ITEMID: 001-58833
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF FITT v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney
TEXT: 4. At the time of the introduction of the application, the applicant was serving a prison sentence. The background to his conviction is as follows.
According to the Crown’s case the applicant, together with C., S. and another, planned to carry out an armed robbery of a Royal Mail van as it was due to leave the Sorting Office at Sandgate Close in Romford. C. and S. had worked for the Post Office and were familiar with the procedures necessary to send packages of great value through the post. Using up-to-date technology the conspirators posted a letter containing a tracking device. The letter was to appear, in due course, amongst other packages of a similar kind, in a mail van the conspirators proposed to rob. Unknown to them, the police were fully informed as to the robbery that had been planned.
5. On 26 August 1993, the date of the robbery, the police were keeping the area and conspirators under observation.
At 8.40 p.m. an Orion (driven by C.) parked in Crow Lane, with its lights on, near the Post Office depot. S.’s Sierra arrived in Crow Lane. The applicant emerged from S.’s Sierra, dressed entirely in black. He made his way into the cemetery carrying a jacket over his arm. C. in the Orion then followed the Sierra, only to return to Sandgate Close, where he parked the Orion with the headlights on.
At 8.46 p.m. the applicant was seen lying down by the railings, inside the cemetery, at a spot directly opposite Sandgate Close where there was a gap in the railings. At 8.49 p.m. he was disturbed by a passing resident, who stopped and spoke to him. He was also spotted by a Post Office employee. The police officers observed the incident.
At about 8.50 p.m. the applicant ran further back into the cemetery constantly stopping to face the depot and gesticulating in a manner consistent with his trying to attract the attention of C. in the Orion which was parked opposite. Having disappeared between the bushes for about a minute, he re-appeared, now without his jacket, and ran further into the cemetery where he was arrested by armed officers.
6. C. was arrested in a motorcar near the mail van. In the car there was a walkie-talkie, a balaclava and some gloves.
7. Behind a bush where the applicant had been observed crouching at one stage was found a light-coloured jacket with fibres on it matching those from the applicant’s jumper. In the pocket of the jacket were a pair of handcuffs, a sock containing four shotgun cartridges, and a canister of CS gas. Partially buried near the jacket was a balaclava helmet. A short time later a police officer discovered a pair of gloves and a sawn-off shotgun buried nearby. All the items were shown to the applicant whilst still at the scene. He denied all knowledge of them.
8. S. was stopped after a high-speed car chase. In his car there was another walkie-talkie, through which connection could be made with that found in C.’s car. Yet another car was found abandoned nearby. It was the Crown’s case that that car had been driven by a fourth conspirator. In it was found a device capable of monitoring a police radio.
9. The trial against the applicant, S. and C. commenced on 18 April 1994 at the Central Criminal Court, London. The following day, C. pleaded guilty and the jury were discharged. On 20 April 1994 the trial of S. and the applicant began before a new jury. On 16 May 1994 the applicant was convicted of conspiracy to rob, possession of a firearm and possession of a prohibited weapon, and he was sentenced to eleven years’ imprisonment.
10. Prior to the start of the trial, on 23 March 1994, the prosecution applied ex parte to the trial judge for an order that they should not be required to disclose certain material to the defence. The defence were told that the material related to sources of information. The contents of the material in question were described to the trial judge by prosecuting counsel. Having later heard submissions from the defence that if any of this information touched upon the applicant’s defence that he had been set up by D.W. (see paragraph 13 below), it ought to be disclosed, on 23 March 1994 the trial judge refused to order disclosure. He stated, inter alia:
“... I ... adopted the principle that if something did or might help further the defence then I would order disclosure. I have not ordered disclosure. I have not found it necessary or right to adjourn proceedings, ex parte, in order for them to be inter partes... ”
11. On 25 April 1994, having informed the defence, the Crown made a further ex parte application to the trial judge. Immediately thereafter, the judge held an inter partes hearing on the question whether a witness statement taken from C. after his guilty plea should be disclosed to the defence. During the hearing prosecution counsel described the category of information which had been the subject of the ex parte application:
“... the application was two-fold. One part of the ... application ... concerned a renewal of the original ex parte application, namely concerning the source of the information. The second limb upon which approval was sought is such that even to deal with the area upon which it was argued that it ought not to be disclosed would, in fact, reveal what the area was and that particular concern was expressly covered in the case of Davis, Johnson and Rowe [see paragraphs 23-24 below] which was [held] to be one of the exceptions where one does not even state the category in case it result in revealing that which ... ought to be protected.”
12. The judge read the entirety of the unedited witness statement and ruled:
“What has happened here is the defendant, [C.], pleaded guilty. The matter was adjourned so that the prosecution could take a statement from him. It is now known that he has made a statement, but he is not to be called as a witness. ... [T]he prosecution has asked me to examine matters ex parte and I am satisfied that that was a correct application, that it was right that I should hear matters ex parte. As I indicated, had I changed my view during the hearing, I would have adjourned and heard the matter inter partes.
It is plain to everyone, including each defendant that the statement of [C.] must, first of all, have dealt with preparation of the conspiracy to which he has pleaded guilty and the events of the day upon which he was arrested. The reason the prosecution say they should not serve that part of [C.]’s statement is sources of information in the headline and my decision has been that the prosecution’s attitude is correct. ...”
In accordance with the judge’s ruling, the defence were served with a summary of C.’s statement, omitting any reference to sources of information.
13. The applicant gave evidence at trial. It was his case that he had agreed with C., who was his brother-in-law, to bury some items which he understood had been used in connection with a theft of motor vehicles. These items had come from a man called D.W., from whom C. was buying a car. The items had been handed to the applicant by D.W. in two bundles, wrapped in a brown coat, on the evening of 26 August 1993. The applicant said that C. had asked him to bury the bundles at a particular spot in the cemetery. This he had proceeded to do on that evening. After he had buried the items, he put the knife he used for digging the holes and the brown coat into a bag, which he then threw away. He denied all knowledge of the proposed robbery, of the light-coloured jacket, handcuffs, CS canister, shotgun and cartridges.
The applicant alleged that he had been falsely implicated in the conspiracy by a participating informer, although he could only speculate as to the identity of the informer and as to that person’s motives. He claimed that C. had been having a relationship with D.W.’s girlfriend, and that D.W. had sought, for purposes of revenge, to make it appear that C. was involved in an armed robbery.
14. On 13 May 1994 the trial judge, in his summing-up to the jury, said:
“That there was information from at least one person in this case is accepted and must be the situation, must it not, otherwise why would the police be going to all this trouble watching? Every rule has its exceptions and the law provides if a defendant in his trial is hindered in putting forward his defence by not knowing, first of all, whether or not there was an informer or, if he knows that, not knowing the identity of an informer, an application can be made to the judge and the judge has to be told the identity of the informer, or informers and he may order the prosecution to reveal that if a defendant is prejudiced in his defence. …
Well, it will be plain to you that in a case like this where there has been at least one informer, the role of the informer has got to be examined with care and circumspection by you the jury in this trial. If the rules are observed not only by the police but also by the informer, or informers, the informer should not be told not [sic] to initiate crime or to promote it but, if crime is going on, he may be invited to string along with the plan and have a foot in both camps.
Of course an informer may overstep the mark, for example, and what is suggested here is that [D.W.] organised really a façade of conspiracy to rob possibly in order to take revenge on [C.] who was messing about with his girl, or for whatever reason (perhaps a reward it is suggested) and you must consider it: has [D.W.] so organised matters that [C.] would be arrested in incriminating circumstances and has [the applicant] been drawn into that web, [S.] possibly also being drawn into that web?”
15. The applicant appealed to the Court of Appeal. Subsequent to his conviction he had discovered that C. had provided false information for reward on a number of occasions in the past. Therefore, in the course of the appeal proceedings, the applicant applied to the Court of Appeal for disclosure of some eighty-eight statements previously made by C. relating to alleged confessions to crime made by other prisoners or information about crimes allegedly witnessed or overheard by C. while he was at liberty. This application was refused by the Court of Appeal, which was “not persuaded that there [was] any proper basis for ordering such disclosure”.
16. The applicant relied on two grounds of appeal against conviction. The first ground concerned the rulings by the trial judge and the second related to the witness statement made by C. to the prosecution. It was submitted in particular that:
“... In his sentencing remarks the judge specifically referred to the existence of a ‘participating informant’ who was instrumental in both the appellant and [C.] being arrested; this was the first that the defence had heard of the existence of such an informant.
In the submission of the appellant, the interests of justice required that the undisclosed material which had been specifically withheld from the defence, and apparently relating to a participating informant, should have been made available to the defence. The defence was materially disadvantaged in presenting its case to the jury by its inability to establish even the existence, let alone the role, of this informant. Without this evidence the defence case of ‘set-up’ rested upon a mere assertion which may well have been regarded by the jury as quite incredible and absurd. ...
... In the submissions of the defence, the actual text of the witness [C.’s] statement, or such part or parts of it as were not covered by recognised public interest immunity or protection, ought to have been disclosed to them. If this was not practicable then a further statement should have been obtained which omitted the objectionable material. The course in fact adopted of giving a ‘summary’ was a naked device to prevent the proper disclosure of admittedly relevant material, and was specifically designed to thereby advantage the Crown and to disadvantage the defence.”
17. On 6 June 1995 the Court of Appeal upheld the applicant’s conviction, observing:
“... During the course of the proceedings the prosecution successfully applied ex parte to the judge for an order that they not be required to disclose certain material to the defence, save to the extent that the defence were told that the material related to sources of information. Having later heard submissions from the defence that if any of the material in question touched upon the applicant’s defence that he had been set up by [D.W.], it ought to be disclosed, on 23 March 1994 the judge refused to order any disclosure of the materials.
These rulings by the judge are the subject of the first ground of appeal ... It is said that the interests of justice required that the undisclosed material should have been disclosed to the defence. We can see no reason to disagree with the judge’s ruling. He made it clear that if any of the material ‘did or might help the defence’ he would order disclosure. He obviously considered the matter carefully before giving his ruling. There is no substance in this ground of appeal.
The second ground of appeal relates to a witness statement made by [C.] as a witness for the Crown. On 25 April 1994 the Crown applied ex parte to the judge to approve the non-disclosure of [C.]’s witness statement and to approve the alternative course proposed by the Crown, which was to provide a summary of the witness statement. The judge granted the application and approved the proposed course. Again, we see no reason to disagree with the judge’s decision in this matter. ...
Accordingly, this renewed application for leave to appeal against conviction is refused.”
18. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
19. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ([1982] 74 Criminal Appeal Reports 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution’s power to withhold “unused material”. Under paragraph 1, “unused material” was defined as:
“(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.”
20. According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.
21. Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal.
In R. v. Ward ([1993] 1 Weekly Law Reports 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:
“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”
The Court of Appeal described the balancing exercise to be performed by the judge as follows:
“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.”
22. In R. v. Trevor Douglas K. ([1993] 97 Criminal Appeal Reports 342), the Court of Appeal emphasised that, in performing the balancing exercise referred to in R. v. Ward, the court must view the material itself:
“In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.”
This judgment also clarified that, where an accused appeals to the Court of Appeal on the ground that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.
23. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted.
The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court.
Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte.
The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
24. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.
25. In R. v. Keane (1994] 1 Weekly Law Reports 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution’s duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen (i) to be relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise.
26. In R. v. Rasheed (The Times, 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction.
27. In R. v. Winston Brown ([1995] 1 Criminal Appeal Reports 191), the Court of Appeal reviewed the operation of the Guidelines. It stated:
“The Attorney-General’s objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney-General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the Guidelines, judged by the standards of today, reduce the common-law duties of the Crown and thus abridge the common-law rights of a defendant, they must be pro tanto unlawful...
[T]oday, the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to discloseable materials, and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly, the guidelines are not an exhaustive statement of the Crown’s common law duty of disclosure: R. v. Ward at 25 and 681D. To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity. [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor’s discretion ... Much of what is listed as ‘sensitive material’ is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity...”
28. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary...
It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter. We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence, present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure.”
29. Subsequent to the applicant’s trial, a new statutory scheme covering disclosure by the prosecution has come into force in England and Wales. Under the 1996 Act, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
30. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney-General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed.
31. For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia:
“7. …
(4) The function of the special advocate is to represent the interest of the appellant by -
(a) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded;
(b) cross-examining witnesses at any such proceedings; and
(c) making written submissions to the Commission.
(5) Except in accordance with paragraphs (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission.
(6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes the material available to him.
(7) At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative.
(8) The Commission shall notify the Secretary of State of a request for direction under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made.
(9) Where the Secretary of State makes an objection under paragraph (8) Rule 11 shall apply as appropriate.”
Rules 10 and 11, to which Rule 7 refers, provide:
“10. (1) If the Secretary of State intends to oppose the appeal, he must, no later than 42 days after receiving a copy of the notice of appeal -
(a) provide the Commission with a summary of the facts relating to the decision being appealed and the reasons for the decision;
(b) inform the Commission of the grounds on which he opposes the appeal; and
(c) provide the Commission with a statement of the evidence which he relies upon in support of those grounds.
(2) Where the Secretary of State objects to material referred to in paragraph (1) being disclosed to the appellant or his representative, he must also -
(a) state the reasons for the objection; and
(b) if and to the extent it is possible to do so without disclosing information contrary to the public interest, provide a statement of that material in a form that can be shown to the appellant.
(3) Where he makes an objection under paragraph (2), the Secretary of State must make available to the special advocate, as soon as it is practicable to do so, the material which he has provided to the Commission under paragraphs (1) and (2).
11. (1) Proceedings under this Rule shall take place in the absence of the appellant and his representative.
(2) The Commission shall decide whether to uphold the Secretary of State’s objection.
(3) Before doing so it shall invite the special advocate to make written representations.
(4) After considering representations made under paragraph (3) the Commission may -
(a) invite the special advocate to make oral representations; or
(b) uphold the Secretary of State’s objections without requiring further representations from the special advocate.
(5) Where the Commission is minded to overrule the Secretary of State’s objection, or to require him to provide material in different form from that in which he has provided it under Rule 10(2)(b), the Commission must invite the Secretary of State and the special advocate to make oral representations.
(6) Where -
(a) the Commission overrules the Secretary of State’s objection or requires him to provide material in different form from that in which he has provided it under Rule 10(2)(b), and
(b) the Secretary of State wishes to oppose the appeal,
he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal.”
32. In the context of fair employment proceedings in Northern Ireland, the scheme under sections 90 to 92 of the 1998 Act and the relevant Rules is identical to the mechanism adopted under the 1997 Act (above).
33. In addition, the government has recently placed before Parliament two bills which make provision for the appointment of “special counsel” (operating under the same conditions) in other circumstances. The Electronic Communications Bill 1999 provides for the appointment of a “special representative” in proceedings before an Electronic Communications Tribunal to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications. In the context of criminal proceedings, the Youth Justice and Criminal Evidence Bill 1999 makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in a sexual offence.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59721
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF O'HARA v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was, and still is, a prominent member of Sinn Fein. He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations, inter alia, of arbitrary arrest, assault and ill-treatment arising out of six incidents. In proceedings lodged for incidents in 1988 and on 19 March 1993, he received an award of damages (amount unspecified). In or about January 1994 he was awarded damages of 2,500 pounds sterling (GBP) for an incident in Guildhall Square on 16 March 1993 when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity. This case concerns his arrest in 1985 in relation to the murder of Mr Kurt Konig.
9. Kurt Konig was a German citizen working for the caterers of canteens in police stations in Londonderry. He was murdered on 21 November 1985. The Provisional IRA claimed responsibility for his death.
10. The Government submitted that Special Branch received intelligence that the applicant and three other persons were involved in the murder. The intelligence derived from four informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions. None of the informants had a criminal record. The information given by these four informants was consistent, in that all gave the same names as being involved, and independent, in that none was aware of the existence of the others and each gave the information at separate meetings with police officers.
11. Detective Superintendent R. of the Royal Ulster Constabulary (“the RUC”) was briefed by Special Branch concerning this intelligence that the applicant was a member of the Provisional IRA and had been implicated in the murder.
12. Detective Superintendent R. briefed Inspector B. who in turn briefed Detective Constable S.
13. On 28 December 1985, at about 6 or 6.15 a.m., Detective Constable S. visited the applicant’s house and conducted a search. At the conclusion of the search, at 8.05 a.m., S. arrested the applicant. He told the applicant that he was arresting him under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (“the 1984 Act”) which empowered a police constable to arrest, without a warrant, a person whom he had reasonable grounds for suspecting of being concerned in the commission, preparation or instigation of acts of terrorism.
14. The applicant was taken to Castlereagh Detention Centre where he was questioned about his possible membership of the IRA, his suspected involvement in Kurt Konig’s murder and also his possible involvement in the murder of two soldiers on 1 April 1982. He was interviewed on thirty-four occasions. He did not respond to any questions. According to the Government, the first interview occurred on 28 December 1985 at 11.50 a.m., at the start of which he was told that the police were enquiring into his involvement with the Provisional IRA and related matters. Police notes provided by the Government record that during the next interview, from 2.05 to 4 p.m., the interrogating officers told the applicant that they were making enquiries in relation to his membership of the IRA and the murder of Kurt Konig.
15. On 29 December 1985 the Secretary of State for Northern Ireland extended the applicant’s period of detention beyond the initial 48-hour period, by five days. The applicant was released without charge on 3 January 1986 at 9 p.m., after six days and thirteen hours in custody.
16. By a writ issued on 20 August 1986 against the Chief Constable of the RUC, the applicant instituted a civil action for damages before the High Court in Northern Ireland in respect of, inter alia, assault, seizure of documents, false imprisonment and unlawful arrest.
17. Before the High Court, the submissions of the applicant’s counsel concentrated, as the trial judge found, on the issues of assault and confiscation of documents. He did however raise the argument, in the context of the lawfulness of the arrest, that Detective Constable S. did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest. The evidence before the court from Detective Constable S. was to the effect that he attended a briefing at 5.30 a.m. on 28 December 1985 in which he was told that he was to carry out a search to find evidence and arrest persons, including the applicant, suspected of involvement in the murder of Kurt Konig. He had been told by his superior officer, Inspector B., at that briefing that the applicant was involved in the murder and stated that these were the reasonable grounds for suspecting the applicant. He did not state that Inspector B. had told him the grounds for his own suspicion, nor was he asked about that matter by counsel for either party. It was common ground that the murder was a terrorist offence. The superior officer was not called as a witness in the proceedings.
18. On 14 November 1990 Judge McCollum found that there had been an unlawful taking of the applicant’s notes by a police officer and awarded Mr O’Hara GBP 100 in damages. He rejected the applicant’s claims of assault and ill-treatment, finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers wrong.
As regards the allegations of wrongful arrest, the judge noted:
“... while [the applicant’s counsel] submitted that the officer who arrested the [applicant] was required, in order to render the arrest lawful, in addition to holding the suspicion grounding the arrest of the [applicant], [to] have reasonable grounds for that suspicion, based on his own knowledge of facts giving rise to that suspicion. He accepted that both Mr Justice Carswell and the Lord Chief Justice had previously rejected the same submission in similar cases.
While he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions, and in the circumstances I am satisfied in this case on the evidence of Detective Constable [S.] that as a result of the information he had been given he had reasonable grounds for suspecting that the [applicant] had been concerned in the commission, preparation or instigation of acts of terrorism.
Cross-examination of the detective constable did not probe the details which had been disclosed to Detective Constable [S.] in the course of the briefing during which he was supplied with this information.
I find on the evidence that the detective constable had a suspicion that the [applicant] was involved in the murder of Kurt Konig and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that morning.
Either party could have elicited details of the briefing, not as truth of the matters disclosed, but as relevant on the issue of the reasonableness of the suspicion held by the arresting officer. Proof of the lawfulness of the arrest lies on the defendant.
I would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact. But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein. The fact that I have such scanty evidence of the matters disclosed to Detective Constable [S.] means that I am only just satisfied of the legality of the arrest, but I am fortified in my view by the lack of detailed challenge in cross-examination as to the nature of the information given to him.
The main issue between the parties is as to whether the [applicant] was assaulted and mistreated during the period of his detention ...”
19. On 24 October 1990, the applicant gave notice of appeal to the Court of Appeal in Northern Ireland concerning the claim of unlawful arrest and false imprisonment.
20. On 6 May 1994 the Court of Appeal dismissed the appeal, upholding the decision of the High Court that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful.
“Notwithstanding his concern that more detail of the briefing had not been given, the learned trial judge was able to conclude:
‘(1) that the arresting officer ... did have a suspicion that the [applicant] was involved in a terrorist murder and it was implicit that that suspicion was genuinely held by him;
and (2) that the official briefing which he had attended given by [his superior officer] gave him reasonable grounds for that suspicion.’
These were factual findings and clearly contained in our view all the essential proofs that the respondent was required to adduce to constitute lawful arrest under section 12(1)(b) of the Act.
[Applicant’s counsel] submitted that this was not the case. The source of the suspicion and the reasonable grounds for it must be before the court, namely evidence from the briefing officer, Inspector [B.], as to the grounds on which he suspected the [applicant] of being involved in the commission, preparation and instigation of acts of terrorism. It would be unjust, he contended, if section 12 could give Inspector [B.] protection from liability for false imprisonment if the Inspector himself had not reasonable grounds for the suspicion. The first part of this submission flies in the face of the authorities as we have said. The second part, so far as this case is concerned, seems to be hypothetical in that the regularity or the bona fides of the ‘official briefing’ were not questioned. No factual foundation for such a case was made out ...
We consider that the decision of the learned trial judge was correct. The information given at the briefing to the arresting officer was admissible and although, in his words, ‘scanty’ it was sufficient to constitute the required state of mind of an arresting officer under section 12(1)(b) of the Act.”
21. An appeal to the House of Lords against the decision of the Court of Appeal was dismissed on 12 December 1996. In his judgment, with which the other judges agreed, Lord Hope of Craighead held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest, but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest. The information acted upon by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told; his reasonable suspicion may be based on information which has been given to him anonymously, or it may be based on information which turns out later to be wrong. While the evidence about the matters disclosed at the briefing was indeed scanty, he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and, having regard to the source of that information, and to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it.
22. Lord Steyn stated, inter alia, concerning the general principles:
“Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers ... (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive ‘discretion’ to arrest or not ... vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.
Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of superior officers and the fact that he gave an order make a difference? ... In practice it follows that a constable must be given some basis for a request to arrest someone under a provision such as section 12(1), e.g. a report from an informer.”
23. Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 provided at the relevant time:
“(1) Subject to sub-section (2) ..., a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be:
...
(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;
...
(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.”
24. This provision sets a test of an honest suspicion upon reasonable grounds, involving an objective element. Domestic case-law indicates that an arrest will be unlawful where, although there was an honest suspicion on the part of the arresting officer, that suspicion was not objectively reasonable (see, for example, Foulkes v. Chief Constable of the Merseyside Police [1998] 3 All England Law Reports 705).
25. Although section 12 concerns the suspicion held by the arresting officer, where a briefing officer has told an arresting officer that there is reliable information when there is not, the Chief Constable may become vicariously liable for a wrongful arrest, on behalf of the briefing officer, not the arresting officer (see Clarke v. Chief Constable of North Wales Police, 5 April 2000).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-102353
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MOCNY v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Romuald Mocny, is a Polish national who was born in 1966 and lives in Kalisz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 December 1989 the Ostrów Wielkopolski District Prosecutor made a seizure order in respect of the applicant’s salary in the amount of 60,297.50 old Polish zlotys in the context of criminal proceedings against him. In accordance with the then applicable rules the seized amount was placed on a court deposit. On an unspecified date in 1990 the applicant was convicted of a criminal offence.
On an unspecified date in 2009 the applicant requested the Ostrów Wielkopolski District Court to return the seized amount. On 28 April 2009 the court allowed his request. The amount to be returned was 6 new Polish zlotys following the change in the denomination of the national currency which had taken place on 1 January 1995.
The applicant appealed and claimed that the amount of 60,297.50 PLN should have been returned to him. On 24 June 2009 the Kalisz Regional Court dismissed his appeal. It found that there were no regulations providing for placement of the seized amount on a bank deposit or that the returned amount should have been index-linked. Accordingly, following the change in the denomination the applicant was due to receive 6 PLN.
The envelope in which the applicant’s application form was sent to the Court from the Rawicz Prison bears a stamp “Censored” (Ocenzurowano) and a stamp of the Ostrów Wielkopolski Regional Prosecution Service dated 18 August 2009 and signed by a prosecutor E.M. It also bears a stamp of the Rawicz Prison indicating that the letter was received on 12 August 2009. It appears that the envelope was cut open and subsequently resealed with adhesive tape.
Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998.
Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:
“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”
Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.
Article 217 § 1 reads, in so far as relevant:
“... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Pursuant to Article 214 § 1,
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:
“The prohibition of censorship shall also mean the prohibition on acquainting oneself with the contents of a letter.”
Article 23 of the Civil Code sets out a non-exhaustive list of the socalled “personal rights” (dobra osobiste) in the following way:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 § 1 reads as follows:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 448 provides:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Article 442¹ of the Civil Code sets out limitation periods in respect of various claims based on tort, including actions for the infringement of personal rights. Article 442¹, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”


ITEMID: 001-113542
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF YORDANOVA AND TOSHEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The first applicant, who was born in 1970, is a journalist by profession. At the relevant time she was employed at Trud, a leading national daily newspaper, as a journalist and deputy editor in the newspaper’s criminal department. In 2007 or 2008 she started working for 24 Hours, another leading national daily newspaper.
7. The second applicant was born in 1942. At the relevant time he was Trud’s editorinchief.
8. On 30 May 1996 the press service of the Ministry of Internal Affairs announced the arrest of N.T., a former employee of the Ministry and of the National Investigation Service. The press release specified that he had been detained and charged under Article 387 of the Criminal Code 1968 with abusing his office with a view to obtaining pecuniary gain, which had led to serious negative consequences. In particular, it stated that he had misappropriated, concealed and used secret official documents. The investigation against him was ongoing. The same day this information was relayed to many newspapers by the Bulgarian Telegraph Agency.
9. Shortly after receiving the news, the first applicant went to the premises of the Sofia Regional Military Prosecutor’s Office, where, along with journalists from other newspapers, she tried to obtain more information about the case. Around noon, in line with the established practice at that time, a military prosecutor showed up before the journalists to make a statement about the case and answer questions. In addition to the information in the press release, the prosecutor said that a bag with secret documents had been found during a search of N.T.’s home, that N.T.’s wife had also been implicated in the affair, and that by using those documents, which contained information about the Stateowned metallurgical plant “Kremikovtsi”, N.T.’s wife had engaged in lucrative business ventures involving metals.
10. The next day several national newspapers ran stories about the case. The applicant also covered it in an article which appeared in the 31 May 1996 issue of Trud. It bore the caption “Private company’s shady iron business discovered”, the headline “Former police officer arrested over bag with secret documents”, and the applicant’s byline, and read:
“A former officer was arrested after the metropolitan police found in his home a bag with secret documents, it became clear yesterday.
[N.T.], former officer of the Ministry of Internal Affairs and investigator in the National Investigation Service, was put behind bars for misappropriating, concealing and using secret documents, the [Ministry] announced yesterday. He has been charged under Article 387 § 3 of the Criminal Code with abusing his office with a view to enriching himself, which has led to serious negative consequences. The law provides for up to ten years’ imprisonment if the accused is found guilty.
The documents that [N.T.] took relate to the operations and the business of the ‘Kremikovtsi’ metallurgical plant, the law enforcement people said. He gave the secret information to his wife, who had a private irontrading company. Her business thus thrived and she amassed a substantial capital, the initial investigation found.
The arrest took place about ten days ago, the Palace of Justice specified. The handcuffs clicked on [N.T.]’s wrists three days before he was set to become a practising lawyer. Originals of secret documents, obtained by him probably while an operative of the former 8th district police department, were found during a search of his home.
The whole family of [N.T.] was implicated in the affair, say persons close to the investigation. The detainee’s father used to be the head of the 3rd district police department, but it is unclear whether he was aware of his son’s deeds.
[N.T.] formerly worked as an investigator in one of the district investigation services in Sofia for about a year. On paper he quit of his own free will last year. In reality, he was asked to go because he lacked the requisite qualities for the office he occupied, said people from the National Investigation Service yesterday.
The ‘National Security’ service of the [Sofia Regional Police Department] and the Military Prosecutor’s Office are making additional inquiries to uncover [N.T.]’s criminal activities, said the [Ministry]’s press service yesterday. The investigation has been entrusted to the Sofia Military Prosecutor’s Office.”
11. On 22 August 1996 Trud published another article entitled “The Prosecutor’s Office won’t let former officer out of arrest”. The article was authored by the first applicant but did not bear her byline. It read as follows:
“The former Ministry of Internal Affairs officer and investigator [N.T.], who was detained at the end of May this year on charges of misappropriating, concealing and using secret documents, will remain in detention, we learned yesterday. His [detention] was upheld in a prosecutor’s decision issued yesterday, said to the Bulgarian Telegraph Agency the lieutenant colonel [N.G.] of the Military Prosecutor’s Office.
[N.T.] was charged under Article 387 § 3 of the Criminal Code with abuse of office. A bag with secret documents relating to the business of the ‘Kremikovtsi’ metallurgical plant was found during a search of his home. [N.T.] obtained them while an operative of the former 8th district police department. He gave the information to his wife, who had a private irontrading company. Before the investigation she said that she had carried out only one transaction.”
12. In the following years the prosecuting authorities brought N.T. to trial six times, but each time the Sofia Military Court referred the case back for rectification of procedural errors. Eventually, on 1 October 2003 the court discontinued the proceedings under a newly introduced rule of criminal procedure allowing accused persons to seek discontinuance of the proceedings against them if the case had not proceeded to trial for more than two years after the bringing of charges (for more details on that rule, see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, §§ 3841, 10 May 2011).
13. On 27 May 1999 N.T. brought a civil claim against the two applicants and Trud’s publisher, Media Holding AD. He alleged that the two articles had defamed him by making injurious and untrue allegations which had not been based on a proper journalistic enquiry. They had affected gravely both him and his family. He sought compensation for nonpecuniary damage in the sum of 5,000,000 old Bulgarian levs (BGL), plus interest, in respect of the first article, and BGL 5,000,000, plus interest, in respect of the second article. He also claimed costs.
14. The Sofia City Court held four hearings, one of which was adjourned because the two applicants had not been properly summoned. In a judgment of 21 July 2000 it dismissed N.T.’s claim. It found that the first applicant, like many other journalists, had based her article on reliable official sources. This excluded any wrongful conduct on her part. The second applicant was therefore not liable either.
15. N.T. appealed. The Sofia Court of Appeal held a hearing on 26 January 2001. On 13 February 2001 it upheld the lower court’s judgment. It found that at the time when the two articles had been published there had not existed any statutory rules governing journalistic enquiries. Journalists, including the first applicant, had been bound to adhere to the de facto rules of the profession. The first applicant had not breached those rules in researching the two articles. She had used many independent sources to elucidate the facts covered in both articles. She had based her allegations on information from the Ministry of Internal Affairs and the Bulgarian Telegraph Agency, and a statement made by a public prosecutor. Both she and the second applicant had thus fulfilled their professional duties, which excluded any negligence on their part. Strict liability in tort did not exist under Bulgarian law.
16. N.T. appealed on points of law. The Supreme Court of Cassation heard the appeal at a hearing held on 28 May 2002. On 14 August 2002 it quashed the Sofia Court of Appeal’s judgment and remitted the case. It found that that court, whose task had not simply been to review the firstinstance court’s judgment but to decide the case de novo, had not gathered all available evidence – in particular evidence relating to the identity of the public prosecutor cited in the first article and any evidence concerning the truthfulness of the second article – and had not properly analysed it. Its findings that the allegations in the articles were true did not correspond to the material in the case. The cassation court went on to say that in order to determine whether or not the applicants were liable in tort the court of appeal should have ascertained the truth or the falsity of the assertions made in the two articles, because the right to freedom of expression could not be used to infringe the reputation of others.
17. On remittal, the Sofia Court of Appeal held three hearings. At the second of those, which took place on 19 May 2003, the court decided to stay the proceedings pending the outcome of the criminal proceedings against N.T. None of the parties appealed against that decision. After criminal proceedings against N.T. came to an end in October 2003 (see paragraph 12 above), the court decided to resume the examination of the case, and held a hearing on 19 April 2004.
18. In a judgment of 27 July 2004 the Sofia Court of Appeal allowed N.T.’s claim. It ordered the two applicants and Media Holding AD to pay him 2,500 new Bulgarian levs (BGN), plus interest, in nonpecuniary damages in respect of the first article. The court also ordered the second applicant and Media Holding AD to pay N.T. BGN 2,500, plus interest, in nonpecuniary damages in respect of the second article. Lastly, the court ordered the two applicants and Media Holding AD to pay N.T. BGN 700 in respect of costs. It specified that they were jointly liable to pay those amounts.
19. The court held that in preparing the articles the first applicant had acted tortiously because she had not followed the customary rules governing journalistic enquiries. Those rules required that any information, even that coming from official sources, be checked against at least two independent sources. The first applicant had not done that with regard to the information received from a public prosecutor whose identity she had been unable to establish. The resulting articles had contained defamatory and injurious statements about N.T. and his family which went beyond the information in the press release issued by the authorities: that the “business of [the applicant’s wife had] thrived and she [had] amassed a substantial capital”, that the “whole family [had been] implicated in the affair”, and that the authorities had found “a bag with secret documents relating to the business of the ‘Kremikovtsi’ metallurgical plant”. By writing and publishing unverified defamatory allegations about N.T. the applicants had acted in breach of the general duty under section 45 of the Obligations and Contracts Act 1951 (see paragraph 24 below) not to infringe the rights of others. They could have anticipated the damaging result of their actions and could have averted it by taking additional steps to verify the accuracy of the statements in the articles. They had not done so, and had therefore acted negligently. The second applicant had been under a duty to do so by virtue of his position as the newspaper’s editorinchief, especially with regard to an article that did not bear a byline. As for the first applicant, she had made untrue and uncorroborated injurious remarks and allegations about N.T.’s personal and professional life, without taking into account the negative consequences that could flow from them. Media Holding AD was vicariously liable for the applicants’ actions.
20. The court determined the quantum of the award in equity, as required under section 52 of the Obligations and Contracts Act 1951 (see paragraph 24 below). It took into account Trud’s circulation, the number of potential readers and the degree of moral suffering sustained by N.T.
21. The applicants appealed on points of law, arguing, among other things, that the court of appeal’s judgment was in breach of Article 10 of the Convention. On 11 November 2004 a threemember panel of the Supreme Court of Cassation refused to hear their appeal. It observed that N.T. had brought two claims of BGN 5,000 each. Those claims had been triable at first instance not by the Sofia City Court, but by the Sofia District Court. By accepting to hear the case, the Sofia City Court, which had the rank of a regional court, had in effect exercised its powers under Article 80 § 2 of the Code of Civil Procedure 1952 to take up and examine at first instance a case falling within the jurisdiction of one of the district courts in its region (see paragraph 25 below). That had in turn led to an appellate judgment by the Sofia Court of Appeal. Had the procedure ran its normal course, the case would have been examined at first instance by the Sofia District Court and on appeal by the Sofia City Court. The case thus fell within the ambit of Article 218a § 1 (a) of the Code (see paragraph 26 below), with the result that no appeal lay against the Sofia Court of Appeal’s judgment.
22. On an appeal by the applicants, in a final decision of 12 January 2005 a fivemember panel of the Supreme Court of Cassation upheld the threemember panel’s decision. It fully agreed with its reasoning and went on to say that the examination of the case at second instance by the Sofia Court of Appeal due to the irregular manner in which the proceedings had unfolded in terms of which court had jurisdiction could not render a judgment concerning claims of up to BGN 5,000 amenable to appeal on points of law. The threshold for lodging such an appeal was primarily a function of the amount in dispute. It could not be circumvented through the application of Article 80 § 2 of the abovementioned Code and the resulting examination of the case at first instance by the Sofia City Court.
23. The relevant provisions of the 1991 Constitution read as follows:
“The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.”
“1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way.
2. That right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.”
“The press and the other mass media shall be free and not subject to censorship.”
“1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals.
2. Citizens shall have the right to information from State bodies or agencies on any matter of legitimate interest to them, unless the information is a State secret or a secret protected by law or it affects the rights of others.”
“Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.”
24. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (“the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Under section 45(2), fault is presumed until proved otherwise. Section 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Section 52 provides that the amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity. If a tort has been committed by several persons, they are jointly liable for the resulting damage (section 53).
25. Article 80 § 1 (b) of the Code of Civil Procedure 1952 (superseded on 1 March 2008 by the Code of Civil Procedure 2007), as in force between 1 April 1998 and July 1999, provided that money claims of up to BGN 5,000 were triable by the district courts and those exceeding BGN 5,000 by the regional courts. Under Article 80 § 2, a regional court could take up and examine at first instance a case falling within the jurisdiction of one of the district courts in its region.
26. Article 218a § 1 (a) of the 1952 Code, as in force between April 1998 and November 2002, provided that regional court judgments concerning money claims of up to BGN 1,000 were not subject to appeal on points of law. An amendment which came into force in November 2002 increased that threshold to BGN 5,000.
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-85949
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KAFKA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Petr Kafka, is a Czech national who was born in 1949 and lives in Varnsdorf. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings nos. 4 C 419/86 and 4 C 166/90
On 5 June 1986 the applicant’s father brought proceedings before the Tábor District Court (okresní soud) against an agricultural cooperative. The proceedings terminated in the claimant’s favour. On 31 May 1990 the Supreme Court (Nejvyšší soud), upon a complaint by the former Prosecutor General, alleging a breach of law (stížnost pro porušení zákona), quashed the judgments of the lower courts and sent the case back to the District Court. In October 1991 the claimant specified his court expenses of CZK 70,010 (EUR 2,728) which included a sum of CZK 68,600 (EUR 2,673) corresponding to damage caused by the courts’ judgments. According to the Government, when presenting his final pleadings, the applicant qualified the amount of CZK 70,010 as court fees.
2. Proceedings no. 6 C 55/94
On 8 March 1994 the applicant’s father brought proceedings against the same cooperative for reimbursement of court fees. In the course of the proceedings, he extended his action seeking to order the cooperative to pay him CZK 70,010 in respect of his court expenses. His action was dismissed. According to the Government, the proceedings finally terminated on 9 February 1995.
3. Proceedings no. 4 C 83/95
On 20 October 1995 a certain Z. brought an action in the District Court against the applicant’s father seeking to be paid CZK 5,400 (EUR 210) for legal services he had provided. On 10 May 1996 the District Court ordered the applicant’s father to pay the sum in question. The latter appealed and filed a counterclaim of CZK 7,179 (EUR 280). On 13 December 1996 the České Budějovice Regional Court (krajský soud) upheld this judgment, separating the counterclaim for a separate hearing (no. 4 C 291/97).
On 22 December 1996 the applicant’s father died. Inheritance proceedings were instituted.
On 20 November 1997 the Constitutional Court (Ústavní soud) declared manifestly ill-founded the applicant’s constitutional appeal (ústavní stížnost) challenging the judgments of the lower courts.
On 8 March 2001 the Constitutional Court dismissed the applicant’s second constitutional appeal which was directed against the same judgments. It stated, inter alia, that in respect of his claim relating to the manner of which the lower courts had considered the sum of CZK 68,600, the applicant’s father had died and that the applicant was not a party to these proceedings.
4. Proceedings no. 4 C 291/97
On 9 April 1999 inheritance proceedings concerning the applicant’s father’s estate terminated. The applicant as the only heir expressed his wish to continue pursuing the proceedings before the District Court in his late father’s stead.
On 27 September 1999 the District Court dismissed the counterclaim filed by the applicant’s father. On 1 June 2000 the Regional Court partly quashed this judgment and remitted the relevant part of the case back to the District Court which, on 20 September 2000, again dismissed the counterclaim. On 10 May 2001 the Regional Court upheld this judgment.
On 8 November 2001 the Constitutional Court rejected a limine the applicant’s constitutional appeal.
On 22 January 2004 the Supreme Court dismissed his appeal on points of law (dovolání).
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-90248
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FRANKOWICZ v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1952 and lives in Tarnów, Poland.
6. The applicant is a gynaecologist. In August 1995 he set up a company which prepared medical reports at his clients’ request.
7. On 12 March 1996 the applicant wrote a report entitled “Civil opinion” (opinia cywilna) on the treatment that Mr J.M. had undergone in the Regional Hepatology Clinic in Tarnów. The opinion described, in a detailed manner, the history of Mr J.M.’s medical treatment since the beginning of the 1980s. The report was based on Mr J.M.’s medical file obtained from the clinics of hepatology and dermatology where he had received treatment. The applicant also relied on the results of a recent medical examination, a biopsy, carried out at the applicant’s initiative by the Cracow University Medical Academy. In his report the applicant established that the patient had been receiving treatment since 1983 at the Tarnów Clinic. However, in spite of the fact that his health had deteriorated and that he had been developing symptoms of liver damage, no specialised examination, that is, a biopsy, had been carried out. A recent liver biopsy, undertaken upon the applicant’s recommendation at the Cracow University Medical Academy, had shown that the patient was suffering from aggressive and chronic hepatitis and cirrhosis (przewlekłe agresywne zapalenie wątroby z marskością wątroby). The applicant considered that the damage to Mr J.M.’s health, due to both his liver condition and dermatological problems, amounted to 90% thus making him eligible to receive the highest group of invalidity allowance. With regard to the treatment received at the Tarnów Hepatology Clinic the applicant’s report stated:
“...Despite [the patient’s] chronic suffering, of which he had complained constantly during his regular visits, and which was confirmed by examinations indicating a chronic liver condition, the employees of the Clinic had failed to take the actions [necessary] for the health care of [the patient] and his diagnosis. So, despite indications, adequate diligence while diagnosing, informing and providing health care to [the patient] was not displayed.”
The opinion also dealt with the treatment of Mr J.M.’s dermatological problems at the Tarnów Dermatology Clinic and concluded that it had been proper and diligent.
8. On 2 December 1996 the Tarnów Regional Attorney for Professional Liability (Okręgowy Rzecznik Odpowiedzialności Zawodowej) instituted disciplinary proceedings against the applicant. He was charged with unethical conduct, reference being made to the fact that the applicant’s opinion had discredited the doctors who had been treating the patient. The Regional Attorney relied on Article 52 of the Polish Code of Medical Ethics (Kodeks Etyki Lekarskiej). Moreover, according to the Regional Attorney, in assessing a complicated therapy in which he did not specialise, the applicant had overstepped his professional competences. In his application of 10 March 1997 lodged with the Tarnów Regional Medical Court (Okręgowy Sąd Lekarski), in which he asked for a disciplinary punishment to be imposed on the applicant, the Attorney stated:
“In the present case the Attorney established that Dr Ryszard Frankowicz, by preparing and giving the patient an opinion in which he included judgments on the professional conduct of other doctors (working in the Tarnów Hepatology Clinic), obviously violated the well-established medical society rules of proper conduct between doctors.
Unfavourable arguments and analysis of professional actions expressed by one doctor in front of a patient always clearly discredit the doctor under scrutiny...”
“The Medical Council of the Tarnów Regional Medical Chamber finds that the entirety of the public behaviour of [the applicant] has no support in the medical profession and does not serve the rightly understood well-being of the patient. The disciplinary bodies of the Chamber will assess their attitudes in detail and draw appropriate conclusions (wyciągną stosowne wnioski). The Medical Council decided to take a position on the public activities of the above-mentioned doctors and the manner in which they have been exercising the medical profession given the exceptional departure from recognised and generally accepted rules and given the possibility of their manipulating the perceptions and the behaviour of the local community.”
9. On 11 June 1997 the Tarnów Regional Medical Court (Okręgowy Sąd Lekarski) held a hearing. The court was composed of three members, all doctors. The applicant, his wife, their representative and a representative of the Office of the Regional Attorney of Professional Liability were present at the hearing. However, soon after the opening of the hearing the applicant decided to leave the courtroom, objecting to the fact that the disciplinary court had allegedly violated a time-limit for examination of a case. The hearing continued in the applicant’s absence as he had not decided to return and the court regarded his absence as unjustified.
10. On 17 June 1997 the Regional Medical Court found the applicant guilty of unethical conduct. The Court considered that the applicant, in his report, had expressed negative opinions of the professional conduct of doctors concerned and that he had conveyed these directly to the patient. In so doing, he had discredited the doctors in the eyes of the patient. His behaviour was therefore contrary to the principle of professional solidarity and, consequently, to the provisions of Article 52 of the Code of Medical Ethics. The court did not examine the truthfulness of the opinion at issue as it found that the question of whether it “reflected the reality” was “of no importance” for finding a violation of this provision of the Code. The disciplinary court also found that the applicant had violated Article 10 of the Code, as he had written an opinion concerning a branch of medicine in which he was not a specialist. The court found him guilty as charged and sentenced him to a reprimand (skazuje na karę nagany).
11. On 17 June 1997 the applicant challenged all members of the court, complaining that they had not been impartial. The applicant submitted that the independence and impartiality of the members of the disciplinary court had been open to doubt because it was possible that the Tarnów Governor could have put pressure on them. In addition the applicant complained about the way the hearing had been conducted, submitting that the President of the court had prevented him from putting all his questions and had dismissed his motions. On 20 June 1997 the Tarnów Regional Medical Court, sitting in a different composition, dismissed the applicant’s challenge as manifestly ill-founded.
12. The applicant appealed on 30 June 1997. He argued that a doctor had a right to express freely his own opinion in conformity with his medical knowledge and his conscience and to inform his patient if he believed that the latter had been incorrectly treated or wrongly diagnosed. The purpose of a doctor’s work was the well-being of the patient and not professional solidarity with other doctors. The applicant further complained that his challenge to the members of the Regional Medical Court, and application to transfer the case to another town, had been dismissed. He submitted that two of the three members of the court were senior managers of the hospitals thus susceptible to pressure from the Tarnów Governor’s office, the latter often being criticised by the applicant’s association.
13. On 29 May 1998 the Supreme Medical Court (Naczelny Sąd Lekarski), upheld the first-instance court’s decision. The court considered that the applicant’s actions were highly reprehensible and harmful not only to the medical profession but also to the patient, as the opinion gave him to believe, groundlessly, that he had been the victim of an injustice. The court also firmly rejected the applicant’s suggestion that his conviction had been the result of political pressure. A copy of that decision was served on the applicant on 30 July 1999.
14. The Constitution of 2 April 1997 entered into force on 17 October 1997.
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”
15. A right to lodge a constitutional complaint was introduced in Article 79 § 1 which provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
16. Article 10 of the Polish Code of Medical Ethics, set out in Chapter I, entitled “Relations between a physician and his patient” (Postępowanie lekarza wobec pacjenta) reads, in so far as relevant:
“1. A physician should not exceed the limits of his or her professional competence when carrying out diagnosis, prophylaxis and treatment...”
17. Article 52 of Chapter III, entitled “Mutual relations between physicians” (Stosunki wzajemne między lekarzami) provides as follows:
“1. Physicians must show respect to each other.
2. A physician should not express an unfavourable opinion on the professional conduct of another physician or discredit him in any other way in the presence of a patient, his or her environment or [in the presence of] assisting staff.
3. All comments on the observed erroneous conduct of a physician should, in the first place, be passed on to him or her. Informing a medical court of the observed unethical behaviour or professional incompetence of another physician does not undermine the principle of professional solidarity.”
18. On 20 September 2003 Article 52 §2 was amended. It reads as follows:
“A physician should display particular caution in formulating opinions on the professional conduct of another doctor and in particular he should not in any way discredit him publicly.”
19. According to section 1 of the Law of 17 May 1989 on Medical Chambers (Ustawa o Izbach Lekarskich), as it stood at the material time, the administrative units of medical self-government were the Supreme Medical Chamber (Naczelna Izba Lekarska) and regional medical chambers (okręgowe izby lekarskie). Section 19 provided that a regional medical chamber includes all physicians whose names are entered on its register.
20. Bodies of a regional medical chamber included, among others, a regional medical court (okręgowy sąd lekarski) and a regional attorney for professional liability (section 20). The Supreme Medical Court (Naczelny Sąd Lekarski) was a body of the Supreme Medical Chamber (section 31). According to section 7, the term of office of all bodies of medical chambers was four years.
21. Section 41 of the Law, in Chapter 6, entitled “Professional Liability” (Odpowiedzialność zawodowa), provided:
“Members of the medical self-government shall be professionally liable before medical courts for any conduct in breach of the principles of professional ethics and deontology and for any breach of the provisions governing the exercise of the medical profession.”
Section 42 read, in so far as relevant:
“1. The medical court may impose the following penalties:
1) censure (upomnienie),
2) reprimand (nagana),
3) suspension from practice (zawieszenie prawa do wykonywania zawodu) for a period from six months to three years,
4) revocation of the right to practise medicine (pozbawienie prawa wykonywania zawodu).
2. A physician, on whom the Supreme Medical Court sitting at second instance has imposed any penalty referred to in subsections (3) or (4), has the right to lodge an appeal with the Supreme Court within 14 days from the date on which the [court’s] decision has been served on him or her...”
22. According to section 46, matters of professional liability of medical practitioners were examined by regional medical courts and the Supreme Medical Court.
23. A physician on whom a reprimand or suspension from practice had been imposed lost eligibility for election to bodies of medical chambers until a notice of penalty was removed from the relevant register (section 47). The notice was removed from the register three years after the decision to impose a censure or reprimand became final (section 55).
24. According to section 54 the members of the Medical Courts were, in their adjudicating capacity, independent and should follow the law and the Code of Medical Ethics. Article 7 provided that the term of office of all bodies of the medical chambers was four years. As provided in section 56, the Supreme Medical Court, sitting as a second-instance court, included a judge of the Supreme Court appointed by the First President of the Supreme Court.
25. On 23 April 2008 the Constitutional Court delivered a judgment (SK16/07) in which it found that Article 52 § 2 of the Code of Medical Ethics was unconstitutional in so far as it prohibited the truthful public assessment of the activity of a doctor by another doctor in the public interest. The relevant provision, examined in its new wording which came into force in 2003, was not quashed by the Constitutional Court as only its particular interpretation was considered to breach the constitutional norm securing the freedom of expression.
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103811
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SELDENRIJK-RAAT AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicants, Ms Elisabeth Seldenrijk-Raat, Mr Alexander Seldenrijk and Mr Robert Vincent Seldenrijk, are Netherlands nationals who were born in 1944, 1970 and 1983 respectively. They live on a farm in Westergeest (municipality of Kollumerland, province of Fryslân).
2
3. In late November 2004 two animal health inspectors, P. and H1, came to inspect a pony kept on the applicants’ farm and thought to be in a state of neglect. The applicants state that on that occasion they gave their full co-operation. The inspectors announced their intention to come back at a future date to take another look at the animal, accompanied by a veterinary surgeon if need be.
4. On 10 February 2005 the inspector P. returned, accompanied by two uniformed police officers, Officers H2 and R. According to the applicants, they had a police dog with them.
5. According to official documents, the first applicant refused to admit them onto the premises. The second applicant then ran towards the inspector and the police officers and tried to push Officer H2 away. Officer H2 then grabbed hold of the second applicant and told him that he was under arrest. The second applicant, however, refused to come quietly: he had to be wrestled to the ground by all three, Inspector P. and Officers H2 and R., and brought under control with pepper spray. While this was going on the first applicant tried to pull the officials off the second applicant. The third applicant appeared, waving his arms about and telling the officials to leave. Officer H2 then sprayed pepper spray into his face. At that, the third applicant left, only to come back with a spade which he brandished in a threatening manner.
6. For their part, the applicants deny that the pony was neglected in the first place. They state that the officers failed to identify themselves and that they searched the applicants’ dwelling without a warrant.
7. They further allege that the first applicant was struck by Officer H2; that after the second applicant had been subdued and handcuffed, the police officers grabbed him by the neck, closing off his jugular artery and causing him pain and bruising; that the second applicant was thrown onto the floor of a police van, where he was thrown about on the way to the police station; that the first and third applicants were driven to the police station without being allowed safety belts; and that the third applicant’s mobile telephone was checked for private telephone numbers without the third applicant’s permission.
8. They also allege that following their arrest they asked to see a lawyer but were met with a refusal.
9. The applicants were tried before a single-judge chamber (politierechter) of the Regional Court (rechtbank) of Leeuwarden on 4 May 2006. Judgment was given the same day.
10. The first applicant was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. She was fined 190 Euros (EUR).
11. The second applicant was found guilty of resisting an official engaged in his lawful duties (wederspannigheid). He was also fined EUR 190.
12. The third applicant, like the first applicant, was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. He too was fined EUR 190.
13. In each case EUR 100 of the fine was suspended.
14. Animal health inspector P. joined the proceedings as a civil party. His claims were declared inadmissible and remitted to the civil courts.
15. The applicants appealed.
16. The cases were re-heard by a single-judge chamber of the Court of Appeal (gerechtshof) of Leeuwarden on 15 November 2006. Judgment was given the same day. The applicants were all convicted in the same terms used by the Regional Court.
17. The first applicant was fined EUR 150, EUR 100 of which was suspended. The second and third applicants were each fined EUR 190, EUR 100 of which was suspended.
18. All three applicants lodged appeals on points of law with the Supreme Court (Hoge Raad). In their statements of points of appeal on points of law (cassatieschriftuur) they complained that their conviction did not follow from the evidence. They inspected the case file after it had been transmitted to the Supreme Court by the Court of Appeal.
19. On 25 September 2007 the first applicant wrote to the Procurator General to the Supreme Court complaining about the disappearance of a number of documents from the file when it was transmitted to the Supreme Court by the registry of the Court of Appeal. Copies of the documents concerned were appended to the letter. It appears that these documents were copies of official police reports with the applicants’ critical remarks added in handwriting and statements by veterinary experts to the effect that the pony was very old but in good health for its age.
20. On 22 April 2008 the Acting Procurator General gave advisory opinions in all three cases recommending that the appeals be dismissed as unfounded since the evidence relied on by the Court of Appeal was quite sufficient and the convictions were sound.
21. On 9 May 2008 the applicants’ lawyer submitted a letter written by the applicants themselves by way of response to the Acting Procurator General’s advisory opinion. This letter reiterated the applicants’ complaints about the actions of the various officials and their protestations of innocence. It also mentioned the letter with appended documents which they had written to the Procurator General (paragraph 19 above) and stated that the Procurator General had forwarded it to a member of the registry of the Supreme Court for inclusion in the file.
22. On 24 June 2008 the Supreme Court gave judgment dismissing the appeals on summary reasoning.