ITEMID: 001-4970
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DOUGAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen, born in 1967. At the time of the introduction of his application, the applicant was detained in HM Prison the Maze, Lisburn, Northern Ireland.
The applicant is represented before the Court by P.J. McGrory and Co., a firm of solicitors based in Belfast, Northern Ireland, and by Mr A.D. Harvey QC and Mr John McCrudden QC, both of the Northern Ireland Bar.
A.
On 2 November 1991 a bomb exploded at Musgrave Park Hospital in Belfast killing two members of the security forces and wounding six others. A young girl was also injured in the explosion. The bomb had been planted near the Kellar Bar, situated at the basement level at the point of entry to the military wing of the hospital. The basement of the military wing of the hospital was linked to the basement of the main block (“the Withers wing”) by an underground passage. A steel door separated the Withers end of the passage from the tunnel leading to the Kellar Bar. The draw-bars of the door had been wholly or partly sawn through with a hacksaw.
The applicant, who was a porter at the hospital, was arrested while on duty at 5.45 a.m. on 4 November 1991 pursuant to section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. He was taken to Castlereagh Police Office for questioning. Traces of explosive were found in the interior of his car and on a pair of white cotton gloves found under the front passenger seat of the car. Six pieces of metal swarf were found in the front passenger’s foot-well and some one hundred pieces of swarf were found on a pair of trousers belonging to the applicant which were seized following a search of his house. The applicant was cautioned under section 3 of the Criminal Evidence (Northern Ireland) Order 1988 at the time of his arrest and before his first interview.
The applicant was first interviewed at 11.20 a.m. on 4 November 1991. When questioned, he replied: “I’ll not be saying anything until I see my solicitor”. At his second interview, his only comment was: “I’ll make a statement when I see my solicitor”.
In the early part of his third interview from 4.10 p.m. to 6.25 p.m. on 4 November 1991 the applicant continued to say nothing when questioned about his involvement in the explosion. However at some stage in the course of the third interview the applicant was asked: “to get this matter out into the open”. The applicant then proceeded to give an account of his involvement. This account was explored in the course of the subsequent interviews. The essence of the applicant’s explanation was that he had agreed, under duress, to take two men to the hospital on 2 November 1991. On that day he drove the two men to the hospital and parked his car in the hospital car park. They all went to the basement of the Withers wing and he held the steel door open to allow the two men to enter the military side of the underground passage. After the two men had emerged from the passage he shut the steel door. They all exited the basement. The applicant stated that when he was told by the two men to hold the steel door open he knew then that they were going to plant a bomb.
The applicant’s solicitor was not present during any of the interviews. The applicant saw his solicitor between the conclusion of his interview at 3.40 p.m. on 5 November 1991 and the beginning of his next interview at 4.50 p.m. on that day. The applicant continued to speak freely to the police after seeing his solicitor.
After fifteen interviews the applicant was charged at 2.12 p.m. on 6 November 1991. He replied “not guilty” to the murder charges put to him.
The applicant was tried before a judge sitting without a jury at Belfast Crown Court. At his trial, no challenge was made to the admissibility of the applicant’s various statements on any ground. The applicant himself gave evidence and, while repeating facts suggesting duress, changed his defence and pleaded a lack of knowledge, foreseeability and intention of the crimes with which he was charged. The trial judge found:
“In the context of this case however, I had not the slightest difficulty in finding that [the applicant] was putting forward a completely lying defence. Hearing and observing him over some days in the witness box left me in no doubt at all. His lies were deliberate and comprehensive… He was cunning in his attempts to build up his new defence of lack of knowledge of the operation… In cross examination he was evasive and sought to contradict an earlier answer or obscure it with vagueness when he thought it suited. My conclusion about the complete lack of credibility of his defence was based not only on my subjective conclusion, that is, a compelling impression of his lying demeanour in the witness box, but also on the objective view that the story he was telling was inherently unbelievable…”
The trial judge found that the applicant was a willing participant in the plan to blow up the Kellar Bar. He further found that the applicant had full knowledge of and was party to the plan and knew it was organised and would be carried out by members of the IRA. The judge observed that the applicant knew the layout of the hospital and its system of working, its security and where the military congregated. In the judge’s view, the applicant, before he set out to drive the two men to the hospital, knew that their plan was to plant and explode a bomb close to the Kellar Bar with the intention of killing soldiers congregated there. The applicant gave the two men assistance in the preparation, planting and priming of the bomb in the tunnel. In giving this assistance, the applicant knew that it was in furtherance of the plan and particularly in the tunnel he knew that he was assisting the planting of a bomb which, when exploded, would cause grievous bodily harm, if not death, to the soldiers in the Kellar Bar. For the trial judge, the applicant, like the other participants, had intended to kill the soldiers.
The trial judge concluded that the applicant was guilty of murder, attempted murder and the related charges on those findings.
On 31 January 1993 the applicant was convicted on two counts of murder, seven counts of attempted murder, of causing the bomb explosion and of being in possession of the bomb with intent contrary to section 3(1)(b) of the Explosive Substances Act 1883. The applicant was sentenced to life imprisonment on the murder counts and to twenty three years’ imprisonment on the attempted murder counts. He was sentenced to twenty years’ imprisonment on the count of causing the explosion and eighteen years’ imprisonment for being in possession of a bomb. All the sentences were to be served concurrently.
The applicant appealed to the Northern Ireland Court of Appeal. He contended, inter alia, that his trial was unfair since the police refused him access to a solicitor during interview and that the trial judge had made extensive use of the applicant’s admissions during interview. Counsel for the applicant submitted that the trial judge, in the exercise of his discretion, should have excluded the admissions because the applicant did not have his solicitor present during interview.
In a judgment delivered on 15 June 1995 the Court of Appeal rejected the applicant’s reliance on the opinion of the European Commission on Human Rights in the John Murray v. the United Kingdom application: Lord Justice MacDermott stated:
“We therefore hold that, whatever view the European Court of Human Rights may eventually take of the content of the rights under Article 6 of the Convention, it is not to be regarded as ipso facto unfair within the meaning of section 11(3) of the Northern Ireland (Emergency Provisions) Act 1991 if a person detained under the Prevention of Terrorism (Temporary Provisions) Act 1989 has not been permitted to have his solicitor present during the process of questioning by the police. Accordingly the learned trial judge could not properly have been required to exercise his discretion under section 11(3) of the 1991 Act in such a way as to exclude the [applicant’s] statements on the sole ground that he was refused permission to have his solicitor present with him during the interviews. This ground of appeal must therefore fail.
In reaching this conclusion we have borne in mind [the applicant’s counsel’s] related point that Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 created such a “coercive pressure” (to use his phrase) that the requirement of a solicitor’s presence during interview was highlighted. We do not accept that Article 3 implies such a requirement. If that had been the intention of Parliament we have no doubt that it would have said so in clear terms. We do not agree that Article 3 creates a “coercive pressure”: it represents a conscious attempt by Parliament to achieve a balance of fairness when … the law abiding members of the community are beset by so much ordinary as well as terrorist crime.”
B. Relevant domestic law and practice
1. Provisions governing inferences which may be drawn from an accused’s silence
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides in so far as relevant:
“Circumstances in which inferences may be drawn from an accused’s failure to mention particular facts when questioned, charged etc.
(1) Where in any proceedings against a person for an offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence was committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies ...
(c) the court ... in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.”
2. Provisions governing access to a solicitor
The relevant provisions at the time of the applicant’s trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.”
Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor; nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed. In this connection, section 66(12) of the 1989 Order provides, in so far as relevant:
“Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.”
Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant’s arrest, provided, in so far as relevant, at paragraph 33:
“A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless:
...
(b) an officer of the rank of superintendent or above has reasonable grounds for believing that:
(i) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or
(ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or
(c) the solicitor nominated by the person, or selected by him from a list:
(i) cannot be contacted;
(ii) has previously indicated that he does not wish to be contacted;
(iii) having been contacted, has declined to attend; or
(d) the person has given his agreement in writing that the interview may be started at once.”


ITEMID: 001-5398
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SOLOMON v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Luigi Ferrari Bravo
TEXT: The applicant is a Nigerian citizen, born in 1968 and residing in Zeist, the Netherlands. Before the Court he is represented by Ms A. Barada, a lawyer practising in Amsterdam.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant first came to the Netherlands in 1993. He requested asylum or, alternatively, a residence for compelling reasons of a humanitarian nature. He submitted that he had been a corporal in the Nigerian army and that when assisting his uncle, a lieutenant colonel, in the preparations of a coup d’état he was arrested and subsequently sentenced to death. He claimed to have been the only one of the conspirators to escape, and that the others were all put to death.
The applicant’s requests were rejected by the Deputy Minister of Justice (Staatssecretaris voor Justitie), as was his request for revision (herziening). The applicant then filed an appeal with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) but his request for an interim measure was rejected on 22 December 1994 by the President of the Regional Court (Arrondissementsrechtbank) of The Hague sitting in ‘s-Hertogenbosch. This meant that he was not allowed to await the outcome of the proceedings before the Judicial Division of the Council of State on Netherlands territory. From this moment onwards he was therefore required to leave the Netherlands forthwith.
In 1994 or 1995 – the exact date has not been given – the applicant met a woman of Netherlands nationality with whom he subsequently entered into a relationship. On 29 February 1996 he requested a residence permit enabling him to reside in the Netherlands with his partner. This request was rejected in two instances by the Deputy Minister for Justice and in a final decision of 12 February 1997 by the President of the Regional Court of The Hague sitting in Amsterdam. The Regional Court considered that the applicant had failed to prove his identity and had failed to prove that he was not married already. In so holding it had regard to, among other things, the way in which the applicant had obtained his Nigerian passport: by post, instead of through official channels, which meant that e.g. the passport holder had not signed the passport in the presence of an authorised official. Other documents, including the applicant’s birth certificate, contradicted each other and had not been verified.
The applicant’s partner became pregnant. On 1 July 1997 the applicant again requested a residence permit enabling him to reside in the Netherlands with his partner and their soon to be born child.
In a final decision of 9 July 1997 the Judicial Division of the Council of State rejected the applicant’s asylum claims as unsubstantiated in view of what it considered to be inconsistencies in the applicant’s statement and supporting documentation. The credibility of the applicant’s assessment was not accepted. The Council of State also found that there were no compelling reasons of a humanitarian nature to grant him a residence permit. The factor of the applicant’s relationship with his partner did not play a role in this decision.
On 29 July 1997 the Deputy Minister rejected the applicant’s request of 1 July 1997 for a residence permit. She held that, as had been the case at the time of the Regional Court’s decision of 12 February 1997, the applicant was still not in possession of certified documents and as he had also not yet submitted a passport, his identity had not been properly established. The fact that the applicant had argued that he was attempting to obtain the required documents was not considered relevant since he had known for some eighteen months that he needed to produce them. The Deputy Minister further held that the refusal of a residence permit did not constitute an interference with the applicant’s right to respect for family life since he had never held a residence permit enabling him legally to develop family life with his partner in the Netherlands. As his child had not yet been born, no family life existed between the applicant and the child.
The applicant filed an objection (bezwaarschrift) against this decision. On 12 September 1997 a daughter was born to the applicant and his partner. The daughter has Netherlands nationality.
The Deputy Minister rejected the applicant’s objection on 5 November 1997, holding that despite the birth of the applicant’s child a refusal of a residence permit did still not constitute an interference with the applicant’s right to respect for family life since he had never held a residence permit enabling him legally to develop family life with his partner and his child in the Netherlands. Moreover, the Deputy Minister considered that there existed no objective obstacles for the applicant, his partner and their child preventing them from developing their family life in Nigeria, the more so as the applicant’s asylum claims had been rejected, from which it followed that the applicant was not considered to be in any real danger if returned to Nigeria.
The applicant filed an appeal with the Regional Court of Amsterdam and also requested the President of that Court to grant him an interim measure so that he would not be expelled pending his appeal.
On 1 September 1998 the Regional Court rejected the appeal. It found that in the examination of the question whether Article 8 of the Convention imposed a positive obligation on the Netherlands to grant residence to the applicant, no decisive importance could be given to his daughter’s right under Article 3 § 1 of Protocol No. 4 not to be expelled. However, given the girl’s Netherlands nationality she was entitled to be raised and educated in the Netherlands and therefore her interests should be taken into account as well. Nevertheless, the Regional Court considered that the interest of protection of the national economic welfare outweighed those of the applicant and his daughter. In this respect the Regional Court took into account that the daughter had only been two months old when the Deputy Minister had rejected the applicant’s objection and that the Deputy Minister’s decision did not prevent the applicant from developing his family life in Nigeria. It had not appeared that his daughter would not be admitted to Nigeria and her residence there would not affect her right to enter the Netherlands. Moreover, the applicant’s request for asylum did not constitute an objective obstacle to family life being developed in Nigeria as this request had been rejected.
The Regional Court accepted that if the applicant was to take his daughter with him to Nigeria this would constitute an interference with his partner’s right to respect for family life with her child. However, the interest of protection of the national economic welfare also outweighed the interests of the partner. In this respect the Regional Court took into account that the partner had entered into the relationship with the applicant at a time when he was not allowed to reside in the Netherlands. There were, moreover, no objective obstacles preventing the partner from developing family life in Nigeria.
Also on 1 September 1998 the acting President of the Regional Court rejected the applicant’s request for an interim measure.
B. Relevant domestic law and practice
Given the situation obtaining in the Netherlands with regard to population size and employment, Government policy was, and remains, aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the Geneva Convention relating to the Status of Refugees; (b) this serves “essential interests of the Netherlands” (wezenlijk Nederlands belang), e.g. economic or cultural interests; (c) there are “cogent reasons of a humanitarian nature” (klemmende redenen van humanitaire aard). Relevant policy is defined in the Aliens Circular (Vreemdelingencirculaire) of 1994.
In Chapter B1, under 3, of the Aliens Circular it is laid down that the partner of a Netherlands national may be allowed to reside in the Netherlands within an existing non-marital relationship or, if both partners are at least eighteen years old, in a newly-formed relationship provided that both partners prove by means of legalised official documents that they are both unmarried and that they are not closely related. The requirement that both partners be unmarried is waived if the fact of being, or remaining, married to a third party cannot be imputed to the person concerned.
Chapter C4 of the Aliens Circular lists cases in which the requirement of legalisation can be waived, for instance if the person concerned is a genuine asylum seeker and therefore cannot be expected to contact the authorities of his country of origin. However, certain “problematic countries” are listed from which documents are not accepted, save in exceptional cases, without verification by competent Netherlands diplomatic or consular officials. Nigeria is one of these.


ITEMID: 001-95959
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VINCIC AND OTHERS v. SERBIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicants, Ms Aleksandra Vinčić (“the first applicant”), Mr Damir Matić (“the second applicant”), Ms Dušica Obradović (“the third applicant”), Mr Aleksandar Kržić (“the fourth applicant”), Mr Ljubomir Božić (“the fifth applicant”), Mr Zoran Radonjić (“the sixth applicant”), Ms Ljiljana Savić (“the seventh applicant”), Ms Aleksandra Rosić (“the eighth applicant”), Mr Jovo Grbić (“the ninth applicant”), Mr Mirko Maljković (“the tenth applicant”), Mr Milan Vukelić (“the eleventh applicant”), Mr Jovan Milić (“the twelfth applicant”), Mr Jovan Jovanović (“the thirteenth applicant”), Mr Milutin Jovanović (“the fourteenth applicant”), Mr Nenad Jovanović (“the fifteenth applicant”), Mr Zoran Korica (“the sixteenth applicant”), Ms Dara Đorđević Halapir (“the seventeenth applicant”), Ms Vera Vasović (“the eighteenth applicant”), Mr Drago Tumbas (“the nineteenth applicant”), Mr Dobrivoje Dunjić (“the twentieth applicant”), Mr Svetozar Munćan (“the twenty-first applicant”), Mr Rade Savić (“the twenty-second applicant”), Mr Dragan Udović (“the twenty-third applicant”), Mr Milutin Milunov (“the twenty-fourth applicant”), Mr Predrag Stamenović (“the twenty-fifth applicant”), Mr Zoran Babić (“the twenty-sixth applicant”), Mr Slobodan Pejić (“the twenty-seventh applicant”), Mr Mirko Novaković (“the twenty-eighth applicant”), Mr Radoje Đukić (“the twenty-ninth applicant”), Mr Zoran Živković (“the thirtieth applicant”) and Mr Miodrag Lopičić (“the thirty-first applicant”) are all Serbian nationals.
6. The facts, as submitted by the parties, may be summarised as follows.
7. The applicants were all members of the Independent Union of Aviation Engineers of Serbia (Samostalni sindikat inženjera vazduhoplovstva Srbije).
8. Following a strike, on 28 November 2004 their union and their employer, JAT Airways, concluded an agreement whereby the latter accepted to pay all union members a certain benefit while the former promised to discontinue the strike and refrain from any legal action.
9. On 29 November 2004 the Director General of JAT Airways, a public corporation founded by the respondent State, ordered that the necessary calculations be made and the payment of the benefit be effected immediately.
10. Since this decision would appear not to have been implemented, on 7 February 2005 the applicants, as part of a group of 151 persons, filed a single civil claim against JAT Airways with the Fourth Municipal Court (Četvrti opštinski sud) in Belgrade, seeking payment of the benefit in question (ranging from several hundred up to approximately one thousand Euros, “EUR”, respectively).
11. The total number of plaintiffs subsequently dropped to 140. The Fourth Municipal Court thereafter decided to separate the proceedings for each of the remaining plaintiffs, and ordered them to re-submit their individual claims. The plaintiffs, including the applicants, complied.
12. Certain applicants were successful before the Fourth Municipal Court; others were not. However, all the applicants were unsuccessful at second-instance before the District Court in Belgrade whose decisions they received on the following dates:
- the first applicant on 27 September 2006;
- the second applicant on 13 July 2006;
- the third and fourth applicants on 13 September 2006;
- the fifth applicant on 17 November 2006;
- the sixth applicant on 10 November 2006;
- the seventh applicant on 4 December 2006;
- the eighth applicant on 5 December 2006;
- the ninth applicant on 28 November 2006;
- the tenth applicant on 14 December 2006;
- the eleventh applicant on 20 November 2006;
- the twelfth applicant on 8 December 2006;
- the thirteenth applicant on 7 December 2006;
- the fourteenth applicant on 21 December 2006;
- the fifteenth applicant on 21 August 2006;
- the sixteenth applicant on 26 December 2006;
- the seventeenth applicant on 7 February 2007;
- the eighteenth applicant on 5 January 2007;
- the nineteenth and twentieth applicants on 5 February 2007;
- the twenty-first and twenty-fifth applicants on 7 March 2007;
- the twenty-second applicant on 1 March 2007;
- the twenty-third applicant on 28 March 2007;
- the twenty-fourth applicant on 11 April 2007;
- the twenty-sixth applicant on 5 October 2007;
- the twenty-seventh applicant on 3 September 2007;
- the twenty-eighth applicant on 5 September 2007;
- the twenty-ninth applicant on 19 October 2007;
- the thirtieth applicant on 13 June 2007; and
- the thirty-first applicant on 3 September 2007.
13. In its reasoning in the applicants' cases, the District Court held, inter alia, that the Director General of JAT Airways had not been authorised to grant payment of the benefit at issue in the absence of an explicit governmental authorisation.
14. In another 23 separate cases, for the same reasons, the District Court also ruled against the plaintiffs.
15. However, in at least 17 other judgments, rendered between 31 May 2006 and 5 December 2007, the District Court decided in favour of the applicants' colleagues, notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues. In its reasoning in these other cases, the District Court explained, inter alia, that JAT Airways had had to comply with the agreement of 28 November 2004, as well as the decision of its Director General of 29 November 2004.
16. On 27 September 2006 the District Court adopted a “legal opinion” (pravno shvatanje) affirming the reasoning described at paragraph 13 above.
17. On 21 November 2006 the applicants filed a request urging the Fourth Municipal Court to proceed in accordance with Article 176 of the Civil Procedure Act 2004 (see paragraph 39 below), that is to seek guidance from the Supreme Court (Vrhovni sud Srbije) on how to deal with a large number of cases, including their own, wherein the District Court had already ruled inconsistently.
18. On 27 February 2007 the Supreme Court rejected the Fourth Municipal Court's request made to this effect on 10 January 2007. In so doing, it noted, inter alia, that Article 176 was inapplicable because in a number of cases at issue the District Court had already ruled as the final instance, and stressed that it was up to the said court to harmonise its own case-law.
19. On 17 July 2008 the Constitutional Court (Ustavni sud Srbije) rejected the motion for abstract review (inicijativa za ocenu zakonitosti) filed by JAT Airways, requesting to have the agreement of 28 November 2004 and the Director General's decision of 29 November 2004 declared unlawful. The court explained that it had no jurisdiction ratione materiae given that the impugned documents could not be qualified as general acts (opšti akti) within the meaning of Article 167 § 1 of the Constitution (see paragraph 24 below).
20. In the meantime, JAT Airways lodged several separate counterclaims against the applicants, seeking that the said agreement and the Director General's decision be declared null and void. Ultimately, however, all of these claims would appear to have been rejected on various procedural grounds.
21. Dozens of separate cases such as the applicants' seem to be still pending at first or second instance.
22. Article 22 § 1 of the Constitution provided, inter alia, that everyone “shall be entitled to the equal protection of his or her rights in a suit before a court of law”.
23. This Constitution was repealed in November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force.
24. The relevant provisions of the Constitution read as follows:
“Everyone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his [or her] rights and obligations ...”
The Constitutional Court shall decide about:
...
5. the compliance of general acts [opštih akata] adopted by organisations exercising delegated public powers ... with the Constitution and the laws.
“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
“The Constitutional Court shall have fifteen judges who shall be elected or appointed for a period of nine years.
Five judges of the Constitutional Court shall be elected by the National Assembly, another five shall be appointed by the President of the Republic, and another five shall be appointed at the general session of the Supreme Court of Cassation...
The National Assembly shall elect five judges of the Constitutional Court from among ten candidates proposed by the President of the Republic, the President of the Republic shall appoint five judges of the Constitutional Court from among ten candidates proposed by the National Assembly, and the general session of the Supreme Court of Cassation shall appoint five judges from among ten candidates proposed at the general session by the High Judicial Council and the State Prosecutors' Council.”
“The Constitutional Court shall adjudicate by the majority of votes cast by all judges of the Constitutional Court.”
25. In accordance with Article 9 § 3 the Constitutional Court shall be deemed constituted when two thirds of the total number of judges have been elected or appointed.
26. The relevant provisions of this Act read as follows:
“The decisions of the Constitutional Court shall be final, enforceable and binding.”
“The Constitutional Court shall have its Rules of Procedure ... which shall regulate, in greater detail, the organisation ... [and the functioning of the Constitutional Court] ... as well as the proceedings ... [before it] ...”
“ ... [T]he Constitutional Court shall have a Registry.
The organisation, the tasks, and the functioning of the Registry shall be regulated, in greater detail, by ... the Constitutional Court.”
“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.
A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant's right to a trial within a reasonable time.”
“A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.”
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”
“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.
The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.”
“... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ...
If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought.
The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.”
“A constitutional appeal may also be lodged against ... [the individual decision or action in question] ... if this decision ... [has been adopted] ... or this action has been undertaken between the date of promulgation of the Constitution and the date of entry into force of this Act.”
... [In this case a constitutional appeal may be lodged] ... within thirty days as of the date of entry into force of this Act”
“The Constitutional Court shall, within ninety days as of the date of entry into force of this Act, adopt its Rules of Procedure and ... [further regulate the organisation and functioning of its Registry] ...”
The Minister of Justice shall, within ninety days as of the date of entry into force of this Act ... [regulate the composition and the operation of the Commission for Compensation] ...”
27. These Rules, inter alia, contain the necessary details as regards the processing of appeals lodged with the Constitutional Court.
28. The new Constitution of the Republic of Serbia and the Constitutional Act on its implementation were both promulgated in November 2006.
29. By 24 November 2007 two thirds of the total number of Constitutional Court judges had been elected or appointed (see paragraph 25 above).
30. The Constitutional Court Act entered into force on 6 December 2007.
31. The Rules of Procedure of the Constitutional Court, published in OG RS no. 24/08, entered into force on 15 March 2008. Minor textual corrections thereof were published in OG RS no. 27/08 of 17 March 2008.
32. By 9 July 2009 the Constitutional Court had considered several hundred appeals alleging individual human rights violations, and had found breaches in dozens of cases concerning, inter alia, access to court, detention, length of proceedings, and various procedural fairness issues (see http://www.ustavni.sud.sr.gov.yu/sudska_praksa/uzalbe.php).
33. The first decisions on the merits of the appellants' complaints, including the very first decision establishing a violation of the Constitution, had been adopted on 10 July 2008 (ibid.), and were published in OG RS no. 74/08 of 7 August 2008.
34. Where appropriate, the Constitutional Court had, in a number of cases, quashed decisions adopted by the lower courts, as well as the Supreme Court, ordered that the excessively protracted judicial proceedings be concluded as soon as possible, and held that financial compensation for the damage suffered by the appellant had been warranted.
35. By 26 May 2009 the Commission for Compensation had awarded damages in at least 4 cases where the Constitutional Court had already found a violation and held that adequate compensation was called for.
36. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights.
37. Article 12 provides that when a court's decision in a pending suit rests on the prior resolution of a preliminary legal issue, the court itself may rule on this issue, as well as the main claim, unless the relevant legislation provides otherwise. The court's decision as regards the preliminary issue, however, shall only be legally binding in respect of the ongoing judicial proceedings.
38. Article 149 provides, inter alia, that, in principle, legal costs and expenses shall be divided proportionately between the parties, based on the measure of their success in the proceedings. Should a party lose the case entirely, that party shall be obliged to pay all the legal costs and expenses incurred.
39. Article 176 provides that when there are many cases pending at first instance raising the same preliminary legal issue, the court of first instance shall, either ex officio or at one of the parties' requests, be entitled to institute separate proceedings before the Supreme Court, petitioning the latter to resolve the issue in question. The lawsuits pending at first instance shall be stayed in the meantime.
40. Articles 3 § 3, 413, 415, 417 and 418 provide that the Public Prosecutor shall, ex officio or in response to a party's specific proposal, within a period of three months, have the right to lodge a Request for the Protection of Legality against a final civil court decision, should it transpire that the decision in question was “based on the parties' unlawful dispositions” (nedozvoljeno raspolaganje stranaka), i.e. those undertaken in breach of the “binding provisions of domestic law, public order or the rules of morality” (prinudni propisi, javni poredak i pravila morala). Should the Public Prosecutor refuse to lodge a request of this sort, the party who had urged him to do so shall, within thirty days, have the right to file its own Request for the Protection of Legality with the Supreme Court.
41. Article 422.8 provides that a case which has been concluded by means of a final court decision may be re-opened, at the interested party's request, if the preliminary legal issue, within the meaning of Article 12 of this Act, was subsequently resolved in a different manner by the competent State body. Article 422.10 further provides that a case may be re-opened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue.
42. This Act entered into force in February 2005, thereby repealing the Civil Procedure Act 1977.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58120
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1997
DOCNAME: CASE OF MENTEŞ AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Not necessary to examine Art. 5;Not necessary to examine Art. 6;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;No violation of Art. 2;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Not necessary to examine Art. 3;Violation of Art. 8
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 11. The applicants, Ms Azize Menteş, Ms Mahile Turhallı and Ms Sulhiye Turhallı and Ms Sariye Uvat are Turkish citizens of Kurdish origin from the village of Sağgöz (which is the official Turkish name) or Riz (which is the older, Kurdish or Ottoman name) in the Genç district in the province of Bingöl in south-east Turkey. At present they live in Diyarbakır.
12. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.
At the time of the Court’s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule.
13. Sağgöz is situated in a mountainous area which was subject to significant PKK terrorist activity. Due to the events in the region in 1993 and 1994, many of the villages in the district have been evacuated by the villagers and the houses destroyed. By the summer of 1994, the village of Sağgöz and its surrounding hamlets were deserted, the villagers having left for Diyarbakır, Genç and other places, and the houses ruined.
14. The Sağgöz village was evacuated as a whole by the villagers in or about October 1993, following pressure from the PKK in the area. Some of the villagers in the outer hamlets stayed beyond October 1993 but had all left by summer 1994 due to PKK presence. Shortly after the villagers began leaving, the PKK moved into the empty houses. Clashes with security forces ensued, one in October or November 1993, another in April/May 1994. It is probable that houses in the village were burned or destroyed in the course of these clashes, including possibly through bombing from helicopters. However, whether the PKK or the security forces set fire to the houses intentionally or accidentally is not established.
15. The facts in this case are disputed.
16. According to the applicants their houses were burned in the course of an operation by the security forces in June 1993. Their version of the events could be summarised as follows.
17. The applicants all lived in hamlets of the village of Sağgöz. Azize Menteş, Mahile Turhallı and Sulhiye Turhallı lived in the lower neighbourhood in Sağgöz village and Sariye Uvat lived in Piroz, a separate hamlet of the village.
18. On 23 June 1993, an attack was carried out by the PKK on Üçdamlar gendarme station. On the evening of the same day, the security forces stopped a minibus belonging to Naif Akgül, which regularly took people between Diyarbakır and the Lice area, as it approached the gendarme station. The security forces set fire to the minibus. They subsequently carried out a followup operation in pursuit of the PKK who had attacked the station. On 24 June 1993, security forces came to Pecar (Güldiken) village and burned some of the houses.
19. On the evening of 24 June 1993, security forces arrived in the area surrounding Sağgöz village by helicopter. On the morning of 25 June 1993, gendarmes entered the village and gathered people from the upper neighbourhood in the area in front of the school. Gendarmes in the lower area carried out a search and then proceeded to burn houses in the lower neighbourhood of Sağgöz village. Villagers pleaded with the gendarmes not to burn their houses but were told to remain quiet or they would be thrown on the flames. When asked why they were burning the houses, the gendarmes told the villagers that it was a punishment for helping the PKK.
20. The house where Azize Menteş lived was burned completely, along with her furniture, firewood, barn and a shed with winter feed for the animals. Mahile Turhallı’s house was burned and the gendarmes threatened to throw her into the burning house if she tried to retrieve some of her children’s clothes. Sulhiye Turhallı’s house was burned, after she and her children had been thrown out and she had been kicked, cursed at and a gun put to her face. In all, ten to thirteen houses in the lower neighbourhood were destroyed. The soldiers told the applicants that they were burning their houses because they helped the terrorists.
21. The intention of the gendarmes in Sağgöz village appeared to have been to burn the whole village in revenge for the attack by the PKK on the gendarme station. However, the arrival of a commanding officer at midday, a colonel who ordered the burning to stop, saved the upper village.
The house of the applicant Sariye Uvat in the hamlet of Piroz was burned by the security forces in a separate incident.
The applicants were forced to leave Sağgöz.
22. Later, in the autumn of 1993, the remaining population of the village left and in March 1994 the remainder of the village was burned down. By this date in 1994, the entire area seems to have been burned, devastated and depopulated.
23. The burning of the applicants’ homes is consistent with a practice of burning houses as part of the policy by the security forces to combat the PKK, especially where the authorities view villages as giving support to the PKK.
24. Since 1983 the PKK has sought to use the applicants’ village as a place of shelter and supply base. The villagers were forced by virtue of the incursions of the terrorists to leave the village. The terrorists used the houses from time to time and when the security forces took action against them, the terrorists fled setting the houses on fire.
25. There were no operations by the security forces in the area on 25 June 1993. In fact, the applicants had been absent from the village for six to seven years by that point. They were the close relatives of six named individuals who are suspected of being members of the mountains branch of the PKK. They also had relatives who had been detained on charges alleging, inter alia, that they have aided and abetted the PKK terrorist organisation. Other members of the applicants’ families were working for the PKK in rural areas. It was not unlikely that the applicants had been subjected to pressure by their relatives who aid and abet and work for the PKK.
26. The Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements, and oral evidence of eleven witnesses taken by three delegates of the Commission in Ankara from 10 to 12 July 1995. This included two local public prosecutors and four villagers whom they had investigated in connection with the applicants’ allegations (see paragraphs 27–30 below); another villager; the first three applicants; and the commander of the gendarmerie of the Bingöl province who had taken up his duties after the alleged events.
In relation to the oral evidence, the Commission had been aware of the difficulties attached to assessing evidence obtained orally through interpreters (in some cases via Kurdish and Turkish into English). It therefore paid careful attention to the meaning and significance which should be attributed to the statements of witnesses appearing before its delegates. In respect of both written and oral evidence, the Commission was aware that the cultural context of the applicants and the witnesses made it inevitable that dates and other details lacked precision (in particular, numerical matters) and did not consider that this by itself impinged on the credibility of the testimony.
It assessed the evidence and its findings could be summarised as follows.
27. Two investigations into the events at Sağgöz had been carried out by the two public prosecutors at Genç, the first by Mr Ata Köycü and the second by Mr Kadir Karaca, both of which had ended in decisions, on 25 April and 30 May 1994 respectively, not to prosecute.
28. The first investigation had been in response to a letter from the Ministry of Justice, apparently motivated by information received when the applicants’ complaints had been communicated by the Commission to the Turkish Government on 15 April 1994 (date of letter). In reconstructing the investigation, the Commission’s delegates had received little assistance from the public prosecutor who had also been handicapped in not having a copy of his file for reference.
His decision not to prosecute, which concluded that no incident had occurred on 25 June 1993, must have been taken less than two weeks from his receipt of the first notification of the complaints. It seemed likely that the applicants’ names were not known to him at that stage. This decision had been taken solely on the basis of brief statements from four villagers, from different hamlets, distinct from Sağgöz, which appeared mainly directed at refuting specific allegations: the bombing by helicopters in June 1993 (not in fact alleged in the applicants’ original application) and the tying up or beating of the old men. All had referred to terrorist clashes with security forces leading to the villagers’ departure from Sağgöz; only one had attributed the burning of houses to the PKK.
According to Mr Karaca, the witnesses had been selected at random, but Ekrem Yarar, muhtar of Sağgöz, had said that he had been invited to make a statement and to bring other “reliable witnesses” from the village.
29. Also the second investigation had been in response to another letter from the Ministry of Justice. Mr Karaca had based himself on the investigation of his colleague. He referred to the previous four statements and summoned the four villagers concerned. His decision not to prosecute concluded that the PKK burned the houses in the village, that the alleged incident had not taken place in June 1993 and that the applicants were close relatives of members of the PKK.
30
31. The Commission observed that there had been no detailed investigation at the domestic level of the events in Sağgöz village and its surrounding hamlets over the period June 1993 to summer 1994. It had accordingly based its findings on the evidence given orally before its delegates or submitted in writing in the course of the proceedings.
It further noted that the Government, despite repeated requests by the Commission’s Secretariat and the Commission’s delegates, had failed to provide documentary materials, in particular the contents of the investigation files of the two public prosecutors who carried out investigations into the alleged incident in Sağgöz village. At the taking of evidence in July 1995, the Government had failed to identify and serve with the Commission’s summons the gendarme commander for the area on 25 June 1993, his successor, Mr Tuna, appearing instead. No explanation had been forthcoming for this. In this respect, the Commission had had regard to the principle that, in assessing the evidence in a case the conduct of the parties may be taken into account (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 161 in fine).
32. The Commission was not persuaded by the Government’s suggestion that the applicants’ complaints were fabrications resulting from pressure exerted by their relatives in the PKK. The Commission found it regrettable that the response from the domestic authorities and the Government’s allegations made in this case had given the appearance of being directed more at emphasising the PKK links with the applicants’ families than at dealing with the substance of the applicants’ grievances.
33. In establishing the facts, the Commission had regard to the inconsistencies and contradictions in the evidence.
As to the evidence given by the four villagers to the public prosecutors, the Commission observed that its tenor had been dogmatic, including blanket denials of any alleged cruelty or burning ever having been committed by Turkish soldiers. It had also given some support to the applicants’ allegation that there was a certain animosity between the other villagers and themselves, which might have encouraged them to give statements contradicting the applicants’ account. Moreover, the Commission noted that the village muhtar had been instructed by the prosecutor to bring some “reliable witnesses”. In view of the manner of selection of witnesses by the prosecutor, the Commission found it unsafe to rely on their written statements in so far as they were unsupported by other evidence.
The Commission further noted that there were material differences between the statements of the first three applicants, Ms Azize Menteş, Ms Mahile Turhallı and Ms Sulhiye Turhallı, as recorded by the Human Rights Association and their oral statements to the delegates. However, the Commission found that the three applicants’ oral evidence, which was supported in material points by a villager – Ms Aysel Gündoğan – was on the whole consistent and credible. The fact that they had gone to the Human Rights Association in Diyarbakır to complain in July 1993 was a strong factor weighing heavily in favour of the credibility of their central complaint. On the other hand, the Commission considered that it could not rely on the written statements since it had serious doubts as to the manner in which the association took statements and the extent to which care had been taken to record accurately each individual complaint without contamination from information gathered elsewhere.
34. The Commission was satisfied that Sulhiye and Mahile Turhallı were still living in their houses in the lower neighbourhood of the village of Sağgöz in the summer of 1993 and were present on 25 June 1993. However, as appeared to be a not uncommon pattern of life in this region, these two applicants left the village in the winter for Diyarbakır and returned in the summer to tend to their gardens and crops. As regards Azize Menteş, while she probably did not own a house herself, she lived in the house of her fatherin-law when she returned in the summer months to the village. The Commission found that on the balance of the evidence, she was also living in the lower neighbourhood on 25 June 1993.
As regards the events in Sağgöz the Commission accepted in its principal elements the oral evidence of Azize Menteş, Mahile Turhallı and Sulhiye Turhallı. Considering that their oral evidence was more consistent, more credible and more convincing than the evidence given by the four villagers, it found as follows.
On the evening of 24 June 1993, a large force of gendarmes had arrived in the vicinity of Sağgöz village. On 25 June 1993, the gendarmes had entered both upper and lower neighbourhoods and carried out searches. At some point, the villagers in the upper neighbourhood (with the exception of the younger men who were out working) had been gathered in front of the school, probably to be questioned about the PKK in the area. In the lower neighbourhood, the women, including the applicants, had been required by the soldiers to leave their houses and their houses had been set on fire, with all their belongings and property inside, including the clothing and footwear of children. The burning had been restricted to the lower neighbourhood. Around midday, a helicopter had arrived in the village in the upper neighbourhood, probably bringing a senior officer, a colonel, and his arrival had been associated by the applicants and some of the other villagers with an order to cease the burning. The gendarmes left that day. Shortly afterwards, the three applicants, with their children or other members of their family, had to walk for up to ten hours to the Lice-Diyarbakır road from where they were given rides in vehicles into Diyarbakır.
35. As to the alleged operation by security forces in which the house of the fourth applicant, Sariye Uvat, was burned along with others in the hamlet of Piroz, no facts have been established in relation to this applicant’s complaints. Due to ill-health she did not appear at the hearings before the Commission delegates, unlike the first three applicants.
36. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review ...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
37. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
38. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
39. The Turkish Criminal Code makes it a criminal offence
– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to oblige an individual through force or threats to commit or not to commit an act (Article 188);
– to issue threats (Article 191);
– to make an unlawful search of an individual’s home (Articles 193 and 194);
– to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382);
– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or
– to damage another’s property intentionally (Articles 526 et seq.).
40. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
41. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
42. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
43. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
44. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
45. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
46. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards.
47. Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law no. 2935 on the State of Emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge.
48. Extensive powers have been granted to the Regional Governor of the State of Emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430.
49. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. According to the Commission, these councils are made up of civil servants and have been criticised for their lack of legal knowledge, as well as for being easily influenced by the Regional Governor or Provincial Governors who also head the security forces.
50. Article 8 of Decree no. 430 of 16 December 1990 provides as follows:
“No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
51. According to the submissions of the applicants, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 13
14
18
2
3
5
6
8


ITEMID: 001-87964
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF XHERAJ v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of P7-4;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Päivi Hirvelä
TEXT: 6. The applicant was born in 1970 and is currently serving a sentence in Vicenza Prison in Italy.
7. In 1995 the prosecutor’s office for the city of Durrës charged the applicant with murder on the basis of evidence from the victim’s father, who maintained that he had been told by the victim, before his death, that the applicant was one of the murderers. The investigation in respect of three other suspects had been discontinued.
8. The applicant’s father, when interviewed by the police, stated that the applicant had been travelling to Italy with two other persons on the day when the murder was committed.
9. On 27 November 1996 the applicant, in absentia, was found guilty of murder under Article 76 of the Criminal Code and was sentenced to 20 years’ imprisonment by the Durrës Court of Appeal. His appeal to the then Court of Cassation was declared inadmissible on 10 March 1997.
10. Following the signature of an authorisation form by the applicant’s father on 10 December 1997, under Article 450 of the Code of Criminal Procedure (“the CCP”), the applicant’s counsel sought judicial review of the Court of Appeal’s judgment by a request bearing the same date. The application for judicial review reached the District Court on 11 December 1997.
11. The judicial review request stated that new evidence had emerged in favour of the applicant. Firstly, from the autopsy report it transpired that the victim had been stabbed in the heart and had died instantly; consequently, from a scientific point of view the victim had not been able to communicate. Secondly, two witnesses stated that they had been travelling with the applicant early in the morning to take the ferry to Italy at the time when the murder had occurred.
12. On 13 December 1997 the applicant authorised the same lawyer, who had already been appointed by his father on 10 December 1997, to represent him in the domestic proceedings.
13. By means of a letter of 26 August 1998 to the district prosecutor, the Directorate of Investigation and Inspection at the Prosecutor General’s Office forwarded the case file of the applicant and added that
“the request for judicial review meets the legal requirements (kërkesa për rishikimin e vendimit plotëson kriteret ligjore)”.
It requested the district prosecutor to examine objectively the new pieces of evidence to be submitted to the District Court.
14. The district prosecutor, who happened to be the same person who had attended the first trial, attended the hearing and requested the dismissal of the case pursuant to Article 328 (dh) of the CCP, which states that the case may be dismissed “if it transpires that the defendant has not committed the criminal offence or it cannot be proved that he committed the offence.”
15. On 27 November 1998 the Durrës District Court declared admissible the applicant’s application for judicial review. The court, deciding on the merits and after examining the new evidence and taking into account the prosecutor’s office request, quashed the Durrës Court of Appeal’s judgment of 27 November 1996 (see paragraphs 9 above) and acquitted the applicant on 14 December 1998 (“the acquittal decision”).
16. No appeal was lodged against the judgment within the 10 days allowed and it therefore became final on 24 December 1998.
17. On 8 October 1999 the prosecutor at the Durrës Court of Appeal (“the appeal prosecutor”) lodged a request for leave to appeal out of time against the acquittal decision with the Durrës District Court. The appeal prosecutor submitted as the ground for his request that shortcomings on the part of the district prosecutor had been observed. Invoking Article 26 § 1 of the CCP about the resignation of a prosecutor in cases of lack of impartiality, whose content makes reference to the resignation of a judge under Article 17 of the CCP, the appeal prosecutor maintained that the district prosecutor who had attended the first trial proceedings should not have participated in the review proceedings. Article 17 § 1 (c) of the CCP provides that a judge must resign “when he has provided advice or expressed opinion about the subject of proceedings.”
18. The appeal prosecutor contended that the victim’s family, who had been an injured party to the proceedings, had not been informed about the acquittal proceedings in accordance with Article 137 of the CCP. The appeal prosecutor became aware of the acquittal decision on an unspecified date before the end of September 1999, when the victim’s family’s complaint about the acquittal decision was forwarded to other authorities.
19. On 21 October 1999 the Durrës District Court, in the applicant’s absence and in the presence of an officially appointed defence lawyer, despite the existence of a lawyer of the applicant’s own choosing (see paragraph 12 above), granted the prosecutor leave to appeal out of time.
20. On an unspecified date the lawyer officially appointed in the proceedings before the Durrës District Court lodged an appeal with the Durrës Court of Appeal challenging the above-mentioned decision because the applicant had not been notified and the decision had not been served on him in accordance with Article 414 of the CCP. Meanwhile, in accordance with the District Court’s decision of 21 October 1999, the appeal prosecutor filed an appeal against the acquittal judgment.
21. On 15 December 1999 the Durrës Court of Appeal rejected the applicant’s officially appointed lawyer’s appeal on the ground that the decision granting the prosecutor’s request for leave to appeal out of time was not subject to appeal by virtue of Article 147 § 5 of the CCP, as it did not put an end to the criminal proceedings. It also rejected the prosecutor’s appeal as it had not been notified explicitly to the applicant in accordance with Article 414 of the CCP. On an unspecified date the prosecutor appealed to the Supreme Court.
22. On 19 April 2000 the Criminal Division of the Supreme Court quashed the Durrës Court of Appeal’s decision of 15 December 1999. It found that the requirements concerning the notification of court decisions to the applicant’s officially appointed lawyer had been satisfied since the applicant was considered a fugitive. Accordingly, the court granted the prosecutor’s request for leave to appeal out of time against the acquittal decision and remitted the case to the Durrës Court of Appeal for a fresh examination.
23. According to the submissions of the appeal prosecutor to the Durrës Court of Appeal, the acquittal had to be considered null and void in so far as the new evidence adduced by the applicant, even if it gave him an alibi, had been submitted too late. Moreover, the prosecutor who had participated in the judicial review proceedings had also taken part in the first trial. Lastly, it was alleged that the applicant’s counsel lacked standing to initiate proceedings for judicial review as the applicant had signed a form of authority two days after the application for judicial review had been lodged.
24. On 18 December 2000 the Durrës Court of Appeal confirmed the reasoning set out in the acquittal decision of 14 December 1998 and dismissed the prosecutor’s appeal. The officially appointed lawyer was notified of the decision. On an unspecified date, citing the same grounds of appeal as he had lodged with the Durrës Court of Appeal, the prosecutor appealed to the Supreme Court, claiming that the acquittal decision was null and void.
25. On 20 June 2001 the Criminal Division of the Supreme Court upheld the prosecutor’s grounds of appeal and, deciding on the merits, quashed the acquittal decision. It held that there had been a breach of the CCP’s provisions relating to the applicant’s counsel’s legal capacity to lodge an application for judicial review on 11 December 1997. It found that he was appointed to act by the applicant on 13 December 1997 i.e. 2 days after he had filed the request with the District Court. The judgment was notified to the officially appointed lawyer.
26. In 2002 the applicant, who from 1999 onwards had been serving a sentence of 16 years’ imprisonment in Vicenza Prison (Italy), imposed by the Italian courts for international drug trafficking, was notified of the Supreme Court’s judgment that had led to the review of his acquittal, following a request by the Albanian authorities for his extradition.
27. On 13 February 2002 the lawyer appointed by the applicant, who had already acted for him in the judicial review proceedings (see paragraph 12 above), lodged an appeal with the Constitutional Court, alleging a violation of the applicant’s constitutional right to a fair trial and a breach of Article 6 §§ 1 and 3 (a) and (c) of the Convention.
28. In his submissions before that court the applicant maintained that the domestic court proceedings had been unfair on the grounds that neither he nor the counsel of his own choosing had been informed of the institution of proceedings and that he had been deemed to be a fugitive despite the fact that he had appointed a lawyer, whose legal capacity formed the basis of the prosecutor’s grounds of appeal against the acquittal.
29. Moreover, the applicant submitted that in view of the fact that the Albanian authorities had addressed two requests to the Italian authorities for his extradition to Albania, there was reason to believe that the Albanian authorities had had the possibility of giving him notice of the institution of proceedings and of serving the courts’ decisions on him.
30. As to the merits of the proceedings that led to the quashing of his acquittal, the applicant maintained that his counsel’s legal standing was not open to challenge in so far as on 10 December 1997 his father had authorised the lawyer to represent the applicant before the domestic courts in the proceedings for judicial review, and he himself had confirmed that authority on 13 December 1997.
31. On 26 April 2002 the Constitutional Court decided de plano to declare the applicant’s appeal inadmissible as being outside its jurisdiction.
32. The Albanian Constitution, in its relevant parts, provides as follows:
Article 31
During criminal proceedings, everyone has the right:
a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives;
b. to have sufficient time and facilities to prepare his defence;
c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language;
ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means;
d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.
Article 32
1. No one shall be obliged to testify against himself or his family or to confess his guilt.
2. No one shall be declared guilty on the basis of evidence collected unlawfully.
Article 33
1. Everyone has the right to be heard before being judged.
2. A person who is seeking to evade justice may not avail himself of this right.
Article 34
No one shall be punished twice for the same criminal offence or be tried again, except when the reopening of the case is ordered by a higher court, in accordance with the law.
“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 43
Everyone has the right to appeal against a court decision to a higher court, save as otherwise provided in the Constitution.
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
33. The relevant parts of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided as follows.
34. Article 26 § 1 of the CCP required a prosecutor to resign when there were grounds to fear partiality in the cases envisaged under Article 17 of the CCP. Article 17 made reference to the resignation of a judge from adjudicating an existing case. Article 17 § 1 (c) required a judge to resign when he had given advice or expressed an opinion on the subject of the proceedings.
35. Article 48 of the Code of Criminal Procedure (“the CCP”) provided that the defendant should choose his counsel by means of oral submissions at a court hearing or an authority form to be sent by registered mail. The defendant’s relatives could also choose a lawyer to represent the defendant who had been detained, arrested or convicted and sentenced to imprisonment, by the above-mentioned methods, unless the defendant had already chosen his representative.
36. Article 58 of the Code of Criminal Procedure gave the injured party resulting from the criminal offence or his heirs the right to request the prosecution of the offender and compensation for damage. Article 409 permitted the injured party to file an appeal him/herself or through his/her representative, in respect of criminal and civil aspects.
37. Under Article 147 § 1 of the CCP, a party to proceedings who had failed, owing to unforeseen events or force majeure, to lodge an appeal against a judgment within the prescribed time, could seek leave to appeal out of time. Under Article 147 § 2 a defendant convicted in absentia may be granted leave to appeal out of time against a court decision, if he has established that he had no effective knowledge of it. Under Article 147 §3, the request for leave to appeal out of time had to be lodged within ten days of the date on which the party was notified of the judgment. Under Article 147 § 5 the decision to allow a request for leave to appeal out of time could be appealed against in conjunction with the decision on the merits of the case.
38. Under Article 414 an appeal could be filed with the Court of Appeal within 10 days starting from the day of the pronouncement or notification of the decision.
39. Articles 449 and 451 of the CCP provided that an application for review of the case on account of a newly discovered circumstance should be lodged by a party to the proceedings with the same court that had delivered the original judgment. Such an application should be lodged within five years from the delivery of an acquittal judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113102
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GEORGIOU v. CYPRUS AND OTHER APPLICATIONS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. A list of the applicants is set out in the appendix.
2.
3. The applicant, a Greek-Cypriot resident in Australia, entered into a contract to buy land in the Republic of Cyprus from a Turkish-Cypriot woman also resident in Australia. When the owner changed her mind about the agreement, the applicant brought proceedings to enforce the sale; the owner brought a counter-claim to have the agreement declared null and void. The applicant was successful at first instance. By decision of 11 September 2008, the Supreme Court in its appellate jurisdiction reversed the lower court, declaring the agreement null and void and referring to the provisions of Law 139/1991 which required the consent of the Custodian to transactions in Turkish-Cypriot properties.
The applicant invoked Article 1 of Protocol No. 1 and Article 14 of the Convention as well as Articles 17 and 18.
4. Three applicants, Greek-Cypriots, entered into an agreement to buy land in the Republic of Cyprus from a person who had inherited it from his father, a Turkish-Cypriot. By letter of 6 August 2008, the Custodian refused permission for the sale classifying the property as falling under Law 139/91.
The applicants invoked Article 1 of Protocol No. 1.
5. The second and third applicants, administrators of property of a deceased Turkish-Cypriot, agreed to sell four plots of land to the first applicant, company registered in Cyprus: the Land Registry refused to accept the transfer on 21 September 2007. No court proceedings were taken as the applicants explained that such sales were declared illegal by the Supreme Court applying Law 139/1991.
The applicants invoked Article 1 of Protocol No. 1 and Article 14.
6. The relevant laws, including Law 139/191 as amended in 2010, are set out in Kazali and Others v. Cyprus (no. 49247 et al, §§ 34-100, decision of 6 March 2012).
7. In its judgment of 11 September 2008 in civil appeal no. 303/2006 (Perihan Mustafa Korkut or Eyiam v. Apostolou Georgiou through his appointee by power of attorney Charalambou Zoppou), the Supreme Court of the Republic of Cyprus held that, following the enactment of Law 139/91, immovable property belonging to Turkish-Cypriots who, from July 1991, did not reside in the Government-controlled areas, came under the possession and administration of the Custodian and no legal act/transaction could be lawfully concluded/entered into in relation to the property without going through the Custodian or without his permission. This being so, all court proceedings concerning such property had to be brought against the Custodian and not against the Turkish-Cypriot owner (Section 6 (b) of the Law 139/1991). The court found therefore that the contract of sale and transfer entered into by the claimants concerning the property under custodianship was in breach of the provisions of Law 139/91 and was therefore illegal. The court also found that the contract was contrary to public policy as the contract interfered with the arrangements made by the State following the Turkish invasion in order to protect Turkish-Cypriot property and deal with the needs of thousands of refugees. The court accordingly set aside the first-instance decision enforcing the sale contract and dismissed the action. It issued an order annulling the contract and the order of transfer that had been issued for the purposes of specific performance.


ITEMID: 001-4589
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: A.J. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1936 and currently detained in Her Majesty’s Prison, Dartmoor. He is represented before the Court by Messrs Foot and Bowden, solicitors practising in Plymouth, and Mr J. Lofthouse
A.

The applicant lived with his wife between 1991 and 1995. It was alleged that he indecently assaulted his stepdaughter, K (born in 1983), on many occasions during this period, including digital penetration and licking of the vagina, and that he raped her on up to five occasions when she was between the ages of 9 and 11. Eight months after the applicant left the matrimonial home, K made her allegations known to her mother’s new co-habitee and the applicant was charged with three specimen counts of rape, indecent assault and indecency with a child.
The applicant pleaded not guilty and was tried in Plymouth Crown Court before a judge and jury. There was clear medical evidence that someone had penetrated K on a number of occasions, but the applicant denied that it had been him. The defence case was that some other person could have penetrated K during the eight month period between the applicant leaving the family home and K first making her complaint. On 1 May 1996, the trial judge, in his summing-up to the jury, said (inter alia):
“In summing this case up to you, I will set out our respective functions, direct you as to the law, and summarise the evidence that you have heard to the extent that seems necessary and appropriate in this particular case. I direct you as to the law, and you must act upon those directions and apply them faithfully to the facts as you find them.
The facts in the case are for you and you alone, not me, and those facts must be drawn from the evidence you have seen and heard in this courtroom and from nowhere else. ...
As I have already said, the responsibility in deciding the facts is entirely yours, and please ignore what I may say about the evidence unless you happen to agree with it. Conversely, if I omit some fact or matter which you consider to be important, please give it as much weight as you consider proper.
You will not, I know, hold it against this defendant that he came from the dock to give his evidence as opposed to coming through the door of the court as have other witnesses. He has to be seated somewhere, and the dock is the place specially set aside for him in this courtroom.
But he is a witness in this case, and all witnesses, and I emphasise the word “all”, and that includes K, her mother, natural father, stepfather, and the defendant, enter the witness box on a level or even basis. They give their evidence, and that evidence is tested by cross-examination. You see, you hear those witnesses, and no doubt you will already have assessed them, and you will have observed not only what they had to say to you but the way that they said it. ...
The prosecution bring these charges, the content of the three counts on this indictment. It is for the prosecution to prove each of them, and not for the defendant to prove anything, let alone his innocence, and you cannot bring in a verdict in this case on any particular count unless and until on the whole of the evidence the prosecution satisfy you and make you sure that guilty is the proper verdict in relation to that count. ...
The child has been unable to say precisely when certain incidents occurred, and precisely how many. If you are sure that during the period set out in the indictment that [sic] the allegation has been proved on one occasion, that will suffice. Do you all understand? But the fact that K variously told her present stepfather, her mother, and later the police and a doctor what had allegedly happened to her cannot, as a matter of law, be evidence that it happened or how it happened.
Now I want to say something about the sexual abuse of children. That has always been regarded as a serious matter by the community whom you represent and, as a consequence, by the courts. The way that the courts, the police, local authorities and the public deal with such offences has changed radically in recent years. The climate has changed from a situation where the victim bottled up what had happened to her all her life, too afraid to let it come out into the open.
There are all sorts of reasons for that fear, and I will deal with those or some of them in a moment. One only has to remember the print or the painting of the Victorian father opening the door and pointing to his young daughter with child in her arms saying: ‘Never darken my door again’, but perhaps that is an extreme example in a much earlier time.
The allegations in this case began a substantial time ago, around 1990 or 1991. But delay in disclosing these matters by an alleged victim is not uncommon in this type of case. Such offences will typically be committed in the family by the mother’s then partner or family friend. The alleged abuser will usually be in a position of trust and some power, and the nature of the abuse will often induce a sense of shame and a deterioration in the victim’s own self esteem and, as here, she may well wish to put it firmly to the back of her mind and just get on with it for the sake of the family and peace and quiet.
But even today, in a more enlightened age, what is involved in making a genuine complaint is not to be underestimated: in having to relive and to recount what had happened, firstly to a parent or stepparent, then to the police, and to a doctor, and then in court in public, even over a video link. She may have feelings of guilt, that she herself was in some way to blame. She may fear the risk of breaking up a family in which the abuse occurred, and perhaps the worst fear of all, that having made full disclosure and having waited for many months (if not many years) for the matter to come to light and then to trial, that nobody would believe her. The complainant of course is not on trial here, but she may very well feel that she is. Please make allowances for that too when you assess her as a witness.
Indeed, you may have been moved by the evidence that K gave and the somewhat dignified manner in which she gave it. But I am afraid you must put emotion entirely to one side, and try this case with a cold, clinical, and an objective eye, for to do otherwise would risk injustice and I am sure not one of you would wish that. ...”
The judge next explained the legal elements of each offence on the indictment, and then summarised the evidence in the case. When summarising K’s testimony he said, in connection with the issues of her delay in reporting the alleged abuse and the possibility that someone other than the applicant might have abused her:
“In answer to Mr Lofthouse, [K] said that she was mentally upset at what the defendant was doing to her over a period of some five years, and told her mother’s boyfriend about what the defendant had been doing some eight months after the defendant had left home. She said that she had not told anybody before because she was frightened what the defendant might do, and in any event he might try and contact her and her mother again.
In October of last year, she said that she felt able to tell somebody about it then, and told A (that is her mother’s boyfriend) because she trusted him. She said it was not because something had happened after the defendant had left. No-one else had ever interfered with her in the same way as the defendant had done.
She said that she once had a boyfriend called F who was now expelled from school for locking a teacher in a room. She said that she last saw her natural father some three years ago at an interval of once a week, and it was something that she had to do because the court had ordered it. She said that she had not told the woman police officer in her first interview about the defendant putting his penis into her vagina because she did not think it was a nice thing to say, and in any event, she said she was not ready to tell the woman police officer at that time.
Finally, she said that she did not find it easy to talk about these matters, and only did so because she trusted her mother’s boyfriend. She believed that he would not recoil from her in disgust and go and tell her mother. She thought that if he did tell her mother, that would upset her, and that she would have thought that it was her fault. She said she felt very uncomfortable about telling the police that the defendant had put his penis and finger into her vagina. ...”
Having summarised the evidence of the other witnesses, the judge concluded:
“Well, that concludes the evidence in this case. If what the defendant says is true or may be true, then you will acquit him on all counts of this indictment.
You are going to have to decide who is telling you the truth in this case and who is not. You may ask yourselves, well how do we approach the evidence in the case?
Well, may I suggest that first of all you look at the evidence of K entirely on its own and then against the rest of the evidence in the case. Then approach the evidence of the defendant in precisely the same way.
You will have to ask yourselves what relevance there is, if any, in asking [K’s natural father] about his caution last year, and in referring to a letter allegedly written by K to a boy named F. Do they, can they (either of them) have any relevance or bearing on the allegations that you have to determine? If they do, or may do, please give them as much weight as you think proper. Or – and it is a matter entirely for you – have they been introduced into this case as a diversion to deflect you from the real issues that you have to consider, and if you are sure that they have been, then no doubt you will ask yourselves why.
Now this is an important case. It is important because it is serious. And it is serious from the point of view of the defendant who is on trial. But it is also serious from the point of view of the public, because if it is proved that the defendant has committed these offences or any of them, it is only right that he should be convicted. The question is, has it been proved? And having said that, never lose sight, of course, that the defendant does not have to prove his innocence; rather the Crown has to make you sure of his guilt.
You may ask yourselves where do we begin in our deliberations? That of course is a matter for you and you alone, not me. It may assist you if I were to highlight some issues which may indicate who is and who is not telling you the truth in this case. If they help you, all well and good, give them as much weight as you think proper, but on the other hand, if they do not, please ignore them entirely.
Did the defendant say to Police Constable J in London before he had been informed as to the reason for the visit: ‘Oh, she has gone that low, has she?’ If you are satisfied that he said that at that time, what does it mean?
On the evidence that you have heard, would K have known about the detail of oral sex and the movement of her mouth up and down an erect penis that felt like a rubber, or was that something that she may have gleaned from either school, her friends, or watching the video ‘Burlesque’?
Similarly, would K have known about ejaculation over her stomach, describing semen as coming out of a slit at the top of the penis, being lumpy and creamy-white in colour?
In what circumstances was the child’s hymen damaged, such damage being caused by the entry of an erect penis over a period of months or years prior to the onset of the child’s puberty?
What is the significance, if any, of the child asking her mother if you can become pregnant before your periods had begun?
Was the position allegedly adopted by the defendant for sexual intercourse with K designed to achieve partial penetration only, so as to preserve her hymen?
And finally, why did K not mention in her first interview the fact that the defendant had inserted his finger and penis into her vagina? Was it because it had never happened, or was it because she was not ready then to mention it at that stage, and was in any event too embarrassed to do so?
I know that you will resolve any doubts that you may have in this case in favour of the defendant. ...”
The jury retired for about four and a half hours, and then convicted the applicant, by a majority verdict of 10 to 2 in respect of the rape and indecency charges, and unanimously in respect of the indecent assault. On May 23 1996 the judge sentenced the applicant to eight years’ imprisonment for the offence of rape, and three years’ and eighteen months’ imprisonment for the offences of indecent assault and indecency respectively, running concurrently with the rape sentence.
The applicant appealed against both conviction and sentence. The Court of Appeal, dismissing his appeals, stated (inter alia):
“We consider that the judge was entitled to make the observations he did in his summing-up. He was entitled to place allegations of this kind in the context that he did. The observations he made accord entirely with an assessment that any experienced judge, and indeed, we would add, any informed member of the public, would recognise as being well-founded. However, having done so, it would in our clear judgment have been preferable for the learned judge to include some reference to the defence submissions on the issue of delay, particularly when on one view it was the only window of opportunity for the penetration to have occurred when the appellant was not living with the child.
That said, and that criticism having been made, the question for this court remains whether this failure was such as to make the conviction unsafe. We are not so persuaded. Taken as a whole, the summing-up clearly left the issue of the child’s credibility on which the prosecution case rested for the jury to decide. ...”
On 1 May 1997 the Court of Appeal refused leave to appeal to the House of Lords.