ITEMID: 001-114397
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: IRENE WILSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Irene Wilson, is a British national, who was born in 1958 and lives in Londonderry. She was represented before the Court by Mr P. Bowles, a lawyer practising in Saintfield, County Down, with Peter Bowles & Company Solicitors.
2. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Moynihan and Ms L. Dauban of the Foreign and Commonwealth Office.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 20 October 2007, the applicant was assaulted by her husband Scott Wilson at their home, after they had been out drinking. She suffered a severed artery on the right side of her head, which required eight stitches. She also suffered multiple bruising and sustained a blow to her head when she fell against a banister.
5. The applicant maintains that this was the last in a series of assaults which had been carried out by her husband in the course of their thirty-two year marriage. She made a statement to the police. The Government maintain that, in her statement, the applicant herself had accepted that, prior to 2006, she had only been subjected to emotional abuse and that it was only in 2006 that the abuse turned physical. They further maintain that the applicant had not complained to the police at any time prior to the offence of 20 October 2007.
6 Mr Wilson was arrested and charged with causing grievous bodily harm with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He was granted bail on 22 October 2007 and required to reside at an alternative address to the matrimonial home.
7. There was a reconciliation between the applicant and her husband, further to which he successfully applied to have his bail conditions varied so that he could return home.
8. On 23 October 2007, the applicant told the police that she no longer wished Mr Wilson to be prosecuted. Nonetheless, the police file was sent to the Public Prosecution Service of Northern Ireland (“the PPS”), where it was allocated to a senior public prosecutor.
9. In light of the applicant’s wish that Mr Wilson not be prosecuted, the senior public prosecutor considered the case. The prosecutor did so according to the PPS’s policy for prosecuting cases of domestic violence, which provides that cases will not automatically be stopped because the victim does not want to proceed and that, as a general rule, the PPS will prosecute cases where there is sufficient evidence and no factors preventing them from doing so.
10. The prosecutor sought further information, including a transcript of the 999 emergency telephone call, medical reports, police notebook entries, the serious crime scene log, photographs of the scene and injuries, further statements to corroborate the applicant’s account, information on the current status of the relationship, and a risk assessment. Following consultation with the regional prosecutor, it was decided that the prosecution should proceed, regardless of the applicant’s statement withdrawing the complaint.
11. The reconciliation between the applicant and her husband proved to be only temporary and, when the applicant was informed of the PPS’s decision, she reinstated her complaint.
12. On 21 March 2008, the PPS concluded that there was insufficient evidence of intention to do grievous bodily harm, as required for prosecution under section 18 of the 1861 Act. The charge was therefore reduced to one of grievous bodily harm contrary to section 20 of the same Act. The Government maintain that there was no discussion with Mr Wilson’s representatives regarding this decision.
13. Mr Wilson appeared for arraignment before Londonderry Crown Court on 26 June 2008. He entered a plea of not guilty.
14. The case was then listed for mention in the Crown Court on 1 September 2008. The Government maintain that prosecuting counsel expressly requested a meeting with the applicant to explain the nature of the section 20 charge against Mr Wilson. On the same day Mr Wilson was re-arraigned and entered a plea of guilty.
15. He appeared for sentencing on 7 October 2008. The sentencing judge received inter alia a victim impact report on the applicant, photographs of her injuries and the transcript of the 999 telephone call. He also had before him a probation service report He also heard a plea in mitigation from Mr Wilson’s counsel. Counsel accepted that, had there been a record of violence, an immediate custodial sentence would have been inevitable; however, he submitted that there was no such record in Mr Wilson’s case.
16. The judge sentenced Mr Wilson to eighteen months’ imprisonment, which was suspended for three years. The judge’s sentencing remarks were as follows:
“Now Mr Wilson I have looked carefully at this case. It is on the face of it and remains a serious matter. Conviction under section 20 carries a maximum sentence of several years’ imprisonment. Your background is a surprising one to find for someone on such a serious charge of violence. You have no criminal record, you are a man who has lived now for 50 years of your life without getting into the slightest trouble; on the contrary, you have held down a number of very significant posts in your life and the reference provided to me shows me a side of your character which is very much to your credit. Sadly the events of this night betray a different side to your character, which perhaps only emerged with consumption of alcohol. It seems that, although I didn’t choose to go into the detail too closely, so as not to cause distress to other persons in this case, in particular your wife, Irene, it would appear that you felt upset and angry at what you perceived to be your wife’s conduct on the evening in question. Both of you had had something to drink but it is your drink that I am concentrating on. It seems that you reacted to this by behaving in a cowardly and very unworthy way by striking her, by knocking her down and it appears that during the course of that she sustained an injury.
Now it is not for me to start to speculate on why precisely this happened. It seems, again without causing undue distress to her, that your relationship maybe was not what it might have been and what one might hope in a happy marriage although it is right to say that there seems to be no previous incident of this type. Nevertheless, as a result of your behaviour and perhaps for various other reasons, your marriage has now been damaged apparently irreparably and your wife has suffered this great trauma and of course your own position is not an enviable one either. I have read the victim impact statement on Mrs Wilson, who I understand is in the court, and it clearly demonstrates ... that she has suffered considerably through your behaviour. She has now had to make major life changes. She has gained some assistance with support of the counselling into her own life. She will have to undergo what the doctor describes as a tortuous period of readjustment. Other matters are speculated upon which I don’t propose to read out in open court but in essence this ghastly affair has caused chaos in its wake for her and indeed it is right to say for you and again it sadly demonstrates to the court how drink can cause such a Jekyll and Hyde change in some people’s personality.
When I first read these papers it seemed to me inevitable that you would go to prison: the court will not and cannot tolerate violence perpetrated against women in particular and that was my first instinct. I have read carefully, however, what has been said about you, both from the reference which has been provided and which speaks very highly of your otherwise good character and your good nature. I also note carefully the report presented to the court by the highly experienced Probation Officer Ms [B] who has very considerable experience of this type of case and I am impressed by the fact that she says of you and I quote:
‘The defendant presents as ashamed and embarrassed with regard to the violent nature of the assault he perpetrated on his wife. The complete loss of control evidenced by Mr Wilson on this date suggests some form of build up of pressure around the relationship and the trigger on this occasion is what is alleged to have occurred on the night of this incident.’
She says also:
‘there is little doubt from my discussion with the defendant that his remorse for perpetrating this assault is genuine. There is evidence of some distorted thinking which supports controlling an aggressive behaviour in his psyche and this could be addressed through various appropriate programmes.’
Now I understand that you have actually even before coming to court engaged in counselling and have completed a number of counselling sessions. ... Well I have to concentrate in particular on the wrong done to your wife and it is for that wrong that you appear before the court today faced with the very real possibility of going to prison. I thought very carefully about a number of possible ways of disposing of the case. You pleaded guilty at the first reasonable opportunity and ... you will get full credit for that. Clearly that is something that should not be lightly brushed to one side. Very often in cases of this type the defendant will brazen it out and require the injured party to give evidence, which as we all know is a highly distressing matter for any witness but particularly when it is a crime committed within the family. You have spared your wife that and that maybe demonstrates to me in a better way than any written words can a different side to your character and supports the view of the experienced probation officer that you genuinely feel ashamed and remorseful.
So in the end of the day and not without some considerable thought I have decided that the best way to deal with your case is to impose a prison sentence but not to make it immediate. I had thought about a probation order but it seems to me that you have completed a number of counselling sessions and whilst I am absolutely certain that further work with counselling might help, there is no reason why you couldn’t undertake that voluntarily. I don’t think it requires, in the particular circumstances that you are in, and the fact that you and your wife are now estranged, I don’t think that it requires me to do that. ... [A]lthough I can see advantages to probation in this particular case I cannot see that it is the preferred course.
The sentence of the court therefore in this case is one of 18 months’ imprisonment to mark the seriousness of this offence and I am going to suspend the operation of that sentence for a period of 3 years. That is a long period of time longer than usual but it is a mark of the seriousness of the offence and also to give you an opportunity to put this behind you. You have already apologised. You have already indicated that you feel remorseful and it will give you and your wife, I hope, an opportunity to draw a line under this sad affair. Clearly your relationship has been seriously damaged by what has happened and you and your wife will have to rebuild your lives from a different prospectus. It will also remind you, Mr Wilson, that if you get into any trouble in the next 3 years I am sure it won’t be against your wife, but if you assault anyone else in such a serious manner you will go to prison, you understand that, and I have to warn you that if you do come back before the court within 3 years you may well receive this sentence together with any sentence that is thought appropriate for any future offence. I hope given your background that it is only an academic fear and with control of your drinking habits and addressing the aggression that seems to be latent with drink, which you have already started to do, that the court will not see you back again.
I am obliged by law to consider the making of a compensation order. I have thought about this carefully in this case. I don’t think it is appropriate in this particular case I think it is a matter best left to be dealt with by the criminal injury legislation and therefore the court, as I say, imposes a sentence of 18 months suspended for 3 years. If you commit no offence within the next 3 years you will hear nothing more of this. You are now free to go.”
17. On 16 October 2008, the applicant’s solicitors wrote to the PPS seeking their views on the sentence. A meeting was then arranged for 31 October 2008 between the senior public prosecutor and the applicant; at the meeting the prosecutor explained the reasons for the prosecution decision in the case. According to the Government, the applicant indicated that she was content with the PPS’s actions but remained unhappy with the sentence. A further letter was then sent on 19 March 2009 by different legal representatives, raising concerns as to the handling of the case and the information provided by the PPS. The senior public prosecutor replied on 27 March 2009, referring to the meeting of 31 October 2008.
18. The applicant then complained to various public bodies in Northern Ireland about the excessive leniency of the sentence but without success. In particular, by letter dated 10 March 2009, the Attorney-General stated he did not have the power to apply to have the sentence reviewed by the Court of Appeal (on the grounds that it was “unduly lenient”) as that power was limited to the most serious offences (see relevant domestic law and practice at paragraph 23 below).
19. The applicant sought compensation for her injuries. This was initially refused by the Northern Ireland Compensation Agency, on the basis that the physical injury suffered by the applicant was not sufficiently serious to reach the minimum level of severity required and there was no evidence of a disabling mental illness. The applicant requested a review of that decision. This led the Agency to refer the applicant for examination and assessment by a psychiatrist. Following receipt of the psychiatrist’s report, on 18 May 2010 the Agency offered the applicant compensation of GBP 2,800. The applicant accepted that offer.
20. The offences covered by sections 18 and 20 of the Offences Against the Person Act 1861 are two of the three principal offences against the person where bodily harm is caused (the other, less serious offence is actual bodily harm contrary to section 47 of the Act). Section 18 carries a maximum sentence of imprisonment for life. By virtue of the Criminal Justice (No. 2) (Northern Ireland) Order 2004, in Northern Ireland section 20 carries a maximum sentence of imprisonment for seven years.
21. For Northern Ireland, there are no sentencing guidelines for section 20 assaults in the context of domestic violence. The Court of Appeal in Northern Ireland has stated that, where guidelines promulgated by the Sentencing Guidelines Council of England and Wales accord with local experience, they may be followed (Attorney-General’s Reference (Number 1 of 2008) Gibbons and others [2008] NICA 41). The Sentencing Guidelines Council of England and Wales has promulgated guidelines entitled “Overarching Principles: Domestic Violence”. Aggravating factors set out in the guidelines include: abuse of trust and abuse of power, violence where the victim is particularly vulnerable, where there is an impact on children, the exploitation of contact arrangements with a child in order to commit an offence, a proven history of violence or threats by the offender in a domestic setting, a history of disobedience to court orders, and where the victim is forced to leave home as a consequence of the offence. Mitigating factors include positive good character (although good character in relation to conduct outside the home should generally be of no relevance where there is a proven pattern of behaviour) and provocation (although assertions of provocation should be treated with great care). Other factors influencing sentence include the wishes of the victim. Here, the guidelines state (at paragraphs 4.1–4.4):
“As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim.
There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence:
• it is undesirable that a victim should feel a responsibility for the sentence imposed;
• there is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender;
• the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.
Nonetheless, there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue. The court must, however, be confident that such a wish is genuine, and that giving effect to it will not expose the victim to a real risk of further violence. Critical conditions are likely to be the seriousness of the offence and the history of the relationship. It is vitally important that the court has up-to-date information in a pre-sentence report and victim personal statement.
Either the offender or the victim (or both) may ask the court to take into consideration the interests of any children and to impose a less severe sentence. The court will wish to have regard not only to the effect on the children if the relationship is disrupted but also to the likely effect on the children of any further incidents of domestic violence.”
22. The Government have provided statistics on those convicted of section 20 offences in Northern Ireland for the years 2004-2006. The most common sentence was an immediate custodial sentence (with the average sentences for those years being between 12 and 19 months’ imprisonment). However, a significant proportion of offenders received suspended custodial sentences instead. For instance, in 2006, of 126 offenders, 54 received immediate custodial sentences and 46 received suspended custodial sentences (the remainder were given community orders, fines or conditional discharges).
23. Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney-General to apply to have sentences for certain offences reviewed by the Court of Appeal. He or she may do so when a particular sentence appears to him or her to be unduly lenient. An offence under section 20 does not fall within the provisions of sections 35 and 36 and thus the Attorney-General cannot apply to have a sentence for that offence reviewed by the Court of Appeal.
24. The Family Homes and Domestic Violence (Northern Ireland) Order 1998 provides civil protection for victims of domestic violence in Northern Ireland. Article 11 allows a court to make an “occupation order”, which can require a respondent to leave a house. Articles 20-24 provide for the making of non-molestation orders. Article 25 makes it an offence without a reasonable excuse to contravene a non-molestation order or, where a non-molestation order is also in force, an occupation order. The maximum penalty is a fine or six months’ imprisonment (Article 15 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005).
25. The Northern Ireland Office launched the above, five-year strategy in 2005. The foreword states that domestic violence is a crime and is not acceptable in any circumstances, and that the strategy focuses on preventative measures and on the provision of better protection, justice and support services for victims and their children. Initiatives include media advertising and the introduction of a free, 24 hour, domestic violence telephone helpline.
26. In Nunn the defendant pleaded guilty to causing death by dangerous driving. He had been drinking. The victim was his friend, who had been in the car he was driving. He was sentenced to four years’ imprisonment. When he appealed against his sentence, the victim’s mother and sister supported his appeal, stating that the length of the sentence was adding to their grief. The Court of Appeal reduced the sentence to three years’ imprisonment. In doing so, it observed:
“We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity, and even in this particular case, as the short judgment has already indicated, the views of the members of the family of the deceased are not absolutely identical.
If carried to its logical conclusion the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death, to play a part in the sentencing process which many of them would find painful and distasteful. This is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime.
In the present case, however, the Court is concerned not with the judgment of the deceased’s mother and sister about the level of sentence imposed on the applicant, but with the clear evidence, which we accept, that by its very length the sentence on [the defendant] is adding to the grief and anxiety which they are suffering consequent on [the victim’s] death. When the mother and sister of the deceased and the rest of the family have already suffered so much, we do not think that these adverse consequences of this particular sentence should be disregarded.
In mercy to them we shall reduce the sentence as far as we can, consistent with our continuing public duty to impose appropriate sentences for those who cause death by driving dangerously under the influence of drink.”


ITEMID: 001-100784
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KARANDJA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary and non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1947 and lives in Sofia. She was married to a Kenyan national, Mr Robert Karandja, who died in 1993. In 1977 they had a son, Mr Peter Robert Karandja, who died on 7 June 1997 after being shot by the police on 5 June 1997.
6. Two sets of criminal proceedings were opened against Mr Karandja on unspecified dates in 1995. In the first set he was charged, together with two others, with breaking into a car on 15 December 1994 and stealing 706 pairs of stockings with a total value of 15,120 Bulgarian levs (equivalent at the material time to approximately 1,000 United States dollars). In the second set he was charged with driving a car without a valid licence on 10 October 1995. He has not been convicted of other offences and there is no indication that other charges have ever been lodged against him.
7. On 18 December 1996 the Sofia District Court revoked Mr Karandja's earlier release on bail and ordered his pretrial detention. As a result, he was put on the list of persons wanted by the police.
8. Mr Karandja was arrested on 5 June 1997. He was placed in a cell in the Third District Police Station in Sofia. After 7 p.m. the police tried to transfer him to Bobov Dol Prison. However, the escort brigade refused to take him in their custody because it was late and at about 8 p.m. he was returned to the police station. The onduty officers – Chief Sergeant G.P. and Captain V.S. – placed Mr Karandja in a cell on the third floor of the station. The Chief Sergeant searched him, but did not handcuff him because he looked “calm and was not boisterous”. Mr Karandja's shoe laces were removed and the door of the cell was closed.
9. At about 8.30 p.m. Mr Karandja managed to open the door of the cell, apparently by forcing one the chains which was keeping it closed, rammed Chief Sergeant G.P. with it, and ran down the stairs and out of the building. Once outside, he continued to run down the streets adjacent to the police station. The Chief Sergeant chased after him.
10. The escape from the police station was witnessed by Major N.C. and Captain V.S. However, neither they nor any other officers assisted Chief Sergeant G.P. in the chase.
11. The chase continued down Pirotska Street. When Mr Karandja reached the intersection with Konstantin Velichkov Boulevard, where he attempted to cross, Chief Sergeant G.P., according to his later statement, drew out his handgun and fired a warning shot in the air. Mr Karandja did not stop, dodged the traffic, crossed the boulevard and continued to run towards the city centre. Chief Sergeant G.P. continued the chase and ran down Pirotska Street. According to his later statement, he carried on shouting at Mr Karandja to stop and fired two more warning shots in the air. Mr Karandja then turned down Zaychar Street, followed by Chief Sergeant G.P. who ran after him in the middle of the street.
12. Before turning into Zaychar Street, Mr Karandja was spotted by two officers, Chief Sergeants I.I. and T.B., who were in a patrol car travelling from the opposite direction. The officers later stated that they had seen Mr Karandja running towards them and then turning into Zaychar Street. They also stated that they had seen Chief Sergeant G.P. running after him, shouting at him to stop, and firing two or three times in the air. The patrol car followed the two of them down Zaychar Street.
13. Somewhere around that time, the chase was witnessed by Chief Sergeant A.V. who was going to the police station to take up his night patrol duty and by Lieutenant G.G. who was on his way to take up night duty in another police department. Neither of them joined in the chase and the two men instead headed to police station to report the event.
14. The chase continued down Zaychar Street with Mr Karandja being pursued by Chief Sergeant G.P. and the patrol car. It is unclear whether Chief Sergeant G.P. was aware that a patrol car was behind him because it had apparently not switched on its siren and flashing light.
15. When Mr Karandja reached the intersection with Naycho Tzanov Street, where excavation works for the city's future underground had begun, Chief Sergeant G.P. fired in his direction. The bullet hit the back of Mr Karandja's head and he fell to the ground. Chief Sergeant G.P. went over to him, closely followed by Captain T.M. and Chief Sergeant I.I., who then returned to the patrol car to report the event, before going back to preserve the scene. Several passersby also gathered around Mr Karandja's body.
16. Within minutes of the shooting a police car arrived and Mr Karandja was taken to the emergency ward of Pirogov Hospital. He arrived there, unconscious, at 8.45 p.m. Despite an emergency brain operation, he died a day and half later at 10 a.m. on 7 June 1997.
17. Having been notified about the incident, between 9.15 p.m. and 9.28 p.m. on 5 June 1997 an onduty investigator from the Sofia Investigation Service inspected the scene of the shooting and the cell in which Mr Karandja had been kept. He drew a sketch and took photographs, but did not try to identify the distance between Mr Karandja and Chief Sergeant G.P. at the time of the shooting. He seized: (a) a spent cartridge found at an unspecified location in Zaychar Street by Captain T.M. who had been sitting with his son in a café close to the scene; (b) acetonedrenched swabs of Chief Sergeant G.P.'s hands; (c) handcuffs from the cell; and (d) the broken chain of the cell door. He then interviewed Captain T.M. and ordered an expert examination of Chief Sergeant G.P.'s handgun. The Sergeant made a written statement in which he said that he had been aiming for Mr Karandja's legs.
18. On 6 June 1997 a blood sample was taken from Chief Sergeant G.P. A subsequent test found no presence of alcohol or other intoxicating substances in his blood.
19. On 9 June 1997 a forensic expert performed an autopsy on Mr Karandja's body. He found that the cause of death was “a gunshot wound to the head and damage to the brain”. The report also noted that there were bruises on his face and knees, which were attributed to his fall, face first, after being shot.
20. On 16 June 1997 the Sofia Regional Military Prosecutor's Office refused to open a preliminary investigation into the incident, finding that Chief Sergeant G.P. had acted in line with section 42(1)(5) of the 1993 National Police Act (see paragraph 44 below). He had used his firearm after giving a warning in order to prevent a detainee from escaping. His act was therefore not criminal.
21. On an appeal by the applicant, on 24 February 1998 the Chief Military Prosecutor's Office set that decision aside, finding that the opening of a preliminary investigation in such circumstances was mandatory. Accordingly, on 4 March 1998 the Sofia Regional Military Prosecutor's Office opened an investigation and on 6 March 1998 sent the case file to a military investigator.
22. On 7, 13, 27 and 28 April, 25 May and 4 June 1998 the investigator interviewed Captains T.M. and V.S., Major N.C., two other officers from the police station, Chief Sergeants I.I., T.B., and A.V., two civilians who lived on Zaychar Street who had not witnessed the chase or the shooting, Lieutenant G.G., and Chief Sergeant G.P. who said that when he had fired the fatal shot his intention had been to aim low and possibly hit Mr Karandja's knees.
23. In the meantime, on 5 May 1998 the investigator asked a forensic expert to determine the cause of Mr Karandja's death, the presence of any injuries on his body, the distance from which the shot had been fired and the presence of any handcuff marks. In his report the expert said that Mr Karandja had died from a gunshot wound in the back of his head which had fatally injured his brain. The rest of his injuries were bruises which could have occurred when he had fallen to the ground. It was impossible to determine the distance from which the shot had been fired because the surgical operation had obliterated any marks on his head. However, the fact that the medical doctors had not noted any gunpowder residue near the wound could be interpreted as meaning that the shot had not been fired from a close distance. There were no clear handcuff marks.
24. On 6 May 1998 the investigator asked experts to say whether the swabs of Chief Sergeant G.P.'s palms contained gunpowder residue, and whether the spent cartridge submitted by Captain T.M. had come from the Chief Sergeant G.P.'s handgun. The swab test, conducted on 25 May 1998, found no gunpowder residue in the swabs. The handgun test, conducted on 28 May 1998, found that the cartridge had come from the Chief Sergeant's handgun.
25. Having finished his work on the case, on 31 August 1998 the investigator proposed discontinuing the investigation. In his view, Chief Sergeant G.P., by using his firearm, had strictly complied with his duties. His decision to do so had been in line with section 42(1)(5) of the 1993 National Police Act (see paragraph 44 below), as he had simply had no other means of stopping Mr Karandja from fleeing. The Sergeant's earlier decision not to handcuff Mr Karandja had also been in line with the relevant instructions.
26. On 29 September 1998 the Sofia Regional Military Prosecutor's Office found that the investigator had not sought to identify Mr Karandja's nextofkin with a view to allowing them to acquaint themselves with the case file and to bring, if they so wished, civil claims. It referred the case back to the investigator, instructing him to rectify that omission.
27. Although the investigator did not comply with those instructions, on 21 December 1998 the Sofia Regional Military Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator on 31 August 1998 almost verbatim.
28. On 22 July 1999 the applicant appealed to the Military Appellate Prosecutor's Office. She said that the investigation had failed to gather evidence about the breaking of the chain of the cell door and the way in which that door had been opened. She complained that the only witnesses interviewed were police officers and that no medical expert report had been obtained to assess the various injuries sustained by Mr Karandja. She also claimed that there were inconsistencies in the investigation's findings because it had concluded that Mr Karandja had escaped from the cell without the assistance of any tools. Lastly, she complained that she had not been allowed to consult the case file.
29. On 23 December 1999 the Military Appellate Prosecutor's Office upheld the discontinuance. It noted that the investigator had carried out a reconstruction of Mr Karandja's escape and had found that it was possible to loosen the chain and open the door in the way he had specified. The expert medical report had clarified the injuries which had led to Mr Karandja's death and the distance from which the shot had been fired. The applicant did not specify which other eyewitness she wished to have interviewed. It was true that she was not given an opportunity to consult the case file, but in the event that was not problematic because she was informed of the discontinuance and was able to appeal against it.
30. On 5 April 2000 the applicant appealed to the Supreme Cassation Prosecutor's Office, reiterating the arguments raised in her previous appeal.
31. On 2 June 2000 the Supreme Cassation Prosecutor's Office set the discontinuance aside, citing the investigator's failure to comply with the instructions to identify Mr Karandja's nextofkin – the applicant – and give her the opportunity to acquaint herself with the case file and to bring, if she so wished, a civil claim.
32. On 19 June 2000 the case was assigned to another investigator. On 3 July 2000 he interviewed the applicant in her home and allowed her to acquaint herself with the case file.
33. On 18 July 2000 the investigator proposed discontinuing the investigation, giving the same reasons as those given by the previous investigator on 31 August 1998 (see paragraph 25 above).
34. On 24 July 2000 the Sofia Regional Military Prosecutor's Office referred the case back to the investigator. It noted that he had interviewed the applicant in the absence of her counsel.
35. On 14 September 2000 the investigator interviewed the applicant in her home, in the presence of her newly-retained counsel, and allowed the two of them to acquaint themselves with the case file.
36. On 29 September 2000 the investigator proposed discontinuing the investigation, giving the exact same reasons as previously (see paragraph 33 above).
37. On 4 October 2000 the Sofia Regional Military Prosecutor's Office referred the case back to the investigator. It noted that he had not given the applicant and her counsel a proper opportunity to acquaint themselves with the case file and make any objections.
38. The applicant's counsel was allowed to consult the case file on 11 October 2000. On the same day he filed an objection, pointing out that vital investigative steps – such as witness interviews and the commissioning of an expert medical report – had been taken more than a year after the incident. It was also striking that despite the small area in which the chase had taken place and the number of shots fired, only one cartridge had been found. The positions of other officers present near the scene were not elucidated, which made it impossible to determine whether it had been possible to apprehend Mr Karandja without using firearms. Since under the applicable law, firearms could be used only “as a means of last resort”, it was essential to clarify those facts. There were also discrepancies in the investigation's findings, the chief one being the assumption that Chief Sergeant G.P. had fired several warning shots and the fatal shot, and the fact that the swab test had come out negative.
39. On the same day the investigator overruled the objection, saying that the delay had not been the fault of the investigating authorities; they had started to work on the case shortly after the prosecuting authorities had instituted the proceedings, had accepted all previous investigative actions, had conducted interviews, and had taken further investigative steps to elucidate the facts. Firearms had been used as a means of last resort to arrest Mr Karandja.
40. On 12 October 2000 the investigator again proposed discontinuing the investigation, giving the exact same reasons as previously (see paragraph 36 above).
41. On 24 October 2000 the Sofia Regional Military Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator almost verbatim and adding that the situation fell within the ambit of Article 12a of the Criminal Code (see paragraph 46 below).
42. On 16 November 2000 the Appellate Military Prosecutor's Office confirmed the discontinuance, repeating almost verbatim the reasons given by the Sofia Regional Military Prosecutor's Office.
43. In a final decision of 21 November 2000 the Military Court of Appeal also confirmed the discontinuance. It fully agreed with the prosecuting authorities' conclusion that Chief Sergeant G.P.'s actions had been in line with section 42(1)(5) of the 1993 Act and fell within the ambit of Article 12a of the Criminal Code (see paragraphs 44 and 46 below). It also noted that the Sergeant had aimed at Mr Karandja's legs and had shot him in the back of the head only because of the increasing distance between them and speed of the chase.
44. Section 42 of the 1993 National Police Act, as in force at the material time, provided, in so far as relevant:
“(1) The police may use firearms as a means of last resort:
...
5. after giving a warning, to prevent the escape of a person duly detained for having committed a publicly prosecutable offence.
(2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force...”
45. The wording of section 80(1)(5) and (2) of the 1997 Ministry of Internal Affairs Act, which superseded the above provision in December 1997, was identical. The wording of section 74(1)(4) and (2) of the 2006 Ministry of Internal Affairs Act, currently in force, repeats verbatim that of section 80(1)(5) and (2) of the 1997 Act.
46. Article 12a § 1 of the 1968 Criminal Code, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.
47. Under Article 237 of the 1974 Code of Criminal Procedure, as in force until 31 December 1999, the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor.
48. On 1 January 2000 that Article was amended to provide for a system of automatic control of the discontinuance: after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor's office, which could confirm, modify or quash it. If it confirmed the decision, it had to forward the file to the appropriate court, which had to review the matter in private. The court's decision was final. No provision was made for those concerned to be notified of the discontinuance.
49. Following a further amendment of that Article in May 2001, the discontinuance of preliminary investigations became subject to judicial review. The 2005 Code of Criminal Procedure maintained that position in Article 243 §§ 37.
VIOLATED_ARTICLES: 2


ITEMID: 001-57785
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF MEGYERI v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mr Megyeri is a Hungarian citizen who has been living in Germany since 1975.
7. In November 1981, after proceedings had been instituted against the applicant with a view to his confinement in a psychiatric hospital, he was provisionally detained in such an institution.
On 14 March 1983 the Cologne Regional Court (Landgericht), before which the applicant was represented by officially-appointed counsel, ordered that he be detained in a psychiatric hospital, pursuant to Article 63 of the Criminal Code. The court found that he had performed acts which constituted criminal offences (insulting behaviour, assault occasioning bodily harm, resisting the police, causing a traffic hazard and unauthorised departure from the scene of an accident) but that he could not be held responsible because he was suffering from a schizophrenic psychosis with signs of paranoia. Relying in particular on a medical expert’s opinion, the court stated that Mr Megyeri posed a danger to the general public because it had to be expected that he would commit further serious unlawful acts.
8. On 7 September 1984 the Cologne Administrative Court (Verwaltungsgericht), in one of numerous proceedings instituted by the applicant concerning his detention, declared that he was incapable of conducting (betreiben) court proceedings himself. The court considered that his mental illness was so obvious that it was not necessary to order an expert opinion on the point.
9. On 3 September 1984 and again on 5 August 1985 the Aachen Regional Court, referring to Article 67 e para. 2 of the Criminal Code (see paragraph 16 below), directed that the detention should continue. In the latter decision the court found that Mr Megyeri’s delusions had become more severe and suggested that guardianship proceedings (Entmündigungsverfahren) be instituted against him.
On 3 March 1986 Mr Megyeri, who had tried to have the criminal proceedings against him (see paragraph 7 above) reopened, asked the Aachen Regional Court to replace the lawyer who had acted for him in those proceedings; he also asked why that lawyer had not been present when his detention had subsequently been reviewed. The court informed him in writing, on 12 March, that there was no legal provision to the effect that counsel had to be officially assigned to detainees in review proceedings.
10. On 7 July 1986 the Aachen Regional Court again considered the applicant’s possible release on probation under Article 67 e para. 2 of the Criminal Code and decided against it. Referring to its decision of 5 August 1985, it found that it was too early to put to the test whether he would no longer commit offences if he were not in hospital. It relied in particular on a written report by three experts, including two doctors from the hospital, according to which Mr Megyeri’s state of mental health had further deteriorated, he was not willing to undergo treatment and he showed a distinct propensity towards aggressive behaviour and violence. It also relied on its own impression of the applicant, formed when it heard him on 7 July, on which occasion he had made numerous complaints and claimed to be someone else. Referring to recent case-law of the Federal Constitutional Court (Bundesverfassungsgericht - see paragraph 17 below), the Regional Court considered that the applicant’s continued detention was proportionate to the aim pursued, that is the protection of the public. It also noted that proceedings with a view to placing him under guardianship were pending.
On 2 September 1986 the Cologne Court of Appeal (Oberlandesgericht) dismissed Mr Megyeri’s immediate appeal (sofortige Beschwerde) against the Regional Court’s decision.
The applicant was not represented by counsel in the 1986 proceedings concerning his possible release. Whilst he had previously raised the question of legal assistance (see paragraph 9 above), he apparently did not specifically ask the Regional Court or the Court of Appeal to assign counsel to him and this point was not mentioned in their decisions. According to the Agent of the Government, it was to be assumed, since German law required the appointment of counsel in certain circumstances, that those courts had considered the matter of their own motion.
11. On 10 February 1987 a panel of three judges of the Federal Constitutional Court (which, in accordance with its usual practice in such cases, had not held a hearing) declined to accept for adjudication the applicant’s constitutional complaint (Verfassungsbeschwerde) against the decisions of the Regional Court and the Court of Appeal, on the ground that it did not offer sufficient prospects of success. The Federal Constitutional Court considered that there could be no objection under constitutional law to the fact that the courts had not assigned defence counsel in the 1986 proceedings, since it had not until then been obvious that the applicant could not defend himself due to his illness (see paragraph 18 below). It added, however, that having regard to the stabilising clinical situation and the fact that the end of his detention was not foreseeable, the appointment of an official lawyer would in future come into the picture (in Betracht kommen wird).
12. On 19 March 1987 the Cologne District Court (Amtsgericht) decided to place Mr Megyeri under guardianship. After hearing the applicant and having regard to an expert opinion of July 1986, it found that he was suffering from a serious mental illness that prevented him from dealing with his private affairs.
13. In subsequent review proceedings after May 1987 the applicant was represented by court-appointed counsel. Continuation of his detention was ordered by the Regional Court on 4 July 1988, but it reduced to six months the period for a further review as it was expected that medical treatment would lead to an improvement in his state of health.
14. On 4 January 1989 the Regional Court, which regarded as particularly relevant the fact that Mr Megyeri was now under guardianship, directed that he be released on probation as from 8 May 1989. It fixed a period of three years for supervision of his conduct and instructed him not to leave specified accommodation without the supervisory agency’s approval.
15. Since then, the applicant has been living in an open ward of a psychiatric hospital in Cologne. His requests for restoration of his legal capacity have, to date, been rejected, on the ground that his condition has not improved.
16. The following provisions of the Criminal Code (Strafgesetzbuch) are relevant in the present case.
"Where there is no provision for a maximum period ..., the court shall suspend on probation the further execution of the detention as soon as the detainee can responsibly be allowed out of the psychiatric hospital to see whether he will desist from further unlawful acts. Suspension shall be followed by supervision of conduct."
"(1) The court may at any time review the question of whether the further execution of the detention should be suspended on probation. It shall review this before the expiry of certain periods.
(2) The periods shall be:
- ...
- [for detention] in a psychiatric hospital, one year;
- ..."
17. According to case-law of the Federal Constitutional Court (decision of 8 October 1985 - 2 BvR 1150/80, 2 BvR 1504/82 - Entscheidungssammlung des Bundesverfassungsgerichts, vol. 70, pp. 297 et seq.), the principle of proportionality governs the detention of a person in a psychiatric hospital and its continuance. When deciding whether to suspend on probation the further execution of such detention, the court has to consider in particular the risk of significant (erhebliche) criminal offences, the detainee’s previous conduct and criminal behaviour, relevant changes in the circumstances since his detention was ordered and the detainee’s future living conditions. The longer the detention in a psychiatric hospital lasts, the stricter the test of proportionality becomes.
18. The question of the defence of an accused by counsel is governed by Article 140 of the Code of Criminal Procedure (Strafprozessordnung). Paragraph 1 lists a number of specific cases in which the participation of counsel is obligatory; paragraph 2 provides:
"In other cases, the presiding judge, upon request or ex officio, shall appoint a defence counsel if, having regard to the seriousness of the crime or the difficulty of the factual or legal issues involved, the assistance of a defence counsel appears to be necessary, or if it is obvious that the accused cannot defend himself ..."
Paragraph 2 is applied by analogy to review proceedings under Article 67 e of the Criminal Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-67333
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: STUKALOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Valentina Nikolayevna Stukalova, is a Russian national who was born in 1949 and lives in Abinsk in the Krasnodar region. She was represented before the Court by Mr N. B. Kolomiets, a lawyer practising in Krasnodar. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was an employee of a joint-stock company. In 1996, as a result of an internal audit, she was suspected of fraud.
On 3 May 1997 criminal proceedings were brought against her.
On 23 September 1997 the applicant's employer dismissed her on the ground of loss of confidence in her.
In October 1997 the applicant lodged a civil action with the Abinskiy District Court of the Krasnodar Region against her former employer, claiming reinstatement and damages.
On 6 October 1999 the court stayed the proceedings pending the outcome of the criminal case against the applicant.
On 25 July 2000 the court examined the applicant's claims and rejected them in full.
On 21 August 2000 the applicant was charged with fraud.
On 31 August 2000 the Krasnodar Regional Court upheld the judgment in the civil case.
On 13 September 2000 the investigating authority transferred the applicant's criminal case to the court.
On 19 April 2001 the Abinskiy District Court of the Krasnodar Region examined the case and terminated the applicant's prosecution for lack of evidence. The applicant, who disagreed with the grounds for termination of her prosecution, appealed. On 6 June 2001 the Krasnodar Regional Court granted her appeal and quashed the decision.
On 10 August 2001 the Abinskiy District Court of the Krasnodar Region discontinued the criminal proceedings against the applicant for want of a crime, having regard to the fact that the prosecution refused to press charges against her.


ITEMID: 001-106200
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ASHENDON AND JONES v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-2
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The first applicant was born in 1985 and lives in London.
7. In the early hours of 2 April 2006 the first applicant was discovered sleeping in a flat in a sheltered accommodation complex. He was naked from the waist down and intoxicated. Blood tests subsequently showed that he had consumed alcohol and ecstasy the night before and that he was a regular cannabis user. The tests also showed a positive response for cocaine.
8. Police and paramedic personnel were called to the scene. After investigation it was thought that the first applicant had gained entry to the flat through another flat in the complex. Upon entering the second flat, the police discovered its occupant, Mrs B, who was ninety-seven years of age, lying on the floor. She too was naked from the waist down. She was covered in faeces, she was upset and confused, and said she was in pain. She had a number of injuries and told the police she had been sexually assaulted in the night.
9. The first applicant’s jacket, shoes, trousers and underpants were found in B’s flat. Faecal material, which was found to contain components of B’s DNA, was found on the applicant’s t-shirt. Pubic hair, visually similar to that of B, was found on the first applicant and elsewhere in the flat where he had been found. Swabs were taken from the first applicant’s penis but no DNA or blood was found. There was no semen found anywhere.
10. When interviewed by police the following evening, the first applicant admitted to having been drinking and to having taken an ecstasy tablet. He denied having committed any offences and stated that he had no recollection of events. He was interviewed on a further four occasions and states that he co-operated with the police each time.
11. The first applicant was charged with burglary, rape (by penile penetration), rape (by digital penetration), and sexual assault. The applicant’s trial began on 5 February 2007. The prosecution offered no evidence in respect of the burglary charge and a not guilty verdict was recorded. In respect of the remaining charges, it was not suggested by the defence that someone other than the first applicant had assaulted B, or that there had been no contact between them. Instead, the principal area of dispute was whether the first applicant’s actions had amounted to rape or, alternatively, sexual assault. The prosecution’s case was that they did. The applicant maintained that they did not. In giving evidence in his defence, the applicant repeated that he had no recollection of events on the night in question.
12. The trial judge’s summing up to the jury contained the following direction:
“We all know this is a horrific, a disgusting episode. We all know that, and we all know – there has not been any argument about this, has there? – where moral responsibility lies but we are a court of law, we are not here to dish out admonitions for immoral conduct, disgusting behaviour. ... We are here to judge whether a crime has been committed, whether the criminal law of the land has been broken.
In order to do that you have to be objective. You have to stand back from the feelings of disgust and revulsion that come from the facts of this case and be objective. That last thing anyone would want is to compound an already awful event with another awful event, which would be a verdict based upon emotion and feelings of distaste and disgust rather than a verdict based upon a proper, logical, objective analysis of what has happened and that is what you are trusted to do.”
13. On 14 February 2007 the jury acquitted the applicant of the three remaining charges. When the first applicant applied for his costs (which exceeded GBP 100,000 and had been met by his family) his counsel stated:
“This is a case in which [the first applicant] was inevitably going to be charged with a criminal offence, I do not doubt that for a moment, and the point I made to the jury was that had a different criminal offence been charged he may have had no alternative but to plead guilty, but costs have been expended on defending him on charges for which he has been found not guilty.
Bearing in mind everything Your Honour has said about his conduct that, in my submission, would not be a relevant consideration to the application that I make now because once he was interviewed by the police he did his best...to tell the truth as he understood it and remembered it to be so he did not do anything more at that stage to bring this prosecution upon himself, simply the conduct which ended him up where he was.”
14. In refusing the application, the trial judge said:
“With regard to a defendant’s costs you [Counsel] are right, the costs should and almost invariably would follow the event. I cannot think of another case in my 35 years’ experience in the criminal courts in which it is more apparent that a defendant’s conduct, albeit that it had led to him being acquitted, but a defendant’s conduct has led to him being brought before the court and, given the nature of the circumstances and the consequences to the very vulnerable victim, the injuries that were seen upon her, where they were seen, the combination of facts, it is one of those cases where I feel it is right for the court to exceptionally say a defendant’s costs order will be refused. He [the applicant] will have an opportunity, I have not the least doubt, in the months and years ahead to make some recompense to his family who have stood so loyally by him. It is not an order that I lightly refuse but this is one of those exceptional cases where it seems to me to be justified.”
15. The second applicant was born in 1949 and lives in Stourton, West Midlands.
16. In 2005, the police began investigating the business affairs of a company where, it was alleged, there had been money laundering, theft and fraud. The second applicant is an accountant and the company had been one of her clients. In the course of their investigation the police came into possession of an audio tape, which recorded a conversation between the applicant and another person under investigation, A.R., in which the applicant was alleged to have provided advice on how to steal from the company.
17. The second applicant was interviewed under caution on 1 June 2006. The tape was played to her and, on the advice of her solicitor at that time, she declined to reply to the questions put to her. It appears that, at this time, the police did not know the provenance of the tape or the date the conversation was recorded; the applicant maintains that, when interviewed, she was unable to remember the conversation or the date of it.
18. On 11 July 2006, the second applicant was charged with an offence of perverting the course of justice and, in September 2006, with two coaccused including A.R., she was charged with conspiring to steal from the company between 1 June 2000 and 31 October 2004.
19. A defence statement was served by the applicant on 18 January 2007 in which she addressed the tape recording. She denied any discussion of impropriety, challenged the admissibility of the tape as evidence and stated that, if the prosecution established her voice was on the tape, any comments she had made in the conversation had been taken out of context.
20. The second applicant maintained that, at the start of the trial, the prosecution offered to drop the charges against her and three co-defendants if A.R and another defendant, C.R., pleaded guilty to a significant proportion of the charges against them. She alleges that if this offer had been accepted her application for her costs would inevitably have been granted. The Government, in their observations to this Court, do not accept that such an offer was made or that, if it had been accepted, the second applicant’s application for her costs would inevitably have been granted.
21. At trial the second applicant sought to have the tape excluded from evidence but the trial judge ruled that it was admissible. The second applicant then gave evidence in her own defence in which she explained that she had been able to calculate the date of the recording (1996) by reference to matters referred to in it. She also stated that, even if the tape was genuine and had not been edited as she alleged, the conversation was not in any way criminal or dishonest in purpose.
22. In his closing speech, counsel for the prosecution argued that the jury could and should draw an adverse inference from the fact that the applicant had relied on many facts in her defence, none of which she had mentioned when she was interviewed. In his summing up, the trial judge told the jury that the second applicant had failed to mention something in her police interview that she now relied upon in court. He also indicated that if the jury concluded that the second applicant had genuinely and reasonably relied on legal advice they should not draw an adverse inference.
23. On 11 July 2007 the second applicant was acquitted unanimously of the two counts facing her. Three defendants, including A.R. and C.R., were convicted of the majority of the charges against them. One defendant, M.R., was acquitted of all charges against him and another, S.R., was acquitted of all but one charge against her. M.R. and S.R. were legally aided but were granted defendant’s costs orders in respect of their own expenses.
24. The second applicant applied immediately for a defendant’s costs order, pursuant to section 16(2) of the Prosecution of Offences Act 1985 (see relevant domestic law and practice below). The trial judge refused the application. He stated:
“The relevant features, in my judgment, in this case are these: that [the second applicant], acting very much on the advice of her then solicitor [name omitted], exercised her right to silence when answering ‘no comment’ in her police interview. I emphasise she cannot be criticised for that, and the advice was given in good faith and it was accepted in good faith by [her]. However, in my judgment it is a relevant consideration in deciding whether a defendant’s costs order should be made in this case. Her failure to answer questions, in my judgment, to some extent had the effect of bringing this prosecution on herself, allowing the police to believe that the case against her was stronger than it in fact has turned out to be. In particular, a cardinal plank of the prosecution case against her on the conspiracy count was a taped phone call between her and [A.R.] in which on the face of it she appeared to give advice to [A.R.] as to how to steal from the company. Her failure, in my judgment, of putting that phone call into its true context and true timescale clearly influenced the prosecution decision to bring charges against her, and it is for that reason, and that reason alone, that I have come to the conclusion that to that extent she brought this prosecution upon herself and in my judgment that is a proper reason for refusing a defendant’s costs order. In no way is that decision meant to indicate that she is in any way guilty of this offence, she is not, she has rightly been acquitted by this jury.”
25. On 30 July 2007, the second applicant renewed her application in writing, relying inter alia on the fact the she had been unable to recall the conversation on the tape recording until the trial had started and that one of the reasons her solicitor had sought disclosure of the tape was to consider whether to propose to the police that they should re-interview her. The trial judge declined to hold an oral hearing on the renewed application and stated that he was unable to make the order for the reasons he had already given.
26. Section 16(2) of the Prosecution of Offences Act 1985 provides that where any person is tried on indictment and acquitted of any count in the indictment, the Crown Court may make a defendant’s costs order in favour of the accused. Section 16(6) provides that such an order shall be for the payment out of central funds of such an amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by the defendant in the proceedings.
27. The Practice Direction (On Costs in Criminal Proceedings) [2004] 2 Cr. App. R. 26 provides:
“Where a person is not tried for an offence for which he has been indicted, or in respect of which proceedings against him have been sent for trial or transferred for trial, or has been acquitted on any count in the indictment, the court may make a defendant’s costs order in his favour. Such an order should normally be made whether or not an order for costs between the parties is made, unless there are positive reasons for not doing so. For example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs. The court when declining to make a costs order should explain, in open court, that the reason for not making an order does not involve any suggestion that the defendant is guilty of any criminal conduct but the order is refused because of the positive reason that should be identified.”
28. In Dowler v. Merseyrail [2009] EWHC 558 (Admin), the High Court found that the phrases in the Practice Direction “where the defendant’s own conduct has brought suspicion on himself” and “has misled the prosecution into thinking that the case against him was stronger than it was” had to be read conjunctively. A court could not refuse to make a defendant’s costs order on the ground that a defendant had brought suspicion on himself unless it was also satisfied that he had also misled the prosecution into thinking the case against him was stronger than it was. The High Court also found that there was a duty to give reasons for not making an order.
29. The High Court reached the same conclusion as to a conjunctive reading of the Practice Direction in R. (on the application of Spiteri) v. Basildon Crown Court [2009] EWHC 665 (Admin). In that case, the High Court also found that an acquittal on the basis of a procedural irregularity was not a proper reason for refusing to make an order.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-58020
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF HORNSBY v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Preliminary objection rejected;Just satisfaction reserved
JUDGES: John Freeland;N. Valticos
TEXT: 6. Mr David Hornsby and his wife Mrs Ada Ann Hornsby were born in the United Kingdom in 1937 and 1939 respectively. They are graduate teachers of English and live on the island of Rhodes.
7. On 17 January 1984 the second applicant applied to the Ministry of Education in Athens for authorisation to establish in Rhodes a private school (frontistirion) for the teaching of English (see paragraph 29 below). On 25 January the Ministry refused the application on the ground that only Greek nationals could be granted such authorisation by the provincial secondary education authorities.
8. On 12 March 1984 Mrs Hornsby tried to deliver a second application in person at the offices of the Dodecanese Secondary Education Authority, but the responsible civil servant refused to acknowledge receipt. After a complaint had been lodged by Mrs Hornsby’s lawyer, the authority informed her on 5 June 1984 that under the Greek legislation in force foreign nationals could not obtain authorisation to open a frontistirion.
9. Mrs Hornsby, considering that making nationality a condition for authorisation to establish a frontistirion contravened the Treaty of Rome of 25 March 1957, applied to the Commission of the European Communities, which referred the case to the Court of Justice of the European Communities. In a judgment of 15 March 1988 (no. 147/86, Commission of the European Communities v. the Hellenic Republic), the Court of Justice held that "by prohibiting nationals of other member States from setting up frontistiria the Hellenic Republic [had] failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty".
10. On 1 April 1988 Mrs Hornsby made a further application to the Dodecanese Secondary Education Authority and on the same day Mr Hornsby separately sent the authority a similar application. On 12 April 1988 the authority refused both applications for the same reasons as it had given in its reply of 5 June 1984 (see paragraph 8 above).
11. On 15 September 1988 the Director of Secondary Education for the Dodecanese province informed the applicants that the question of granting non-Greeks authorisation to open a frontistirion was being reviewed by the competent authorities.
12. In a letter of 23 November 1988 the applicants requested the Prime Minister to take the necessary steps to ensure compliance with the judgment given by the Court of Justice on 15 March 1988 (see paragraph 9 above).
13. On 8 June 1988 each of the applicants had lodged with the Supreme Administrative Court an application to set aside the decisions of the Dodecanese Director of Secondary Education (see paragraph 10 above).
By two judgments of 9 and 10 May 1989 (nos. 1337/1989 and 1361/1989), the Supreme Administrative Court set the decisions aside in the following, identical terms:
"...
This application seeks annulment of the Dodecanese Director of Secondary Education’s decision ... of 12 April 1988 rejecting the request of the applicant, a British national, for authorisation to set up a frontistirion for foreign-language teaching in Rhodes.
Section 68 (1) of Law no. 2545/1940 ... provides: ‘Authorisation to set up a frontistirion shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system, or having equivalent academic qualifications.’
In addition, Article 18 para. 1 of the Civil Servants Code - Article 2 para. 3 of which also applies to secondary and primary teachers - provides: ‘No one shall be appointed to a civil service post who does not have Greek nationality.’ It appears from these provisions that it is against the law for a non-Greek to be given authorisation to set up a frontistirion for the teaching of foreign languages.
Article 52 of the Treaty of 25 March 1957 instituting the EEC ... proclaims freedom of establishment for the nationals of a member State within the territory of another member State, prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self-employed persons and to set up and run businesses. That provision ... has been ‘directly applicable’ in Greek law since 1 January 1981, when the Treaty came into force, without it being necessary to amend Greek legislation beforehand to bring it into line with Community law.
The above-mentioned bar preventing non-Greeks from being granted authorisation to set up a frontistirion for the purpose of teaching foreign languages, in so far as it concerns the nationals of the other member States of the European Communities, is contrary to Article 52 of the Treaty (judgment no. 147/86 of the Court of Justice of the European Communities, 15 March 1988, Commission v. the Hellenic Republic), since it has been without legal force, regard being had to the foregoing considerations, since 1 January 1981. Consequently, the impugned decision rejecting the applicant’s request - based on the erroneous premiss that the bar complained of continues to apply to all non-Greeks, without any distinction between the nationals of other member States of the European Communities and the nationals of non-member States - is unlawful and must therefore be set aside.
The application under consideration must accordingly be allowed.
For these reasons
...
The Supreme Administrative Court sets aside the Rhodes Director of Secondary Education’s decision ... of 12 April 1988.
..."
14. On 3 July 1989 two associations of frontistirion owners and three owners of such establishments in Rhodes lodged a third-party appeal (tritanakopi) against judgments nos. 1337/1989 and 1361/1989 with the Supreme Administrative Court. This appeal was dismissed by the Supreme Administrative Court on 25 April 1991.
15. On 8 August 1989 the applicants lodged two further applications for authorisation with the Dodecanese Secondary Education Authority, enclosing the judgments of the Supreme Administrative Court and emphasising that no further delay in granting authorisation could be justified. However, they received no reply.
On 27 February 1990 the applicants’ lawyer again applied to the authority.
16. On 28 March 1990 the applicants brought a private prosecution in the Rhodes Criminal Court against the Dodecanese Director of Secondary Education and any other civil servant responsible, relying on Article 259 of the Criminal Code (see paragraph 24 below).
On 22 October 1993 the Criminal Court gave judgment against the applicants, holding that even supposing the director had been acting unlawfully when he refused authorisation, the intent required by Article 259 for the elements of the offence to be made out had not been established.
17. On 14 November 1990 the applicants brought proceedings in the Rhodes First Instance Civil Court seeking compensation (Articles 914 and 932 of the Civil Code and sections 104 and 105 of the Introductory Law (Isagogikos Nomos) to the Civil Code (see paragraph 26 below)) for the prejudice they alleged had been caused them on account of the administrative authorities’ refusal to comply with the judgments of the Supreme Administrative Court (see paragraph 13 above). Mr and Mrs Hornsby claimed 30,025,200 and 41,109,200 drachmas (GRD) respectively for pecuniary damage and loss of income, and GRD 100,000,000 for non-pecuniary damage.
18. On 30 January 1992 the Rhodes First Instance Civil Court declared the application inadmissible (judgment no. 32/1992) on the ground that the dispute submitted to it came within the jurisdiction of the administrative courts.
19. On 3 July 1992 the applicants brought an action for damages against the State in the Rhodes Administrative Court. They relied, inter alia, on Article 914 of the Civil Code and section 105 of the Introductory Law to the Civil Code. In addition, they argued that the compensation should cover not only the pecuniary and non-pecuniary damage they had already sustained but also the damage they would continue to sustain until the administrative authorities granted them the authorisation they sought.
On 15 December 1995, in judgment no. 346/1995, the Administrative Court accepted that the administrative authorities had unlawfully refused to process Mrs Hornsby’s application for authorisation of 12 March 1984 (see paragraph 8 above) and that after publication of the judgments of the Court of Justice and the Supreme Administrative Court (see paragraphs 9 and 13 above) they had failed to comply with them. However, considering that the applicants had not sufficiently proved the damage they claimed to have sustained, it ordered further investigative measures.
20. On 20 April 1990 the applicants asked the Minister of Education to intervene. They applied to him again on 14 January and 29 July 1991 and to the Minister responsible for managing Cabinet business on 25 October 1991.
21. On 14 January 1993 the Dodecanese Director of Secondary Education informed the applicants that he had written to the Minister of Education to ask if he could grant the authorisation requested, in the light of the Supreme Administrative Court’s judgments of 25 April 1991 (see paragraph 14 above). On 3 May 1993 he informed them that he had again written to the Minister reminding him that two years had already gone by since the above-mentioned judgments of the Supreme Administrative Court and that their application was still pending. He also referred to three previous letters to the Minister which had gone unanswered.
22. A presidential decree (no. 211/1994) published on 10 August 1994 recognised the right of nationals of member States of the European Communities to establish frontistiria in Greece (see paragraph 28 below). However, those who did not possess a Greek secondary school-leaving certificate had to pass an examination in Greek language and history.
On 20 October 1994 the Minister of Education asked the Dodecanese Director of Secondary Education to resume consideration of the applicants’ request in the light of Presidential Decree no. 211/1994 and to keep the Ministry informed of further developments.
On 11 November 1994 the Director sent the applicants a photocopy of the decree and urged them to take the necessary steps. On 7 February 1996 he wrote to them again expressing his surprise that they had not yet taken the examination they needed to pass in order to obtain authorisation to open a frontistirion and to teach in one. He informed them that it was illegal for them to continue working in a frontistirion (belonging to a Greek national) under the relevant new legislation and asked them to regularise their situation if they wished to avoid application of the statutory penalties.
23. Article 95 para. 5 of the 1975 Constitution provides:
"The administrative authorities shall be under an obligation to comply with judgments of the Supreme Administrative Court setting aside their decisions. Breach of that obligation shall engage the responsibility of any authority in breach, according to the provisions of statute law."
24. Article 259 of the Criminal Code provides:
A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law."
25. The relevant Articles of the Civil Code read as follows:
Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded."
In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’s decision and any other measure
26. The following provisions of the Introductory Law (Isagogikos Nomos) to the Civil Code (Law no. 2783/41) are relevant:
"The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets."
"The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility."
27. Sections 45 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court, of 30 December 1988/9 January 1989, govern applications for judicial review of acts or omissions by the administrative authorities:
1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court.
...
4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority’s failure to issue such decision.
The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible.
An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately.
..."
1. Except as otherwise provided, an application for judicial review must be made within sixty days of the day following the date of notification of the impugned decision or the date of publication ..., or, otherwise, of the day following the day on which the applicant acquired knowledge of the decision. In the cases provided for in paragraphs 2, 3 and 4 of section 45, time begins to run when the time-limits prescribed in those provisions have expired.
..."
1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure.
...
3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it.
4. In discharging the obligation imposed on them by Article 95 para. 5 of the Constitution, the administrative authorities must comply with the judgments of the Supreme Administrative Court in the light of the circumstances of each case, either by taking positive measures to that end or by refraining from any action contrary to the Supreme Administrative Court’s decision. Failure to do so may entail, in addition to the criminal penalties laid down by Article 259 of the Criminal Code, personal liability in damages.
5. Judgments of the plenary court or the divisions allowing or refusing applications to set aside shall constitute binding authority in respect of the parties to a particular case and also in respect of each case or dispute pending before the judicial or other authorities where the administrative issue determined by the Supreme Administrative Court is decisive for the outcome."
28. The presidential decree of 10 August 1994 on "bringing Greek legislation concerning the setting up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community" provides:
"The purpose of the present decree is to bring Greek legislation concerning the setting-up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community, by abolishing all forms of discrimination on the ground of nationality."
"In addition to what is provided in section 68 (1) of Law no. 2545/1940 on private schools, frontistiria and boarding-schools, authorisation to set up a frontistirion shall also be granted to nationals of the member States of the European Union, providing that they have the qualifications required by law for such authorisation to be granted to a Greek national. European Union nationals shall be required to produce similar documentary evidence and the certificate prescribed by section 14 (10) of Law no. 1566/1985, which shall be applicable by analogy."
"If the applicants ... do not have a Greek secondary school-leaving certificate, they shall be required to produce a certificate attesting that they understand Greek and speak it fluently and have a knowledge of Greek history. In order to obtain such a certificate, applicants must take an examination under regulations laid down by the Minister for Education and Religious Affairs."
29. Section 63 of Law no. 2545/1940 defines a frontistirion as "the organisation in one place of courses for groups of more than five persons, or, regardless of the composition of the groups, for more than ten persons in total per week, which have as their purpose, either to supplement and consolidate instruction forming part of the curriculum for primary, secondary and higher education (the latter whether or not preparatory to university entrance), or to teach foreign languages or music or to provide general training in extra-curricular activities, for not more than three hours a day per group consisting of the same persons".
Section 68 of the same Law provides that the setting up of a frontistirion is subject to authorisation which may be granted only to natural persons who hold the qualifications required for employment in the civil service as a teacher in the public-education system. Those qualifications include, according to Article 18 of the Public Servants Code, the possession of Greek nationality.
According to Law no. 284/1968, frontistiria for foreign languages may be administered only by persons holding the statutory qualifications; for a definition of those qualifications, reference is made to Law no. 2545/1940, which requires, in particular, the possession of Greek nationality.
Greek nationality is also required in the case of all persons teaching in a frontistirion of whatever kind. The only exception to that rule was laid down by Decree no. 46508/1976 of the Minister for Education and Religious Affairs. That decree, which, however, applies only to frontistiria engaged in the teaching of foreign languages, provides:
"Each frontistirion may employ only one foreign national if it does not employ more than four foreign-language teachers of Greek nationality. If it employs more than four Greek nationals, it shall be authorised to employ more foreign nationals in the proportion of one foreign national to five Greek nationals."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1