ITEMID: 001-57980
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF JOHN MURRAY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 11. The applicant was arrested by police officers at 5.40 p.m. on 7 January 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. Pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 ("the Order") (see paragraph 27 below), he was cautioned by the police in the following terms:
"You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence."
In response to the police caution the applicant stated that he had nothing to say.
12. On arrival at Castlereagh Police Office at about 7 p.m., he refused to give his personal details to the officer in charge of the custody record. At 7.05 p.m. he was informed of his right to have a friend or relative notified of his detention and indicated that he did not require anyone to be so notified. At 7.06 p.m. he indicated that he wished to consult with a solicitor. At 7.30 p.m. his access to a solicitor was delayed on the authority of a detective superintendent pursuant to section 15 (1) of the Northern Ireland (Emergency Provisions) Act 1987 ("the 1987 Act"). The delay was authorised for a period of 48 hours from the time of detention (i.e. from 5.40 p.m. on 7 January) on the basis that the detective superintendent had reasonable grounds to believe that the exercise of the right of access would, inter alia, interfere with the gathering of information about the commission of acts of terrorism or make it more difficult to prevent an act of terrorism (see paragraph 33 below).
13. At 9.27 p.m. on 7 January a police constable cautioned the applicant pursuant to Article 6 of the Order, inter alia, requesting him to account for his presence at the house where he was arrested. He was warned that if he failed or refused to do so, a court, judge or jury might draw such inference from his failure or refusal as appears proper. He was also served with a written copy of Article 6 of the Order (see paragraph 27 below).
In reply to this caution the applicant stated: "Nothing to say."
14. At 10.40 p.m. he was reminded of his right to have a friend or relative notified of his detention and stated that he did not want anyone notified. He was also informed that his right of access to a solicitor had been delayed. He then requested consultation with a different firm of solicitors. A police inspector reviewed the reasons for the delay and concluded that the reasons remained valid.
15. The applicant was interviewed by police detectives at Castlereagh Police Office on twelve occasions during 8 and 9 January. In total he was interviewed for 21 hours and 39 minutes. At the commencement of these interviews he was either cautioned pursuant to Article 3 of the Order or reminded of the terms of the caution.
16. During the first ten interviews on 8 and 9 January 1990 the applicant made no reply to any questions put to him. He was able to see his solicitor for the first time at 6.33 p.m. on 9 January. At 7.10 p.m. he was interviewed again and reminded of the Article 3 caution. He replied: "I have been advised by my solicitor not to answer any of your questions." A final interview, during which the applicant said nothing, took place between 9.40 p.m. and 11.45 p.m. on 9 January.
His solicitor was not permitted to be present at any of these interviews.
17. In May 1991 the applicant was tried by a single judge, the Lord Chief Justice of Northern Ireland, sitting without a jury, for the offences of conspiracy to murder, the unlawful imprisonment, with seven other people, of a certain Mr L. and of belonging to a proscribed organisation, the Provisional Irish Republican Army (IRA).
18. According to the Crown, Mr L. had been a member of the IRA who had been providing information about their activities to the Royal Ulster Constabulary. On discovering that Mr L. was an informer, the IRA tricked him into visiting a house in Belfast on 5 January 1990. He was falsely imprisoned in one of the rear bedrooms of the house and interrogated by the IRA until the arrival of the police and the army at the house on 7 January 1990. It was also alleged by the Crown that there was a conspiracy to murder Mr L. as punishment for being a police informer.
19. In the course of the trial, evidence was given that when the police entered the house on 7 January, the applicant was seen by a police constable coming down a flight of stairs wearing a raincoat over his clothes and was arrested in the hall of the house. Mr L. testified that he was forced under threat of being killed to make a taped confession to his captors that he was an informer. He further said that on the evening of 7 January he had heard scurrying and had been told to take off his blindfold, that he had done so and had opened the spare bedroom door. He had then seen the applicant standing at the stairs. The applicant had told him that the police were at the door and to go downstairs and watch television. While he was talking to him the applicant was pulling tape out of a cassette. On a search of the house by the police items of clothing of Mr L. were subsequently found in the spare bedroom, whilst a tangled tape was discovered in the upstairs bathroom. The salvaged portions of the tape revealed a confession by Mr L. that he had agreed to work for the police and had been paid for so doing. At no time, either on his arrest or during the trial proceedings, did the applicant give any explanation for his presence in the house.
20. At the close of the prosecution case the trial judge, acting in accordance with Article 4 of the Order, called upon each of the eight accused to give evidence in their own defence. The trial judge informed them inter alia:
"I am also required by law to tell you that if you refuse to come into the witness box to be sworn or if, after having been sworn, you refuse, without good reason, to answer any question, then the court in deciding whether you are guilty or not guilty may take into account against you to the extent that it considers proper your refusal to give evidence or to answer any questions."
21. Acting on the advice of his solicitor and counsel, the applicant chose not to give any evidence. No witnesses were called on his behalf. Counsel, with support from the evidence of a co-accused, D.M., submitted, inter alia, that the applicant’s presence in the house just before the police arrived was recent and innocent.
22. On 8 May 1991 the applicant was found guilty of the offence of aiding and abetting the unlawful imprisonment of Mr L. and sentenced to eight years’ imprisonment. He was acquitted on the remaining charges.
23. The trial judge rejected D.M.’s evidence (see paragraph 21 above) as untruthful. He considered that
"the surrounding facts, including the finding of the tangled tape in the bathroom with the broken cassette case, and the fact that, on entering the house some appreciable time after they arrived outside it and some appreciable time after they first knocked on the door, the police found Murray coming down the stairs at the time when all the other occupants of the house were in the living room, strongly confirm L’s evidence that after the police knocked on the door Murray was upstairs pulling the tape out of the cassette".
24. In rejecting a submission by the applicant that Articles 4 and 6 of the Order did not operate to permit the court to draw an adverse inference against him, where, at the end of the Crown case, there was a reasonably plausible explanation for the accused’s conduct consistent with his innocence, the trial judge stated as follows:
"There can be debate as to the extent to which, before the making of the Criminal Evidence (Northern Ireland) Order 1988, a tribunal of fact in this jurisdiction was entitled to draw an adverse inference against an accused because he failed to give evidence on his own behalf, or to account for his presence at a particular place or to mention particular facts when questioned by the police. But I consider that the purpose of Article 4 and of Articles 3 and 6 of the 1988 Order was to make it clear that, whatever was the effect of the previous legal rules, a judge trying a criminal case without a jury, or a jury in a criminal case, was entitled to apply common sense in drawing inferences against the accused in the circumstances specified in Article 4, and in Articles 3 and 6 ...
... I think it is clear that the purpose of Article 4 is to permit the tribunal of fact to draw such inferences against the accused from his failure to give evidence in his own defence as common sense requires.
The inference which it is proper to draw against an accused will vary from case to case depending on the failure of the accused to give evidence on his own behalf does not in itself indicate guilt. Nor does the failure to mention particular facts when questioned or the failure to account for presence in a particular place in itself indicate guilt. But I consider that the intendment of ... Article 4 and Article 6 is to enable the tribunal of fact to exercise ordinary common sense in drawing inferences against an accused ...
Therefore when I come to consider the case against the accused ... I propose to draw such inferences against [him] under Article 4 and under Article 6 as ordinary common sense dictates."
25.
"I accept the submissions of counsel for the accused that as demonstrated by his replies in cross-examination, L. is a man who is fully prepared to lie on oath to advance his own interests and is a man of no moral worth whatever. I, therefore, accept the further submissions of counsel for the accused that, unless his evidence were confirmed by other evidence, a court should not act on his evidence, particularly against accused persons in a criminal trial ...
I now turn to consider the fifth count charging the false imprisonment of L. against the accused [the applicant]. For the reasons which I have already stated, I am satisfied that, as L. described in his evidence, [the applicant] was at the top of the stairs pulling the tape out of the cassette after the police arrived outside the house.
I am also satisfied, for the reasons which I have already stated, that [the applicant] was in the house for longer than the short period described by his co-accused, [D.M.]. I am further satisfied that it is an irresistible inference that while he was in the house [the applicant] was in contact with the men holding L. captive and that he knew that L. was being held a captive. I also draw very strong inferences against [the applicant] under Article 6 of the 1988 Order by reason of his failure to give an account of his presence in the house when cautioned by the police on the evening of 7 January 1990 under Article 6, and I also draw very strong inferences against [the applicant] under Article 4 of the 1988 Order by reason of his refusal to give evidence in his own defence when called upon by the Court to do so.
Therefore I find [the applicant] guilty of aiding and abetting the false imprisonment of L. because, knowing he was being held captive in the house, he was present in the house concurring in L. being falsely imprisoned. As Vaughan J. stated in R. v. Young ... [the applicant] was ‘near enough to give [his] aid and to give [his] countenance and assistance’."
26. The applicant appealed against conviction and sentence to the Court of Appeal in Northern Ireland. In a judgment of 7 July 1992, the court dismissed the applicant’s appeal holding, inter alia:
"... to suggest, with respect, that [the applicant] went into the house just as the police were arriving outside, immediately went upstairs, attempted to destroy a tape and then walked downstairs, and that this was the sum of his time and activity in the house defies common sense
...
We are satisfied that it can reasonably be inferred that [the applicant] knew before he came to the house that [L.] was being held captive there. With this knowledge he assisted in the false imprisonment by directing the captive from the bedroom where he had been held and by giving him the directions and admonition [L.] said. Accordingly [the applicant] aided and abetted the crime. We do not accept that [L.] would have been free to leave the house, if the police and army had been taken in by the pretence of the television watching and had departed without making any arrests. We have no doubt that [L.] remained under restraint in the living room when the police were there and if they had left, he would have remained a prisoner to await the fate that his captors would determine.
We consider that there was a formidable case against [the applicant]. He was the only one of the accused whom [L.] observed and identified as playing a positive part in the activities touching his captivity. [L.]’s evidence therefore called for an answer. No answer was forthcoming of any kind to the police or throughout the length of his trial. It was inevitable that the judge would draw ‘very strong inferences’ against him.
The Crown case deeply implicated [the applicant] in the false imprisonment of [L.]."
27. The 1988 Order includes the following provisions:
"(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2).
...
(7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion."
"Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc.
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer,
(b)
...
(c) the court or jury, in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
..."
"Accused to be called upon to give evidence at trial
(1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless
(a) the accused’s guilt is not in issue, or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence.
(2) Before any evidence is called for the defence, the court
(a) shall tell the accused that he will be called upon by the court to give evidence in his own defence, and
(b) shall tell him in ordinary language what the effect of this Article will be if
(i) when so called upon, he refuses to be sworn;
(ii) having been sworn, without good cause he refuses to answer any question; and thereupon the court shall call upon the accused to give evidence.
(3) If the accused
(a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn,
or
(b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies.
(4) The court or jury, in determining whether the accused is guilty of the offence charged, may
(a) draw such inferences from the refusal as appear proper;
(b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.
(5) This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn.
..."
"Inferences from failure or refusal to account for presence at a particular place
(1) Where
(a) a person arrested by a constable was found by him at a place or about the time the offence for which he was arrested is alleged to have been committed, and
(b) the constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and
(c) the constable informs the person that he so believes, and requests him to account for that presence, and
(d) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of those matters is given, paragraph (2) applies.
(2) Where this paragraph applies
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, and
(b) the court or jury, in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure or refusal as appear proper;
(ii) on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material.
(3) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1) (c) what the effect of this Article would be if he failed or refused to do so.
(4) This Article does not preclude the drawing of any inference from the failure or refusal of a person to account for his presence at a place which could properly be drawn apart from this Article.
..."
28. In the case of R. v. Kevin Sean Murray (sub nom. Murray v. Director of Public Prosecutions), the House of Lords considered the effect of Article 4 of the Order ([1993] 97 Criminal Appeal Reports 151). In the leading judgment of the House of Lords, Lord Slynn stated that:
"- at common law there was a divergence of view as to whether, and if so, when and in what manner a judge might comment on the failure of the accused to give evidence;
- the Order intended to change the law and practice and to lay down new rules as to the comments which could be made and the inferences which could be drawn when the accused failed to give evidence at his trial;
- under the Order the accused could not be compelled to give evidence but had to risk the consequences if he did not do so; and
- the inferences which might be drawn from the accused’s failure to give evidence in his own defence included in a proper case the drawing of an inference that the accused was guilty of the offences with which he was charged."
29. He added:
"... This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty. In the first place the prosecutor must establish a prima facie case - a case for him to answer. In the second place in determining whether the accused is guilty the judge or jury can draw only ‘such inference from the refusal as appear proper’. As Lord Diplock said in Haw Tua Tau v. Public Prosecutor at p. 153B:
‘What inferences are proper to be drawn from an accused’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary common sense.’
There must thus be some basis derived from the circumstances which justify the inference.
If there is no prima facie case shown by the prosecution there is no case to answer. Equally if parts of the prosecution had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt.
On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty ..."
30. Lord Mustill in R. v. Kevin Sean Murray (cited above) stated that the expression "a prima facie case"
"was intended to denote a case which is strong enough to go to a jury - i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt ... that each of the essential elements of the offence is proved".
31. Even if a prima facie case is established, the trial judge has a discretion whether or not to draw inferences on the facts of the particular case. In the present case, the Court of Appeal indicated that if a judge accepted that an accused did not understand the warning given in the caution required by Article 6 or if he had doubts about it "we are confident that he would not activate Article 6 against him".
32. In R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 Weekly Law Reports 66, Lord Mustill stated that it was necessary to analyse which aspect of the right to silence is involved in any particular situation, because
"... In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute."
Amongst the group of immunities which were covered by the expression "right to silence" Lord Mustill identified the following:
"(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.
(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.
(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.
(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.
(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.
(6) A specific immunity ..., possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial."
33. Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant:
"15. Right of access to legal advice
(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies.
(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section.
...
(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it -
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
i. to prevent an act of terrorism, or
ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ..."
34. The delay must be authorised by a police officer of at least the rank of superintendent (section 15, subsection (5) (a)) and the detained person must be told the reason for the delay (subsection (9) (a)). The maximum delay is 48 hours.
35. The courts in Northern Ireland have taken the view that the provisions of the 1988 Order should not be read subject to section 15 of the 1987 Act above. In the case of R. v. Dermot Quinn (judgment of the Belfast Crown Court of 23 December 1991), the trial judge rejected a submission to the effect that an adverse inference under Article 3 of the 1988 Order should not be drawn where the accused had asked for access to his solicitor but been interviewed by the police before his solicitor arrived to advise him. He noted that the 1988 Order had come into force after section 15 of the 1987 Act and considered that Parliament had not intended that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the right to access to legal advice given by section 15.
In its judgment of 17 September 1993, the Court of Appeal in Northern Ireland upheld the trial judge’accused’s failure to respond to questions by the police before the receipt of legal advice from his solicitor. The court commented that a breach of section 15 might in certain circumstances allow the trial judge in his discretion to refuse to draw an adverse inference under Article 3 of the 1988 Order.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-120967
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ABDULGADIROV v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence in person);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 5. The applicant was born in 1958 and lives in Baku.
6. The applicant is a practising Muslim and attended a mosque, where he met A. Subsequently, A. was arrested by officers of the Ministry of National Security (“the MNS”) on suspicion of having had contact with Al-Qaeda in the past and being the leader of a group planning to carry out terrorist acts in Azerbaijan. The authorities considered the group to be religious fundamentalists (referred to as “adherents of Wahhabism”).
7. On 7 September 2004 the applicant was also arrested by the MNS officers, on suspicion of being associated with that group.
8. A search of his place of residence, carried out on the same day, did not reveal any incriminating evidence. However, a hand grenade was found in the flat of the applicant’s wife, which the MNS officers had also searched.
9. The applicant was charged with illegal possession of a weapon under Article 228.1 of the Criminal Code. In addition to the applicant, the criminal proceedings involved five other accused (including A.), all of whom were charged with more serious offences than the applicant. Four of them were charged with complicity in the preparation of terrorist acts.
10. On 10 September 2004 the applicant was brought before a judge, who ordered his detention pending trial.
11. The applicant was tried by the Assize Court, together with the other five accused. The trial was closed to the public. According to the applicant, before the Assize Court he argued that the hand grenade did not belong to him and that it had been “planted” in his wife’s flat by the MNS officers who, having tricked his wife, had gained access to the flat about 30 minutes before she, the applicant himself, and two passers-by who had been asked to witness the search, entered the flat.
12. On 7 February 2005 the Assize Court convicted the applicant of illegal possession of a weapon and sentenced him to three years’ imprisonment. The other accused were convicted of more serious criminal offences (terrorist activities) and received longer prison sentences, ranging from five to fourteen years’ imprisonment.
13. On 18 February 2005 the applicant lodged an appeal against the judgment, requesting the Court of Appeal to quash the judgment in the part concerning him and to terminate the criminal case against him. He reiterated his allegations that the hand grenade had not belonged to him, that the case file did not contain any other evidence against him, and that he had not committed the criminal offence for which he had been convicted. He argued that, in circumstances where the discovery of the hand grenade in his wife’s flat was essentially the only incriminating evidence against him, the trial court had failed to take into account the unlawful manner in which the search had been conducted and to properly assess the admissibility and reliability of the evidence obtained as a result of the search. He also noted that the first-instance court had applied the most severe sentence provided for in Article 228.1 of the Criminal Code and had not taken into account his personal circumstances when imposing the sentence, such as, inter alia, the fact that he had to provide and care for his aged and ailing mother.
14. Some of the other defendants also lodged appeals.
15. At a preliminary hearing on 22 March 2005, held in the presence of the public prosecutor but in the absence of the defendants and their lawyers, the Court of Appeal fixed the date of the hearing on the merits for 29 March 2005 and decided that only the public prosecutor and the defendants’ lawyers should be invited to that hearing. The Court of Appeal’s decision was silent as to whether the defendants or their lawyers had been informed of the time and place of the preliminary hearing (see paragraph 23 below). It was also silent as to whether the hearing on the merits would be held with or without a “court investigation” (see paragraph 24 below).
16. On 29 March 2005 the Court of Appeal examined the appeals lodged by all six defendants, including the applicant. The court examined the appeals “without a court investigation”, that is, without a full rehearing of the case (see paragraph 25 below for an explanation of the differences in appellate proceedings conducted with and without a “court investigation”). According to the applicant, the Court of Appeal hearing lasted between ten and twenty minutes. According to the minutes of the hearing, the applicant was absent but the applicant’s lawyer and the public prosecutor were present. On the same day the Court of Appeal upheld the Assize Court’s judgment of 7 February 2005. The Court of Appeal’s judgment was largely a word-for-word copy of the judgment of 7 February 2005.
17. On 5 August 2005 the applicant lodged a cassation appeal with the Supreme Court. He claimed, inter alia, that his absence from the Court of Appeal’s hearing had breached his rights under the domestic law. The Supreme Court examined the applicant’s cassation appeal separately and, on 29 November 2005, upheld the lower courts’ judgments. The Supreme Court’s decision was silent on the applicant’s complaint about his absence from the hearing before the Court of Appeal. At the Supreme Court hearing the applicant was represented by his lawyer but was not present personally.
18. In accordance with Article 397 of the Code of Criminal Procedure (“the CCrP”), an appellate court (second instance) verifies whether the court of first instance correctly established the facts of the case and correctly applied the provisions of the criminal law and the CCrP.
19. In accordance with Article 398 of the CCrP, following the examination of an appeal, the appellate court may dismiss the appeal and uphold the judgment of the first-instance court, quash the first-instance judgment and deliver a new judgment, quash the first-instance judgment and terminate the criminal proceedings, or amend the first-instance judgment.
20. In accordance with Article 91.5.25 of the CCrP, the accused has the right to be present at hearings before the first-instance and appellate courts, and to examine the case materials.
21. In accordance with Article 392.2 of the CCrP, if the issues raised before the appellate court may lead to the worsening of the situation of the convicted or acquitted person as a result of the appeal proceedings, or if the appellate court decides that a full judicial review of the case (“a court investigation”) is necessary, it is imperative that the convicted or acquitted person, as well as his or her counsel, be summoned to the appeal hearings. In such cases the participation of the public prosecutor is also compulsory. According to the same provision, the participation of the appellant and the consequences of his or her absence are determined with reference to the criteria set out in Article 311 of the CCrP.
22. According to Article 311 of the CCrP, the accused has a right to participate in all trial hearings and enjoys all the defence rights provided for in the CCrP. Article 311.2 specifies two exceptional circumstances where the court can examine the case in absence of the accused: (a) the accused is abroad and intentionally avoiding attending the hearing; or (b) the person is charged with a minor criminal offence and has waived his or her right to be present at the court hearings.
According to Article 311.4 of the CCrP, except for the circumstances specified in Article 311.2 of the CCrP, if the accused is absent from the hearing, the court’s examination of the case must be postponed.
23. Under Article 391.1 of the CCrP, the appellate court must hold a preliminary hearing within fifteen days (in some circumstances, within thirty days) of receiving an appeal. Persons who have the right to lodge an appeal, and the public prosecutor, have the right to be present at the preliminary hearing. These parties must be informed in advance of the time and place of the preliminary hearing; however, their failure to attend does not prevent the preliminary hearing from taking place. If a convicted person who is detained lodges a request to participate in the preliminary hearing, it is for the court to order that he or she be brought to the hearing.
24. During the preliminary hearing the appellate court examines various admissibility issues and decides on a number of procedural matters, following which, in accordance with Article 391.3.4 of the CCrP, it can decide to fix a date for a hearing on the merits. According to Article 392.1 of the CCrP, if the court decides to proceed with the examination of the merits of the appeal and fixes a date for a hearing on the merits, it must also decide on the following issues, inter alia: whether a “court investigation” is necessary and, if so, its scope; whether it is necessary to procure additional evidence; and which persons should be invited to attend the hearing on the merits.
25. According to Article 394.3 of the CCrP (which contains further references to Articles 339-341 of the CCrP), if the appellate court examines the appeal “without a court investigation”, the appeal hearing on the merits proceeds approximately as follows: the court (a) opens the hearing by, inter alia, explaining the substance of the first-instance judgment, summarising the points of appeal and asking if the parties have any objections; (b) notifies the participants of any additional requests lodged at the appeal hearing; (c) hears the arguments of the parties concerning the points of appeal; (d) invites the parties to make closing statements and exercise their right of reply to the other party’s closing statement (in the manner stipulated in Articles 339-341 of the CCrP); and (e) closes the hearing and retires to the deliberations room.
In accordance with Articles 394.4 and 394.6 of the CCrP (which contain further references to Articles 324-341 of the CCrP), if the appellate court examines the appeal by means of a “court investigation”, the appellate hearing essentially takes the form of a full rehearing of the case resembling the first-instance trial (but limited to the issues raised on appeal). Specifically, the appellate hearing proceeds approximately as follows: the court (a) opens the hearing by, inter alia, explaining the substance of the first-instance judgment, summarising the points of appeal and verifying if the parties have any objections; (b) begins the “court investigation” by reading out the operative provisions of the public prosecutor’s indictment, explaining to the accused the substance of the charges against him and his rights as an accused, and asking the accused whether he wishes to plead guilty or not guilty; (c) questions the accused concerning all relevant aspects of the case and gives the other party the opportunity to cross-examine him, and, where necessary, examines any other statements made by the accused prior to the trial stage; (d) determines the order in which evidence will be presented, invites the parties to present their evidence and examines the evidence in an open hearing, allowing the parties to cross-examine the witnesses: this includes hearing witnesses, reading out witness statements, hearing victims, examining expert opinions, questioning experts, examining material and documentary evidence, and so on; (e) closes the “court investigation” by notifying the parties that the court is ready to proceed to closing statements and enquiring if the parties have any additional requests; (f) invites the parties to make their closing statement and exercise their right of reply to the other party’s closing statement; (g) provides an opportunity for the defendant to make a final plea; and (h) closes the hearing and retires to the deliberations room.
26. Under Article 419 of the CCrP, when examining the merits of an appeal the Supreme Court deals only with points of law, verifying whether the rules of criminal law and criminal procedure have been applied correctly. Persons having the right to lodge a cassation appeal, and the public prosecutor, have the right to be present at the Supreme Court hearing (Article 419.2 of the CCrP). The absence of the person who has lodged the appeal, if he or she has been duly informed of the hearing, does not prevent the Supreme Court from deciding to proceed with the hearing in his or her absence (Article 419.4 of the CCrP).
27. Article 228.1 of the Criminal Code (illegal acquisition, transfer, sale, storage, transportation or carrying of firearms or their accessories or explosives) provides for a maximum sentence of three years’ imprisonment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-102115
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANDERSSON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - award
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 6. The applicant was born in 1930 and lives in Ingarö.
7. In September 1996 the applicant submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan –hereinafter “the Office”) of the County of Stockholm in which he requested that his lower back and hip joint problems be considered work-related, thereby making him eligible for occupational injury compensation (arbetsskadeersättning).
8. In a decision of 13 December 1996, the Office noted that the applicant had carried out heavy work as a slaughterhouse worker until 1982 when he had moved to the USA and worked on renovating walls. In 1988 the applicant had informed the Office that he could no longer carry out his work because of his hip joint problems. Thus, in June 1988, he had been granted early retirement pension on the ground that he suffered from lumbar spondylosis and coxarthritis (a degenerative joint disease of his lower back and right hip). On the basis of the above, the Office considered that it was possible that the applicant’s work in the USA had harmed him and, since it could only consider injuries which had occurred while working in Sweden, it could not examine the request.
9. Upon request by the applicant, the Office, on 17 February 1997, reconsidered its previous decision but decided not to change it.
10. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that his injuries had been caused by his work in Sweden. He stated that he had created a company in the USA to import Swedish fibreglass fabric but that, in order to get his business going, he had had to include measuring, installing and painting. However, since he already had pain in his hip joint and lower back, he had not been able to carry out the work and had sold the company. He further added that he had worked in slaughterhouses between 1948 and 1980, which had involved very heavy work in difficult conditions. In support, he submitted a medical certificate from Dr S.R., who had been working as a company doctor for more than 20 years in the food industry and had been the applicant’s company doctor between 1967 and 1980. According to Dr S.R., the applicant’s injuries were work-related, noting that he had carried animal carcasses and heavy pieces of meat up and down stairs, causing extreme strain on the back, hips, knees and ankles. Moreover, the work had been carried out in humid, draughty premises and with slippery floors.
11. On 15 September 1997 the County Administrative Court repealed the Office’s decision and sent the case back for renewed examination. It found that the applicant’s injuries could well have been caused by his work in Sweden and that the Office had the duty to evaluate whether this was the case.
12. To prepare the case, the Office requested the opinion of one of its own medical doctors (försäkringsläkare), Dr S.H., as to whether the applicant’s injuries were work-related. The doctor, who was a specialist in orthopaedics, gave his opinion on 23 September 1997. It was based on the information in the Office’s case-file and stated essentially the following.
13. It appeared from other medical certificates that the applicant had been healthy until his hip joint problems began in 1985-86. In 1988 his right hip and lower back had been x-rayed, which showed that the hip joint had degenerative alterations, whereas the lower back was not remarked on, having regard to the applicant’s age. In July 1996 the applicant had undergone a hip joint operation. In Dr S.H.’s opinion, the applicant suffered from moderate arthritis in his hip joint, which had developed slowly from the age of 55 and thus was age-related, not work-related. In this respect, he claimed that there was no general support in scientific literature for the proposition that elements in the working environment could cause arthritis.
14. On 14 January 1998, the Office decided that the applicant could not be granted occupational injury compensation as it considered that his injuries were not related to his work in Sweden. In reaching its decision, it had put much emphasis on the opinion of Dr S.H., since he was a specialist in orthopaedics.
15. The applicant appealed to the County Administrative Court, maintaining that he was entitled to occupational injury compensation due to his injuries, which were clearly work-related. In support of his appeal, he submitted a medical certificate by Dr P.H., specialist in orthopaedic surgery, who had treated the applicant. According to Dr P.H., the applicant had suffered from serious joint arthritis of the right hip when he first met him during the spring of 1996, which had led to the operation in July 1996. As the illness did not run in the applicant’s family and it had developed at an earlier age in the applicant than was normal, Dr P.H. considered that it was probable that the injury had been caused by the applicant’s heavy work in the slaughterhouse. Moreover, in his view, the applicant’s work in the USA had in no way affected the development of the arthritis.
16. The Office disputed the appeal and submitted that Dr P.H.’s opinion did not clearly show that the applicant’s work at the slaughterhouse had caused his injuries.
17. In May 1998 the applicant contacted the County Administrative Court and requested that an oral hearing be held in his case so that he could describe his working situation. However, by decision of 25 May 1998, the court rejected the request as it found that it was unnecessary with regard to the nature of the subject matter. The applicant was given three weeks in which to finalise his submissions.
18. On 29 June 1999, when asked by the County Administrative Court, the applicant renewed his request for an oral hearing but sent on the same day a fax to the court explaining that he did not request an oral hearing.
19. On 29 June 1999 the County Administrative Court rejected the applicant’s appeal. It did not question that his work had been of a very heavy nature. However, it noted that it had to be relatively widely accepted that certain factors in the working environment, with a high level of probability, could cause the relevant injuries. In the present case, the court found that the applicant had failed to show that there was a high level of probability that his work at the slaughterhouse had caused his hip joint arthritis.
20. The applicant made a further appeal to the Administrative Court of Appeal (kammarrätten) in Stockholm, maintaining his claims and adding that he wanted an oral hearing to be held so that he could prove his case, inter alia, by describing his working conditions in the slaughterhouse and developing the medical investigation. In this respect, he referred to Article 6 of the Convention and noted that he would later specify whom he wanted to call as expert witnesses.
21. Furthermore, the applicant submitted another medical certificate which supported his claim that his injuries were work-related. It was written by Dr H.B., specialist in orthopaedics, who had examined the applicant. In the certificate, Dr H.B. stated that studies existed which indicated a connection between heavy physical work and the development of hip joint arthritis. There were also studies which showed that the risk of developing hip joint arthritis increased with the number of tons that a person lifted during his working life. Having regard to the applicant’s background, his work at the slaughterhouse and the relatively young age at which he had developed the arthritis, Dr H.B. concluded that there were much stronger reasons in support of a connection between the applicant’s injuries and his work than against it.
22. The Office disputed the applicant’s appeal and the new medical certificate, submitting that the appeal should be rejected.
23. On 28 June 2001 the Administrative Court of Appeal rejected the applicant’s request for an oral hearing as it considered that, with regard to the nature of the subject mater, it was unnecessary to hold a hearing. The court granted the applicant two weeks to finalise his submissions in the case.
24. Subsequently, on 24 September 2001, the Administrative Court of Appeal rejected the appeal. Having regard to the medical investigation in the case, in particular the opinion of Dr S.H., as well as the time aspect (the applicant had stopped working in 1980 at the slaughterhouse but only been operated on in 1996), the court found that it had not been shown, with a high level of probability, that the work had caused the applicant’s injuries.
25. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) and requested that an oral hearing be held. He stressed that the lower courts had failed to hold a hearing, despite his express request and in violation of Article 6 of the Convention. Moreover, he submitted that a hearing was necessary in order for him to describe his working conditions at the slaughterhouse and to be able to question specialists to clarify his injuries and their causes.
26. On 16 July 2003 the Supreme Administrative Court rejected the applicant’s request for an oral hearing as it considered that there was no need for a hearing before it decided on whether or not to grant leave to appeal. It gave the applicant three weeks to submit any additional comments.
27. On 10 November 2003 the Supreme Administrative Court refused leave to appeal.
28. According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s place of work. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries. The insurance scheme is administered by the social insurance offices (as from 2005 the Swedish Social Insurance Agency) and includes, among other things, compensation for loss of earnings. A work injury must be immediately reported to the employer who is required to notify the social insurance office. The office must obtain a medical opinion concerning the injury. A medical doctor is attached to the office to assist it in medical matters. The assessment of whether an injury qualifies as a work injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the medical doctor’s assessment of these opinions and any other relevant information.
29. For an injury to qualify as a work injury, a causal link must be established between the accident or harmful effect in the workplace and the insured person’s health problems. What is meant by “harmful effect” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person (Chapter 2, section 1, of the 1976 Act in its wording from 1 January 1993 until 30 June 2002). At the relevant time, the question of whether a particular injury or illness incurred by the insured person was to be regarded as a work injury was subject to the following special rule of evidence. If the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion (Chapter 2, section 2, of the 1976 Act in its wording from 1 January 1993 and until 30 June 2002).
30. The amendments entering into force on 1 January 1993, and which applied to work injury reports that were submitted after 30 June 1993, the requirements in Chapter 2, sections 1 and 2, of the 1976 Act were tightened up. This meant, inter alia, that it had to be “highly probable”, and not merely “probable” that a certain factor in the working environment could cause a person’s injuries and, thereby, be considered as having harmful effects. The travaux préparatoires (see the Government Bill 1992/93:30, pp. 20 and 36) state that this implies that the responsible authorities have to consider more extensively than previously whether the exposure to a harmful factor at work has been of such an extent, intensity and duration that from this it can be concluded that the existence of harmfulness is highly probable. Furthermore, the collected knowledge must indicate with a considerable degree of probability that a factor in the environment is harmful. The view that a certain factor is very likely to cause an injury has to be relatively generally accepted. This is the case where substantial knowledge exists, within medical or other science, that a certain factor has such harmful effects. If there is a lack of such support, such as when, for example, there are profound differences in expert opinions, this requirement cannot be considered as fulfilled. Thus, the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effects.
31. The travaux préparatoires also state that the tightened requirement of harmfulness in many cases presupposes more careful investigations at workplaces regarding the harmful factors invoked and that the question of the causes of certain diseases has to be discussed more thoroughly. This, in turn, will result in the social insurance offices and the courts basing their decisions more extensively on different assessments of harmfulness within medical science.
32. Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen, Act no. 1971:291, as in force at the relevant time) was worded as follows:
“The procedure shall be in writing.
Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
33. The travaux préparatoires to the Administrative Court Procedure Act emphasise that an oral procedure can be advantageous for the investigation of a case in two respects in particular. Firstly, such a hearing may be needed in order to examine a witness, expert or party or in cases where a party has difficulty expounding his or her claim in writing. Secondly, an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute. In the latter case, the procedure is typically of a preparatory nature. Moreover, the oral form of procedure envisaged in the 1971 Act is not to be seen as an alternative to the written form, but rather as a complement to that form (see the Government Bill 1971:30, p. 535).
34. The possibility of holding an oral hearing in order to promote an expeditious determination of the case, which was first introduced in 1983, was a clarification of a practice that already applied (see the Government Bill 1982/83:134, Parliamentary Committee on Justice JuU 36, Parliamentary Communication 378, SFS 1983:461). The purpose of the legislative amendment was to make it clearer that an oral hearing can and should be used for preparatory purposes in certain cases, to make for speedier and more effective proceedings. The amendment was primarily intended for tax cases associated with tax offence cases before courts of general jurisdiction.
35. Furthermore, the travaux préparatoires to the 1971 Act underlined, in connection with the provision in section 9 of the Act concerning the right of a party to an oral hearing in certain cases, that while serious consideration should be given to the wishes of a party for such a hearing, the party could hardly be allowed to have a decisive influence in the matter. The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case, but it should also be possible to accord significance to other factors, for example, if the case is very important for the party and a hearing would give him a better understanding of the import of the decision to be given in the case. One particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute (see Government Bill 1971:30, p. 537).
36. In recent years the Supreme Administrative Court has set aside a number of decisions on appeal and referred the case back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts (see, for example, RA 2002 ref. 23, BA 2003 note 68, RA 2004 note 65 and RA 2007 note 171; as more specifically regards work injuries, see RA 2004 note 66 and RA 2006 note 207). In the last mentioned case, an administrative court of appeal had changed the lower court’s judgment to the applicant’s disadvantage without holding an oral hearing. Furthermore, the applicant had requested that a medical doctor be heard as a witness.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104868
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FACEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: The applicant, Mr Clive Errol Facey, is a Jamaican national who was born in 1973 and lives in Spanish Town, Jamaica. He was represented before the Court by Mr R Posner, a lawyer practising in Nottingham with Bhatia Best Solicitors.
On 13 June 2003, the applicant and another man, B, were stopped and arrested in a car that the applicant was driving. B was sitting in the front passenger seat when the car was stopped. The car was searched and, under the front passenger seat, under a flap in the carpet, a package containing heroin was discovered. The men were taken by police van to a police station and charged. The following day, a metal smoking pipe was found by a police officer, Special Constable M, in the police van, in the cubicle where B had been sitting. She also stated that she had heard a metal “clang” in the van when the men were being taken to the police station. The pipe was found to contain traces of cocaine.
Each man blamed the other for placing the package in the car and denied all knowledge of it. At trial, a police officer, Police Constable W, gave evidence that, on the basis of a test he had conducted, it would have been impossible for someone sitting in the front passenger seat to place the package where it had been discovered. He had also tried the seat in different positions. On this basis, B was acquitted by the judge. The jury was discharged and a re-trial ordered in respect of the applicant.
At the applicant’s re-trial, PC W gave evidence and Special Constable M’s statement as to the pipe was read to the jury. The applicant was convicted but, on appeal, his conviction was quashed on the basis of fresh expert evidence, which showed it would have been possible for a man of B’s build, sitting in the passenger seat, to place the package. The Court of Appeal, in quashing the conviction, ordered a second re-trial.
At the second re-trial, PC W appeared to give different evidence to the effect that he did not move the seat to different positions. He was not cross-examined by the applicant on this inconsistency with his previous testimony because, for tactical reasons, the defence did not wish the jury to know about the previous trials. Special Constable M’s statement was not read at this trial. The applicant did not give evidence in his own defence. In his summing up, the trial judge erroneously directed the jury that the pipe had been found in the car and contained traces of heroin, not cocaine. He nonetheless observed: “you [the jury] may think that really nothing turns on the pipe in this case. It does not add or subtract to the case one way or another”.
The applicant was convicted and appealed. On appeal, he argued that: (i) had the trial judge been aware of Special Constable M’s statement he would have directed the jury differently and the applicant would have been able to argue more strongly that B was a drug user, and was thus more likely to have placed the package; (ii) PC W’s change in evidence was highly material but, because of a tactical decision not to refer to the previous trials, he had been deprived of the ability to cross-examine him. The applicant also submitted that, since PC W’s evidence had led to the discharge of B, it also deprived the applicant of the opportunity to cross-examine B. This deprived the applicant of the opportunity to put to B the allegation that the heroin belonged to him and that the applicant knew nothing about it.
The Court of Appeal dismissed the appeal on 24 February 2009 ([2009] EWCA Crim 622). It gave the following reasons for its decision (at paragraphs 34–40 of the judgment:
“...The question is whether the conviction of the applicant at the third trial is unsafe. Is it unsafe by reason of any material irregularity in the procedure or by any misdirection of law by the judge? The answer to each must be no.
35. We deal first with the fact that the evidence of [Special Constable M] was not adduced at the third trial. It is clear that this evidence had been adduced at the previous trial. It must have been clear to the applicant that it existed. We think that those who were advising the applicant must have realised of its existence. It is referred to, after all, at the front of the transcript of the summing up of the judge in the second trial. We find it difficult (if not impossible) to conclude that its existence was not known to the applicant and the defence team at the time of the third trial.
36. But, in any event, the evidence about the noise in the police van and finding the pipe in Mr [B’s] cubicle in the van adds either nothing or very little to the case. The pipe was, as the judge said, of no consequence. It contained traces of cocaine, not heroin. The judge was mistaken when he referred to heroin in his summing up. The pipe is an irrelevance. It does not follow, in our view, that because Mr [B] dropped the pipe in the van, therefore he and he alone was concerned with the Class A drugs that were found in the car. We do not accept that [Special Constable M’s] evidence would or might have materially affected the minds of the jury as concerns the guilt of the applicant.
37. Secondly, the error of the judge, if such it were, that the pipe had been found in the Rover car, is also an irrelevance. The pipe had nothing to do with the case against the applicant, as the judge made clear in his summing up. If anything, the remark of the judge about the pipe was helpful to the applicant’s case on the third trial.
38. Thirdly, the fact that PC [W] had changed his evidence from that given at the first two trials and that he now agreed with the experts was, on the face of it, highly favourable to the applicant. The effect was that the two experts and PC [W] all agreed that it was possible for the heroin to be placed under the carpet under the front passenger seat by a person of Mr [B’s] height and build. It was easier when the seat was in the rear position, but could even have been done with the seat in a more forward position. That evidence all assisted the applicant’s case that it was Mr [B] who had the heroin and it was he who hid it under the carpet when the police arrived.
39. We are unable to see how it could have helped to cross examine PC [W] on his previous evidence when the evidence that he gave at the third trial was so much more favourable to the applicant’s case. We do not accept the argument that if the Court of Appeal Criminal Division [which heard the first appeal against conviction and ordered the second re-trial] had thought that the evidence of PC [W] was incorrect, then there would have been no retrial. The fact is that on the appeal the Court of Appeal knew that there was a possibility of discrepancy with his earlier evidence because they had received, and regarded as entirely credible, the evidence of the experts about how it was possible to get underneath the seat in whichever position it might be. Despite this potential discrepancy, and therefore the challenge effectively to PC [W’s] version of the facts, the Court of Appeal was still prepared to order a second retrial.
40. Accordingly, we have concluded that none of the points raised are capable of demonstrating even an arguable case that this conviction was unsafe. ”
In England and Wales a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence. Competent witnesses are usually but not necessarily compellable ([2011] Archbold’s Criminal Pleading, Evidence and Practice at 8-52).
The test for competence is set out in section 53 of the Youth Justice and Criminal Evidence Act 1999, which, where relevant, provides:
“(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).”
The effect of subsections (4) and (5) is that a co-accused may only give evidence for the prosecution if he ceases to be a co-accused, for example when he has been acquitted.
In addition, under section 1(1) of the Criminal Evidence Act 1898, a person charged in criminal proceedings shall not be called as a witness “except upon his own application”. Therefore, a co-accused can only become a competent and compellable witness for any other co-accused once he or she ceases to be a person charged, for example because he or she pleads guilty or is acquitted.


ITEMID: 001-111369
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF G v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1968. When lodging his application with the Court, he was detained in Schwalmstadt Prison. Since February 2012 he has been detained in Straubing Prison.
6. On 6 February 1992 the Frankfurt am Main Regional Court convicted the applicant, a first offender, of three counts of murder and one count of attempted murder committed between October 1988 and March 1990. The applicant was found to have killed or have attempted to kill in his car four young women he had not previously known treacherously and in order to satisfy his sexual desires. He had strangulated a seventeen-year-old hitchhiker during his lunch-break, had strangulated two prostitutes during or after sexual intercourse with them and had attempted to strangulate a third prostitute in the same manner. The Frankfurt am Main Regional Court sentenced the applicant to fifteen years’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see paragraph 44 below). The court, having consulted a psychiatric and a psychological expert who had diagnosed the applicant with a sadist sexual deviation, lack of empathy and a brain damage, found that the applicant suffered from a serious mental abnormality and had acted with diminished criminal responsibility. Furthermore, owing to that condition, the applicant was liable to reoffend and was therefore dangerous to the public.
7. The Regional Court further considered that the conditions for the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraph 35 below) were equally met. However, even though it did not appear very likely that the applicant’s condition could be treated, it could not be wholly excluded that a therapy might prove successful. Therefore, the court decided, by reference to Article 72 § 1 of the Criminal Code (see paragraph 37 below), to order the applicant’s placement in a psychiatric hospital and not in preventive detention as the former was the more suitable measure of correction and prevention in these circumstances.
8. On 11 March 1992 the applicant was accordingly transferred to Heina psychiatric hospital.
9. On 14 March 1994 the Marburg Regional Court ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital as a therapy of the applicant had not proven successful. The applicant then served his full sentence in Kassel Prison. On 13 February 2006 the applicant requested his release, arguing that he had served his full sentence on 20 March 2005. Thereupon, he was again transferred to Haina Psychiatric Hospital in April 2006 on the basis of his conviction in 1992.
10. On 5 April 2007 the Kassel Regional Court terminated the applicant’s placement in a psychiatric hospital pursuant to Article 67d § 6 of the Criminal Code (see paragraph 41 below). That decision became final on 25 April 2007. Having regard to the findings of an expert it had consulted, it found that the applicant had in fact not suffered from a disorder which had made him act with diminished criminal responsibility at the time he had committed his offences and which had warranted his placement in a psychiatric hospital. By a decision of the same day, the Kassel Regional Court ordered the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively. The latter order became final on 17 July 2007. The applicant was then detained in Weiterstadt Prison since August 2007.
11. On 13 March 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraphs 38 and 40 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung).
12. The Frankfurt am Main Regional Court found that, as required by Article 66b § 3 (1) of the Criminal Code, the applicant had been placed in a psychiatric hospital pursuant to Article 63 of the Criminal Code after having committed several of the offences listed in Article 66 § 3, first sentence, namely several murders. On 5 April 2007 the Kassel Regional Court had terminated the applicant’s placement in a psychiatric hospital pursuant to Article 67d § 6 of the Criminal Code as the condition diminishing the applicant’s criminal responsibility on which the placement order had been based had never existed and thus did not persist at the time of the decision terminating the placement. It was irrelevant whether or not the placement in a psychiatric hospital had been based on a wrong diagnosis from the outset.
13. The Frankfurt am Main Regional Court further considered that a comprehensive assessment of the applicant, his offences and, in addition, his development during the execution of his placement in a psychiatric hospital revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims (Article 66b § 3 (2)). Having regard to the convincing findings of two psychiatric experts it had consulted and to the statements made by the doctors who had attempted to motivate the applicant to undergo therapy in prison and in the psychiatric hospital, the court found that it was very likely that the applicant, if released, would commit offences similar to those which he had been convicted of in 1992. Less restrictive measures, in particular the supervision of the applicant’s conduct, would be insufficient to protect the public from him.
14. The psychiatric experts L. and H., who had been obliged to draw up their reports on the basis of the case files as the applicant had refused to have himself examined by them, had considered that there was a high risk that the applicant would commit further murders for sexual motives or in order to cover up previous violent sexual offences if released. He had committed a series of murders without any comprehensible motives arising from his personal situation. Even though he did not suffer from a true sadistic deviation, his acts had disclosed a combination of aggressive and sadistic sexual elements. He was particularly dangerous for his lack of empathy and his refusal to reflect on his offences and to undergo treatment.
15. On 14 March 2008 the applicant lodged an appeal on points of law. He took the view that Article 66b § 3 of the Criminal Code was incompatible with the Basic Law.
16. On 10 September 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. On 18 September 2008 the applicant was transferred to Schwalmstadt Prison.
17. On 13 October 2008 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that Article 66b § 3 of the Criminal Code and the decisions of the lower courts, based on that provision, to order his preventive detention retrospectively were incompatible with the Basic Law. He stressed that the sentencing court in 1992, in a final judgment, had deliberately declined to place him in preventive detention. The said provision and decisions therefore breached the prohibition to increase a penalty retrospectively (Article 103 § 2 of the Basic Law) as well as the constitutional protection of legitimate expectations in a State governed by the rule of law and the prohibition to be punished twice for the same offence. The failure to release him following the termination of his placement in a psychiatric hospital further violated his right to liberty under the Basic Law (Article 2 § 2).
18. On 5 August 2009 a chamber of three judges of the Federal Constitutional Court declined to consider the applicant’s constitutional complaint – as well as that of another applicant who lodged application no. 61827/09 before the Court – on the grounds that it was ill-founded (file no. 2 BvR 2098/08).
19. The Federal Constitutional Court noted that Article 67d § 6 and Article 66b § 3 had been inserted into the Criminal Code because, under the Federal Court of Justice’s well-established case-law, a person could no longer be detained in a psychiatric hospital under Article 63 of the Criminal Code and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility. This was considered problematic in cases in which the person concerned, without suffering or without ever having suffered from the said condition, was still dangerous to the public.
20. The Federal Constitutional Court found that Article 66b § 3 of the Criminal Code and the lower courts’ decision to order the applicant’s placement in preventive detention retrospectively were compatible with the Basic Law. Article 66b § 3 of the Criminal Code did not breach the ban on the retrospective application of criminal laws imposed by Article 103 § 2 of the Basic Law. That Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt. Unlike such a penalty, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. For the same reason, Article 66b § 3 of the Criminal Code did not breach the right not to be punished twice for the same offence under the Basic Law.
21. The Federal Constitutional Court further took the view that Article 66b § 3 of the Criminal Code was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law, even if applied to a case such as that of the applicant, who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision. It considered as compatible with the Basic Law the legislator’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender’s interest in protection of his legitimate expectations.
22. The Federal Constitutional Court noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence (in particular new expert reports), without new facts having come up. It emphasised that the sentencing criminal court’s decision not to order preventive detention became final even if it later emerged that the court had erred in considering the offender not to be dangerous. Nevertheless, the retrospective preventive detention order under Article 66b § 3 of the Criminal Code, read in conjunction with Article 67d § 6 of the Criminal Code, entailed only very limited disadvantages of constitutional relevance. In substance, the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty – namely, placement in a psychiatric hospital – was merely replaced, under certain qualified conditions, by the ordering of a different such measure of indefinite duration, namely preventive detention. Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question.
23. The Federal Constitutional Court further found that Article 66b § 3 of the Criminal Code was compatible with the applicant’s right to liberty under the Basic Law (Article 2 § 2). In order to protect the right to life, physical integrity and liberty of citizens the legislator was authorised, within the limits set by the principle of proportionality, to deprive of his liberty a person who could be expected to violate the citizens’ said rights.
24. In Schwalmstadt Prison, persons in preventive detention are placed in a separate building from prisoners serving their sentence. They have certain minor privileges compared with convicted offenders serving their sentence (see, for instance, M. v. Germany, no. 19359/04, § 41, ECHR 2009). As regards therapeutic measures, persons held in preventive detention in Schwalmstadt Prison are offered a weekly discussion group proposing ideas for recreational activities and for structuring daily life. They are further offered discussions with an external psychiatrist once per month as well as psychological or psychotherapeutic measures and social training considered suitable for them. Furthermore, a psychologist and a social worker were available permanently to discuss with the detainees.
25. When transferred to Schwalmstadt Prison on 18 September 2008, the applicant refused to discuss the planning of the execution of the preventive detention order with the prison staff, which therefore considered his transfer to a social therapeutic institution as lacking prospects of success. He worked in prison from 1 November 2008 until 28 February 2009 and has been out of work since then. In October 2010 the applicant participated in a three-day social training course in prison.
26. On 10 March 2009 the Marburg Regional Court refused to suspend the applicant’s further preventive detention and to grant probation. It found that it could not be expected that the applicant would not commit any further offences if released (Article 67d § 2 of the Criminal Code; see paragraph 43 below). It noted that the applicant still considered it unnecessary to reflect on his offences or to undergo a therapy. The decision became final on 1 April 2009.
27. On 15 July 2011 the Marburg Regional Court declined to terminate the applicant’s preventive detention. It found again that it could not be expected that the applicant would not commit any further offences if released (Article 67d § 2 of the Criminal Code). On the contrary, there was a danger that if released, the applicant, owing to specific circumstances relating to his person and his conduct in prison, would commit serious crimes of violence as defined by the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 47 below), namely treacherous murders to satisfy his sexual desires.
28. The Regional Court considered, in particular, that according to the pertinent findings of the Federal Constitutional Court in the said judgment, a retrospective order of preventive detention following the termination of a person’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a State governed by the rule of law or the prohibition of retrospective punishment. As the judgments of the European Court of Human Rights only had the force of Federal legislation in Germany, the fact that that court had considered, in its judgment of 17 December 2009 (M. v. Germany, cited above), that retrospective preventive detention was in breach of human rights, did not alter that conclusion.
29. On 22 August 2011 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It agreed with the Regional Court that the stricter standards set up by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraph 47 below) for a continuation of preventive detention which had been ordered retrospectively under paragraph 2 of Article 66b of the Criminal Code did not apply to preventive detention ordered under paragraph 3 of that provision.
30. The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court against these decisions. The proceedings before that court are apparently still pending.
31. On 13 September 2010 the Darmstadt Regional Court dismissed as inadmissible the applicant’s request for a reopening of the proceedings in which his retrospective preventive detention had been ordered in 2008. In particular, a reopening on the ground that the European Court of Human Rights had found a domestic court’s judgment to be in breach of the Convention applied only to applicants who had themselves obtained a judgment of that court in their favour. Moreover, the facts at issue in the M. v. Germany case (cited above) were not sufficiently comparable to those in the present case.
32. On 11 November 2010 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.
33. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows:
34. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code).
35. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public.
36. Under Article 66 § 3, first sentence, of the Criminal Code, in its version in force at the time of the order for the applicant’s retrospective preventive detention, preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met.
37. Article 72 of the Criminal Code governs the combination of different measures of correction and prevention. If the conditions for several such measures are met, yet the desired objective may be attained by one or a part of these measures, then only those latter measures shall be ordered (see Article 72 § 1). Otherwise, such measures shall be ordered cumulatively unless the law provides otherwise (Article 72 § 2).
38. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14).
39. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references).
40. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided:
“(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if
1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and
2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.”
41. Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided:
“(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...”
42. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article.
43. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
44. Article 63 of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
45. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
46. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004.
47. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
48. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-100578
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MELNYK v. UKRAINE (II)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Eduard Petrovych Melnyk, is a Ukrainian national who was born in 1933 and lives in Lviv.
In 1938 the applicant's grandmother, Ms Y., was executed by the People's Commissariat of the Interior and her personal property was confiscated.
In 1989 she was fully exonerated as a victim of political repression.
In 1995 and 1998 the State Archive of the Vinnytsia Region confirmed that Ms Y. had been rehabilitated posthumously and noted that there were no records concerning the confiscated property.
On 28 April 1998 the Tulchyn Town Commission for Restoring Rights of Victims of Political Repression (“the Commission”) awarded the applicant 112.5 Ukrainian hryvnias (UAH), which was equal to fifty percent of fifteen times the minimum [Ukrainian] salary, in compensation for the property confiscated from Ms Y. in 1938. The Commission based that decision on Law No. 962-XII and the Cabinet of Ministers' Resolutions Nos. 112 and 429 (see the “Relevant domestic law and practice” below). In its examination of the evidence, it noted that while the confiscation of “the personal property” of Ms Y. was confirmed by the 1938 verdict, there was no itemised list of that property. The Commission checked the applicant's allegation that the house of his grandmother had been confiscated together with some other property, and found that this was not true. In fact, as confirmed by the real estate registry books of 1965 kept by the local council in the village where Ms Y. had lived, the applicant's mother (the daughter of Ms Y.) had been living in that house and owned two-thirds of it at the time. Furthermore, in 1965 she had sold her part of the house to a third person, which was also confirmed by documentation. The villagers contacted by the Commission for further verification confirmed this too. Moreover, the house in question was no longer standing.
In April 2000 the applicant brought a civil claim against the Commission with the Frankivskyy District Court of Lviv seeking an increase of the compensation to UAH 600,548, with a view to covering, in particular, the market value of two houses and the income which his grandmother could have made during about a sixty-year period if she had not been executed.
On 24 December 2001 the court rejected the applicant's claim as unsubstantiated, having found that the contested decision of the Commission was in compliance with law and based on an accurate assessment of the facts of the case.
On 20 May 2002 and 1 July 2004 the Lviv Regional Court of Appeal and the Supreme Court respectively upheld that judgment.
Article 5 of Law of Ukraine No. 962-XII “On Rehabilitation of Victims of Political Repression in Ukraine” of 17 April 1991 provided for restitution in kind of confiscated buildings and other property wherever possible (if the house was not occupied and the property was still standing). It was the prerogative of the Cabinet of Ministers to establish the amount of pecuniary compensation awarded where in-kind restitution was not possible.
Regulation of the Cabinet of Ministers No. 112 “On the Procedure for Payment of Financial Compensation, Return of Property or Reimbursement of its Value to Rehabilitated Citizens or their Heirs” of 18 February 1993 provided for compensation equal to up to fifteen times the minimum salary in cases where it was impossible to restore the property in kind. In any event, the total amount of the compensation could not exceed sixty-five times the minimum salary regardless of the value of the confiscated buildings and other property.
Pursuant to Resolution of the Cabinet of Ministers No. 429 “On the Procedure of Settlements with Rehabilitated Citizens” of 18 April 1996, the calculation unit for determining the compensation was set at fifty per cent of the minimum salary (UAH 7.5 instead of 15).