ITEMID: 001-91126
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KHADISOV AND TSECHOYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The first applicant was born in 1956 and the second applicant in 1977. They live in Ingushetia.
7. The first applicant is married and has four children. Until 1999 he and his family lived in Grozny. In October 1999, because of the hostilities, they moved to the neighbouring republic of Ingushetia and settled in the village of Verkhny Alkun, Sunzhenskiy District, which is near the border with the Chechen Republic. There the first applicant and his family owned and tended several cows.
8. On 8 September 2001 the village elder and the head of the administration went to the military unit of the border troops stationed near the village to warn them that on the following day the villagers were going to cut grass for hay in the meadows, and to indicate that the servicemen should not shoot at them. The commander of the military unit gave assurances that there would be no shooting.
9. On 9 September 2001 the first applicant, together with his youngest son and other villagers (14 persons altogether, including women and children) went to the meadow to cut grass for hay. At about 10 a.m. the villagers were shot at from the nearby forest, where the troops were stationed. The first applicant’s nephew, Mr A.K., born in 1984, was wounded in both legs. The first applicant and other villagers tied his wounds to stop the heavy bleeding and started shouting to the soldiers, who were 100-200 metres away, that they should stop shooting and that a boy had been wounded. However the shooting and shelling continued for about an hour.
10. The first applicant and two women tied a handkerchief to a raised stick and walked up to the closest armoured personnel carrier (APC), shouting “Don’t shoot! There is a wounded person here!” An officer in the APC told the first applicant that he would ask the others not to shoot and told him to get the other men out of the field. The villagers got into the Gaz-66 minivan in which they had arrived at the meadow and went down the hill to the village.
11. At the edge of the village they were met by a group of servicemen, policemen and villagers of Verkhny Alkun. There they were told that the servicemen had been attacked and had fired in response. A local police officer told them that the injured should be taken to hospital, for which purpose he had called a car, and that the men should go and see journalists at the Sunzhenskiy District Department of the Interior (ROVD) in the village of Sleptsovskaya (also known as Ordzhonikidzevskaya) and tell them what had happened.
12. Once at the Sunzhenskiy ROVD, the first applicant and other men were placed in a cell and questioned. Seven men, including the applicant and his son A., were detained for three days, and released on 12 September 2001. While in the ROVD, the applicant and other men were questioned by unknown men wearing military camouflage and by M. B., the investigator of the Sunzhenskiy District Prosecutor’s Office. No documents were produced in respect of this detention.
13. Following the opening of a criminal investigation into the attack of 9 September 2001, on 11 October 2001 an investigator of the Prosecutor’s Office of Ingushetia informed Mr A.K. that on 11 September 2001 he had been granted victim status in criminal case no. 21600040. The first applicant submitted several statements by other villagers about the circumstances of the events of 9-12 September 2001.
14. On 22 February 2003 the head of the Verkhny Alkun village administration issued an explanation notice confirming the events of 9 September 2001 as presented by the applicant.
15. After his release the first applicant spent several days in the Sunzhenskiy District hospital in Sleptsovskaya village looking after the wounded Mr A.K. In the meantime, the police carried out a search in the first applicant’s house in Verkhny Alkun, of which he was informed by his wife.
16. On 23 September 2001 the applicant left the hospital while another relative, Mr S., remained to look after the injured man. That evening, upon his return to the hospital, he was told that Mr S. had been taken to the ROVD and that he too should go there in order to provide certain explanations.
17. The first applicant, who was afraid that he might be detained again, first visited the prosecutor’s office and talked to investigator M.B., who allegedly assured him that nothing would happen and that he would personally guarantee this. The first applicant, accompanied by his wife, then went to the Sunzhenskiy ROVD. There the applicant was separated from his wife and placed in a cell, in which there were already several detainees, including his relative Mr S. and the second applicant, whom he had not met before.
18. The second applicant is an agronomist by profession. In 2001 he worked as a mechanic in a boiler-house. He lived with his parents and siblings at 112 Dzerzhinskogo Street in the village of Ordzhonikidzevskaya.
19. On 23 September 2001 the second applicant was at home. He was planning to go with relatives to the construction site of their new house. His parents, sister, three brothers and a relative were at home at the time and produced detailed statements about the following events.
20. At about 10 a.m. a group of men in civilian clothes entered the house. The second applicant recognised M.Ye., the head of the Sunzhenskiy criminal police ,and two policemen whom he knew personally. The family members were ordered to go outside the house, where their identity documents were checked. The policemen searched the house. They then asked the second applicant to come to the Sunzhenskiy ROVD for a check. No documents were produced or submitted in respect of the search or the second applicant’s detention.
21. Once at the ROVD, the second applicant was questioned about what he had been doing on 9 September 2001. He understood from the questions that he was suspected of attacking Russian servicemen on that day near the village of Verkhny Alkun. The second applicant gave a written statement that on that day he had been working with his brother and father at the construction site of their new house, and that neighbours could confirm this.
22. The second applicant was then questioned for several hours by three men with Slavic features, who were wearing military camouflage, about the attack of 9 September 2001. They asked him, in particular, whether he knew any fighters. They told him that they suspected him of being a member of an illegal armed group, and that he would be sent to Khankala – the main Russian military base in the Chechen Republic. No records of the questioning were made.
23. On 24 September 2001 both applicants were taken to the Sunzhenskiy District Court, where the judge asked them for their personal details. The applicants later learned that they had been charged with resisting police officers and that they had been brought to the ROVD for that reason. On the same day a judge of the Sunzhenskiy District Court authorised the detention of both applicants for three days for violently resisting the police officers’ attempt to check their identity documents.
24. Later that day the applicants’ passports were returned to them and they thought that they would be released. Instead, a group of servicemen from the Special Forces unit of the Ministry of the Interior (“OMON”) arrived and took charge of the applicants. The servicemen had “OMON” inscriptions on their jackets. They put the applicants into a bus where they were forced under the seats, punched and kicked.
25. The bus arrived at the base of the Special Mission Division of the Ministry of the Interior (DON) no. 99, near Nazran, known to the locals as “the 58th army”. There the beating continued. The applicants were severely beaten with rifle butts, boots, metal rods and wrenches; they were also suffocated with plastic bags and strangled with belts. When they lost consciousness the bags were removed from their heads, and when they came round the beatings continued. The servicemen did not ask the applicants any questions, but told them that they were beating them in revenge for their killed comrades.
26. Then both applicants were thrown into a helicopter. The second applicant lost consciousness again and later awoke on the floor of the helicopter, with a bag over his head, a soldier’s feet on his back and a gun pointed at his head. The first applicant’s head was tightly wrapped with a cloth so that he could not see anything, but he was transported in a similar manner.
27. The applicants later learned that the helicopter had taken them to the Khankala military base. They were thrown into a large pit in the ground and beaten for about an hour. They were also subjected to other forms of torture: their hands were tightly tied with metal wire, and their ribs and hips were burned with cigarettes. The soldiers also took photographs in which they were shown placing their feet on the applicants’ heads.
28. The first applicant was later taken to another pit, where he was allowed to remove the cloth from his face.
29. The second applicant was taken somewhere for questioning, and for about an hour he was severely beaten on his head, ribs and on the heels of his feet. He was questioned about having some connection with fighters. He was then put into the same pit as the first applicant, where he was allowed to remove the bag from his head.
30. The applicants remained in the pit for five days. They described it as about 2.5 metres by 2.5 metres wide, and about 2.5 metres deep. It was roofed with a wooden cover and only a small opening was left, concealed by a camouflage net. The applicants suffered from humidity and cold, and were not given any food.
31. During the first four days of detention at Khankala the applicants were taken out for questioning, one after the other, into a room with wooden walls and electric lighting which had a sign marked “Chief of staff” on the wall. They were questioned about whether they had known any fighters and asked to give names. The interrogators also read out the list of wanted persons and asked if the applicants knew any of them. No official records were made during the questioning.
32. According to the applicants, they were subjected to the following forms of torture and ill-treatment: they were kicked and struck with rifle butts on different parts of their bodies, in particular on the soles of their feet; they were burned with cigarettes and forced to sit in a bucket while being beaten. As a result of the beatings the applicants could hardly walk, the skin on their feet peeled off, and their faces and bodies were bloated and covered with haematomas. The second applicant was forced to stand for hours with his forehead against the wall, with his hands tightly tied behind his back and legs spread widely apart. He still had clearly visible marks on his forehead one year after the events. The soldiers also threatened the applicants with execution and put guns to their heads. On one occasion both applicants were given a document to read which said that they had been caught trying to plant a mine on the road, that the mine had exploded and that both had died on the way to hospital.
33. On the fifth day of detention – the applicants believed it was 29 September 2001 – they were called one after the other to sign a document to the effect that they had no complaints and that they had not been subjected to any ill-treatment. The applicants first refused to sign it, but after the soldiers beat them they signed the document to avoid further beatings. They were then transferred by car, with bags over their heads, to the Sixth Department of the Organized Crime Unit (RUBOP) of the Staropromyslovskiy District of Grozny. The applicants spent fifteen days in that department. The conditions of detention were satisfactory and the applicants were given food. However, on several occasions the servicemen kicked them and threatened them with torture.
34. On 9 September 2001 in the forest on the outskirts of the village of Verkhny Alkun, Sunzhenskiy District, unidentified persons fired automatic weapons at servicemen of the federal forces. As a result two servicemen were killed and two other servicemen and a villager, Mr K., received shotgun wounds.
35. On the same day the Sunzhenskiy District Prosecutor’s Office opened criminal investigation no. 21600040 into the events. In the course of the investigation sixty persons, including the first applicant, his son A. and the second applicant were brought to the ROVD for enquiries concerning their possible involvement in the shooting. However, they were not detained. A search was conducted at the first applicant’s house. The second applicant’s house was not searched.
36. On 23 September 2001 the applicants were again brought to the ROVD for further enquiries. Since they did not follow the orders of the law-enforcement officers, on 24 September 2001 the Sunzhenskiy District Court ordered their administrative imprisonment for three days.
37. Later on 24 September 2001 the applicants were “transferred” to officers of the mobile detachment of the Ministry of the Interior for enquiries concerning their possible participation in illegal armed groups.
38. The Government submitted no information concerning the applicants’ place of detention in the subsequent period. They stated that, according to the results of the investigation, the applicants had not been held in facilities for either remand or administrative detention in the Chechen Republic. Nor was the fact of their detention at the Khankala military base confirmed.
39. On 12 October 2001 the applicants were released. They were not given any papers, and the servicemen told them that they should consider themselves lucky to be alive. At the gates of the RUBOP building they were met by the first applicant’s sister and the second applicant’s mother. The applicants were very weak and the second applicant could not walk without assistance. Both applicants were taken by their relatives to doctors for treatment.
40. The first applicant was diagnosed as suffering from pneumonia, the fracture of three ribs, burns from cigarettes, partial paralysis of the left hand and bruises. He submitted no copies of medical documents but a statement from his wife, who confirmed that he had suffered from the consequences of the beatings and could not work.
41. The second applicant was taken to Nazran hospital on 16 October 2001 and remained there until 19 October 2001. He was diagnosed with trauma to the lower back, concussion of the kidneys, chronic pyelonephritis and macrohaematuria. On 27 October 2001 the second applicant was again taken to a hospital in Malgobek by his relatives, and remained there until 19 November 2001. In addition to the previous findings, he was diagnosed with craniocerebral injury and concussion of the head and back. The doctors noted his complaints about his loss of sight, pain in the back and head and vertigo. The second applicant continued to suffer from pain, loss of sight, convulsions and other consequences of the ill-treatment for many months after his release. In February 2003 doctors advised him to undergo complicated kidney surgery, but he could not afford it.
42. The applicants and their relatives complained to various official bodies about the search, arrest and ill-treatment of the applicants. In response, they received very little substantive information concerning actions taken by the authorities further to their complaints. On several occasions, they received copies of letters from various authorities informing them that their complaints had been forwarded to the local prosecutors.
43. According to the applicants’ relatives, from 24 September to 12 October 2001 they were not informed about the applicants’ whereabouts, or the reasons for or places of their detention. By asking the military and police, they learned that at some point the applicants had been detained at the Khankala military base and then transferred to Grozny. However, this information was not official.
44. On 27 September 2001 the Prosecutor’s Office of Ingushetia forwarded a request from the second applicant’s father, seeking information on the reasons for the detention and whereabouts of his son, to the Sunzhenskiy District Prosecutor for investigation.
45. On 8 and 10 October 2001 the second applicant’s mother wrote to the Sunzhenskiy District Prosecutor’s Office and the Sunzhenskiy District administration respectively, asking about the whereabouts of her son after his arrest on 23 September 2001.
46. On 10 October 2001 the Sunzhenskiy District Prosecutor’s Office informed the applicants’ relatives that no official documents or reports existed in relation to the applicants’ arrest, detention or alleged transfer to the Chechen Republic. The letter further stated that any transfer to the Chechen Republic or another region had not been authorised by the prosecutor’s office, and that an investigation into possible breaches of correct procedure was underway.
47. On 11 October 2001 the second applicant’s mother again wrote to the Prosecutor’s Office of Ingushetia, complaining about her son’s illegal detention and alleged transfer to the military authorities in the Chechen Republic.
48. On 12 October 2001 the first applicant’s wife submitted a complaint to the Prosecutor’s Office of Ingushetia in person, asking to be informed of her husband’s whereabouts and the reasons for his arrest.
49. After the applicants’ release they themselves applied to the prosecutors, asking that an investigation be conducted into their allegations of ill-treatment and that the persons responsible be brought to justice.
50. Soon after his release from hospital (sometime in November 2001) the second applicant submitted a detailed account of his arrest, detention and ill-treatment to the Prosecutor’s Office of Ingushetia, indicating the names, ranks and descriptions of the servicemen who had participated in his arrest and the beatings in Ingushetia.
51. It appears that on 23 November 2001 the Sunzhenskiy District Prosecutor’s Office refused to open a criminal investigation into the actions of the officials from the Ministry of the Interior, on the ground of absence of corpus delicti. The applicants did not submit a copy of that document, but on 20 December 2001 the second applicant, assisted by a lawyer, appealed against the decision to the Prosecutor’s Office of Ingushetia. He sought the quashing of the decision and the opening of an investigation into his allegations of ill-treatment. The appeal also contained references to the identity of the servicemen involved and a detailed description of the events.
52. On 4 January 2002 the Prosecutor’s Office of Ingushetia informed the second applicant that on that date a criminal investigation had been opened into the complaint with regard to his arrest and beatings administered by unknown servicemen of the Ministry of the Interior, and that the investigation would be carried out by the Sunzhenskiy District Prosecutor’s Office.
53. On 27 February 2002 the applicants’ representative, the SRJI, wrote to the Chechnya Republican Prosecutor, asking him to open a criminal investigation into the ill-treatment of the applicants at the Khankala military base on 24-27 September 2001. On 10 April 2002 the SRJI again wrote to that prosecutor, but received no reply.
54. On 10 October 2002 the applicants talked to the SRJI representatives in Nazran, who filmed the interview. They have submitted a transcript of the videotape, in which the applicants displayed the scars still visible on their bodies and stated that they suffered from recurrent health problems. They also stated that no proper investigation had taken place into their complaints.
55. On 4 January 2002 the Prosecutor’s Office of Ingushetia opened a criminal investigation in case no. 22600008, following the second applicant’s complaint about alleged ill-treatment by officers of the federal forces. Criminal proceedings were instituted under Article 285 of the Criminal Code (abuse of official powers).
56. On 16 January 2002 the second applicant was questioned and granted victim status in the proceedings. According to the Government’s submissions, the second applicant stated that after he and the first applicant had been brought to the ROVD on 23 September 2001, they were transferred to unidentified persons in Nazran, Ingushetia, and then transported to Grozny. They had been ill-treated on the way to Nazran and in Grozny. They had been released a few days later. They would not be able to identify the persons who had ill-treated them.
57. On the same date K.D. and A.A., officers of the Sunzhenskiy ROVD, were questioned.
58. On 18 and 19 January 2002 A.M., M.Ts., S.Ts., V.Kh. and I.M., officers of the Sunzhenskiy ROVD, were questioned.
59. On 1 February 2002 the second applicant was confronted with officer K.D.
60. On 11 February 2002 the first applicant was questioned and granted victim status in the proceedings. He made statements similar to those of the second applicant.
61. On 15 February 2002 the first applicant was confronted with officer A.M.
62. On 19 February 2002 the second applicant was confronted with officer A.A.
63. On 21 February 2002 Mr D. was questioned. It is not clear who he was or why his statements could have been relevant.
64. On 27 February 2002 A.I., a senior officer of the Samogorskiy Department of the Khakasiya Ministry of the Interior was questioned.
65. On 13 March 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified.
66. Despite the suspension of the investigation, on 3 April 2002 investigator M. of the Zamoskvoretskiy Prosecutor’s Office of Moscow questioned S. Z., the commander of the mobile detachment of the Ingushetia Ministry of the Interior as a witness.
67. On 10 October 2002 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor.
68. On 20 October 2002 Mr T.Kh. and Mr A.-S.K. were questioned. On 29 October 2002 Mr M.E. was questioned. It is not clear who they were or why their statements could have been relevant.
69. On 10 November 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified.
70. On 15 April 2003 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor.
71. On 17 April 2003 Mr U.Kh. was questioned. It is not clear who he was or why his statements could have been relevant.
72. On 15 May 2003 the investigation was suspended on the ground of absence of corpus delicti.
73. In July 2003 the materials concerning the applicants’ detention at the Khankala military base were separated from case no. 22600008 and transmitted to the military prosecutor’s office of the United Group Alignment (UGA) in the North Caucasus region. The results of an enquiry subsequently conducted did not support the applicants’ allegations that they had been detained at the base. On 8 August 2003 the UGA Prosecutor’s Office refused to institute criminal proceedings, invoking the absence of corpus delicti. According to the applicants, they were never notified of this decision.
74. On 7 June 2005 the decision to suspend the investigation of 15 May 2002 was quashed by the Deputy Prosecutor of Ingushetia.
75. On 6 July 2005 the applicants underwent forensic medical examinations. The examination ascertained that the second applicant had a blunt injury in the lumbar region with concussion of the kidneys, which represented significant injuries (вред здоровью средней тяжести). The first applicant had traces of injuries that were healing. However, because of the time that had elapsed, it was not possible to establish either how they had been caused or what degree of bodily harm they represented.
76. On 17 July 2005 the investigation was closed on the ground of absence of corpus delicti. The relevant parts of the decision read as follows:
“The investigator of the Sunzhenskiy District Prosecutor’s Office ... has established the following:
On 23 September 2001 officers of [the Sunzhenskiy ROVD] brought [the applicants] to the [ROVD] for an enquiry concerning their involvement in the attack on servicemen of the federal troops. Since [the applicants] disobeyed the police officers when being brought to the [ROVD], on 24 September 2001 the judge ... of the Sunzhenskiy District Court ordered their administrative imprisonment ... for three and two days respectively.
On the same day [M.], the deputy head of the Department of the Interior for the Sunzhenskiy District Administration [ОВД администрации Сунженского района] handed over [the applicants] to [A.I.], the head of the criminal investigation department of the mobile detachment of the Ministry of the Interior [начальник уголовного розыска мобильного отряда МВД РФ по Ингушетии], who transferred them to servicemen of the federal troops. The latter transported [the applicants] in a helicopter to the village of Khankala in the Chechen Republic, where for a period of twenty days they tortured and beat them, forcing them to confess to being members of illegal armed groups.
On 4 January 2002, following [the second applicant’s] application ... criminal proceedings were instituted...
...
[A.I.], who was questioned, stated that on 24 September 2001, following an order from [S.Z.], commander of the mobile detachment of the Ministry of the Interior, he had transported [the applicants] from the Sunzhenskiy ROVD to the territory of a military unit in Nazran, where he had transferred them to servicemen who had arrived from Khankala. Lieutenant Colonel [A. Iv.] had given him a document stating that he had received [the applicants]. However, the Sunzhenskiy ROVD had not been informed that [the applicants] would be taken to Grozny. When [the applicants] were transported to the territory of a military unit in Nazran they had not been subjected to any physical coercion.
During the preliminary inquiry [S.Z.], commander of the mobile detachment of the Ministry of the Interior, submitted that, following an order from the military unit in Khankala, he had ordered [A.I.] to convey [the applicants] from the Sunzhenskiy ROVD to the helicopter that had arrived from Khankala. However, during the investigation [S.Z.] refused to make any statement, invoking Article 51 of the Constitution [which guarantees the right not to incriminate oneself].
With regard to [S.Z.’s] refusal to make a statement it was decided not to institute criminal proceedings on the ground of [the expiry of the statutory time-limits for criminal prosecution].
From expert opinion no. 258 in respect of [the first applicant], it follows that he has two types of injuries: healing scars of burns and healing scars of deep abrasions. However, because of the time that has elapsed it is not possible to establish the degree of bodily harm.
From expert opinion no. 359 in respect of [the second applicant], it follows that he sustained a blunt injury in the lumbar region with concussion of the kidneys, which amounts to significant bodily harm.
Therefore, from the materials of the case it follows that [the applicants] were unlawfully detained and subjected to coercion in the territory of the Chechen Republic.
The decision of the judge of the Sunzhenskiy District Court [concerning the applicants’ administrative imprisonment] was lawful and entered into force.
Materials concerning [the applicants’] unlawful detention and the application of coercion towards them were separated into a different set of proceedings and have been transferred by reason of territorial jurisdiction to the Prosecutor of the Chechen Republic...
...
Having regard to the foregoing, criminal case no. 22600008 should be closed on the ground of absence of corpus delicti ... in the actions of officers of the Sunzhenskiy ROVD.
...”
77. On 26 September 2005 the decision to close the investigation was quashed by the Deputy Prosecutor of Ingushetia. He stated, in particular, that it was necessary to question Lieutenant Colonel A.Iv.
78. On 29 October 2005 the investigation was again suspended on the ground of absence of corpus delicti.
79. On 27 December 2007 the Prosecutor’s Office of Ingushetia resumed the investigation in case no. 22600008.
80. On 15 March 2008 the investigation was suspended. The applicants were notified of the suspension in a letter which carried the date of 12 March 2008 but were not provided with a copy of the decision. The investigation failed to establish the applicants’ whereabouts from 24 September to 12 October 2001 when, according to the applicants, they were released. According to its findings, no criminal proceedings had been instituted against the applicants by the prosecuting authorities of the Chechen Republic. They had not been held in facilities for either remand or administrative detention in the Chechen Republic.
81. According to the Government, on an unspecified date the Prosecutor’s Office of Ingushetia applied to the Ingushetia Ministry of the Interior to take measures to bring to account those responsible for the unlawful transfer of the applicants, who were subject to administrative detention, to the head of the criminal investigation department of the mobile detachment of the Ingushetia Ministry of the Interior. As a result, the head of the criminal police of the Sunzhenskiy ROVD was dismissed and the officer of the Sunzhenskiy ROVD, who had been in charge of the detention facility on the relevant date, was reprimanded.
82. Despite specific requests from the Court on several occasions, the Government did not submit any documents from investigation file no. 22600008, apart from eight pages containing the decisions to grant the applicants victim status, the decision of 17 July 2005 to close the investigation and the decisions of 4 January 2002 and 26 September 2005 to reopen the investigation. They stated that disclosure of the documents would breach Article 161 of the Code of Criminal Procedure since the file contained information related to military operations and the personal data of participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”.
83. On 15 December 2002 the second applicant brought a civil claim before the Sunzhenskiy District Court for damages in respect of his allegedly unlawful detention and ill-treatment. He claimed 3,000,000 roubles (RUB) for non-pecuniary damage.
84. On 9 January 2003 the Sunzhenskiy District Court rejected the claim on the ground that the applicant had failed to comply with the procedure for out-of-court dispute resolution. The relevant part of the decision reads as follows:
“The present claim cannot be examined for the following reasons.
As shown in the information submitted by the Sunzhenskiy District Prosecutor’s Office ... the materials concerning the unlawful detention and ill-treatment of [the second applicant] were sent to the Prosecutor’s Office of the Chechen Republic for a decision concerning territorial jurisdiction.
Until this matter is resolved, it is not possible to examine the case, since the procedure for out-of-court dispute resolution has not been complied with.”
85. The decision could be appealed against to a higher court. It appears that the second applicant has not appealed.
86. The first applicant made the following submissions concerning the events of January – March 2008 which, in his view, were related to his application to the Court.
87. On 22 January 2008 a plain-clothed man of Chechen origin visited him at his home and asked him to come to the Khankala military base. The first applicant complied with the request. At the Khankala military base he was taken to a room where an official was waiting for him. The official introduced himself as Major D., deputy head, senior investigator of the military investigative department of military unit no. 68797. Major D. read out excerpts from the first applicant’s application to the Court and questioned him in relation to his ill-treatment in Khankala in 2001. During the questioning he was typing something on his computer. Then he printed out a document and asked the first applicant to read it. The first applicant replied that he was “bad at reading” and that he had forgotten his glasses at home. Then, with the first applicant’s consent, Major D. himself read out the document, which was a record of the first applicant’s questioning, and asked the first applicant to sign it. The first applicant signed the document and then requested and was provided with its copy, which he submitted to the Court.
88. When the first applicant returned home, his wife read out the document for him. The record contained, in particular, the following statements allegedly made by the first applicant in the course of the questioning:
“In the course of the questioning in Khankala I was not beaten. However, [the second applicant] was beaten...”
The minutes... of my questioning on 11 February 2002 contain a wrong record to the effect that I was beaten in the “pit”. I meant that [the second applicant] and me had been beaten by... officers of the mobile detachment [of the Ingushetia Ministry of the Interior] who had conveyed us from ... the Sunzhenskiy ROVD to the helicopter.
I have no complaints against servicemen of the Ministry of the Defence and of the internal troops of the Ministry of the Interior. I have complaints against officers of the mobile detachment of the Ingushetia Ministry of the Interior.
I can also clarify that I lodged a complaint before the representative of the Russian Federation before [the Court] precisely in respect of the actions of ... officers of the mobile detachment of the Ingushetia Ministry of the Interior. I did not complain about actions of servicemen of the Ministry of the Defence and of the internal troops of the Ministry of the Interior.”
89. On 24 January 2008 the first applicant applied in writing to the head of military investigative department no. 505 of military unit no. 68797. He wrote, in particular, that in the course of questioning on 22 January 2008 he had never made the above statements and that the record of questioning had been forged in this part, which he had only discovered at home after the record was read out by his wife. He maintained that during the questioning he had confirmed that he had been beaten in Khankala. He had merely specified that the beatings he had received there had not been as severe as those suffered by the second applicant, and not as bad as those beatings administered against both of them by officers of the mobile detachment of the Ingushetia Ministry of the Interior. The applicant asked to disregard the record of his questioning on 22 January 2008.
90. On 15 February 2008 the first applicant’s wife was questioned by Major D. She provided her account of the events related to her husband’s detention in September-October 2001. No questions concerning the first applicant’s application to the Court were put to her. A copy of the record of the questioning was submitted to the Court.
91. On 14 March 2008 Major D. again questioned the first applicant, who was assisted by his counsel, Mr A. The first applicant stated that he largely confirmed his submissions set out in the record of his questioning on 22 January 2008, with certain exceptions. He clarified, in particular, that during questioning in Khankala in 2001 he had been kicked, punched and struck with sticks. He had been beaten by up to three men simultaneously. During his questioning on 22 January 2008 he had intended to say that he had not been beaten as severely as the second applicant in Khankala, and that the beatings there had been less severe than both had suffered in Nazran. Furthermore, the first applicant submitted that he had never stated that he had no complaints against servicemen. The complaints set out in his application to the representative of the Russian Federation before the Court related to all persons who had unlawfully detained and ill-treated him. He further stated that he had not read the record of the questioning on 22 January 2008 because he had not had his glasses with him. He had signed it after it was read out by the investigator and could not explain why his statements had been recorded inaccurately. The applicant signed the record of his questioning on 14 March 2008 and was provided with a copy, which he submitted to the Court.
92. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
93. Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
94. Article 161 of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission.
95. In so far as relevant, the Constitution of the Russian Federation, adopted by referendum on 12 December 1993, provides:
“1. Everyone has a right to liberty and personal security.
2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.”
96. The RSFSR Administrative Code (Кодекс об административных правонарушениях РСФСР), in force until 1 July 2002, contained the following provisions.
97. Under Article 239 the police and other competent authorities could subject a person to administrative detention in order to prevent an administrative offence, to establish a person’s identity, to draw up a report on administrative offence where such a report was necessary and could not be drawn up on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions.
98. Article 240 provides that a report on administrative detention was to contain the date and place where it was drawn up, the name and position of the officials who prepared it, information on the detained person, and the exact time and reasons for the detention. It should be signed by the official and the detained person. Should the latter refuse to sign the report, a record to this effect was to be made in the report. At the request of the detained person, his relatives, his employer or educational institution was to be notified of the place of his detention.
99. Article 241 provides a list of competent authorities and circumstances where they could effect administrative detention. In particular, officials of the interior (policemen) could effect administrative detention for a failure to comply with a lawful order of a police officer.
100. Article 242 provides, in particular, that the term of administrative detention was not to exceed three hours, except for certain categories of offenders, including those who forcefully resisted the lawful order of the police. Those could be detained as long as necessary until their case was considered by a judge or a police superior.
101. Under Article 302, administrative imprisonment could be applied in exceptional circumstances by a judge as an administrative sanction in respect of certain administrative offences, for a term no longer than fifteen days.
102. Under Article 303 an order on administrative imprisonment was immediately enforceable.
103. Article 304 provides that persons subjected to administrative imprisonments should be held in facilities determined by authorities of the interior. The term of administrative detention was to be counted towards the term of administrative imprisonment.
104. Under Section 3 of the Regulations on the Internal Regime of Special Facilities for the Detention of Persons Subjected to Administrative Imprisonment of 6 June 2000 (Правила внутреннего распорядка специальных приемников для содержания лиц, арестованных в административном порядке, утвержденные приказом МВД РФ от 6 июня 2000 г. N 605дсп), individuals are placed in the special facilities on the basis of an order on administrative imprisonment issued by a competent authority.
105. Section 13 of the Regulations provides that persons delivered to the special facilities are to be registered in the facility’ register. A card is to be filled in respect of each detained person, with information on the detainee, the term of detention and the authority which ordered the detention, and the times of placement and release from the facility. Likewise, a personal file is to be kept in respect of each detainee. The file should contain the order on administrative imprisonment, the report on the search conducted upon the person’s admittance to the facility and other documents related to the detainee and his conduct in the facility during the detention term. Personal files should be stored for three years.
VIOLATED_ARTICLES: 13
3
38
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-109060
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TKACHEVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary damage - reserved;Non-pecuniary damage - reserved
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicants, spouses, were born in 1957 and 1966 respectively and live in Moscow.
5. At the time of the events they owned a flat at 9/12–1 Znamenka Street in Moscow, in the neighbourhood of the Moscow State Art Gallery of the People’s Artist of the USSR Alexander Shilov. The flat had six rooms and measured 121.8 m². It was occupied by the applicants, their two minor children, and a mother-in-law.
6. In April 2001 the Moscow Government decided that for the purpose of the gallery’s reconstruction the applicants’ building was to be vacated and converted into non-residential premises (Decree 373-PP). The development and resettlement of the residents were to be financed by Tverskaya Finance B.V., a private Dutch company. Upon the project’s completion, 60% of the building was to go to Tverskaya Finance, and 40% to the Moscow Government. Insofar as relevant, Decree 373-PP read as follows:
“For the purpose of an all-inclusive reconstruction of the territory adjacent to the [Gallery] and in accordance with the developed architectural planning concept, the Government of Moscow decrees:
1. To accept the proposal of the Moscow Committee of Architecture to include ... the building located at 9/12–1 Znamenka into the single investment project of building and reconstruction works at Znamenka.
2. To take into account the agreement of the investor – Tverskaya Finance B.V. – to finance the building and reconstruction of the buildings.
...
4. To adopt an agreement that after the reconstruction would divide the non-residential premises at 9/12–1 Znamenka as follows: 60% to Tverskaya Finance B.V., 40% to the Department of State and Municipal Property of Moscow.
5. To take into account the investor’s agreement to finance the resettlement of tenants and owners from 9/12–1 Znamenka ... to own or acquired premises.
...
6.2. To complete the building and reconstruction works in the first quarter of 2006.
...
8. That the Prefect of the Central Administrative District together with the Department of Municipal Housing and Housing Policy of the Moscow Government should formalise the conversion of 9/12–1 Znamenka into non-residential premises.”
7. The applicants opposed this project and in May 2003 they challenged Decree 373-PP in a court.
8. In August 2003 the authorities requested the State Enterprise Moszhilniiproekt, a public surveying agency, to deliver a report on the building’s technical condition. The request was phrased to be “in execution of the assignment by the First Deputy of the prefect of the Central Administrative Circuit of Moscow on the subject of finding [the building] a dangerous structure”. Moszhilniiproekt found that the building was under the threat of collapse.
9. In November 2003–February 2004 the Moscow Government offered the applicants to choose a replacement flat from a four-room flat of 149 m² at 77 Udaltsova Street, a four-room flat of 105 m² at 12 Tverskaya Street, a five-room flat of 125 m² at 9/6 Zamorenova Street, and a five-room flat of 112 m² at 39/6 Dolgorukovskaya Street. The applicants rejected these offers.
10. In April 2004 the Moscow Government classified the building as a dangerous structure and ordered its conversion into non-residential premises (Decree 669-RP). Insofar as relevant, Decree 669-RP read as follows:
“[It is hereby ordered]:
1. To classify the residential building located at 9/12–1 Znamenka as a dangerous structure and subsequently rebuild it into non-living premises.
2. To take into account that
2.1. In accordance with [Decree 373-PP] the investor is Tverskaya Finance B.V.
2.2. Tverskaya Finance B.V. is the beneficiary of a lease ... of the land plot for the reconstruction and building of the complex of the buildings including 9/12–1 Znamenka.
3. To establish that the residents of the dangerous building are to be resettled to residential premises acquired at the investor’s expense.
...
7. That the Prefect of the Central Administrative District shall
7.1. Together with the Department of Housing Policy and Housing Stock of Moscow resettle the residents from the dangerous building at the investor’s expense and to the premises acquired by the investor in 2004.
...
7.4. Charge the transportation costs related to the resettlement to the investor.”
11. In October 2004 the applicants requested NPTs Rekonstruktsia, a private surveying agency, to deliver an alternative report on the building’s technical condition. Rekonstruktsia found that the building was safe and could be repaired without resettling the residents.
12. On 1 October 2004 the Tverskoy District Court of Moscow found Decree 373-PP lawful because, among other things, the building had been classified dangerous. The court wrote:
“The [applicants] affirm that the Decree transfers their property to Tverskaya Finance B.V. But this affirmation is wrong because the Decree merely grants to the investor the right to finance the building works, reconstruction, and restoration of the buildings, and to subsequently acquire a part in those buildings.
...
There is no merit either in [the applicants’] argument that their building belongs to the cultural heritage, is a monument of history and culture, and hence cannot be reconstructed.... [The applicants] have provided no evidence that 9/12–1 Znamenka is in the State Register of cultural heritage and monuments.
[The applicants] consider that their building is not dangerous and can be lived in. This argument is belied by the survey report of August 2003 by Moszhilniiproekt ... and by [Decree 669-RP].
[The applicants] consider that there had been no legal grounds for the conversion of their building into non-living premises. But it has been shown that the residence at 9/12–1 Znamenka has been found dangerous and unfit for permanent living. It is for this reason that the building has been converted into non-living premises....
[The applicants] also claim that [Decree 373-PP] violates their housing rights and deprives them of the flat they own. This claim is hollow. It is belied by the contents of the case file and, in the first place, by the Decree itself, because it contains no clause on dispossession.”
On 12 January 2005 the Moscow City Court upheld that judgment.
13. Tverskaya Finance bought a flat at 26 Krasnoprudnaya Street and offered it to the applicants as replacement. The flat had six rooms and measured 131.1 m². The applicants rejected this offer, mainly because they did not wish to change the neighbourhood and because the new flat was, in their view, of a worse quality. In August–December 2004 Tverskaya Finance and the Moscow Government asked a court to evict the applicants.
14. On 26 January 2005 the Khamovnicheskiy District Court of Moscow evicted the applicants. The court found, among other things, that after the reconstruction the building would be used as non-residential premises, and that the replacement flat was larger and dearer. Despite the applicants’ objection, the court relied on a valuation report commissioned by Tverskaya Finance that evaluated Znamenka at RUB 7,556,856 and Krasnoprudnaya at RUB 10,311,148. The court wrote:
“As the flat is [the applicants’] only residence, the replacement flat should be of equal quality. The court considers that a replacement flat ... is of equal quality if ... it is located within the borders of the same town and is of the same size or larger.
The court considers that the flat to which the plaintiffs are asking to resettle [the applicants] meets these criteria fully. It is located within Moscow’s administrative border, and even in the same district where [the applicants’] family lives now. The flat meets sanitary and technical requirements, is fit for living, and has all comforts. Its size and price exceed the [applicants’] current flat.
The court considers therefore that the [applicants’] resettlement to Krasnoprudnaya not only respects their rights and freedoms but also improves their living conditions.
...
The fact that 9/12–1 Znamenka is destined to be rebuilt and not demolished cannot [prevent the eviction], because ... in future the building will be used for non-living purposes.
The court ignores the [applicants’] argument that the resettlement will infringe the housing rights and interests of their children who go to a nearby school and will be unable to commute on the metro. At Krasnoprudnaya there are also secondary schools that the [applicants’] daughter will be able to attend. As to the son’s having to commute on the metro, the evidence submitted shows no medical contra-indications to it.”
On 18 April 2005 the Moscow City Court upheld that judgment.
15. In June 2005 the applicants moved to 26 Krasnoprudnaya Street.
16. In March 2008 the Moscow Government granted the whole of the Znamenka building to Tverskaya Finance (Decree 221-PP). Insofar as relevant, Decree 221-PP read as follows:
“For the purpose of the completion of the implementation of the investment building project, reconstruction and restoration of the buildings located at 9/12 Znamenka ... it is hereby ordered:
1. To extend for Tverskaya Finance B.V. the term of the building works, reconstruction and restoration of the buildings ... for not more than 18 months ... without penalties.
2. To take into account the pledge of Tverskaya Finance B.V. to
...
2.4. Carry out emergency works and full restoration and adaptation of 9/12–1 Znamenka.
3. To take into account the fact that
...
3.3. In the course of the implementation of the investment project the investor has resettled the residents ... from 9/12–1 Znamenka.... Tverskaya Finance B.V. has received property rights to 1,324.1 m² of premises at 9/12–1 Znamenka, including 764 m² of residential premises and 560.1 m² of non-residential premises....
...
6. To take into account the parties’ agreement to the following changes in the distribution of the property upon the project’s completion:
...
6.2. As regards the second part of the project the contractual distribution of property between the parties shall be as follows:
– 100% of 9/12–1 Znamenka ... shall be transferred to the investor’s property.”
17. According to the applicants, the building has been rebuilt into a premium residential property. According to the Government, the construction is still underway, and the building will house commercial and administrative premises.
18. The Government based this statement on information available from the website located at http://znamenka9.ru. At the time of the Court’s examination of the case, that website shows that 9/12–1 Znamenka is a block of flats offered for sale. The applicants’ former flat on the third floor appears to have been reduced to a flat of 85.8 m² (marked on the plan as “Flat F”). The website lauds the uniqueness and historicity of the neighbourhood, quotes poetry (“Неподражаемой России незаменимая земля” – “Inimitable Russia’s irreplaceable land”), and extols the sights of the nearby Cathedral of Christ the Saviour, Kremlin, Pashkov House, and Zamoskvorechye.
19. In October 2003 the first applicant requested a court to order Moszhilniiproekt to make available its survey report. From 2003 to 2006 different courts several times refused to examine this request due to the applicant’s failure to comply with technical formalities, to pay a court fee, and to respect jurisdiction. On 27 April 2006 the Moscow City Court finally rejected the request because it was aimed at discovery of exhibits used in the applicant’s other litigation and hence was not amenable to separate proceedings.
20. In January 2005 the first applicant requested the Khamovnicheskiy District Court to invalidate the contract between the gallery, Tverskaya Finance, and the Moscow Government concerning the Znamenka development. On 25 April 2006 the Moscow City Court refused to examine that request because the first applicant no longer lived in Znamenka and hence was not personally affected by the contract.
21. Under section 35-3 of the Constitution, nobody can be deprived of his possessions save by a judicial decision. The compulsory taking of property for State needs is possible only on condition of an equivalent preliminary reimbursement.
22. Under section 49-3 of the Housing Code of 1983 in force at the material time, if a building containing privatised flats was to be demolished pursuant to applicable laws, the local authority or the demolishing enterprise was, with the evicted owners’ consent, to provide them with an equivalent residence or other compensation.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-22585
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BROWN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: The applicant is a British national, born in 1942 and living in Ottley. He is represented before the Court by Mr D. Price, a solicitor practising in London. The respondent Government are represented by their agent, Mr D. Walton of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
At the time in question the applicant was a shareholder and sole director of a company, Sunday Business Newspapers Limited (“SBN”) which owned a Sunday newspaper. On 13 October 1996 the newspaper published an article written by the editor in which the complainant in a rape case was named, contrary to section 4(1) of the Sexual Offences (Amendment) Act 1976 (“the Act”). The applicant was charged with an offence under section 4(5) of the Act (see below).
The applicant was tried, without a jury, by the Marylebone Magistrates’ Court on 13 October 1997. He pleaded “not guilty” and gave oral evidence. He contended that merely as director and financier of the company which owned the newspaper, with no editorial role and no pre-publication knowledge of the content of the paper, he could not be described as a “publisher” within the meaning of section 4(5). Under section 5(5) of the Act, the applicant further asserted that he was not aware, and neither suspected nor had any reason to suspect, that the publication would identify the complainant.
The Magistrates’ Court found that, as effectively the only person in control of SBN, which was a company without any Articles of Association, the applicant was a “publisher” for section 4(5) purposes and that all of the requirements of section 4(1) had been fulfilled. The magistrates accepted that the applicant did not read the offending newspaper article prior to its publication and that he did not know or suspect that it was to be published. They also accepted that the applicant’s role at the newspaper was primarily that of a financial backer and fund-raiser. However, they rejected his defence under section 5(5) of the Act since they were not satisfied that he had no reason to suspect that the article would be published. They reached this conclusion having found that the applicant had visited the newspaper’s offices in London each week between Thursday afternoon and Friday lunchtime. They commented that the editorial content of the articles to be published the following Sunday would have been available to the applicant at those weekly meetings on demand. They also found that the contents of the newspaper were vetted by a firm of solicitors every week on the Friday before publication.
The applicant was fined GBP 2,000 and ordered to pay GBP 300 costs. At the same trial, the editor of the newspaper was convicted and fined following a “guilty” plea and SBN itself, which was by that time in liquidation, was convicted and fined in its absence following a “not guilty” plea.
The applicant’s appeal against conviction and sentence was dismissed by the Divisional Court on 12 March 1998. In delivering the judgment of the court, Mr Justice Astill cited the following passage from The Law of Contempt by Borrie and Lowe (Third Edition, page 386):
“It seems right to impose liability upon newspaper proprietors since they provide the means whereby publication is effected. The law of contempt as a deterrent instrument would be weakened if the proprietors did not have a strong incentive not only to choose a responsible editor but to take appropriate action if the editor or another member of staff began to make or allow comment which might subject the proprietors to liability. Subject to the reservation as to the proper legal basis of proprietors’ liability, which it is submitted should be a primary responsibility, the current law seems satisfactory.”
He continued:
“Whilst it is, of course, true that those passages referred to “proprietor”, it seems to me to indicate the wide range of the legislation and would not exclude necessarily the role of a Managing Director as “publisher”. ...
It seems to me that s 4(5) is deliberately widely drawn. Its aim seems to be to prevent, as far as it is possible, the damaging effect of contempt or, in this case, the damage caused by a breach of the Sexual Offences (Amendment) Act 1976. Its object is, in my judgment, to prevent those holding various responsibilities from sheltering behind lack of knowledge or lack of direct action in the publication of offending material.
[Counsel for the applicant] submits that the Justices should have upheld the submission of no case because the only evidence before them at the end of the prosecution case was that [the applicant] was the Managing Director. My view of that is that his position as the Managing Director gave rise to a prima facie case that he was responsible for publications by a publishing company which he managed.
[Counsel for the applicant] further submits that if [the applicant] is caught by s 4(5) then s 5(4) is otiose. Having considered that submission, I do not agree. Section 4(5) captures both “publishers” and “proprietors”. Section 5(4) can capture, for example, a secretary who may not be either a publisher or proprietor. It is clear from the legislation that the offence under s 4(5) may be committed by the same person either under the provisions of that section or under the provisions of s 5(4). ...”
The relevant part of section 4(1) of the Act provides:
“(...)(b) After a person is accused of a rape offence, no matter likely to lead members of the public to identify a woman or man as the complainant in relation to that accusation shall during that person’s lifetime -
(i) be published in England and Wales in a written publication available to the public ...”
Section 4(2) of the Act provides that a person accused of rape can apply to the trial judge for the restriction in section 4(1) to be lifted.
Section 4(3) of the Act provides that if the trial judge is satisfied that the effect of section 4(1) is to impose a substantial and unreasonable restriction upon the reporting of the trial proceedings and that it is in the public interest to remove or relax the restriction, he must direct that section 4(1) does not apply.
The relevant part of section 4(5) of the Act provides:
“If any matter is published ... in contravention of subsection (1) of this section, ... in the case of a publication in a newspaper ..., any proprietor, any editor and any publisher of the newspaper ... shall be guilty of an offence and liable on summary conviction to a fine not exceeding [GBP 5000]”.
Section 5(4) of the Act provides, in part:
“When an offence under subsection (5) of the preceding section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate..., he as well as the body corporate shall be guilty of that offence...”
The relevant part of section 5(5) of the Act provides:
“...where a person is charged with [an offence under section 4(5)] it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication ... was of, or (as the case may be) included, such matter as is mentioned in subsection (1) of that section.”
The defendant has to prove the defence under section 5(5) on the “balance of probabilities”.
There is a right of appeal to the House of Lords against a decision of the Divisional Court in its capacity as an appellate court. In order for such an appeal to lie to the House of Lords, the Divisional Court must certify that the appeal involves a point of law of general public importance. Following certification, permission for such an appeal may be granted by the Divisional Court itself or the House of Lords.