have quite rightly not been challenged on appeal, there could be no question of such a contention being raised in the present case.
64. Furthermore, it is worth bearing in mind that, at least as I see it, if the restraint in the present case did amount to detention within Article 5, it would not be possible for the police to justify the detention under the exceptions in paras (b) or (c), not least because of the reasoning of the European Court in Lawless v Ireland (No 3) (1961) 1 EHRR 15. I consider that the fact that the restraint in the present case could not be justified under any of the exceptions in paras (a) to (f) supports the contention that the constraint did not amount to detention within Article 5 at all. It would appear to me to be very odd if it was not open to the police to act as they did in the instant circumstances, without infringing the Article 5 rights of those who were constrained.”
Lord Carswell agreed with Lord Hope, and Lord Scott of Foscote agreed with Lords Hope and Neuberger, emphasising that “the purpose of the confinement or restriction and the intentions of the persons responsible for imposing it rank very highly in the circumstances to be taken into account in reaching the decision” whether there has been a deprivation of liberty.
Lord Walker of Gestingthorpe agreed with Lord Hope, but added as a “footnote”:
“43. In paras 26ff of his opinion Lord Hope poses the question ‘Is purpose relevant?’ His conclusion is a very guarded one, that is (para 34) that there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances. I respectfully agree that it is right to be cautious on this point. The Strasbourg Court has frequently made clear that all the surrounding circumstances may be relevant in determining whether there is a deprivation of liberty: see for instance HM v Switzerland (2004) 38 EHRR 314, para 42:
...
It is noteworthy that the listed factors, wide as they are, do not include purpose.
44. The purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under Article 5 § 1 (a) to (f): see for instance (in relation to Article 5 § 1 (e)) Nielsen v Denmark (1988) 11 EHRR 175; Litwa v Poland (2001) 33 EHRR 1267; Wall v Sweden, (10 December 2002) admissibility decision 41403/98; HM v Switzerland (above); HL v United Kingdom (2005) 40 EHRR 32; Enhorn v Sweden (2005) 41 EHRR 633; and Storck v Germany (2006) 43 EHRR 96. If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in Article 5 § 1 (a) to (f), which are to be strictly construed.
45. Many of these Article 5 § 1 (e) cases also raise issues as to express or implied consent (to admission to a psychiatric ward or old people’s home). Some of the earlier cases seem questionable today insofar as they relied on ‘parental rights’ (especially Nielsen, which was a nine-seven decision that the admission to a psychiatric ward of a 12-year-old boy was not a deprivation of liberty, because of his mother’s ‘parental rights’). Storck has, I think, sent out a clear message indicating a different approach to the personal autonomy of young people (although the unfortunate claimant in that case was 18 years of age at the time of her compulsory medication in a locked ward in the clinic at Bremen, for which she was made an exceptionally large award for non-pecuniary loss).
46. I also feel some unease about the decision in X v Germany (19 March 1981) admissibility decision 8819/79; police stations can be intimidating places for anyone, particularly children, and it seems rather disingenuous to reason that
‘in the present case the police action was not aimed at depriving the children of their liberty but simply to obtain information from them about how they obtained possession of the objects found on them and about thefts which had occurred in the school previously’.
47. Having said all that, however, I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge’s unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1