ITEMID: 001-114770
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TAUTKUS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect)
JUDGES: András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1972 and lives in Šiauliai.
6. In 1996 the Kaunas Regional Court convicted the applicant of soliciting for prostitution and the murder of a prostitute, committed in a particularly cruel way by a group of persons. The applicant was sentenced to fourteen years’ imprisonment. This was his first conviction. Eight of his accomplices were also sentenced to between eight and fifteen years’ imprisonment.
7. When the applicant arrived in Pravieniškės Prison to serve his sentence in May 1996, he was placed in Wing 4, Section 1 of the prison (IV būrys, 1 brigada). Subsequently, he was moved to Wings 8, 7, 13 and again to Wing 7. He spent roughly a year in each of those parts of the prison.
8. On 22 November 2001 the applicant was moved to Wing 2, Section 2 of the prison. He did not sustain any injuries while residing there, nor did he complain to the doctors about health issues that could have shown any traces of prison violence.
9. R.J., who was born in 1979, arrived in Pravieniškės Prison on 25 August 2000. He was placed in Wing 2, Section 2 of the prison. Notwithstanding R.J.’s three convictions for crimes ranging from theft (in 1995) and attempted murder (in 2000) to hooliganism (in 2001), he was considered as serving an imprisonment penalty for the first time, given that following his first conviction the court had suspended the imposed sentence and the sentences for the second and third convictions had been combined.
10. The five character reports drawn up by Pravieniškės Prison administration in 1997-2002 describe the applicant as tactful with other inmates and respectful to the guards; he was also said to have had “certain authority” with other prisoners. The authorities noted that the applicant had breached the prison’s internal rules fourteen times (for keeping his hands in his pockets in the presence of guards, being intoxicated, and staying at prison quarters he was not assigned to). Nonetheless, he had also been commended thirteen times for positive behaviour and good work in prison.
As it appears from the documents submitted by the parties, in 2002 R.J. had been assessed twice by the prison administration. He was described as having authority among other inmates and tactful with them, capable of easily adapting in prison.
11. On 2 October 2002 at about 11 p.m., a fight broke out between the applicant and R.J. As a consequence, the applicant suffered severe head injuries; his skull was fractured. The next day he underwent an operation in a public hospital. He was later placed in the prison hospital in a coma.
According to a doctor’s report, R.J. sustained an injury to his forehead and had blood on his face. His leg was broken and he had bruises on his arms.
12. On 4 October 2002 the prison governor started a pre-trial investigation into the incident.
13. On 12 May 2003 the Kaišiadorys District Court convicted R.J. of having caused the applicant severe bodily injury (sunkus kūno sužalojimas). The court established that on 2 October 2002, at around 10.50 p.m., R.J. had hit the applicant no less than five times over the head and other parts of the body while in their living quarters at the prison. R.J. confessed to the crime. Two guards who testified before the court stated that once they had learned of the fight, which happened at around 11 p.m., after the evening check-up, they had run to the applicant’s cell and found him lying on the floor with his head covered in blood. The guards also stated that R.J. had smelled of alcohol.
14. The transcript of the trial hearing states that R.J. testified that “the quarrel between me and the applicant had been spontaneous”, and “the fight had been short”. He also stated that he had punched and kicked the applicant’s body and head, and that as a result the applicant had fallen down and hit his head on an aquarium. Another inmate, Ž.L., had attempted to separate them. “Afterwards the guards had run in and it had all been over”. In answer to a question by a prosecutor, R.J. stated that “he had had no prior conflicts with the applicant”. He added that “everything had happened very fast; until the guards had run into the cell, the applicant had only managed to reach the bed and lie down”.
Ž.L. testified that the conflict had taken place after the evening check-up. He said “I tried to separate R.J. and the applicant ... the conflict happened very fast”.
15. The medical report stated that R.J. had not been intoxicated when blood samples had been taken from him “on 3 October 2002”. The court therefore decided to remove from the charges against him the accusation that he had been intoxicated when the crime was committed.
The doctor’s report reads that R.J. was tested for alcohol at 11.40 a.m. on 3 October 2002. The test showed 0,00% of alcohol in his blood.
16. When imposing the sentence, the court took into consideration R.J.’s young age and the fact that he had confessed to the crime. R.J. was sentenced to two years and six months’ imprisonment, with confiscation of all his property. The court added that term of imprisonment to his prior conviction, and R.J. was ordered to spend in total ten years and two months in prison. Upon a civil claim by a prosecutor, R.J. was also ordered to reimburse the costs which the State had paid for the applicant’s hospitalisation and treatment, which amounted to 9,021 Lithuanian litai (LTL). At that time the applicant had not submitted a civil claim for non-pecuniary damages from R.J.
17. By a ruling of 3 September 2003, the Kaunas Regional Court dismissed R.J.’s appeal. The court found that there were no grounds for lowering the sentence imposed on R.J. The crime was particularly grave, with very serious consequences.
18. In May 2003 a doctors’ commission declared the applicant Category I disabled (most severe condition of disability) and unfit to work.
19. On 3 June 2003 the Vilnius City Second District Court released the applicant from the remainder of his sentence. The court noted that after the incident of 2 October 2002, the applicant had become totally disabled. He could walk only by leaning on furniture and with the help of others and was unable to adequately assess his surroundings. Moreover, he had already served two thirds of his sentence.
20. After the incident, the applicant was treated in numerous hospitals and rehabilitation centres. According to a report from Šiauliai municipality of 28 November 2006, the applicant could not speak clearly, had poor balance, and had trouble shaving, washing himself and climbing stairs. He required constant care from his family.
21. On 16 April 2007 the applicant, who believed that he was eligible for pecuniary and non-pecuniary damages on account of his injury while in prison, lodged a civil claim against the State. He argued that the prison authorities were under an obligation to maintain order in the correctional facility and should have protected and defended him from the injury that nearly cost him his life. He submitted that there was a direct causal link between his injury and the prison authorities’ alleged failure to act and guarantee safe conditions in which to serve a sentence.
R.J. was a third interested party in those proceedings, given that the outcome of the litigation for damages directly affected his pecuniary situation.
22. When the case was examined before the Vilnius Regional Administrative Court, the applicant’s lawyer also argued that the administration of Pravieniškės Prison had failed to observe prison rules stipulating that certain prisoners should be kept separately. In that context, the lawyer referred to a letter of 19 December 1994 in which the prosecutor said that R.J. had to be kept in isolation. The lawyer also argued that R.J., who had three convictions in total, was a more hardened criminal than the applicant, so the two should have been held separately. He also submitted that although, after the incident, R.J. had smelled of alcohol, blood samples had not been taken from him until twelve hours later. In the past the applicant had also been punished for consuming alcohol while in prison. The lawyer argued that the guards on duty had not kept the prisoners under constant observation, as they were obliged to do under the prison regulations. He also maintained that the administration’s decision to move an inmate from one section of the prison to another had to be justified, which had not happened in the applicant’s case. Lastly, the lawyer argued that his client had not started the proceedings for damages earlier because of his state of health.
23. R.J. testified before the Vilnius Regional Administrative Court that he had been serving his sentence in the same section of Pravieniškės Prison since 28 September 2000. In his view, “it was the State that should bear responsibility for the injuries the applicant had sustained”. He also argued that his relations with the applicant had always been tense, that “the applicant did not fit in [in Wing 2, Section 2]”, “the applicant was a ‘simple’ person and the other inmates in that section were ‘offenders’” and “the fight between the two of them would have occurred sooner or later”. In his opinion, “the prison administration could have foreseen the tension between him and the applicant if it had wanted”. R.J. did not answer the judge’s question about the reasons for the fight. Nor did he reply to her question whether he had been under the influence of alcohol at the time of the fight. He nevertheless submitted that prisoners could obtain as much alcohol in the prison “as they wanted”. The guards caught them with alcohol very rarely and, as far as R.J.’s recalled, the applicant had been sober at the time of the fight. R.J. also said that after the evening check-up, the guards carried out the first night-time check at around 11-12 p.m., and the second at a later time.
24. The Pravieniškės Prison administration and the Department of Prisons, the defendants in the case, asked the court to dismiss the civil claim, arguing that the fight had been spontaneous and the conflict could not have been foreseen. They submitted that the applicant had never informed the prison administration that he had been in danger. Accordingly, the State was not liable for the incident that had caused the applicant’s incapacity.
The prison authorities also pointed out that the inmates should have been in bed by 10 p.m., and that at night the guards checked the sleeping quarters twice.
25. On 21 February 2008 the Vilnius Regional Administrative Court dismissed the applicant’s civil claim. It noted, firstly, that the applicant had missed a statutory three-year deadline for lodging a claim for damages. Nevertheless, the court proceeded with the examination of whether the complaint was founded.
26. As to the merits of the complaint, the Vilnius Regional Administrative Court held that there was no evidence, either written or factual, of the applicant having ever approached the authorities claiming that he was unsafe in Pravieniškės Prison, even though such a right was guaranteed by Article 50 of the Code of Correctional Works (see Relevant Domestic Law and Practice below). The court also emphasised that the prison administration had properly executed its duties as concerns the placement of inmates. Both the applicant and R.J. had been serving a prison sentence for the first time, so they could be held in the same wing and section. As to the suggestion by the applicant’s lawyer that the applicant had been moved from one part to another of the prison without a valid reason, the court held that “the applicant could have challenged those actions [but had failed to do so]”. Moreover, the applicant himself had not been an exemplary prisoner and had been punished a number of times for breaching internal rules (ranging from alcohol consumption to leaving his living quarters). The court found weighty the prison administration’s argument that the applicant had never approached them claiming, either verbally or in writing, that he was unsafe in prison in general or that he had had any conflicts with a particular inmate. Consequently, there were no grounds for finding the prison administration liable for not preventing the incident. According to the case-file, the fight was spontaneous and took place after the evening check-up, when all the inmates, including the applicant and R.J., should have been sleeping or at least in bed. Overall, there was no legal basis for granting the applicant’s civil claims.
27. The applicant appealed, invoking Article 3 of the Convention and reiterating his earlier arguments that the State had not protected him from serious injury in prison, as a consequence of which his health had been permanently damaged. He also submitted that the prison administration had failed to ensure that prisoners could not obtain alcohol, arguing that alcohol made prisoners unpredictable and aggressive.
The Department of Prisons asked that the civil claim be dismissed as unfounded. They pointed out that there was no objective evidence that R.J. had been under the influence of alcohol during the incident. That fact had not been established in the criminal proceedings.
28. On 24 November 2008 the Supreme Administrative Court examined the applicant’s appeal but dismissed it on the merits. There was no evidence in the case file that any action or inaction on the part of staff at Pravieniškės Prison had contributed to the incident between the applicant and R.J. During the criminal proceedings, it had been established that it was R.J. who had injured the applicant, and R.J. had been convicted accordingly. Therefore, as it had not been possible to establish any illegal acts or failure to act on the part of the prison staff, the State could not be held responsible for the non-pecuniary damage the applicant had sustained.
29. The Code of Correctional Works (Pataisos darbų kodeksas), as in force at the relevant time, reads as follows:
“The purpose of accommodating convicts separately or in isolation in correctional institutions is:
to separate convicts who, due to the nature of their crimes or their character, might negatively influence other inmates;
to facilitate the social rehabilitation of convicts;
to help ensure the supervision and safety of convicts;
to help safeguard the requirements of security and administration of the correctional institutions ...
The following categories of convict should be isolated from each other within the same correctional institutions, or if possible placed in different institutions: convicts sentenced to imprisonment for the first time; those convicted for intentional and negligent crimes, ... very dangerous recidivists; those convicted for serious crimes ...
If a convict, serving his sentence at a correctional prison, addresses the administration in writing with a request to be isolated from other inmates for important reasons, the director of the prison has a right to transfer the convict to a cell and to hold him in isolation or with other inmates transferred to the cell for the same reasons. The duration of such a transfer shall be fixed by the prison administration. A transfer to a cell is not considered as a penalty ...”
“The main obligations of prison authorities are the following: where necessary, the isolation of convicts and their constant supervision; ... guaranteeing different conditions of custody for convicts having regard to the nature of their crime and their dangerousness, character of a convict and his or her behaviour.”
“The convicts have the right to address the State and municipal officials ... submitting requests, proposals and complaints...”
30. The Internal Regulations of Correctional Institutions (Pataisos darbų įstaigų vidaus tvarkos taisyklės), approved by decision no. 172 of the Minister of Justice on 16 August 2000, read as follows:
“4. Convicts must be treated in such a way as to safeguard their health ...
20. Prisons may be divided into sectors. In accordance with Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe, the purposes of allocating prisoners to separate sectors are:
20.1. to separate from others those prisoners who, by reasons of their criminal records or their personality, are likely to benefit from that or who may exercise a bad influence;
20.2. to facilitate their treatment and social resettlement taking into account the management and security requirements ...
94. Psychologists, heads of wing, internal investigation officers, supervisors and staff ... conduct investigatory and explanatory work upon the arrival of new prisoners who are placed in quarantine ... While placed in quarantine, prisoners must be provided with adequate information about their rights, duties, prison regulations and the conditions in which their sentence will be carried out ...
122. In order to guarantee internal order at the correctional institution, safeguard the security of the institution, their personnel and prisoners, and also to ensure the discipline of prisoners, the latter are forbidden:
(...)
122.10. to obtain, produce, consume and distribute alcoholic drinks, their substitutes, toxic, psychotropic and narcotic substances ...
493. Health care staff shall examine a convict who has sustained bodily injury and shall make a note of the nature of the convict’s injury, describing the circumstances (according to the convict’s statements) under which the injury was inflicted, also indicating place and time. The medical personnel shall make an entry in a special journal and inform the [prison administration].”
31. On 22 August 2000 the Minister of Justice issued an Instruction for the Security and Supervision of Detention Facilities, which sets out the measures prison authorities must take to ensure continuous supervision of prisoners, isolation where necessary and the implementation of regime requirements. Supervision is also aimed at preventing possible breaches of discipline and crimes. For that purpose, the guards watch and count the prisoners, and search the prisoners and premises. The guards supervise the prisoners and premises from their posts located throughout the prison and while moving around the prison. They must ensure that the prisoners obey the daily schedule and that they remain in the sectors allocated to them. The prisoners are counted three times a day. In order to find and collect prohibited items, the guards perform both scheduled and surprise searches of the inmates and premises.
32. Under the Civil Code, an abridged three-year statutory time-limit applies to claims for damages (Article 1.125 § 8). The Code also provides:
“1. Civil liability shall arise from the non-performance of a duty established by law or by contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from the violation of the general duty to behave with care.”
“1. Damage caused by the unlawful action of a public authority institution must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of the public authority institution ...
2. For the purposes of this Article, the notion ‘public authority institution’ shall mean any subject of public law (State or municipal institution, official, public servant or any other employee of these institutions, etc.), as well as a private person performing the functions of a public authority.
3. For the purposes of this Article, the notion ‘action’ shall mean any action (or inaction) by a public authority institution or its employees that directly affects the rights, liberties and interests of persons ...
4. Civil liability of the State or a municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees.”
33. Recommendation no. R(87)3 of the Committee of Ministers to member states on the European Prison Rules of 12 February 1987 (“the European Prison Rules”) includes in its basic principles:
“11. 1. In allocating prisoners to different institutions or regimes, due account shall be taken of their judicial and legal situation (untried or convicted prisoner, first offender or habitual offender, short sentence or long sentence), of the special requirements of their treatment, of their medical needs, their sex and age.
2. Males and females shall in principle be detained separately, although they may participate together in organised activities as part of an established treatment programme.
3. In principle, untried prisoners shall be detained separately from convicted prisoners unless they consent to being accommodated or involved together in organised activities beneficial to them.
4. Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age ...
12. The purposes of classification or reclassification of prisoners shall be:
a. to separate from others those prisoners who, by reasons of their criminal records or their personality, are likely to benefit from that or who may exercise a bad influence; and
b. to assist in allocating prisoners to facilitate their treatment and social resettlement taking into account the management and security requirements.
13. So far as possible separate institutions or separate sections of an institution shall be used to facilitate the management of different treatment regimes or the allocation of specific categories of prisoners.”
34. Recommendation Rec(2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners, adopted on 9 October 2003, reads as follows:
“12. A careful appraisal should be made by the prison administration to determine whether individual prisoners pose risks to themselves and others. The range of risks assessed should include harm to self, to other prisoners, to persons working in or visiting the prison, or to the community, and the likelihood of escape, or of committing another serious offence on prison leave or release.
13. Needs assessments should seek to identify the personal needs and characteristics associated with the prisoner’s offence(s) and harmful behaviour (”criminogenic needs”). To the greatest extent possible, criminogenic needs should be addressed so as to reduce offences and harmful behaviour by prisoners both during detention and after release.
14. The initial risk and needs assessment should be conducted by appropriately trained staff and preferably take place in an assessment centre.
15. a. Use should be made of modern risk and needs assessment instruments as guides to decisions on the implementation of life and long-term sentences.
b. Since risk and needs assessment instruments always contain a margin of error, they should never be the sole method used to inform decision-making but should be supplemented by other forms of assessment.
c. All risk and needs assessment instruments should be evaluated so that their strengths and weaknesses become known.
16. Since neither dangerousness nor criminogenic needs are intrinsically stable characteristics, risk and needs assessments should be repeated at intervals by appropriately trained staff to meet the requirements of sentence planning or when otherwise necessary.
17. Risk and needs assessments should always be related to the management of risks and needs. These assessments should therefore inform the choice of appropriate interventions or modifications of those already in place.”
“18. a. The maintenance of control in prison should be based on the use of dynamic security, that is the development by staff of positive relationships with prisoners based on firmness and fairness, in combination with an understanding of their personal situation and any risk posed by individual prisoners.
b. Where technical devices, such as alarms and closed circuit television are used, these should always be an adjunct to dynamic security methods ...
19. a. Prison regimes should be organised so as to allow for flexible reactions to changing security and safety requirements.
b. Allocation to particular prisons or wings of prisons should be based on comprehensive risk and needs assessments and the importance of placing prisoners in environments that, by taking account of their needs, are likely to reduce any risk posed.
c. Particular risks and exceptional circumstances, including requests by prisoners themselves, may necessitate some form of segregation of individual prisoners. Intensive efforts should be made to avoid segregation or, if it must be used, to reduce the period of its use ....”
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-68421
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BEET AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1 with regard to one applicant;Violation of Art. 5-5 with regard to one applicant;Violation of Art. 6-1+6-3-c with regard to four applicants;Non-pecuniary damage - financial award (with regard to one applicant);Non-pecuniary damage - finding of violation sufficient (with regard to four applicants);Pecuniary damage - claim dismissed;Costs and expenses partial award
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 8. The details concerning the date of birth and place of residence of the five applicants are contained in their application forms and are available in the respective case files.
9. Each applicant failed to pay sums due in respect of either local taxes (community charge or council tax), or court-imposed fines. In respect of the failure to pay local taxes, the magistrates’ court had in each case determined that the applicant was liable to pay (issuing a “liability order”); in fines cases, the magistrates’ court had imposed the fine as the sentence following a criminal conviction.
10. Each applicant fell into arrears with the payments due from them. These cases involve the enforcement proceedings in respect of their arrears in the magistrates’ court. Each applicant appeared before the court, following the issuing of an application for their committal to prison as a result of their failure to pay the sums due. At that hearing the magistrates found that the non-payment was due to the applicant’s wilful refusal or culpable neglect. As a result each applicant was sentenced to a period of imprisonment, suspended on terms that the applicant make periodic payments towards the outstanding sum. The applicants failed to comply with the terms imposed. A further hearing was thereafter held in the magistrates’ court at which the suspended term of imprisonment was activated. Each applicant spent a period of time in prison. Legal aid (free legal representation where the applicant did not have sufficient means to pay for it) was not available for these enforcement proceedings prior to 1 June 1997 and none of the applicants was legally represented at the hearings in front of the magistrates.
11. Following their imprisonment, an application was made on behalf of each applicant, by way of either judicial review or case stated, which resulted in the High Court quashing the orders made by the magistrates. The applicants were released from prison on bail at the time of making their applications to the High Court. In all five cases the orders were quashed following the High Court’s approval of a consent order agreed between the applicants and the magistrates who had sentenced them.
12. The Court has set out the relevant facts pertaining to each applicant in the table which appears at the end of the decision on admissibility (47675/99, McAndrew and Others v. the United Kingdom, decision of 21 October 2003). That table sets out the following information in respect of each applicant: their name and application number; whether their case involved non-payment of community charge (“CC”), council tax (“CT”) or fines (“F”) and the number of days which they spent in prison; whether their proceedings in the magistrates’ court took place before or after legal aid became available on 1 June 1997; and the grounds upon which the High Court quashed the orders of the magistrates. A summary of the terms of the consent order whereby the orders of the magistrates were quashed is also set out in the table.
13. Throughout the text of this decision, where there is a reference to a specific applicant, the Court has set out the surname of the applicant followed by their application number in brackets. The words “justices” and “magistrates” are synonymous in domestic law.
14. The Court sets out the facts of one case more fully below.
15. The applicant’s proceedings before the magistrates arose in respect of her arrears in payment of the community charge and took place after 1 June 1997. She spent a total of 2 days in prison. The orders of the magistrates’ court were quashed by the High Court as a result of a consent order in which it was agreed that:
“(i) The decision of the justices that the applicant had culpably neglected to pay her community charge without having conducted a proper inquiry into her circumstances as of the time that the liability became due was unlawful, see R. v. Leeds Justices ex parte Kennett [1996] RVR 53.
(ii) The decision of the justices to issue a sentence of committal to prison and to make an order postponing the issue of the warrant that would have left the threat of imprisonment over her for over 4 years was unlawful having regard to the principles laid down in R. v. Oliver and Oliver [1989] 11 Cr App R(S) 10 and R. v. Ealing Justices ex parte Cloves [1991] RVR 169 and R. v. Newcastle upon Tyne Justices ex parte Devine [1998] RA 97.
(iii) In view of the circumstances of the applicant and [her] detention, and the period of detention served, all parties agreed that the matter be remitted back to the magistrates and that the magistrates, upon reviewing the matter, agreed to remit the outstanding community charge arrears, see Brooke LJ in R. v. St Helens Justices ex parte Jones CO/3328/95.”
In respect of costs, it was further agreed that:
“... in view of the fact that the Hull Justices had acknowledged the same ground in quashing the committal in R. v. Hull Justices ex parte Shawcross (CO/265/98) costs be borne by the respondent justices see R. v. Newcastle upon Tyne Justices ex parte Devine [1998] RA 97.”
16. The relevant statutory provisions and domestic case-law are set out in Lloyd and Others v. the United Kingdom, nos. 29798/96 and others, judgment of 1 March 2005, §§ 35-87; hereinafter “Lloyd”). Of additional relevance in this case is the case-law set out below.
17. In R. v. Ealing Justices ex parte Cloves [1991] RVR 169, the Divisional Court held that a committal order which had been suspended on the basis of the debtor paying one pound sterling (GBP) per week in discharge of the arrears of rates due was quashed since it would have taken over eight years for the debt to be discharged and the risk of committal removed. During the course of his judgment, Lord Justice Nolan stated as follows:
“ ... The criminal courts, when imposing fines upon convicted defendants of limited means, frequently provide for the fines to be paid by instalments over a period. There is no fixed limit to the period over which payment can be ordered. It has recently been indicated by the Court of Appeal that in appropriate circumstances a period of three years might not be excessive. ...
... In my judgment it would be a very rare case indeed in which a defaulting rate-payer could properly be ordered, on pain of a sentence of imprisonment, to make payments in discharge of the arrears for a period anywhere near approaching eight years. In my judgment, with great respect to the Justices, unless they were confident that she could pay it off more quickly they should not have made the order in those terms.”
18. In the above-cited case of R. v. Newcastle-upon-Tyne Justices ex parte Devine, Mr Justice Latham referred to the above-cited ex parte Cloves case in stating that the magistrates should not have imposed a suspended committal order which would have lasted for three and a half years. He was of the opinion that such an order should not be suspended for more than three years.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-5
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-97979
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF MEDVEDYEV AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (ratione materiae);Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger
TEXT: 9. The applicants were crew members on a merchant ship named the Winner, registered in Cambodia. The ship had attracted the attention of the American, Spanish and Greek anti-drug services when the Central Office Against Illegal Drug Trafficking (l’Office Central de Répression du Trafic Illicite des Stupéfiants – “the OCRTIS”), a ministerial body attached to the Central Police Directorate of the French Ministry of the Interior, requested authorisation to intercept it. The OCRTIS suspected the ship of carrying large quantities of drugs, with the intention of transferring them to speedboats off the Canary Islands for subsequent delivery to the coasts of Europe.
10. In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government’s agreement for the French authorities to take action, in the following terms:
“The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands.
The Ministry of Foreign Affairs and International Cooperation takes this opportunity to renew its assurance of its high esteem.”
11. In a diplomatic telegram dated the same day, the French embassy in Phnom Penh passed on the information to the Ministry of Defence in Paris.
12. The commander of the French frigate Lieutenant de vaisseau Le Hénaff, which lay at anchor in Brest harbour and had been assigned a mission off the coast of Africa, was instructed by the French naval authorities to locate and intercept the Winner. The frigate left Brest harbour the same day to search for and intercept the Winner, with the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea, on board for the duration of the mission. On 10 June 2002, during a technical stopover in Spain, three experts from the OCRTIS also boarded the frigate.
13. On 13 June 2002, at 6 a.m., the French frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde, several thousand kilometres from France. It was not flying a flag, but was identified as the Winner. The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat. While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact, its crew jettisoned a number of packages into the sea; one of the packages, containing about 100 kilos of cocaine, was recovered by the French seamen. After several warnings and warning shots fired under orders from France’s maritime prefect for the Atlantic went unheeded, the French frigate fired a shot directly at the Winner. The merchant ship then answered by radio and agreed to stop. When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a “warning shot” was fired at the ground, but the bullet ricocheted and the crew member was wounded. He was immediately evacuated onto the French frigate, then transferred to Dakar hospital, where he died a week later.
14. Under orders from the maritime prefect and at the request of the public prosecutor in Brest, a tug with a military doctor on board was sent from Brest to tow the Winner back to Brest harbour, escorted by the frigate Commandant Bouan. Because of its poor state of repair and the weather conditions, the ship was incapable of speeds faster than 5 knots.
15. The crew of the Winner were confined to their quarters under military guard. The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the French forces. According to the applicants, the coercive measures were maintained throughout the voyage, until they arrived in Brest.
16. On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking involving Greek nationals.
17. On 24 June 2002 the Brest public prosecutor’s office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed.
18. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew were handed over to the police, acting under instructions dated 25 June 2002 from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights.
19. On the same day, the applicants were presented to an investigating judge at the police station in Brest, to determine whether or not their police custody should be extended. The reports submitted to the Grand Chamber by the Government show that certain applicants met one of the investigating judges (R. André) at 5.05 p.m. (Mr Cabrera Leon), 5.10 p.m. (Mr Sage Martínez), 5.16 p.m. (Mr Balaban), 5.25 p.m. (Mr Manolache), 5.34 p.m. (Mr Petcu) and 5.40 p.m. (Mr Dodica), and the other applicants (Mr Medvedyev, Mr Bilenikin and Mr Boreas) were heard by the second investigating judge (B. Simier) at an unspecified time. The applicants were presented to the same investigating judges again the following day, 27 June 2002 (Mr Sage Martínez at 5.05 p.m., Mr Cabrera Leon at 5.10 p.m., Mr Manolache at 5.20 p.m., Mr Balaban at 5.28 p.m., Mr Dodica at 5.35 p.m. and Mr Petcu at 5.40 p.m.; the times for the other three applicants are not known).
20. On 28 and 29 June 2002 the applicants were charged and remanded in custody pending trial (Mr Petcu, Mr Dodica, Mr Balaban and Mr Manolache on 28 June, and Mr Medvedyev, Mr Bilenikin, Mr Boreas, Mr Cabrera Leon, Mr Sage Martínez and two other crew members – Mr Litetski and Mr Theophanous – on 29 June).
21. The applicants applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed, submitting that the French authorities had acted ultra vires in boarding the Winner, as the ship had been under Cambodian jurisdiction and Cambodia was not party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, and also that they had not been brought “promptly” before a judge, as required under Article 5 § 3 of the Convention, when the Winner was intercepted.
22. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. After retracing the details of the operations, including the fact that “on 13 June at 6 a.m. the French frigate spotted a merchant ship – first on its radar, then visually – travelling at slow speed and flying no flag, and identified it as the Winner”, it pronounced judgment in the following terms:
“Considering that the international effort to combat drug trafficking is governed by three conventions: the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on [10] December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988; while France has signed and ratified all three conventions, Cambodia has not signed the Vienna Convention, Article 17 § 3 of which provides for derogations from the traditional principle of the ‘law of the flag State’.
Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in Article 92 of the Montego Bay Convention, the authority of a State on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the State’s own law are respected as Article 108 of that Convention, on ‘Illicit traffic in narcotic drugs or psychotropic substances’, stipulates:
1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.
Considering that, based on that text and ‘with reference’ to the earlier United Nations Convention of 30 March 1961 against international drug trafficking, the French authorities were within their rights to request Cambodia’s cooperation with a view to obtaining that country’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved; that as the provisions of the Vienna Convention do not apply to Cambodia, it was for that State to ask the French authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion; that the diplomatic telegram sent by the French embassy on 7 June 2002, which actually mentions the reasoned request submitted by the OCRTIS, suffices to establish the existence of an agreement given without restrictions or reservations by the government of Cambodia for the planned interception and all its consequences, and is authoritative until proven otherwise; that on this point the applicants cannot contend that the document does not meet the formal requirements of Article 17 § 3 of the Vienna Convention concerning bilateral agreements between parties, when they are also arguing that the Vienna Convention is not applicable to Cambodia because it has not signed it; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the Cambodian government’s agreement to the French embassy.
Considering, on the other hand, that in proceeding to intercept the Winner it was the duty of the French authorities to comply with the procedures provided for both in the Vienna Convention signed by France – in particular to ‘take due account of the need not to endanger the safety of life at sea, the security of the vessel and its cargo’ – and in the Law of 15 July 1994, as amended by the Law of 29 April 1996 adapting French law to Article 17 of the Vienna Convention, Articles 12 et seq. of which define the sphere of competence of commanders of naval vessels and the procedures for the search, reporting, prosecution and judgment in the French courts of drug trafficking offences committed at sea.
Considering that the reports drawn up by the commander of the Lieutenant de vaisseau Le Hénaff, duly authorised by the maritime prefect for the Atlantic, which are authoritative until proven otherwise, state that when the frigate drew within sight of the Winner, off the Cape Verde islands, the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship, in breach of the rules of international law, and to stop his ship, but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on board the speedboat; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard, one of which was recovered and found to contain a large quantity of cocaine; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship, the commander of the frigate acted in strict compliance with:
– the provisions of Article 17 § 4 of the Vienna Convention under which, if evidence of involvement in illicit traffic is found after a ship has been boarded and searched, appropriate action may be taken with respect to the vessel and the persons and cargo on board,
– the provisions of the Law of 15 July 1994 as supplemented by the Law of 29 April 1996, which, in its general provisions (Articles 1 to 10) regulates recourse to coercive measures comprising, if necessary, the use of force in the event of refusal by a ship to submit to control and also, in the particular case of the fight against drug trafficking (Articles 12 to 14), makes provision for the implementation of the control and coercion measures provided for under international law.
Considering that, regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the French naval authorities, and to the attitude of the crew members, who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard, the members of the commando unit who boarded the ship found themselves in the presence of large-scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission; that they were obliged to use their weapons in response to the resistance put up by one of the ship’s crew; that it cannot be claimed that Article 13 of the Law of 15 July 1994 as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘the inspection and coercion measures provided for in international law’, and Article 17 § 4 (c) of the Vienna Convention against Illicit Traffic in Narcotic Drugs [and Psychotropic Substances] expressly mentions taking ‘appropriate action with respect to the persons on board’; that although the nature of these measures is not specified, the text at least provides for the possibility for the competent naval authorities to limit, if necessary, the freedom of the boarded ship’s crew to come and go, otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised; that it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force; that consequently, confining the members of the crew of the Winner – all but the wounded man, who was transferred to the frigate – to their cabins under the guard of the commando unit, so that the ship could be safely taken over and rerouted, fell within the appropriate measures provided for in Article 17 § 4 (c) of the Vienna Convention.
Considering that the Law of 15 July 1994 necessarily requires some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it is impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge; and, that being so, that the restrictions placed on the movements of the boarded ship’s crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the European Convention on Human Rights and did not amount to unlawful detention; and that it should be noted that as soon as the Winner docked in Brest, its crew were handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge.
Considering also that the French courts have jurisdiction under the Law of 15 July 1994 as amended.
... the grounds of nullity must accordingly be rejected [and] there is no reason to disallow any other documents from the proceedings, which are lawful.”
23. In a judgment of 15 January 2003, the Court of Cassation dismissed an appeal lodged by the applicants in the following terms:
“... in so far as Cambodia, the flag State, expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action was taken against the persons on board, who were lawfully taken into police custody as soon as they landed on French soil, the Investigation Division has justified its decision.”
24. On 28 May 2005, the Ille-et-Vilaine Special Assize Court found three applicants – Mr Boreas, Mr Sage Martínez and Mr Cabrera Leon – and one other crew member, S.T., guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years’, ten years’, three years’ and eighteen years’ imprisonment. However, Mr Boreas and S.T. were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking. The Assize Court acquitted the other six applicants and O.L., another crew member, of the charges against them.
25. In a judgment of 6 July 2007, the Loire-Atlantique Assize Court, examining an appeal lodged by Mr Boreas, Mr Sage Martínez and S.T., upheld the conviction and sentenced them respectively to twenty, twelve and seventeen years’ imprisonment. On 9 April 2008 the Court of Cassation dismissed an appeal on points of law lodged by S.T. and Mr Boreas.
26. In a note of 9 September 2008, in reply to a request submitted by the French embassy in Phnom Penh on 3 September 2008, the Ministry of Foreign Affairs and International Cooperation of Cambodia confirmed that its diplomatic note of 7 June 2002 had “indeed authorised the French authorities to intercept and carry out all necessary operations for the inspection, seizure and legal proceedings against the ship Winner, flying the Cambodian flag, but also against all the members of its crew”.
27. The relevant provisions of the United Nations Single Convention on Narcotic Drugs of 30 March 1961, to which France is a party, read as follows:
“Having due regard to their constitutional, legal and administrative systems, the Parties shall:
(a) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination;
(b) Assist each other in the campaign against the illicit traffic in narcotic drugs;
(c) Cooperate closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic;
(d) Ensure that international cooperation between the appropriate agencies be conducted in an expeditious manner; and
(e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;
(f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by Article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and
(g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.”
28. The relevant provisions of the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) (to which Cambodia is not a party) read as follows:
“1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.”
“1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under Article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
4. These provisions apply mutatis mutandis to military aircraft.
5. These provisions also apply to any other duly authorised ships or aircraft clearly marked and identifiable as being on government service.”
29. The relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”) (to which France is a party but not Cambodia) read as follows:
“1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.
2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.
3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel.
4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia:
(a) Board the vessel;
(b) Search the vessel;
(c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.
5. Where action is taken pursuant to this Article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.
6. The flag State may, consistent with its obligations in paragraph 1 of this Article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.
7. For the purposes of paragraphs 3 and 4 of this Article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.
8. A Party which has taken any action in accordance with this Article shall promptly inform the flag State concerned of the results of that action.
9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this Article.
10. Action pursuant to paragraph 4 of this Article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.
11. Any action taken in accordance with this Article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.”
30. The relevant provisions of this agreement, signed by twenty-two member States of the Council of Europe (but not by France) and ratified by thirteen, read as follows:
“The member States of the Council of Europe, having expressed their consent to be bound by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, hereinafter referred to as ‘the Vienna Convention’,
Considering that the aim of the Council of Europe is to bring about a closer union between its members;
Convinced of the need to pursue a common criminal policy aimed at the protection of society;
Considering that the fight against serious crime, which has become an increasingly international problem, calls for close cooperation on an international scale;
Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea, in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation;
Considering, therefore, that Article 17 of the Vienna Convention should be supplemented by a regional agreement to carry out, and to enhance the effectiveness of the provisions of that Article,
Have agreed as follows:
...
Section 3 – Rules governing action
1. Having received the authorisation of the flag State, and subject to the conditions or limitations, if any, made under Article 8, paragraph 1, the intervening State may take the following actions:
i.
a. stop and board the vessel;
b. establish effective control of the vessel and over any person thereon;
c. take any action provided for in sub-paragraph ii of this Article which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof;
d. require the vessel and any persons thereon to be taken into the territory of the intervening State and detain the vessel there for the purpose of carrying out further investigations;
ii. and, having established effective control of the vessel:
a. search the vessel, anyone on it and anything in it, including its cargo;
b. open or require the opening of any containers, and test or take samples of anything on the vessel;
c. require any person on the vessel to give information concerning himself or anything on the vessel;
d. require the production of documents, books or records relating to the vessel or any persons or objects on it, and make photographs or copies of anything the production of which the competent authorities have the power to require;
e. seize, secure and protect any evidence or material discovered on the vessel.
2. Any action taken under paragraph 1 of this Article shall be without prejudice to any right existing under the law of the intervening State of suspected persons not to incriminate themselves.
1. Where, as a result of action taken under Article 9, the intervening State has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel, or both, it may so proceed.
...
1. Actions taken under Articles 9 and 10 shall be governed by the law of the intervening State ...”
31. This agreement between continental and island States of the Caribbean area (Costa Rica, the Dominican Republic, France, Guatemala, Haiti, Honduras, the Netherlands, Nicaragua and the United States of America) in respect of the Vienna Convention, lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for States to be able to consent in advance to intervention by the other States Parties on ships flying their flags.
32. It allows a State Party to take coercive action, even in the territorial waters of another State Party, by delegation of the latter State. There are three possibilities:
– systematic authorisation;
– authorisation if no answer is received from the flag State within four hours of another Party submitting a request for intervention;
– express authorisation for the intervention, which corresponds to the current legal situation under the Vienna Convention.
33. The draft law thus allows the States to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters.
34. The relevant provisions of Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea, as amended by Law no. 96-359 of 29 April 1996 on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, read as follows (version applicable at the material time):
“Part II: Special provisions adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988.
The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part I of the present Law and by the following provisions. These provisions shall apply not only to ships flying the French flag, but also:
– to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State;
– to ships displaying no flag or having no nationality.
Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the maritime prefect, who shall inform the public prosecutor’s office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this Law.”
35. In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention:
“The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of the Defence Code and by the provisions of the present Part of this Law. These provisions shall apply not only to the ships mentioned in Article L. 1521-1 of the Defence Code, but also:
– to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention;
– to ships displaying no flag or having no nationality.”
36. In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on “Exercise of the State’s law enforcement powers at sea”, by adding the following final sentence:
“During transit subsequent to rerouting, the officers mentioned in Article L. 1521-2 may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”
37. In its report on the draft of this Law, the Foreign Affairs Committee stated (extract from Report no. 280 (2004-05), dated 6 April 2005):
“B. THE DRAFT LAW
1. Secure the procedures
(a) Delete the reference to the Vienna Convention on drug trafficking
In the case involving the Winner, a ship flying the Cambodian flag that was stopped by the French navy off the coast of West Africa, the Court of Cassation did not deem it necessary to rely on the Vienna Convention, to which Cambodia was not party, to find that the stopping of the ship with the consent of the flag State in the particular case of drug trafficking had been lawful. It found it sufficient to rely on Article 108 of the Montego Bay Convention, which provides: ‘Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.’ On the other hand, when carrying out the interception, a State Party to the Vienna Convention which stops such a ship – in this case, France – must comply with the rules laid down therein and may thus rely on the provisions of Article 17 of the Vienna Convention, concerning coercion measures. In this case the Court found that the jurisdiction of the flag State was not exclusive when it assented to a request to intervene.
It appears preferable, however, to delete the reference to the Vienna Convention, in so far as inspection and coercion measures may be carried out on the strength of other international instruments, including the regional cooperation agreements concluded on the basis of the Vienna Convention, such as the San José Agreement of 10 April 2003 when it enters into force.
(b) State exactly what the coercion measures involve
The draft law also says that during transit subsequent to rerouting, the duly authorised officers of the State may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-82782
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BUSSMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Volker Bussmann, is a German national who was born in 1945 and lives in Frankfurt (Main). He was represented before the Court by Mr K. Petzel, a lawyer practising in Frankfurt (Main).
The applicant has a daughter born in 1991. In 1998, he divorced the mother of the child who has obtained the sole right to custody (alleiniges Sorgerecht) and with whom the child is living. In 1998, both parents agreed that the applicant should have access to the child on a weekly basis. The relationship between the parents subsequently deteriorated. In summer 2000, the mother refused the applicant’s access because the child suffered from headaches and bad dreams. In November 2000, the child’s mother filed a claim in order to exclude the applicant’s access rights.
On 17 December 2003, the Frankfurt (Main) District Court suspended the applicant’s access rights to his child for a period of two years. The District Court had heard the child in 2002 in the presence of the curator ad litem (Verfahrenspflegerin). After the competent judge at the District Court had changed, it heard the child again in 2003. Moreover, it considered an expert opinion and heard the expert, a psychologist, in person. On this basis, the District Court concluded that the exclusion of the applicant’s access rights was necessary for the child’s welfare pursuant to section 1984 § 4 of the Civil Code (see Relevant domestic law, below). It reasoned that the child, being almost thirteen years old and going through the period of puberty, severely suffered from the fact that her mother was unable to give her the necessary support to deal with the applicant’s visits. The District Court observed that the mother had reacted very agitated during a court hearing because of the applicant’s presence. According to the expert, that situation was emotionally extremely difficult for, and harmful to, the child. The child had testified during the last court hearing that she wanted to decide for herself when to see the applicant, a view that was also confirmed by the curator ad litem. During the visits, the applicant would constantly talk, mostly in a derogatory way about the mother, and seek to manipulate the child’s views, even in the presence of a neutral third person. Because of his age and his lack of understanding, the applicant could not be expected to change his behaviour, as could be seen by the content of a letter which he had sent for the child’s twelfth birthday. Moreover, the applicant had approached the child at school on two occasions which had been very embarrassing for her. The District Court also ordered the mother to ensure that the child would write to the applicant every three months. Considering that the child did not obtain the emotional support from her, the District Court ordered the mother to bring the child to a psychological clinic for juveniles in order to start a therapy with a view to teach the child that affection and sympathy was not inevitably connected with the intrusive and manipulative conduct which the applicant had shown. As results of that therapy could not be expected earlier, it was necessary to exclude the applicant’s access rights for the period of two years.
On 8 April 2004, the Frankfurt (Main) Court of Appeal dismissed the applicant’s appeal, granted the mother legal aid and refused to grant legal aid to the applicant because his appeal lacked any prospects of success. The Court of Appeal found that the District Court had rightly excluded the applicant’s access rights for the period of two years, in particular taking into account that during the proceedings the child had clearly stated that she felt hassled and not taken serious by the applicant, that she did not want any further visits (even in the presence of third persons) and that she wanted the applicant to respect her decision. The present proceedings however showed that the applicant was incapable of accepting this. The applicant had paid two uninvited visits to the child’s school which had been very awkward for the child. Moreover, the letter which the applicant had sent to the child showed his negative attitude towards the mother and put the child under massive pressure. The content of the father’s letter indicated that the child’s objections had not been manipulated by the mother. The District Court had rightly found that there was no indication that the applicant would show comprehension and change his behaviour. The applicant did not appear to be aware or interested in the child’s needs. Moreover, the District Court had rightly taken the view that the mother’s behaviour had also not contributed to a normal relationship between the child and the applicant either. At the same time the mother had been willing to accept the help offered by the District Court. Taking into consideration the age of the child, the Court of Appeal considered it best to give the child the opportunity to reflect on her situation without the distress of the applicant’s visits and to decide for herself about any future contacts with the applicant to whom she still had a clearly visible relationship.
The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 22 September 2004.
Section 1684
“1. The child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child.
2. The parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. ...
3. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties. They may order the parties to fulfil their obligations towards the child.
4. The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child’s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child’s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party.”


ITEMID: 001-57698
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF JAN-AKE ANDERSSON v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo;R. Pekkanen
TEXT: 9. Mr Jan-Åke Andersson, a Swedish citizen, is an engineer by profession and resides in Torsås in the South-West of Sweden.
10. On 26 February 1983 the applicant was stopped by police inspector B. while driving a tractor on a highway (motortrafikled), on which this was prohibited under the Traffic Ordinance of 1972 (vägtrafikkungörelsen 1972:603 - "the 1972 Ordinance"). He refused to pay a fine, maintaining that he had not seen any road sign indicating the category of the road or the prohibition in question.
11. On 17 May 1983 Mr Andersson was summoned to appear before the District Court (tingsrätten) of Ronneby, charged with having contravened sections 139 and 144 of the 1972 Ordinance.
In a letter to the District Court he stated that he expected the public prosecutor to call certain police officers, including police inspector B., as witnesses, as he could not afford to call any himself. Moreover, the public prosecutor should, he said, produce the relevant official meteorological records (see the extracts from the District Court’s judgment in paragraph 12 below). In addition, he requested the District Court to appoint an official defence counsel.
On 8 June 1983 this request was refused by the District Court, which considered that the case was simple and that the applicant was able to defend himself. His appeal against this decision was dismissed by the Court of Appeal (hovrätten) of Skåne and Blekinge on 15 June 1983, with no possibility of further appeal.
12. On 21 September 1983 the District Court held a hearing (huvudförhandling) during which both the applicant and police inspector B. were heard. It did not, however, order the production of the relevant meteorological records. On the same day it found the applicant guilty of the charge brought against him and sentenced him to a fine of 400 Swedish kronor. In its judgment the District Court stated:
"[The applicant] has contested criminal liability and has made the following statement: He was on his way from Hässleholm to Torsås driving a tractor that he had just bought. He had travelled with his father to Hässleholm that morning and they had then, inter alia, travelled the same road but in the opposite direction. The mist had been very dense already in the morning and [the applicant] had observed nothing special as regards the road during the trip. He does not know what the concept ‘motortrafikled’ means. When he arrived on the ‘motortrafikled’ west of Karlshamn it was so misty that he saw no road signs that attracted his attention. He was therefore unaware of the character of the road he was driving on and even if he had noticed a road sign indicating ‘motortrafikled’ he would not have known what restrictions this would imply as regards driving certain vehicles.
Police inspector B. has been heard as a witness but has not given any information other than that the weather was normal in the area of Ronneby without any signs of mist.
[The applicant] - who was driving as alleged by the public prosecutor - drove a long distance by tractor and should therefore have paid particular attention to the rules applicable as regards the driving of such a vehicle. The fact that the weather was misty does not relieve him from his obligations as a driver. He shall therefore be convicted in accordance with the charge against him."
13. On 4 October 1983 the applicant appealed to the Court of Appeal of Skåne and Blekinge. He claimed that the proceedings before the District Court had been "unbalanced" and that numerous "interruptions" by the judge had prevented him from following the arguments and from presenting his case in a satisfactory manner; that the fine imposed was far too high; and furthermore, that the District Court had overlooked the fact that certain road signs had been missing.
In his reply of 31 October 1983, the public prosecutor, referring to the evidence submitted before the District Court, maintained that the applicant was guilty and expressed the opinion that it was not necessary to hold a new hearing. On 2 November the Court of Appeal sent a copy of this reply to the applicant, advising him that since the case could be adjudicated without a new hearing, he was entitled to submit final written observations within two weeks.
In his final observations of 9 November 1983, Mr Andersson asked the Court of Appeal to take the absence of certain road signs into account and to consider the weather situation and the fact that he was overtaken by an unmarked police car which failed to warn him.
He also applied for a public hearing to be held in Karlskrona, for police inspector B. to be heard as a witness and for the relevant meteorological records to be examined. In addition, he requested free legal assistance since he needed defence counsel and did not have sufficient means to pay for one.
14. The Court of Appeal rejected the applicant’s requests and decided the case on the basis of the case-file. In its judgment of 10 February 1984, upholding the findings of the District Court, it stated:
"From the photos which have been referred to, it appears that the fact that the road in question was a ‘motortrafikled’ did appear from appropriate and visible road signs at Stensnäs. For this reason and since [the applicant] nevertheless drove the tractor on [the road] from Stensnäs to Sörby, he committed the offence with which he has been charged by the prosecution."
15. Mr Andersson applied for leave to appeal to the Supreme Court (högsta domstolen), claiming that the appeal proceedings had been very "unbalanced" and had not complied with human-rights standards. The Supreme Court refused the application on 26 April 1984.
16. Under the rules on public access to official documents, contained in the Freedom of the Press Act 1949 (tryckfrihetsförordningen) and the Secrecy Act (sekretesslagen, 1980:100), the case-files from the courts involved were all accessible to the public.
17. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do, however, exist, particularly at appellate level. Thus, Chapter 51, section 21, as worded at the relevant time (it was subsequently amended with effect from 1 July 1984), provided:
"The Court of Appeal may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party.
The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty (vite) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ..."
18. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits to its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228) also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1