ITEMID: 001-61164
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ALLARD v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1947 and lives in Spånga.
10. In 1935 the applicant’s mother and her four siblings jointly inherited two estates – Marum 1:6 and Marum 1:8 – from their father. The ownership of the estates, consisting of several islands in the archipelago of Stockholm, was over the years partly transferred to other members of the family. Disagreements arose between the family members. Some of them wished to divide the property (klyvning) and thus dissolve the joint ownership, but the applicant’s mother opposed this idea.
11. On the land managed by the applicant’s mother – which formed part of Marum 1:8 – the mother owned a number of houses. Two of the houses were used by the applicant’s two sisters. A third house situated on the property was considered too small for the applicant’s needs and it was therefore decided to enlarge it. The applicant applied for a building permit to the Österåker Building Committee (byggnadsnämnden). On 9 September 1987, finding that the enlargement could not be approved as the house in question was situated too close to the shore, the committee nevertheless granted a permit for the building of a new house further away from the shore. The new house was built in 1988.
12. On 4 August 1989 the applicant’s mother died, leaving four children, namely the applicant, her brother and her two sisters. However, no distribution of the mother’s estate was made before 1991. By a partial division on 29 June 1991, the new house was transferred to the applicant.
13. On 21 December 1989 practically all the other joint owners of the two estates brought proceedings against the applicant in the District Court (tingsrätten) of Södra Roslag, requesting that she be ordered to remove the new house on Marum 1:8 as it had been built without their consent, contrary to the requirements of the Joint Ownership Act (Lagen om samäganderätt, 1904:48 – “the 1904 Act”). The applicant disputed this and argued, inter alia, that it was her mother who had built the house and that accordingly it belonged to her mother’s estate. Thus, she was not the proper defendant in the case.
14. By a judgment of 10 May 1990 (“the removal judgment”) the District Court declared that the applicant was to remove the house, or risk having it demolished at her expense. The court stated, inter alia, that it was the applicant who owned the house and that she had built it without the necessary consent of all the other joint owners.
15. In 1991 one of the joint owners applied for the sale of Marum 1:6 and Marum 1:8 at a public auction. On 22 May 1992 the District Court decided to stay those proceedings.
16. On 22 February 1994 the District Court’s removal judgment was upheld on appeal by the Svea Court of Appeal (Svea hovrätt).
17. The applicant appealed to the Supreme Court (Högsta domstolen). She later requested, inter alia, that no further action be taken on the case pending the outcome of division proceedings which she had begun in October 1990. In these proceedings, the applicant claimed that the joint ownership of the two estates should be dissolved and individual plots be assigned to the family members. Following several decisions taken by the Real Estate Formation Authority (Fastighetsbildningsmyndigheten – “the REFA”) and the courts, the case had to be referred back by the Court of Appeal to the REFA for re-examination as the latter had made procedural errors. Subsequently, by a decision of 1 December 1995, the REFA allowed the creation of four individual plots on Marum 1:8 but rejected the applicant’s request for the creation of an individual plot around the new house on account of the Court of Appeal’s ruling that that house be removed. The applicant appealed against the REFA’s decision to the Real Estate Court (fastighetsdomstolen) in Stockholm. As an alternative ground for staying the proceedings before the Supreme Court, the applicant pleaded that, in March 1995, she had requested that the District Court give a declaratory judgment on the question of ownership of the new house.
18. By a decision of 4 March 1996 the Supreme Court rejected the applicant’s request to have the removal proceedings stayed and refused her leave to appeal against the Court of Appeal’s ruling.
19. Following the Supreme Court’s decision, several family members requested that the Enforcement Office (kronofogdemyndigheten – “the Office”) enforce the removal judgment. On 7 March 1996 the Office ordered the applicant to remove the house before 3 April 1996 or risk having it demolished by the Office at her own expense. By a later decision the time-limit was extended until 19 April 1996.
20. On 14 March 1996, at the Real Estate Court’s request, the Central Office of the National Land Survey (Lantmäteriverket – “the Central Office”) gave its opinion in the division proceedings. It considered that the removal judgment did not prevent the creation of an individual plot around the house in issue. On the contrary, this could preserve the house and reduce the risk of adverse consequences for the applicant. Thus, the Central Office recommended that the applicant be assigned an individual plot.
21. However, on 3 April 1996 the Enforcement Office refused the applicant a further postponement of the enforcement of the removal judgment. On 15 May 1996 the District Court upheld the Enforcement Office’s decisions and rejected the applicant’s request for a stay of the enforcement. Subsequently, the Enforcement Office, on 20 May 1996, decided that the house was to be demolished by a construction firm on 3 June 1996.
22. The applicant appealed to the Court of Appeal, requesting an immediate stay of the demolition order. She submitted that enforcement of the removal judgment should be stayed until the division proceedings or, in the alternative, until the ownership proceedings had been concluded. She also claimed that she had not been given the opportunity to remove the house herself in accordance with the District Court’s judgment of 10 May 1990. She stated that she had started to dismantle the house but was not able to complete the work before 3 June 1996. Furthermore, the applicant requested a three-week respite in order to substantiate her appeal.
23. By a decision of 31 May 1996 the Court of Appeal ordered the applicant to complete her appeal by 12 midnight on 5 June 1996. On the same day, that is on 31 May, the Court of Appeal received a letter from the applicant in which she requested an immediate stay of the demolition order. She submitted, inter alia, that enforcement of the removal judgment should be stayed until the division proceedings had been concluded or, in the alternative, until the Real Estate Court had decided the question. She also requested a three-week respite to substantiate her appeal.
24. The appellate court’s order for the completion of the appeal – which was sent to the applicant’s address at the time in Spånga – was allegedly not received by the applicant until the evening of 5 June, as she had been at the site of the house in issue. On the morning of 6 June she sent a fax to the appellate court, asking for a ten-day respite for the completion of her appeal.
25. However, at a session held on 3 June 1996 the Court of Appeal had already examined the case and, by a decision delivered the following day, refused the applicant leave to appeal against the District Court’s decision of 15 May 1996. Thus, no further stay of the enforcement proceedings was granted. It appears from the court files that the applicant called the Court of Appeal on 6 June and was told that the case had already been examined and that regard had been had to the contents of her letter of 31 May. On 5 July 1996 the Supreme Court refused leave to appeal against the appellate court’s decision.
26. The house in issue was therefore demolished by a construction firm. The applicant had claimed that her appeal against the District Court’s decision of 15 May 1996 prevented the enforcement of the removal judgment. However, this claim was rejected by the Enforcement Office on 31 May 1996, referring to Chapter 3, section 21, of the Enforcement Code (Utsökningsbalken). The demolition of the house began on 3 June 1996 and was concluded ten days later. On 25 June 1996 the Enforcement Office declared that the house had been demolished and that accordingly the removal judgment had been duly enforced. However, this decision was appealed against by the other joint owners on the ground that the building material had not been removed from the property. On 13 September 1996 the District Court, finding in favour of the appellants, quashed the Enforcement Office’s decision that the enforcement had been finalised and referred the matter back to the Office. Leave to appeal against the District Court’s decision was refused by the Court of Appeal and the Supreme Court on 30 September and 25 October 1996 respectively. On 27 September 1996 the Enforcement Office ordered the applicant to remove the building material from the property before 29 October 1996.
27. On 6 August 1996 the Enforcement Office ordered the applicant to pay the enforcement costs of 114,796 kronor. The applicant appealed and applied for legal aid in the matter. By a decision of 9 September 1996 the District Court rejected the applicant’s application for legal aid on the ground that she did not have a legitimate interest in having the case heard as the enforcement had been concluded. The applicant’s further appeal was rejected by the Court of Appeal on 13 December 1996. On 28 April 1997 the Supreme Court refused leave to appeal.
28. On 22 November 1996 the Real Estate Court gave judgment in the division proceedings. It decided that Marum 1:8 should be divided into six individual plots and one common plot. The applicant was assigned a plot where the now demolished house had been situated. In this respect, the Real Estate Court thus agreed with the opinion given by the Central Office of the National Land Survey on 14 March 1996. The Real Estate Court’s judgment was upheld on appeal by the Court of Appeal on 2 November 1998. On 14 April 2000 the Supreme Court refused leave to appeal.
29. By a judgment of 26 November 1996 the District Court decided another removal case which had been brought by the applicant and her sister in 1994. Apparently in response to the removal proceedings brought against the applicant, they had claimed that several other joint owners of Marum 1:6 and 1:8 should remove buildings they had erected on the estates. However, the District Court rejected the claims, finding that the buildings had been erected before 1991 – when the applicant and her sister, through the partial division of their mother’s estate, had become joint owners of the two properties – and that the other joint owners at the time had expressly or impliedly consented to the various building projects. Furthermore, considering that the claimants did not have a legitimate interest in having their cases heard, the court also decided that further litigation in this respect should not be paid for through public legal aid. Thus, with effect from the date of the judgment, the legal aid previously awarded was withdrawn. The applicant and her sister appealed against the judgment, submitting, inter alia, that the District Court’s decision on legal aid should be quashed. However, on 3 October 1997 the Court of Appeal upheld the legal-aid decision. On 16 January 1998 the Supreme Court refused leave to appeal. Stating that they were unable to plead their case properly without legal aid, the applicant and her sister, by a letter to the Court of Appeal of 1 November 1999, withdrew most of their claims in the removal case.
30. By a declaratory judgment of 10 July 1997 in proceedings concerning the ownership of the house in issue, the District Court agreed with the applicant’s argument, submitted to the court in March 1995, that the house had been erected on her mother’s behalf and thus formed part of the latter’s estate. Accordingly, at the time of the District Court’s removal judgment of 10 May 1990, the house had not belonged to the applicant. Thus, in this respect, the court came to a different conclusion from the one reached in the removal judgment. Following an appeal, the declaratory judgment was upheld by the Court of Appeal on 26 February 1998. No further appeal was lodged and the appellate court’s judgment consequently acquired legal force.
31. By decisions of 4 February 1997 and 29 February 2000, the Building Committee granted the applicant building permits for the reconstruction of the demolished house and the construction of two smaller outbuildings.
32. Domestic provisions of relevance in the present case are found in the Joint Ownership Act (“the 1904 Act”), the Administration of Certain Jointly Owned Agricultural Property Act (Lagen om förvaltning av vissa samägda jordbruksfastigheter, 1989:31 – “the 1989 Act”), the Real Estate Formation Act (Fastighetsbildningslagen, 1970:988 – “the 1970 Act”), the Enforcement Code and the Code of Judicial Procedure (Rättegångsbalken).
33. At the time of the building of the house in issue, the ownership of Marum 1:6 and 1:8 was governed by the 1904 Act. Section 2 provided that a joint owner wishing to dispose of real estate must have the consent of all the other joint owners. According to the Supreme Court case-law, a joint owner who was of the opinion that another joint owner had acted in a way which conflicted with section 2 – that is had not had the necessary consent – could challenge the action in court (Nytt juridiskt arkiv (“NJA”) 1990, p. 184; the same right to bring proceedings is afforded to a joint owner under the 1989 Act – see NJA 1992, p. 769). Under section 3, a joint owner who disagreed with the administration or use of real estate could request the court to appoint an administrator. Further, under section 6, a joint owner had the right to apply for a sale of real estate at public auction. The only way for another joint owner to prevent such a sale was to request division proceedings in accordance with section 7. If such proceedings had been started, the court could not decide on the question of a sale until the division proceedings had been concluded.
34. As the real estate in the present case is assessed, for tax purposes, as agricultural property, the provisions of the 1989 Act are applicable as from 1 July 1989. The relevant provisions of that Act are essentially the same as in the 1904 Act. Thus, section 5(2) of the 1989 Act contains a rule that corresponds to section 2 of the 1904 Act.
35. Under Chapter 11, section 1, of the 1970 Act, jointly owned real estate may, on application by a joint owner to the Real Estate Formation Authority (“the REFA”), be divided into individual plots, provided that each plot created is deemed permanently suitable for its purpose in accordance with Chapter 3, section 1. Chapter 11, section 3(4), provides that if a court has ordered real estate to be offered for sale at a public auction, the estate may be divided only if no sale has taken place.
36. The enforcement rules are laid down in the Enforcement Code. According to Chapter 3, sections 1 and 3, a court judgment may be enforced as soon as it has acquired legal force. Section 21 of the same chapter deals with objections against enforcement. Such objections may only be raised in respect of circumstances that have occurred after the delivery of the enforceable judgment, and the Enforcement Office is accordingly not entitled to reconsider the judgment itself. Thus, under section 21(1) enforcement cannot take place if the defendant shows that he or she has fulfilled the obligation set forth in the judgment in question. Furthermore, according to section 21(2), enforcement cannot take place if the defendant claims that there are other circumstances which hinder enforcement, provided that the court finds that the objection cannot be dismissed. This rule concerns substantive objections, for example an objection that property which the defendant is obliged to deliver has been conveyed or encumbered.
37. Under Chapter 16, section 12a, of the Enforcement Code, an application for enforcement becomes void if the applicant in the enforcement proceedings grants the defendant a respite which lasts more than six months from the date of the application. However, there are no rules empowering the Enforcement Office to grant the defendant a respite at his or her own request. A decision by the Office to refuse a stay of the enforcement proceedings is, in accordance with Chapter 18, section 1, of the Code, subject to appeal before a court.
38. When it is of utmost importance for deciding a case that a question subject to other court proceedings be determined first, the court may, under Chapter 32, section 5, of the Code of Judicial Procedure, order a stay of proceedings (vilandeförklaring). According to the preparatory documents (NJA II 1943, p. 417), the relationship between the two court cases may be such that the decision in one set of proceedings has a binding effect on the outcome of the other set of proceedings. An action for pecuniary compensation for damage to real property and another action concerning the ownership of the property is given as an example. The outcome of one set of proceedings may also have evidential significance in another set of proceedings. In these situations the relevant court has to decide whether it is in the interests of all parties concerned to stay the proceedings or not.


ITEMID: 001-98541
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SZAL v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1925 and lives in Przemyśl.
6. During the Second World War the applicant was subjected to forced labour on a farm owned by a German family B. in Leutz (currently Lucień in Poland).
7. On an unspecified date she submitted a request for compensation to the Polish-German Reconciliation Foundation.
8. On 17 April 2002 the Polish-German Reconciliation Foundation awarded the applicant financial assistance in the amount of EUR 1,124.84. It considered that the applicant's persecution fell under the 4th category. This category comprised persons who had been deported to Germany and subjected to forced labour. The amount was to be paid in two instalments, the first one in the sum of PLN 2,823 to be paid from 24 April to 8 May 2002.
9. On 29 July 2004 the Foundation gave a decision confirming payment of the second instalment, in the amount of PLN 1,247, to be paid from 6 August to 20 August 2004.
10. On 25 October 2004 the Director of Veterans' Office gave a decision by which he confirmed that the applicant complied with the conditions set out in the applicable domestic law for obtaining the status of a veteran on the strength of her imprisonment in the concentration camp Gross-Rosen in January and February 1945.
11. On 27 October 2005 the Przemyśl Regional Court gave a judgment by which it confirmed that the applicant satisfied the requirements which the applicable laws attached to the grant of war veteran status and that she was permanently and totally unable to work. It further stated that the applicant's health made it impossible for her to live independently. The court referred to medical reports prepared for the purposes of the proceedings and to a unanimous medical opinion given by a medical panel of the Social Insurance Authority which had also confirmed that the applicant's disability had been caused by her stay in the German concentration camp during the Second World War.
12. On 22 June 2006 the Foundation refused to award further payment to the applicant for her internment in the concentration camp, finding that the available evidence, in particular written statements submitted by witnesses, was insufficient proof that the applicant had been imprisoned there. The applicant appealed.
13. The Foundation, by a decision of 4 July 2006, refused to allow her appeal, reiterating the arguments on which it had relied in its firstinstance decision.
14. On 25 July 2002 the Oleśnica District Court rejected the applicant's statement of claim under Article 189 of the Code of Civil Procedure by which she had requested recognition (ustalenie) that she had been working as a forced labourer in Leutzen during the war, at a farm belonging to family B. The court had regard to a resolution of the Supreme Court of 5 October 2001 (III CZP 46/01), by which the latter court had held that civil courts lacked jurisdiction to examine any claims concerning forced labour during the Second World War and that it could not be accepted that such jurisdiction could be based on Article 189 of the Civil Code.
15. The applicant appealed. By a decision of 14 August 2002 the Wroclaw Regional Court upheld the contested decision, fully sharing the conclusions of the first-instance court. On an unspecified later date the Regional Court refused to grant her legal aid for the purposes of lodging a cassation appeal with the Supreme Court.
16. On 5 February 2008 the Warsaw District Court dismissed the applicant's action by which she claimed PLN 70,000 from the State Treasury as compensation for the State's failure to legislate in order to provide for social insurance entitlements to persons who during the Second World War had been subjected to forced labour and persecution in various factual contexts. The court observed that the applicant was entitled to various social insurance payments arising out of her bad health; in particular, she received a war veteran's benefit and a disability benefit granted to her under the universally applicable provisions of social insurance laws. Moreover, no national or international regulations obliged the Polish State to enact legislation addressing specifically the compensation rights of persons who had suffered during the Second World War and providing for special entitlements for them.
17. On 12 March 2009 the Warsaw Court of Appeal upheld this judgment.
18. The relevant law and practice concerning the Polish-German Reconciliation Foundation is set out in the Court's judgment in the case of Kadłuczka v. Poland, no. 31438/06, §§ 19-45, 2 February 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100407
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KUCZERA v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1948 and lives in Pleśna.
6. The applicant and his brother, S.K., leased a substantial area of farming land. After the applicant had been hospitalised, he asked his brother to gather the crops. The applicant submits that his brother sold the crops and the agricultural machines which they co-owned and took all the profits.
7. On 6 October 1998 the applicant brought a claim against his brother in the Tarnów Regional Court, seeking 73,095 Polish zlotys (PLN) in compensation. He also sought an exemption from court fees (PLN 4,985.70).
8. On 21 October 1998 the Regional Court exempted the applicant from court fees. On 2 November 1998 it granted legal aid to the applicant.
9. On 16 November 1998 the applicant modified his claim by joining his brother's wife as a defendant. He also requested the court to issue an interim order to secure his claims by way of, inter alia, registering a charge over the defendants' property and attaching their bank accounts. On 2 December 1998 the applicant submitted some additional information requested by the court in relation to his request for an interim measure. On 6 April 1999 the Regional Court granted the interim order in part.
10. On 28 April 1999 the applicant increased his claim to PLN 123,035.
11. On 28 May 1999 the Regional Court revoked the applicant's exemption from court fees and the decision to grant him legal aid. The Regional Court considered that the information in the file indicated that the applicant was not an indigent person unable to pay court fees and other costs related to the litigation. It noted that the applicant owned two houses and that in 1998 he had had 16,000 United States dollars deposited in the bank. Thus, the Regional Court found that the applicant had not submitted accurate information about his financial status. Consequently, it imposed a fine on the applicant in the amount of PLN 100.
12. On 17 June 1999 the applicant appealed against that decision. He contested the court's findings. The applicant submitted that a charge had been registered over his property in Gromnik, while the other property, located in Pleśna, was a small house where he lived with his extended family. He further stated that all his savings had been invested in the farming of the leased land and that he had been deprived of any profits by his brother. He further submitted that his only income was a modest invalidity benefit.
13. On 6 July 1999 the Cracow Court of Appeal dismissed the applicant's appeal. It relied on the fact that the applicant had failed to disclose all the relevant information about his financial status in his original application for an exemption from court fees.
14. On 23 July 1999 the Tarnów Regional Court ordered the applicant to pay PLN 4,985.70 in court fees. On 28 July 1999 the applicant applied for leave to pay the relevant fees in instalments. He claimed that he had been receiving invalidity benefit and could not pay the amount in question all at once. He also submitted that he could not take up any offers of work because of his poor health.
15. On 10 September 1999 the Regional Court granted the applicant leave to pay the court fees in ten monthly instalments. Until March 2000 the applicant paid six instalments.
16. On 20 February 2000 the applicant increased his claim to PLN 470,400, following the submission of a number of documents by the defendant which indicated the amount of profit made from the jointly leased land.
17. On 23 March 2000 the Regional Court ordered the applicant to pay PLN 21,445.30 in court fees for the modification of his claim.
18. On 27 March 2000 the applicant requested the court to exempt him from those court fees and to cancel the four remaining monthly instalments he was supposed to pay. The applicant submitted that his only income was an invalidity benefit in the monthly amount of PLN 578.46 and that he was unfit for work. He stated that he had been hospitalised from 11 September until 4 October 1999 and that he had subsequently broken his spine and had again been hospitalised. He further submitted that he had transferred his property in Pleśna by way of a donation to his children. The other property, located in Gromnik, was a wooden house in need of renovation and lacking basic amenities. The applicant also supported two of his children aged 13 and 18. His wife worked at a school and her monthly salary was PLN 497. He did not have any savings and owned a fouryear-old Polish car.
19. On 30 March 2000 the Tarnów Regional Court refused the applicant's request for exemption from the court fees. It held, referring to the case-law of the Supreme Court from 1935 and 1937, that the donation of the applicant's property to his children should be treated as a fraudulent disposal of the property with a view to fulfilling the eligibility requirements for exemption from court fees. Additionally, the Regional Court considered that the applicant had adult children who had an obligation to support him financially if necessary. That obligation extended, in the court's view, to helping the applicant in funding the court proceedings.
20. Furthermore, the Regional Court considered that the applicant could have sold some of his property or mortgaged it. That way, in the court's view, the applicant would have been able to secure sufficient means for funding the litigation. The Regional Court underlined that the applicant's case was not one in which it had been necessary to file a claim immediately. The court observed that a party intending to institute court proceedings had to take into account the costs involved and secure them in advance from the income received over a longer period of time. Only in exceptional cases, when the immediate institution of proceedings was necessary (on account of the limitation of actions), could a party rely exclusively on his or her current income.
21. The Regional Court considered that the applicant, when increasing his claim to PLN 470,400, had to take into account the obligation to pay the relevant fees, even more so given that it had not been necessary to modify his claim at that particular time.
22. The applicant appealed against the Regional Court's decision. He submitted that he had not disposed of any of his property in order to obtain an exemption from court fees since he still owned the property in Gromnik. However, that latter property did not generate any profit. The applicant disagreed with the Regional Court regarding the motives behind his donation. He stated that he had simply wanted to provide for his children's future. The applicant emphasised that he had no possibility of securing the required amount of court fees and that the impugned decision had been based on speculation about his financial status. Replying to the Regional Court's argument about the possibility of securing the necessary funds over a period of time, the applicant submitted that given his current level of income and his incapacity for work, he would never be able to secure the necessary funds.
23. On 9 May 2000 the Cracow Court of Appeal upheld the decision of the Regional Court. It further concurred with the Regional Court's finding that disposing of the applicant's property in Pleśna by way of donation could not justify another exemption from court fees.
24. It appears that on a later unknown date the applicant paid the remaining four instalments and the court proceeded with the examination of the merits of the case.
25. Following a request of 21 June 2002, the Tarnów Regional Court exempted the defendants S.K and H.K. from the court fees at a session held in camera on 9 July 2002.
26. On 11 January 2003 the applicant once again increased his claim to PLN 672,729.50 (instead of the initial PLN 73,095). The court fee was set at PLN 31,581 and the applicant asked for an exemption. The request was dismissed by the Tarnów Regional Court on 19 March 2003. The court held that while it was true that the applicant and his wife supported themselves from small invalidity pensions, the applicant owned a house in Pleśna. The court stressed that since the applicant had donated his property to his children, they should have helped him with the court fees. Lastly, the court held that the applicant did not justify the increased claim by any new facts or evidence but merely asked for a higher sum. On 15 May 2003 the Kraków Court of Appeal upheld this decision repeating the same reasons.
27. At a hearing held on 6 April 2004 the applicant again decided to modify his claim and increased it, this time to PLN 123,035 (instead of the PLN 73,095). On 7 April 2004 the Tarnów Regional Court dismissed his request to exempt him from court fees. The court referred to the reasons previously given.
28. On 8 November 2004 the Tarnów Regional Court gave judgment and dismissed the applicant's claim. The judgment became final on 22 December 2004.
29. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23747
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CALDAS RAMIREZ DE ARRELLANO v. SPAIN [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Armando Alfredo Caldas Ramírez de Arrellano, is a Spanish national, who was born in 1961 and lives in Alicante. He was represented before the Court by Mr J. Sanz de Bremond y Mayans, a lawyer practising in Madrid.
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 1991 central investigating judge no. 5 in the Audiencia Nacional brought criminal proceedings against the applicant for endangering public health contrary to Article 344 of the Criminal Code as in force at the material time (trafficking in MDMA, an amphetamine-type substance known as “ecstasy”, as distinct from MDA, known as the “love drug”). In a decision given on 22 July 1992, after he had completed the investigation, the judge committed the applicant and others for trial before the First Section of the Criminal Division of the Audiencia Nacional, which, in an order of 18 January 1993, set the case down for trial. After all the requests to adduce evidence submitted by the parties to the proceedings had been granted, the trial took place on 20, 21 and 22 December 1993. The public prosecutor classified the offence with which the applicant was charged as repeatedly endangering public health, by means of a substance that was seriously damaging to health, acting as part of a gang (Articles 344 and 344 bis of the Criminal Code). He sought an eleven-year custodial sentence and a fine of 120,000,000 pesetas. The applicant submitted that the correct classification of the offence was that of endangering public health by means of a substance that was not seriously damaging to health (Article 344 of the Criminal Code), which carried three years’ imprisonment and a fine of 10,000,000 pesetas. In the alternative, should the court accept the public prosecutor’s submission that the substance was seriously damaging to health, the applicant argued that the applicable sentence would, in any event, be the same since it had to be acknowledged that there had been a reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code regarding the harmfulness of the substance.
In a judgment delivered on 12 January 1994, after a public hearing in the presence of both parties, the Audiencia Nacional declared it established that the applicant had been involved in trafficking in MDMA, an amphetamine-type substance listed in Table I of the Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The applicant was convicted of repeatedly trafficking in psychotropic substances not seriously damaging to health and sentenced to five years’ imprisonment and a criminal fine of 52,000,000 pesetas. He was also temporarily stripped of his civil and political rights. His conviction was based, inter alia, on witness statements, statements by his co-defendants, reports filed by experts instructed during the investigation into the narcotic substance that had been seized and on the fact that the authorities had seized large sums of money in proceeds from the trafficking. In its judgment the Audiencia Nacional stated that the fact that the drug had not been considered as seriously damaging to health made it unnecessary to examine whether there had been a reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code.
The public prosecutor appealed to the Supreme Court on points of law against the judgment of the Audiencia Nacional. He submitted that the substance in which the applicant had been trafficking was seriously damaging to health. The applicant lodged submissions under Article 882 of the Code of Criminal Procedure to the effect that the appeal on points of law was inadmissible (escrito de impugnación). He set out detailed arguments disputing the public prosecutor’s submissions and requested, in conclusion, that the Audiencia Nacional’s judgment be upheld. He did not, however, repeat the ground of defence based on Article 6 bis (a) of the Criminal Code that he had raised before the Audiencia Nacional.
The Supreme Court held a public hearing in the case on 30 November 1994.
The applicant asserted that at that hearing he had reiterated his defence of reasonable mistake within the meaning of Article 6 bis (a) of the Criminal Code.
According to the Government, there was nothing in the file to indicate that the applicant had made that submission at the hearing in question.
The record of the hearing contains the following passage:
“The public prosecutor submitted his observations in support of his appeal and requested the court to give judgment allowing the appeal.
... Defence counsel for Mr Caldas [the applicant] disputed the appeal by the public prosecutor. ...”
In a judgment of 12 December 1994 the Supreme Court allowed the public prosecutor’s appeal and quashed the judgment of the Audiencia Nacional. It gave the following reasons for its judgment:
“ ... Toxic doses of MDMA vary between 50 and 150 milligrams. The drug produces a number of concomitant effects: euphoria, heightened mood, self-confidence, empathy, and can provoke visual hallucinations. Doses of between 500 and 700 milligrams can have acutely toxic effects ... Similarly, doses of over 200 milligrams can provoke psychotic symptoms, and particularly panic attacks. Other complications can also occur in the event of a severe overdose: delirium, convulsions, secondary cerebral haemorrhaging on account of a rapid increase in blood pressure, muscle cramp, etc.
Although the toxic capacity of MDMA is less than that of MDA, deaths associated with the intake of this substance have been recorded, even if current thinking seriously questions whether MDMA is directly responsible for the deaths. ...
We cannot accept the respondents’ submission that this appeal goes against the facts declared to have been established. The question whether a toxic or narcotic drug or a psychotropic substance is seriously damaging to health is not a matter of fact, but requires an assessment and a reasoned judgment, which therefore lends itself, under Article 849, paragraph 1, of the Code of Criminal Procedure, to an appeal on points of law as a possible error of law regarding an essential element of the offence.
Having regard to the foregoing, it has to be confirmed that MDMA is a drug that is seriously damaging to health if consumed in doses of between 50 and 150 milligrams. Consequently, trafficking in this substance falls within the category of aggravating circumstances provided for in the Criminal Code. ...”
In a second judgment of the same date the Supreme Court, after endorsing the legal reasoning of the judgment of the Audiencia Nacional – except for the finding that the substance in question was not seriously damaging to health – found the applicant guilty of repeatedly endangering public health by means of substances seriously damaging to health (Articles 344 and 344 bis (a) of the Criminal Code) and sentenced him to a term of imprisonment of eight years and one day and to a fine of 110,000,000 pesetas.
On 13 January 1995 the applicant lodged an amparo appeal against that judgment with the Constitutional Court. He complained, firstly, of the Supreme Court’s failure to address the ground of defence based on Article 6 bis (a) of the Criminal Code that he had raised before the Audiencia Nacional and submitted to the Supreme Court at the public hearing. In his submission, when the Supreme Court upheld the appeal by the public prosecutor, finding that the aggravating circumstance of trafficking in a substance seriously damaging to health had been made out, it should have examined the ground of defence based on Article 6 bis (a) of the Criminal Code. In the applicant’s view, the lack of any reference by the Supreme Court to that ground of defence amounted to a failure to give reasons, in breach of Article 24 of the Constitution. The applicant also alleged that the Supreme Court’s retroactive application of its case-law classifying the drug as a substance seriously damaging to health had violated the principle enshrined in Article 25 § 1 of the Constitution that only a statute can define offences and lay down penalties. The applicant alleged further that there had been a violation of Article 14 (principle of equality) of the Constitution.
On 4 July 1996 the Constitutional Court declared the amparo appeal admissible. Between that date and 21 February 1997 it carried out a number of procedural steps, with no interruptions.
In the meantime, on 9 December 1996, it dismissed an application for a stay of execution of the Supreme Court’s judgment.
Ruling on the merits in a judgment of 24 July 2000, served on the applicant on 5 September 2000, it dismissed the amparo appeal as ill-founded. In respect of the applicant’s complaint that the Supreme Court had not addressed the ground based on Article 6 bis (a) of the Criminal Code, the Constitutional Court, after reiterating its case-law regarding lack of reasons, ruled as follows:
“... In accordance with previous case-law, the admissibility of a complaint of lack of reasons is determined in accordance with two main criteria: firstly, the issue must have actually been submitted, and secondly the court must have failed to give reasons for not addressing the submission. An examination of the procedure followed in the instant case shows that the appellant did submit ... to the Criminal Division of the Audiencia Nacional that the tribunal of fact should take into consideration his submission that he had lacked the mens rea for the offence if it agreed with the public prosecutor’s classification of the offence and imposed the sentence corresponding to the aggravating circumstance under Article 344 § 1 of the Criminal Code. Clearly, once the Audiencia Nacional had decided that ‘ecstasy’ was not a substance deemed to be seriously damaging to health it did not need to address the issue of whether a mistake regarding one of the essential elements of the offence (error de tipo) had been made out, whether or not that submission had been made by the appellant. The appellant did not make that submission before the Supreme Court, however, despite his emphatic assertions to the contrary in his amparo appeal. His insistence might have misled the public prosecutor, who, in his observations on the amparo appeal, arrived at the mistaken conclusion that the appellant had made that submission before the Supreme Court and that the court had not dealt with it.
It is sufficient to read the pleadings filed by the applicant with the Supreme Court, in which he submitted that the appeal on points of law was inadmissible, to see, beyond all possible doubt, that his counsel made no submissions concerning a possible mistake regarding one of the essential elements of the offence and that he did not request the Second Division (of the Supreme Court) to apply, if appropriate, Article 6 bis (a) § 1 of the Criminal Code. The observations filed on behalf of the applicant were aimed exclusively at supporting the reasoning of the tribunal of fact’s judgment and the experts’ reports taken into account in assessing the nature and characteristics of the substance that had been seized, the tribunal of fact having found that it was the amphetamine MDMA and not MDA, whose effects are very different. Moreover, the record of the public hearing does not show that this ground of defence was even reiterated before the Supreme Court at that hearing.
The issue of the importance that should be attached to the lack of explicit reasons by a court cannot be resolved on the basis of a univocal criterion leading in every case to the conclusion that silence amounts to a violation of a fundamental right. It is always necessary to examine the circumstances surrounding the case in question. However, where the submission has not even been made in the Supreme Court despite the fact that it could have been, as was the case here ..., any misgivings as to a possible infringement by the judgment appealed against – on account of failure to give reasons – of the appellant’s right to effective legal protection are completely dispelled. From a constitutional point of view, a court cannot be criticised for having remained silent. There is no scope for examination by a Constitutional Court of a complaint of failure to address a question that has not been asked.”
Addressing the complaint of an alleged breach of the principle that only a statute can define offences and lay down penalties, the Constitutional Court observed that a breach of that type occurred when a court’s application of the law was so unreasonable as to be unforeseeable for persons subject to the jurisdiction of the courts, which had not been the case here. It was not difficult to see that the drug known to the man in the street as “ecstasy” was “seriously damaging to health”. The fact that at the material time the Supreme Court had not yet ruled on the appropriate classification did not mean that there had been a breach of the principle that only a statute can define offences and lay down penalties. In order to establish case-law authority on the subject, the Supreme Court had to be able to give a first ruling on the point.
...
“Likewise, everyone has the right ... to a public trial without undue delays ...”
“Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the State, in accordance with the law.”
“1. Anyone who incurs loss as a result of a judicial error or a malfunctioning in the judicial system shall be compensated by the State, other than in cases of force majeure, in accordance with the provisions of this Part.
2. The alleged loss must in any event have actually occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals.”
Section 293(2)
“In the event of a judicial error or a malfunctioning of the judicial system, the complainant shall submit his claim for compensation to the Ministry of Justice.
The claim shall be examined in accordance with the provisions governing the State’s financial liability. An appeal shall lie to the administrative courts against the decision of the Ministry of Justice. The right to compensation shall lapse one year after it could first have been exercised.”
Title VII: Common procedural provisions
“Where no provision is made in the present Act, the provisions of the Judicature Act and the Code of Civil Procedure shall apply regarding appearance in court, working days, calculation of time-limits, deliberations and votes, time-bars, waivers and withdrawals, official language and keeping order in the court room.”


ITEMID: 001-81760
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FEYZİ YILDIRIM v. TURKEY
IMPORTANCE: 2
CONCLUSION: Procedural violation of Art. 2;No separate issue under Art. 6-1 and 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele
TEXT: 7. The applicant was born in 1965 and lives in Istanbul. He is the son of Mr Emin Yıldırım, a draper by trade, who died on 7 February 1996 after suffering a brain haemorrhage.
8. On 7 January 1996, at about 11 p.m., shots were fired in the direction of the local gendarmerie post in the Çermik district (Diyarbakır). Two non-commissioned officers (NCOs) serving at the post, A.B. and F.Ö., went out on patrol under the command of Officer Akgün. They noticed Mr Emin Yıldırım's drapery shop, with three customers inside, Ö.Y., H.Y. and B.N.
9. According to the Government, Officer Akgün agitatedly asked the customers whether they had heard the shots being fired and hurled abuse at the 67-year-old Emin Yıldırım for having his shop open so late. Two police officers, A.Ö. and Ö.Ş., alerted by the din, witnessed the incident.
According to the applicant, Officer Akgün not only agitatedly questioned those present in the drapery shop but also violently beat Emin Yıldırım.
10. The following day, Emin Yıldırım went to see E.T., the Çermik district governor, handing him a complaint against Officer Akgün which he had had typed (see paragraph 15 below).
However, the district governor, being anxious for the protagonists to settle their differences, allegedly kept hold of the complaint.
11. On 9 January 1996 E.T. summoned Emin Yıldırım and Officer Akgün to his office. Emin Yıldırım was accompanied at the meeting by H.A., the mayor of Çermik. It appears that during the conversation Emin Yıldırım complained of a headache. For his part, Officer Akgün is said to have apologised, explaining that he had been drunk on the night of the incident; Emin Yıldırım then forgave him and withdrew his complaint. At that point, E.T. allegedly tore up the letter of complaint he had kept.
12. On 3 February 1996 Emin Yıldırım was admitted to Diyarbakır General Hospital in a coma. A computed tomography brain scan revealed a severe haemorrhage in the left frontoparietal region.
An explanatory note attached to the back of the scan image referred to the haemorrhage as “chronic”, in other words resulting from bleeding over a prolonged period.
A life-threatening clinical presentation emerged from subsequent examinations. Two days later, Emin Yıldırım underwent an operation to drain a haematoma, performed by a neurologist, Ö.H.
On 7 February 1996 he was transferred to Dicle University Hospital, where he died the same day.
13. Later on 7 February 1996 an autopsy was carried out by a single forensic medical examiner, L.E., under the authority of the Diyarbakır public prosecutor. Dr L.E. subsequently drew up a report, which began by referring to the content of the medical records kept at Diyarbakır General Hospital.
According to the report, a superficial examination of the skull revealed a haematoma and an ecchymosis slightly below the surgical scar in the left frontal lobe; in the same area, there was a hole where the skull had been opened up. An intracranial examination revealed a subdural haematoma in the left frontoparietal lobe, multiple areas of brain-tissue degeneration at the base of the left hemisphere, severe cerebral oedema and a swollen cerebellum.
According to the forensic medical examiner, a blow sustained “about a month earlier” could well have been the cause of death.
14. According to the mayor of Çermik, H.A., the complaint that Emin Yıldırım had handed to the district governor (see paragraph 10 above) was found in the deceased's pockets. On 8 February 1996 H.A. submitted the document in question to the public prosecutor and gave the following summary of what had happened in the district governor E.T.'s office:
“... Accompanied by Mr Emin Yıldırım, I went into the district governor's office; he was there together with Officer Akgün. The officer spoke to Mr Emin Yıldırım and apologised, saying: 'I beat you up last night and displayed an attitude incompatible with my rank as an officer; I am sorry.' Mr Emin Yıldırım replied: 'OK, Captain, but I want you to know that you hit me for no reason and my head [still] hurts'; the district governor then said to him: 'I'll send you to see a doctor ...' The written, unsigned complaint I have with me was found in the deceased's pocket; Mr Emin Yıldırım had had it drawn up [by someone else] but had not handed it to its addressee (the Çermik district governor's office).”
15. The complaint in question, of which the Government produced a copy, is dated 8 January 1996 and is not signed. It is likely that it was typed by another person with some knowledge of procedural matters. The complaint is addressed to the “authority of the Çermik district governor's office” and accuses Officer Akgün of “assault and insults”. In it the events are summarised as follows:
“1- On the evening of 7 January 1996, at about 11 o'clock, R.Y., Ö.Y. and H.Y., from the village of Diktol in Çermik, came to my home; the witness Ö.Y. asked me for a shroud of 1.8 m in order to take his deceased father back to the village ...;
2- Together with those persons, I went to open up my drapery shop in Siverek Street. While I was measuring the fabric ..., the accused Sezai Akgün came into my shop, accompanied by two or three gendarmes and two police officers.
3- Captain Akgün said to me: 'Some shots have been fired; did you hear them?'; I replied: 'Yes, but I don't know where they came from.' I explained that I had opened up the shop to provide the persons present, whose father had died, with fabric for a shroud.
4- Officer ... then punched me, shouting: 'You're lying, you son of a ...' While I was asking him what I had done wrong, the officer carried on hitting me, as though drunk.
5- The incident took place in front of the gendarmes ..., the two police officers and the customers ...
6- I am lodging a complaint against the captain. I have bruises on my body, my head hurts from the blows I received and my left ear is torn.
7- I demand the opening of an administrative investigation in respect of the accused and my referral to a doctor for a report, and I ask your office to notify the relevant authorities about the accused ...”
16. On 9 February 1996 the applicant and his mother lodged a formal complaint against Officer Akgün with the Çermik public prosecutor (“the public prosecutor”).
17. Later that day, the public prosecutor interviewed the eyewitnesses Ö.Y., H.Y. and B.N. (see paragraph 8 above). They stated that on the evening of the incident Mr Emin Yıldırım had been violently punched and kicked, in particular in the head, by Officer Akgün. Ö.Y. added that he himself had also been punched twice on the chin when he had exclaimed: “What's wrong with buying a shroud?”
On 12 February 1996 police officers A.Ö. and Ö.Ş. and a local gendarmerie NCO were interviewed. The police officers explained that they had heard Officer Akgün hurling abuse at people inside the shop, but that they had not seen him hit them.
18. On an unspecified date the applicant's lawyer contacted the public prosecutor's office at the Diyarbakır 7th Army Corps Command Military Court, seeking to have Officer Akgün placed under arrest in order to prevent him from putting pressure on witnesses and disposing of incriminating evidence.
On 27 February 1996 the military prosecutor's office indicated that it was not empowered to take the action requested, as offences committed by members of the armed forces against civilians came under the jurisdiction of the ordinary criminal courts.
19. On 13 March 1996 the public prosecutor interviewed NCOs A.B. and F.Ö.
A.B. explained that their commanding officer had been annoyed to see customers in a shop open at night and had asked them to leave the premises immediately. He stated that the victim and some young people had been in the shop, and added:
“It must nevertheless be admitted that when we went to the scene we were stressed because of the shooting; under pressure, we could certainly have hit someone, even without really intending to; however, if it had come to that, we would have gone for the young men as they are more dynamic and likely to commit offences.”
F.Ö. stated that on the day of the incident he had not gone into the shop and had consequently not seen what had happened there.
20. On 14 March 1996 the public prosecutor sent a summary report on his inquiry to the Ministry of Justice and asked for permission to place Officer Akgün under investigation under the Prosecution of Civil Servants Act. Permission was granted on 16 May 1996.
21. On 12 July 1996 the public prosecutor questioned Officer Akgün, who denied that he had beaten the applicant's father, claiming that he was the victim of a plot hatched by members of terrorist organisations or other underground groups to hinder the gendarmerie's work in fighting terrorism. According to Officer Akgün, Emin Yıldırım had complained to the district governor that he had been verbally abused; as a result, he had gone to the district governor's office himself to meet Emin Yıldırım and had apologised for having lost his temper. Emin Yıldırım had accepted his apology without ever claiming that he had been beaten. Officer Akgün was dismayed that anyone might think that an officer of his rank who had served his homeland for more than 15 years could have gratuitously set about an elderly man and gone so far as to beat him up.
He further challenged the competence of the forensic medical examiner who had conducted the autopsy of the body in the absence of a pathologist. He noted that in any event the autopsy had not found any possible traces of the alleged acts of violence. In addition, he invited the public prosecutor to consider how a person claiming to have been so severely beaten could have omitted to contact a doctor and the prosecuting authorities.
Officer Akgün asserted that the complaint lodged on 9 February 1996 had been entirely fabricated by Emin Yıldırım's relatives, as had the unsigned letter of complaint allegedly found in the deceased's pockets, and explained that after the meeting in the district governor's office the original complaint had been torn up.
22. On 9, 20 and 25 September 1996 the public prosecutor took initial statements from S.Ç., A.Y., H.S. and M.A., who had been seen near the shop on the evening of the incident. They stated that they had not seen Officer Akgün assault Emin Yıldırım.
Next, the eyewitnesses Ö.Y., H.Y. and B.N. were questioned again. They retracted their previous statements, asserting that Officer Akgün had not beaten Emin Yıldırım and that they had been forced to state otherwise following threats by two unknown persons who had not been seen since.
On 8 and 9 October 1996 the public prosecutor summoned two other potential witnesses, M.As. and Y.A., whose statements did not bring any new evidence to light.
23. On 15 October 1996 the public prosecutor sent the Ministry of Justice a second summary report on the investigation, asking whether he should institute criminal proceedings.
On 14 November 1996 the Ministry replied in the affirmative.
In the meantime Officer Akgün had been promoted from the rank of captain to major.
24. On 20 November 1996 the Siverek public prosecutor, to whom the case had been assigned, indicted Officer Akgün in the Diyarbakır Assize Court (“the Assize Court”) for unintentional homicide under Article 452 of the Criminal Code and asked the President of the Siverek Assize Court to order his detention pending trial.
On 6 December the President refused the request on the ground that the suspect had a fixed abode and there was no risk of his evading trial or concealing evidence.
25. On 20 January 1997 the mayor H.A. tendered his resignation on the ground that no action had been taken on his request for Officer Akgün to be transferred to another town in view of the events in which he was implicated.
It appears that both H.A. and Ö.Y. were subsequently called up for military service.
26. The trial opened in the Assize Court on 20 March 1997. The applicant and his mother applied to join the proceedings as intervening parties, reserving the right to claim compensation.
Several witnesses appeared on 20 March 1997, including the applicant's mother. She stated that on returning home after the incident, her husband had had visible injuries to his face and that subsequently his health had rapidly deteriorated.
27. The eyewitnesses H.Y., B.N. and Ö.Y. retracted their statements a further time and confirmed the truth of their initial accusations against Officer Akgün.
H.Y. explained that he had been forced by Officer Akgün to retract his initial statement if he did not want to end up like Emin Yıldırım. He then confirmed that the accused had indeed started to hit the applicant's father for no reason; he had first banged Emin Yıldırım's head against a table, before kicking him and then banging his head against the shelves. After Emin Yıldırım had collapsed on the ground, Officer Akgün had carried on kicking him in the head.
B.N. maintained that the reason why he had given evidence in favour of Officer Akgün was that he too had been threatened by him. He explained that the officer had in fact kicked Emin Yıldırım in the head and abdomen and had banged his head against the walls until he could no longer stand.
Ö.Y. likewise retracted his second statement, explaining that he had made it out of fear that Officer Akgün might take it out on him during his military service.
28. Police officer Ö.Ş., the gendarmes F.Ö. and A.B. and the mayor H.A. also gave evidence.
H.A. stated that after the victim's death, Officer Akgün had asked him to help secure his reconciliation with the Yıldırım family, to whom he wished to pay a sum of money to make amends for the wrong he had done. He added that during their meeting in the district governor's office, Officer Akgün had also said that he had had too much to drink on the evening of the incident and that he was aware that he had acted wrongly.
Ö.Ş. stated that he had gone to the scene with his colleague after hearing shots being fired. He added that from outside the shop they had heard Officer Akgün reprimanding the victim but had not seen him beat him.
NCO A.B. accused H.A. of having twice attempted to put pressure on him to give evidence against his commanding officer.
29. On 12 May 1997 Officer Akgün produced to the Assize Court a letter dated 12 April containing death threats against him.
30. On 21 May 1997 the gendarmerie general command informed the judges of the trial court that Officer Akgün had been relieved of his duties with effect from 20 May 1997.
31. In a letter of 25 May 1997 Ö.Y., who was performing military service at the time, informed the Assize Court that Officer Akgün had compelled him to retract his original statement and subsequently, shortly before the trial, had offered him free air tickets to travel to the courthouse and testify in his favour. He stated that Officer Akgün had in fact grabbed Emin Yıldırım by the neck and had repeatedly banged his head against the walls. He added that Mr Yıldırım had collapsed to the ground and had hit his head on the floor.
32. On 10 June 1997 Officer Akgün requested that the Istanbul Forensic Medicine Institute (“the Institute”) produce a further expert opinion in response to the autopsy report. He again alleged that he had been the victim of a plot, this time orchestrated by H.A., the former mayor of Çermik, on account of the latter's defeat in the elections.
For his part, the district governor E.T. explained that on the day after the incident Mr Emin Yıldırım had indeed come to see him with a written complaint. He stated, however, that the complaint was much briefer than the document allegedly found in the victim's pockets and contained no allegations of assault. The district governor stated that he had summoned the protagonists to his office as the deceased had feared that he might be accused of involvement in the unresolved incident of the shots fired on 7 January 1996. E.T. stated that during the meeting Officer Akgün had apologised for uttering insults and that Emin Yıldırım had never claimed that he had been beaten. He added that after the meeting he had torn up the deceased's complaint, believing that matters had been settled.
33. On 12 September 1997 the applicant's lawyer warned the Institute's forensic experts that Officer Akgün might attempt to intimidate them into producing an opinion that was favourable to him.
34. On 16 September 1997 the Assize Court decided to obtain additional medical evidence concerning the precise circumstances of the death and instructed the Institute to draw up a full report as a matter of urgency.
35. On 21 October 1997 and 27 January and 5 March 1998 the Assize Court refused applications for Officer Akgün to be detained pending trial.
36. At the hearing on 5 March 1998 the Assize Court heard evidence from a colleague of Ö.R., a neurologist, A.U., who gave his opinion on the basis of Emin Yıldırım's medical records. He stated that the haematoma was located between the dura mater and the skull, and not in the actual brain. A subdural haematoma of that kind was more likely to result from cranial trauma. It was therefore improbable in his view that the haematoma had been caused by hypertension, especially as the patient's blood pressure had been recorded as normal at the hospital.
37. On 21 April 1998 the neurological surgeon Ö.R. gave evidence. He stated that he did not agree with the note attached to the back of the scan image that the haematoma was “chronic”, which meant that it had formed very gradually. He added that he did not know who could have attached the note but that he was convinced, having himself operated on Emin Yıldırım, that the haemorrhage was “sub-acute” and that it could thus have been caused by a second blow, occurring in the two weeks before the death. He further noted that the patient had been admitted to hospital in a coma, a symptom not associated with cases of chronic haemorrhages, and explained that while Mr Yıldırım'
38. At the next hearing, some ten inhabitants of the deceased's native village stated that he had told them that he had been beaten by Officer Akgün and was suffering from pains in the head, stomach and feet but that, as a matter of pride, he had not wanted to see a doctor.
39. At the hearing on 22 October 1998 the Assize Court heard evidence from a radiologist, A.A., who stated that according to standard medical practice, the results of the scan performed on Emin Yıldırım should have been analysed by a radiologist; at the relevant time, however, he had been the only radiologist employed at the general hospital and he could not imagine who else could have attached the note indicating the presence of a chronic haemorrhage.
Counsel for the applicant accordingly demanded that the Institute clarify the contradictions between the various medical opinions.
40. On 23 December 1998 the Institute's First Specialist Committee submitted its report. It found that it could not be concluded with any certainty that Mr Emin Yıldırım had died as a result of an injury sustained on 7 January 1996, particularly as no scan images had revealed any traces of ecchymotic lesions to the bone. The report concluded that the haemorrhage observed during the autopsy could have developed after the operation.
On 25 February 1999 the applicant's lawyer challenged that conclusion and asked for the case to be reviewed by the Institute's General Assembly.
41. The General Assembly gave its opinion on 22 April 1999, after studying the seven different medical opinions in the file. It concluded that the causes of death could not be determined with any certainty and that no causal link could be sufficiently established between the alleged acts of violence and the deceased's clinical presentation.
Having inspected the deceased's medical records, the General Assembly nevertheless noted certain shortcomings which made it impossible to determine the exact process by which the death had occurred. The autopsy report gave no indication of the colour, density, quantity and extent of the intracranial haematoma and there had been no histological examination of blood samples or of the area described as having been affected by diffuse degeneration of the brain tissue.
At the hearing on 10 June 1999 counsel for the applicant also challenged these conclusions, arguing that they had no scientific basis.
42. In its judgment of 14 June 1999 the Assize Court endorsed the public prosecutor's opinion that the charge of unintentional homicide should be dismissed as there was no clear causal link between the death and the alleged blows.
However, the Assize Court found Officer Akgün guilty of ill-treatment in the performance of official duties, within the meaning of Article 245 of the Criminal Code. It sentenced him to the minimum penalty of three months' imprisonment and suspended him from duty for two months and fifteen days.
The court considered that what constituted ill-treatment on Officer Akgün's part was that he had “made remarks that were likely to offend the victim and engender feelings of distress and anxiety in him” and not that he had beaten him. It found that, even assuming that Officer Akgün had hit the victim as well, such an act would at most have also fallen within the scope of Article 245 of the Criminal Code, which prohibited all forms of ill-treatment of others, including physical violence, in the performance of duties involving the preservation of order in a region affected by terrorism.
43. As to the length of the sentence, the judges pointed out that the accused deserved a favourable assessment on account of the socio-economic conditions in the region where he was serving and his various personal qualities. They thus decided to reduce his prison sentence to two months and fifteen days in view of his “good conduct”. The sentence was subsequently commuted to a fine of 375,000 old Turkish liras, which at the relevant time was equivalent to approximately 0.90 United States dollars or 0.68 euros.
Lastly, the Assize Court decided to suspend the enforcement of the fine, being persuaded that Officer Akgün would not reoffend.
44. In his capacity as an intervening party, the applicant appealed to the Court of Cassation, arguing in particular that insufficient consideration had been given to the evidence for the prosecution, that the accused had never been placed in pre-trial detention and that, in view of his status as a high-ranking officer, he had remained free to exert pressure on the witnesses and forensic experts.
On 8 May 2000 the Court of Cassation upheld the impugned judgment.
45. The relevant provisions of the Criminal Code read as follows:
“Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes or does bodily harm to another person shall be sentenced to between three months' and three years' imprisonment and temporarily barred from public service. ...”
“Where death results from an act of violence ... inflicted without the intention to kill the victim, ... a sentence of eight years' imprisonment shall be imposed on the offender ...
If the death occurs as a result of the offender's act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate, ... a sentence of a minimum of five years' imprisonment shall be imposed ...”
46. Articles 151 to 153 of the Code of Criminal Procedure (CCP) govern investigations into acts capable of constituting offences such as those punishable under Articles 245 (ill-treatment) or 452 (unintentional homicide) of the Criminal Code. Such acts may be reported to the authorities or members of the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority to which it has been made must make a record of it. The complaint may also be lodged through provincial governors, district governors or village mayors. By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duties is liable to imprisonment (see Yaşa v. Turkey, 2 September 1998, §§ 4850, Reports of Judgments and Decisions 1998VI, and İlhan v. Turkey [GC], no. 22277/93, § 36, ECHR 2000VII).
47. For a summary of the rules governing civil and administrative liability for the acts of State agents, see, for example, Şahmo v. Turkey ((dec.), no. 37415/97, 1 April 2003) and Okkalı v. Turkey (no. 52067/99, § 51, ECHR 2006XII).
48. For the determination of criminal sentences and the rules governing their execution, see Okkalı, cited above, §§ 47 and 49.
VIOLATED_ARTICLES: 2


ITEMID: 001-57955
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF C.R. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 7-1
JUDGES: C. Russo;John Freeland;Simon Brown
TEXT: 7. The applicant is a British citizen, born in 1952, and lives in Leicester.
8. The applicant married his wife on 11 August 1984. They had one son, who was born in 1985. On 11 November 1987 the couple were separated for a period of about two weeks before becoming reconciled.
9. On 21 October 1989, as a result of further matrimonial difficulties, his wife left the matrimonial home with their son and returned to live with her parents. She had by this time already consulted solicitors regarding her matrimonial affairs and had left a letter for the applicant in which she informed him that she intended to petition for divorce. However no legal proceedings had been taken by her before the occurrence of the incident which gave rise to criminal proceedings. The applicant had on 23 October 1989 spoken to his wife by telephone indicating that it was his intention also to "see about a divorce".
10. Shortly before 9 p.m. on 12 November 1989, twenty-two days after his wife had returned to live with her parents, and while the parents were out, the applicant forced his way into the parents’ house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands.
11. The applicant was charged with attempted rape and assault occasioning actual bodily harm. At his trial before the Leicester Crown Court on 30 July 1990 it was submitted that the charge of rape was one which was not known to the law by reason of the fact that the applicant was the husband of the alleged victim. He relied on a statement by Sir Matthew Hale CJ in his History of the Pleas of the Crown published in 1736:
"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."
12. In his judgment ([1991] 1 All England Law Reports 747) Mr Justice Owen noted that it was a statement made in general terms at a time when marriage was indissoluble. Hale CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution. The bald statement had been reproduced in the first edition of Archbold on Criminal Pleadings, Evidence and Practice (1822, p. 259) in the following terms: "A husband also cannot be guilty of rape upon his wife."
Mr Justice Owen further examined a series of court decisions (R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 113; R. v. Clarke [1949] 2 All England Law Reports 448; R. v. Miller [1954] 2 All England Law Reports 529; R. v. Reid [1972] 2 All England Law Reports 1350; R. v. O’Brien [1974] 3 All England Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see paragraphs 19-22 below), recognising that a wife’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions. He added:
"I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband; with that, I do not find it difficult to agree. However, I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ... If it was, it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside. However, I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape."
On the question of what circumstances would suffice in law to revoke the consent, Mr Justice Owen noted that it may be brought to an end, firstly, by a court order or equivalent. Secondly, he observed, it was apparent from the Court of Appeal’s judgment in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied consent could be withdrawn by agreement between the parties. Such an agreement could clearly be implicit; there was nothing in the case-law to suggest the contrary. Thirdly, he was of the view that the common law recognised that a withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, would amount to a revocation of the implicit consent. He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case.
Following the judge’s ruling, the applicant pleaded guilty to attempted rape and assault occasioning actual bodily harm, and was sentenced to three years’ imprisonment.
13. The applicant appealed to the Court of Appeal, Criminal Division, on the ground that Mr Justice Owen had made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gave on entering marriage had been revoked neither by a court order nor by agreement between the parties.
14. On 14 March 1991 the Court of Appeal, Criminal Division (Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ), unanimously dismissed the appeal ([1991] 2 All England Law Reports 257). Lord Lane noted that the general proposition of Sir Matthew Hale in his History of the Pleas of the Crown (1736) (see paragraph 11 above) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch. Further, Lord Lane made an analysis of previous court decisions, from which it appears that in R. v. Clarence (1888), the first reported case of this nature, some judges of the Court for Crown Cases Reserved had objected to the principle. In the next reported case, R. v. Clarke (1949), the trial court had departed from the principle by holding that the husband’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him. Almost every court decision thereafter had made increasingly important exceptions to the marital immunity (see paragraph 22 below). The Court of Appeal had accepted in R. v. Steele (1976) that the implied consent to intercourse could be terminated by agreement. This was confirmed by the Court of Appeal in R. v. Roberts (1986), where it held that the lack of a non-molestation clause in a deed of separation, concluded on expiry of a non-molestation order, did not revive the consent to intercourse.
Lord Lane added the following observations:
"Ever since the decision of Byrne J in R. v. Clarke in 1949, courts have been paying lip-service to Hale CJ’s proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes.
There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.
...
It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present-day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment. That in the end comes down to a consideration of the word ‘unlawful’ in the 1976 Act."
Lord Lane then critically examined the different strands of interpretation of section 1 (1) (a) of the 1976 Act in the case-law, including the argument that the term "unlawful" (see paragraph 17 below) excluded intercourse within marriage from the definition of rape. He concluded:
"... [W]e do not consider that we are inhibited by the 1976 Act from declaring that the husband’s immunity as expounded by Hale CJ no longer exists. We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim."
15. The Court of Appeal granted the applicant leave to appeal to the House of Lords, which unanimously upheld the Court of Appeal’s judgment on 23 October 1991 ([1991] 4 All England Law Reports 481). Lord Keith of Kinkel, joined by Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry, gave, inter alia, the following reasons:
"For over 150 years after the publication of Hale’s work there appeared to have been no reported case in which judicial consideration was given to his proposition. The first such case was R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 133 ... It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife was the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.
...
The position then is that that part of Hale’s proposition which asserts that a wife cannot retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases. On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times. The only question is whether section 1 (1) of the 1976 Act presents an insuperable obstacle to that sensible course. The argument is that ‘unlawful’ in that subsection means outside the bond of marriage.
... The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent, and that the use of the word in the subsection adds nothing. In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment ...
I am therefore of the opinion that section 1 (1) of the 1976 Act presents no obstacle to this House declaring that in modern times the supposed marital exception in rape forms no part of the law of England. The Court of Appeal, Criminal Division, took a similar view [in the present case]. Towards the end of the judgment of that court Lord Lane CJ said ...:
‘The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.’
I respectfully agree."
16. The offence of rape, at common law, was traditionally defined as unlawful sexual intercourse with a woman without her consent by force, fear or fraud. By section 1 of the Sexual Offences Act 1956, "it is a felony for a man to rape a woman".
17. Section 1 (1) of the Sexual Offences (Amendment) Act 1976 provides, in so far as it is material, as follows:
"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if -
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ..."
18. On 3 November 1994 the Criminal Justice and Public Order Act 1994 replaced the above provisions by inserting new subsections to section 1 of the Sexual Offences Act 1956, one of the effects of which was to remove the word "unlawful":
"1. (1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if – (a) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it ..."
19. Until the proceedings in the applicant’s case the English courts, on the few occasions when they were confronted with the issue whether directly or indirectly, had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage. The proposition of Sir Matthew Hale quoted above (see paragraph 11) has been upheld until recently, for example in the case of R. v. Kowalski ([1987] 86 Criminal Appeal Reports 339), which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault. Mr Justice Ian Kennedy, giving the judgment of the court, stated, obiter:
"It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife."
And he went on to say that that principle was
"dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement".
In another example, Lord Justice O’Connor in the R. v. Roberts case ([1986] Criminal Law Reports 188) held:
"The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she cannot unilaterally withdraw it."
20. However, on 5 November 1990, Mr Justice Simon Brown held in R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept of marital exemption in rape was misconceived:
"Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point, I would shrink, if sadly, from adopting this radical view of the true position in law. But adopt it I do. Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century. In my judgment, the position in law today is, as already declared in Scotland, that there is no marital exemption to the law of rape. That is the ruling I give."
On the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All England Law Reports 759) Mr Justice Rougier upheld the general common law rule, considering that the effect of section 1 (1) (a) of the 1976 Act was that the marital exemption embodied in Hale’s proposition was preserved, subject to those exceptions established by cases decided before the Act was passed. He further stated:
"... there is an important general principle to be considered here, and that is that the law, especially the criminal law, should be clear so that a man may know where he stands in relation to it. I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel’s advice before behaving as alleged, but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto."
On 15 January 1991, Mr Justice Swinton Thomas in R. v. S. followed Rougier J, though he considered that it was open to judges to define further exceptions.
Both Rougier and Swinton Thomas JJ stated that they regretted that section 1 (1) (a) of the 1976 Act precluded them from taking the same line as Simon Brown J in R. v. C.
21. In its Working Paper 116 "Rape within Marriage" completed on 17 September 1990, the Law Commission stated:
"2.8 It is generally accepted that, subject to exceptions (considered ... below), a husband cannot be convicted of raping his wife ... Indeed there seems to be no recorded prosecution before 1949 of a husband for raping his wife ...
...
2.11 The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply. The limits of this law are difficult to state with certainty. Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ..."
22. The Law Commission identified the following exceptions to a husband’s immunity:
- where a court order has been made, in particular:
(a) where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband (R. v. Clarke [1949] 33 Criminal Appeal Reports 216);
(b) where there has been a decree of judicial separation or a decree nisi of divorce on the ground that "between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality" (R. v. O’Brien [1974] 3 All England Law Reports 663);
(c) where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her (R. v. Steele [1976] 65 Criminal Appeal Reports 22);
(d) in the case of R. v. Roberts ([1986] Criminal Law Reports 188), the Court of Appeal found that where a non-molestation order of two months had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order;
- where no court order has been made:
(e) Mr Justice Lynskey observed, obiter, in R. v. Miller ([1954] 2 Queen’s Bench Division 282) that a wife’s consent would be revoked by an agreement to separate, particularly if it contained a non-molestation clause;
(f) Lord Justice Geoffrey Lane stated, obiter, in R. v. Steele that a separation agreement with a non-cohabitation clause would have that effect.
23. The Law Commission noted that it was stated in R. v. Miller and endorsed by the Court of Appeal in R. v. Steele that lodging a petition for divorce would not be sufficient.
It referred also to the ruling by Mr Justice Owen in the present case where an implied agreement to separate was considered sufficient to revoke the immunity and that, even in the absence of agreement, the withdrawal from cohabitation by either party, accompanied by a clear indication that consent to sexual intercourse had been terminated, would operate to exclude the immunity. It found this view difficult to reconcile with the approach in Steele that filing a divorce petition was "clearly" not sufficient. The ruling in the present case appeared substantially to extend what had previously been thought to be the law, although it emphasised that factual separation, and not mere revocation of consent to intercourse, was necessary to remove the immunity.
24. The Law Commission pointed out that its inquiry was unusual in one important respect. It was usual practice, when considering the reform of common law rules, to consider the grounds expressed in the cases or other authorities for the current state of the law, in order to analyse whether those grounds were well-founded. However, that step was of little assistance here, partly because there was little case-law on the subject but principally because there was little dispute that the reason set out in the authorities for the state of the law could not be supported (paragraph 4.1 of the Working Paper). The basis of the law was that intercourse against the wife’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir Matthew Hale in his dictum. This notion was not only quite artificial but, certainly in the modern context, was also quite anomalous. Indeed, it was difficult to find any current authority or commentator who thought that it was even remotely supportable. The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage (paragraph 4.2).
The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement. Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities, they were not free to decide the terms of the contract; marriage was rather a status from which flow certain rights or obligations, the contents of which were determined by the law from time to time. This point had been emphasised by Mr Justice Hawkins in R. v. Clarence (1888) when he said: "The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law" (paragraph 4.3).
In this connection, the Law Commission stressed that "[t]he rights and duties arising from marriage have, however, changed over the years as the law has adapted to changing social conditions and values. The more modern view of marriage is that it is a partnership of equals" (paragraph 4.4). It then gave examples of such changes in the law and added:
"4.11 This gradual recognition of mutual rights and obligations within marriage, described in paragraphs 4.3-4.10 above, in our view demonstrates clearly that, whatever other arguments there may be in favour of the immunity, it cannot be claimed to be in any way justified by the nature of, or by the law governing, modern marriage."
25. The Law Commission made, inter alia, the provisional proposal that "the present marital immunity be abolished in all cases" (paragraph 5.2 of the Working Paper).
NON_VIOLATED_ARTICLES: 7
NON_VIOLATED_PARAGRAPHS: 7-1