ITEMID: 001-58834
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF BELVEDERE ALBERGHIERA S.R.L. v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Christos Rozakis
TEXT: 7. The applicant company, owner of the Belvedere Hotel at Monte Argentario, also owned 1,375 sq. m. of land that gave patrons of the hotel direct access to the sea.
8. On 19 May 1987 the Monte Argentario municipality passed a resolution approving a road-building scheme. The road was to pass over the applicant company's land.
9. On 25 May 1987 the mayor of Monte Argentario issued an order, under an expedited procedure, for the possession of the applicant company's land. On an unspecified date the authorities took physical possession of the land and began the road-building works.
10. The applicant company appealed to the Tuscany Regional Administrative Court (“the RAC”), contesting, inter alia, the lawfulness of the municipality's resolution of 19 May 1987 and of its occupation of the land.
11. By a judgment delivered on 2 December 1987, the Tuscany RAC allowed the applicant company's appeal; it quashed the municipality's resolution of 19 May 1987 and ruled that all subsequent action taken by it was invalid. The RAC found that the municipality had approved the road-building scheme without carrying out sufficient technical surveys beforehand. As a result, the approved scheme was unlawful and could not be considered as being in the public interest (non atto a realizzare un interesse pubblico).
12. That decision was lodged at the registry on 24 May 1988 and became final on 9 June 1989.
13. By letters of 8 July 1988, 11 August 1989 and 18 July 1990, the applicant company asked the Monte Argentario municipality to reinstate and return the land, pursuant to the judgment of the RAC. However, the municipality took no action.
14. The applicant company issued enforcement proceedings (giudizio di ottemperanza) in the Tuscany RAC for the reinstatement and return of the land in accordance with the judgment of 2 December 1987.
15. On 26 June 1991 the RAC dismissed those proceedings on the ground that the judgment of 2 December 1987 could not be enforced as there had been a constructive expropriation.
16. The RAC observed that although the judgment of 2 December 1987 had quashed the resolution of the municipality of Monte Argentario for procedural defects during the planning inquiry, that did not prevent the municipality from subsequently restarting the procedure and passing a fresh resolution – though it had not in any event done so. The RAC went on to say that as a result of the constructive-expropriation rule (occupazione acquisitiva), the applicant company was no longer the owner of the land, which had become the property of the municipality of Monte Argentario following completion of the road-building works. Despite its earlier judgment and the fact that the works carried out by the authorities were dangerous and contrary to the public interest, the fact that the authorities had completed the works meant that title to the land had been transferred. Consequently, restitution was impossible. However, as the transfer of property had been unlawful, the applicant company was entitled to claim damages in the civil courts.
17. The applicant company appealed against that decision to the Consiglio di Stato, its main contention being that, although the RAC had ruled that the authorities' conduct was unlawful before they had completed the works, the authorities had ignored the judgment. The fact that the constructive-expropriation rule had been applied in the instant case rendered the judgment devoid of purpose, since the authorities were free to act unlawfully with the sole aim of acquiring title to the land.
18. By an order of 5 June 1995, Section V of the Consiglio di Stato, before whom the appeal was pending, decided to refer the appeal to the full court. The order indicates that the section concerned considered that in the instant case the loss of title to the land as a result of the public works being carried out amounted to a denial of justice. If a decision of an administrative court favourable to the owner of the land, such as the decision of 2 December 1987, could not prevent the authorities taking possession of the land, the owner would be at their mercy. Furthermore, Section V of the Consiglio di Stato noted that the municipality of Monte Argentario had not reopened the planning inquiry or passed any further resolutions following the quashing of its resolution by the RAC.
19. In a decision of 7 February 1996 the Consiglio di Stato, sitting as a full court, dismissed the applicant company's appeal. It held that the application of the constructive-expropriation rule had not entailed a denial of justice in the instant case. It said that the road-building works had been largely completed by 7 August 1987 when the RAC had given its judgment. Thereafter, only additional work of minor importance had been carried out, such as the installation of lighting and the completion of the road surfacing. Consequently, 7 August 1987 had to be considered the date when title to the land was transferred because it was at that point that the change of user of the land had become irreversible, as a result of the completion of the works. The land could no longer be returned owing to the constructive expropriation. That date was also the starting-point of the statutory limitation period for claiming damages.
20. This statute governs the expedited expropriation procedure, which permits authorities to start building before expropriation. Once a scheme has been declared to be in the public interest and the plans adopted, the authorities may make an expedited possession order, for a limited period not exceeding five years, in respect of the land to be expropriated. The order will lapse if physical possession of the land is not taken within three months after its issue. After the land has been possessed, a formal expropriation order must be made and compensation paid.
21. During the 1970s, a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken. The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land.
22. There was a substantial divergence in the decisions of the Court of Cassation over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully. Unlawful possession means possession that is unlawful from the start, in other words obtained without authority, or that is initially authorised but subsequently became unlawful, either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made.
23. Under one line of case-law, the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession. No limitation period applied to such actions as the unlawful nature of the possession was continuing. The authorities could at any time issue a formal expropriation order. If they did so, the action in damages was transformed into a dispute over the compensation for expropriation, with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order (see, among other authorities, the judgments of the Court of Cassation nos. 2341 of 1982; 4741 of 1981; and 6452 and 6308 of 1980).
24. Under a second line, the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, Court of Cassation judgments nos. 1578 of 1976 and 5679 of 1980).
25. Under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly, that is to say on completion of the works in the public interest. He was entitled to claim damages (the sole authority is Court of Cassation judgment no. 3243 of 1979).
26. In a judgment of 16 February 1983, the Court of Cassation, sitting as a full court, resolved the conflict between the case-law authorities and adopted the third solution. In so doing, it established the constructive-expropriation rule (accessione invertita or occupazione acquisitiva). Under the rule, the public authorities acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed. If, initially, the land is possessed without authority, the transfer of property takes place when the works in the public interest are completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession. In the same judgment, the Court of Cassation stated that, on a constructive expropriation, the owner is entitled to compensation in full as the acquisition of the land has taken place without title (sine titulo). However, compensation is not paid automatically: the owner must lodge a claim for damages. In addition, the right to compensation is subject to a five-year limitation period that applies to actions in tort; the starting-point is the date the land is irreversibly altered.
27. Initially, it was held that no limitation period applied, since possession of the land without title was a continuing unlawful act (see paragraph 23 above). In its judgment no. 1464 of 1983, the Court of Cassation stated that the right to compensation was subject to a five-year limitation period (see paragraph 26 above). Subsequently, the First Division of the Court of Cassation said that a ten-year limitation period should apply (judgment nos. 7952 of 1991 and 10979 of 1992). On 22 November 1992 the full court of the Court of Cassation decided the issue finally, holding that the limitation period is five years and starts to run from the date the land is irreversibly altered.
28. Recent developments in the case-law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions.
29. In its judgment no. 874 of 1996, the Consiglio di Stato stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts, as otherwise the judicial decision would be devoid of purpose.
30. In judgment no. 1907 of 1997, the Court of Cassation, sitting as a full court, said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset. In such cases, the owner retained title to the land and could claim restitutio in integrum. In the alternative, he could seek damages. The unlawful nature of the possession in such cases was continuing and no limitation period applied.
31. In judgment no. 6515 of 1997, the Court of Cassation, sitting as a full court, said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts. In such cases, therefore, the constructive-expropriation rule did not apply. The owner, who retained ownership of the land, was entitled to claim restitutio in integrum. If he brought an action in damages, that entailed a waiver of his right to restitution. The five-year limitation period started to run from the date when the decision of the administrative court became final.
32. In judgment no. 148 of 1998, the First Division of the Court of Cassation followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset.
33. In this judgment, the Constitutional Court was called upon to decide firstly whether the constructive-expropriation rule was compatible with the Constitution. The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only, not rules established by the courts. Secondly, it held that the application to an action for compensation of the five-year limitation period laid down by Article 2043 of the Civil Code for claims in tort was compatible with the Constitution. The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest in the preservation of works for the public good outweighed the individual's interest in the right of property.
34. Under the Court of Cassation's case-law on constructive expropriations, compensation in full, that is to say damages for the deprivation of the land, is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession.
35. The Finance Law of 1992 (Article 5 bis of Legislative Decree no. 333 of 11 July 1992) superseded that case-law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations. In judgment no. 369 of 1996, the Constitutional Court declared that provision unconstitutional.
36. Under Finance Law no. 662 of 1996, which amended the provision that had been declared unconstitutional, compensation in full cannot be awarded for dispossessions effected before 30 September 1996. In such cases, compensation cannot exceed such amount, plus 10%, but without applying the 40% reduction, as would have been payable on a formal expropriation (one-half of the sum of the market value plus the income from the land, less 40%). In a judgment no. 148 of 30 April 1999, the Constitutional Court held that that provision was compatible with the Constitution. However, in the same decision, it said that compensation in full, up to the market value of the land, could be claimed where the dispossession and deprivation of the land were not in the public interest.
37. The applicant company complained that it had become impossible for it to recover its land as a result of the constructive-expropriation rule, which had been applied despite the decision of the Tuscany Regional Administrative Court (“the RAC”) quashing the building scheme and the possession order as being unlawful and not in the public interest. It alleged a violation of Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
38. The applicant company maintained that the interference with its right to peaceful enjoyment of its possessions was not compatible with Article 1 of Protocol No. 1.
39. It contended that constructive expropriation was contrary to the requirement of lawfulness for the following reasons: the authorities became owners of the land through unlawful conduct, namely by taking possession without title; landowners could not avail themselves of the procedural guarantees available on a formal expropriation; and the constructive-expropriation rule was not to be found in any statutory provision but had been established by the case-law and was considered to be “living law”.
40. Subsequent events had led the applicant company to consider that the requirement of lawfulness had not been complied with in the instant case. It observed that it was unable to obtain restitution of the land despite the decision of the Administrative Court – which had become final – retrospectively quashing all the authorities' acts, including the declaration that the scheme was in the public interest. The decision of the Consiglio di Stato refusing restitution of the land as a result of the application of the constructive-expropriation rule thus represented an unjustified interference with the applicant company's right to the peaceful enjoyment of its possessions. The applicant company noted that the constructive-expropriation rule left landowners at the mercy of the authorities, who – with the sole aim of appropriating land – could carry out works that were not in the public interest after taking possession of the land wholly unlawfully and then refuse to comply with judicial decisions declaring their conduct unlawful.
41. The applicant company added that the Tuscany RAC had been called upon to rule solely on the lawfulness of the authorities' acts and could not decide the merits of the case, that is to say whether the road-building works had been finished. On the other hand, the Consiglio di Stato, on an appeal on the issue of enforcement (ottemperanza), had jurisdiction to hear the merits and could therefore determine the date of completion of the works.
42. The applicant company observed finally that it was true that the measure of compensation claimable by an owner deprived of his land for works that were not in the public interest was compensation in full (see paragraph 34 above). However, damages could not be considered as compensation for the alleged loss even assuming they could be claimed by the applicant company. The applicant company was not asking the Court to rule on the authorities' conduct – the Tuscany RAC had already done so – but to give a decision on the Consiglio di Stato's dismissal of its application for restitution of the land. The applicant company concluded by inviting the Court to restore legality.
43. The Government submitted that the loss of the land by the applicant company did not infringe Article 1 of Protocol No. 1.
44. They observed firstly that the interference with the applicant company's right to peaceful enjoyment of its possessions was “provided for by law”, namely a rule established by the courts that had been consistently and unanimously applied since the Court of Cassation's judgment no. 1464 of 1983 (see paragraph 26 above). The Government referred in particular to the Court of Cassation's judgments nos. 3940 of 1988 and 12546 of 1992, the Consiglio di Stato's judgment no. 877 of 1991 and the case-law of the Constitutional Court. The rule established by the case-law thus constituted a clear, accessible and adequate legal norm and was an expression of the “living law”, that is to say the law effectively in force.
45. The Government observed secondly that the applicant company had been deprived of its land “in the public interest”. At the outset, the road-building scheme and the authorities' resolutions had been in the public interest. Although it was true that the authorities' acts had subsequently been quashed by the Administrative Court, the effect of the constructive-expropriation rule was that, once completed, municipal works became de facto a new scheme in the public interest. Completion of the works carried out by the authorities therefore had a dual effect: it entailed recognition that the work carried out was in the public interest and meant that the authorities' conduct ceased to be unlawful.
46. As a result of that mechanism, the land could no longer be returned to the applicant company as it was irreversibly deemed to have become public.
47. The fact that the deprivation of possession was unlawful until the works had been completed nevertheless afforded the owner the right to claim pecuniary compensation in the form of damages before the relevant courts. The Government maintained that it was still open to the applicant company in the instant case to bring an action in damages before the relevant courts, that such an action would enable it to obtain compensation in full and thus constituted a sufficient remedy for the interference with its right to peaceful enjoyment of its possessions. On that point, the Government referred to the judgment of the Court in the case of Zubani v. Italy (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-IV).
48. An action in damages was possible because, in the Government's submission, the five-year limitation period which had started to run on 7 August 1987 on completion of the works had been interrupted by the enforcement proceedings brought by the applicant company before the Consiglio di Stato. The Government added that, when dealing with an application for enforcement (ottemperanza) the Consiglio di Stato had jurisdiction to make findings of fact, including as to the date when the works were completed. Consequently, there was no inconsistency between its finding and the fact that the decision of the Tuscany RAC had become final, as the latter could not decide issues of fact.
49. An action in damages would enable the applicant company to obtain compensation in full since the declaration that the works were in the public interest had been quashed by the Tuscany RAC. The Government referred on that point to the Constitutional Court's judgment no. 148 of 30 April 1999 (see paragraph 36 above).
50. Lastly the Government explained that proceedings for pecuniary reparation had to be instituted by the applicant company as it had failed in its attempt to obtain restitution of the land. Damages would compensate it for the interference with its right to peaceful enjoyment of its possessions.
51. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules: “The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37, partly following the terms of the Court's analysis in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 24, § 61; see also the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 31, § 56, and Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II).
52. The Court notes that it is common ground that there has been a deprivation of possessions.
53. In order to determine whether there has been a deprivation of possessions within the meaning of the second rule, the Court must not confine itself to examining whether there has been dispossession or formal expropriation, it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether that situation amounted to a de facto expropriation. (see the Sporrong and Lönnroth judgment cited above, pp. 24-25, § 63).
54. The Court notes that in the present case, by applying the constructive-expropriation rule in its decision, the Consiglio di Stato deprived the applicant company of the possibility of obtaining restitution of its land. In the circumstances, the Court finds that the effect of the judgment of the Consiglio di Stato was to deprive the applicant company of its possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see Brumărescu v. Romania [GC], no. 28342/95, § 77, ECHR 1999-VII).
55. In order to be compatible with Article 1 of Protocol No. 1, such an interference must be “in the public interest”, “subject to the conditions provided for by law and by the general principles of international law” and must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see the Sporrong and Lönnroth judgment cited above, p. 26, § 69). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis cited above, § 58, and Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I).
56. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above, § 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it.
57. The Court does not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions. However, it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 47, § 110).
58. In that connection, the Court observes that the case-law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently (see paragraphs 22 to 36 above), a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and is, as a consequence, inconsistent with the requirement of lawfulness.
59. The Court also notes that under the rule established by the Court of Cassation in its judgment no. 1464 of 1983 every constructive expropriation follows the unlawful taking of possession of the land. The unlawfulness may exist at the outset or arise subsequently. The Court has reservations as to the compatibility with the requirement of lawfulness of a mechanism which, generally, enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli.
60. In any event, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention.
61. In the instant case, the Court notes that on 2 December 1987 the Tuscany RAC quashed with retrospective effect the resolution passed by the authorities as being unlawful and not in the public interest. However, that finding of the Tuscany RAC, in which it held that the occupation of the applicant company's land was unlawful and not in the public interest (see paragraph 11 above), did not result in restitution of the land, since the Consiglio di Stato held that the transfer of property to the authorities had become irreversible.
62. The Court considers that the interference in question was not compatible with Article 1 of Protocol No. 1. That conclusion makes it unnecessary for it to examine whether a fair balance was struck between the requirements of the general interest of the community and the need to protect individual rights.
63. Consequently, there has been a violation of Article 1 of Protocol No. 1.
64. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
65. The applicant company sought restitution and reinstatement of the land in question, those being the only measures which in its submission would remedy the alleged violation, since they would enable the position obtaining before the violation of Article 1 of Protocol No. 1 to be re-established. The applicant company also claimed compensation for pecuniary damage to be determined on an equitable basis or, if appropriate, through the assessment of an expert; it put the compensation at not less than 80,000,000 Italian lire (ITL) plus interest and index-linking covering at minimum its loss of enjoyment of the land for the period of deprivation of possession until restitution. The applicant company further claimed ITL 30,000,000 plus interest and index-linking for the non-pecuniary damage which the State's conduct had caused it. Lastly, it requested reimbursement of the costs incurred before the national courts and of ITL 8,000,000 for costs incurred before the Court.
66. The Government stated that restitution of the land was precluded by the constructive expropriation and maintained that the applicant company could obtain compensation for the alleged violation through the action in damages which it could bring in the Italian courts. Referring to the judgments of the Court in the cases of B. v. France (judgment of 25 March 1992, Series A no. 232-C), and De Wilde, Ooms and Versyp v. Belgium (judgment of 10 March 1972 (Article 50), Series A no. 14), the Government argued that the applicant company's claim for just satisfaction was inadmissible.
67. Should the Court not uphold that objection, the Government said that it would be impossible – for the reasons indicated by the Consiglio di Stato – for the land to be returned. They contended that restitution of the land was beyond the scope of Article 41 of the Convention. As regards pecuniary damage, the Government submitted that no sum could be awarded under that head since it was still open to the applicant company to seek damages before the national courts. As to non-pecuniary damage, the Government maintained that a finding of a violation would constitute sufficient just satisfaction. The Government considered that the sum requested for costs was excessive and left the issue to the discretion of the Court.
68. In the light of the reasons which led it to find a violation of Article 1 of Protocol No. 1, the Court considers that the Government's objection must be rejected. The act of the Italian government which the Court held to be contrary to the Convention was not an expropriation that would have been legitimate but for the failure to pay fair compensation; it was a taking by the State of land belonging to the applicant company, for which the latter had no redress (see, mutatis mutandis, the Papamichalopoulos v. Greece judgment of 31 October 1995, Series A no. 330-B, pp. 59-60, § 36).
69


ITEMID: 001-86231
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF Z. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1972. He is serving a prison sentence in the Košice-Šaca prison.
5. On 23 July 1996 the applicant’s father, a former police officer, attacked the applicant’s sister with a knife. She suffered moderate injuries to her left arm. When the applicant began to defend his sister, the father turned to attack him. The applicant suffered several injuries to his arms. During the struggle the applicant seized a machete from his father and inflicted a number of blows on him. The applicant’s father died of a haemorrhage shortly thereafter.
6. On 24 July 1996 criminal proceedings were brought against the applicant. A lawyer was appointed to defend him. Between August and November 1996 several expert opinions were obtained and a number of witnesses were heard.
7. On 27 November 1996 the investigator transmitted the case to the Košice Regional Prosecutor’s Office, with the proposal that the applicant be indicted for murder.
8. On 13 December 1996 the Košice Regional Prosecutor’s Office discontinued the proceedings, concluding that the applicant had acted in self-defence. This decision became final on 24 December 1996.
9. On 5 March 1997 the General Prosecutor filed a complaint in the interest of the law against the above decision. On 16 April 1997 the Supreme Court upheld the complaint and quashed the decision of 13 December 1996. The Supreme Court sent detailed instructions to the Regional Prosecutor’s Office on the action to be taken with a view to establishing the relevant facts. The case was returned to the police investigator.
10. Between 24 June 1997 and 11 November 1997 the investigator took action at regular intervals with a view to establishing the facts of the case. This included questioning of a number of witnesses and obtaining expert opinions and documentary evidence. The applicant’s counsel was notified of and had the option of attending the questioning of witnesses.
11. In the meantime, on 18 August 1997 and 9 September 1997 the applicant requested that a different lawyer be appointed to defend him, as he had lost confidence in the lawyer who had been appointed on 24 July 1996. On 8 September 1997 the applicant asked the police investigator to notify him of all steps taken in the criminal proceedings, so that he could attend and defend his rights in person. On 11 September 1997 the investigator replied to the applicant that the law did not require his presence during the interrogation of witnesses. The applicant would be summoned whenever his presence was required under the relevant provision of the Code of Criminal Procedure. On 16 September 1997 different counsel was appointed to assist the applicant.
12. On 25 September 1997 the applicant consulted the file. On 1 October 1997, in the presence of his counsel, he submitted his comments on several witness statements.
13. On 12 December 1997, after the applicant had perused the file, the Regional Prosecutor indicted the applicant before the Regional Court in Košice.
14. On 18 December 1997 the Regional Court judge asked for permission to withdraw, as he had known the victim. On 19 December 1997 the case was transferred to a different judge.
15. On 3 March 1998 the Regional Court returned the case to the Regional Prosecutor. The decision stated that the prosecuting authority had failed to comply in full with the instructions set out in the Supreme Court’s decision of 16 April 1997.
16. On 14 April 1998 the Regional Prosecutor lodged a complaint, submitting reasons. On 21 May 1998 the Supreme Court dismissed the prosecutor’s complaint. The decision was delivered to the Regional Court on 22 June 1998.
17. On 20 July 1998 the investigator requested information about the applicant’s criminal record. In August 1998 the investigator examined and cross-examined witnesses and the applicant. Further investigative measures were also carried out. Documentary evidence was obtained and an expert was heard in September 1998. Three witnesses were examined in October 1998. On 30 October 1998 the investigator submitted the file to the Regional Prosecutor’s Office.
18. On 5 November 1998 the prosecutor filed a new indictment against the applicant with the Regional Court.
19. On 23 and 26 March 1999 the Regional Court heard an expert in forensic medicine. On 30 March 1999 it again returned the case to the prosecuting authorities, noting that several of the Supreme Court’s instructions relating to the establishment of the facts of the case had not yet been complied with. The applicant and the public prosecutor challenged this decision. The public prosecutor later withdrew his complaint.
20. On 7 July 1999 the Supreme Court dismissed the applicant’s complaint. The decision stated that the public prosecutor had complied with the Supreme Court’s earlier instructions taken as a whole. However, there had been substantial procedural shortcomings in the examination of the applicant and several witnesses. Those shortcomings needed to be rectified.
21. On 30 August 1999 and on 4 and 24 September 1999 the applicant and several witnesses were cross-examined.
22. On 4 October 1999 the Regional Prosecutor again indicted the applicant on a murder charge before the Regional Court in Košice.
23. At a preliminary hearing on 1 December 1999 the public prosecutor withdrew the indictment. The case was returned to the police investigator as a result.
24. On 11 January 2000 the applicant, his mother and sister refused to make statements.
25. On 10 February 2000 the public prosecutor lodged an indictment against the applicant. As the Regional Court judge involved considered himself biased, the case was transferred to a different judge on 22 February 2000.
26. On 22 May 2000 the Regional Court adjourned the main hearing as the applicant’s counsel was unable to attend for serious family reasons.
27. On 12 June 2000 the applicant refused to make a statement before the Regional Court. His statements made in the course of the pre-trial proceedings were read out and the applicant confirmed them. The Regional Court heard a witness. It decided that the hearings should be held in the applicant’s presence. The case was adjourned with a view to hearing other witnesses.
28. On 19 June 2000 the Regional Court heard witnesses. The case was adjourned as the expert in forensic medicine was ill. The court later established that she would be on sick leave until 14 September 2000.
29. On 27 September 2000 and 18 October 2000 the Regional Court heard several witnesses and experts. On 28 November 2000 it took further evidence.
30. On 6 December 2000, after both the applicant and the public prosecutor had stated that they had no further proposals for evidence to be taken, the Regional Court in Košice convicted the applicant of murder and sentenced him to ten years’ imprisonment. With reference to the experts’ conclusions, the Regional Court
31. On 22 February 2001 and 20 March 2001 the applicant appealed. Relying on the evidence in the case he argued that the first-instance court had erred in the legal qualification of his action. He had acted in self-defence and his action did not constitute a criminal offence.
32. On 6 June 2001 the Supreme Court, referring to the evidence included in the file, upheld the first-instance conclusion that the applicant had committed murder. The Supreme Court accepted that the applicant had initially acted in legitimate defence, in that he had protected his sister from their father’s attacks. In the subsequent stage, however, after he had separated his father from his sister, the applicant had inflicted more than 50 injuries on his father using a machete that was 45 centimetres in length. That action had been in excess of legitimate defence. After the attack the applicant had tied up his wounded father, and then rolled him up in a carpet without attempting to provide assistance. In view of the the Supreme Court reduced the applicant’s sentence to seven years’ imprisonment.
VIOLATED_ARTICLES: 6


ITEMID: 001-98385
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ADETORO v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1972 and is currently detained in HMP Whitemoor, Cambridgeshire.
6. Between June 1995 and March 1997 eight robberies and six aborted robberies took place in the Manchester area. The robbers targeted security vehicles carrying cash; banks; one post office; and one supermarket. More than once, firearms were discharged. Police officers chasing the robbers were fired upon and on one occasion a lorry driver who used his vehicle to ram the robbers' getaway car was shot and seriously injured.
7. The prosecution case was that the applicant joined the conspiracy in around April 1996 after his release from prison, after four of the robberies had been committed. The evidence against the applicant was almost entirely circumstantial and the case relied heavily on evidence from a police surveillance exercise carried out over a period of about one year. The prosecution argued that the applicant's recorded movements were consistent with his playing an active part in the conspiracy.
8. The applicant was arrested on 21 March 1997. He denied any involvement in the conspiracy to rob and was interviewed under caution in March and June 1997. The terms of the caution were that he did not have to say anything but that it might harm his defence if he did not mention when questioned something on which he later sought to rely in court. During the interviews, he was asked to give an explanation for his movements as recorded by the police in their surveillance exercise, his association with a variety of individuals and his whereabouts at the time of the robberies. On each occasion, he replied “no comment”.
9. The applicant subsequently pleaded not guilty to conspiracy to rob and other offences arising out of the conspiracy.
10. At trial before the Crown Court, the applicant gave evidence in his own defence. His case was that he was not involved in the conspiracy. He claimed that he was not even aware of the robbery conspiracy or his associates' involvement. However, he admitted being involved in the buying and selling of stolen cars and argued that the police observations showed his involvement in that business, rather than in any conspiracy to rob.
11. The applicant also provided answers to all the questions which he had declined to answer during the police interviews in March and June 1997. In particular, he accounted for his association with various individuals, provided explanations for why he had moved certain vehicles on certain dates, gave detailed accounts of his movements on relevant dates, provided reasons why he was observed wearing gloves on specific occasions and gave explanations for conversations recorded by covert surveillance.
12. The applicant was asked why he had not provided these explanations at the time of the police interviews. He responded that he had not wanted to incriminate people in relation to the stolen vehicles.
13. In his summing up to the jury, the judge directed them as to the burden of proof and the standard of proof in the case:
“...The burden [of proof] lies upon the prosecution throughout the case, to prove their case against the defendant. The defendant does not have to prove anything at all, there is no burden upon him to prove anything.
...
The next matter of law, is the standard of proof, this is a very simple concept, the standard is, that you must be sure. You must not convict this man unless you are sure he is guilty and nothing less than being sure will do.”
14. He subsequently gave them the following direction regarding lies:
“Another matter of law, ... which I should mention, concerns the telling of lies or being untruthful. You may come to the conclusion that this defendant has told you a lie or a number of lies; I'm not suggesting that he has or he hasn't, it is simply a matter that you may wish to consider. Because, I have to tell you as a matter of law, that the fact that a defendant tells a lie, is not of itself, evidence of guilt. A defendant may lie for many reasons. He may lie because he doesn't want to disclose something or out of confusion, panic or something of that sort.
If you think that the defendant has lied in evidence, but you think that there is or might be some innocent explanation for any lie, then ignore it, take no notice of it at all. If, on the other hand, you were to find that the defendant did lie and you are sure that he didn't lie for any innocent reason, then any such lie can be evidence going to support the prosecution's case.”
15. The judge went on to deal with the questioning of the applicant by the police. In this regard, he noted:
“... there [were] some six hours – if I've added it up correctly – of interviews between the police and the defendant, from the day of his arrest in March through to June of last year and at each of those various interviews, he was cautioned. The words of the caution being, that he was told that he did not have to say anything, but that it may harm his defence if he didn't mention when questioned, something which he may later rely on in court. He was told that anything which he might say may be given in evidence.”
16. The judge noted that the applicant had not answered questions put to him during the police interviews, replying “no comment” to each of the questions posed. He reminded the jury that the applicant did not suggest that he was advised by his lawyer not to comment but said that he had not answered questions because he did not want to incriminate people in relation to stolen vehicles. The judge also reminded the jury of some of the specific questions asked of the applicant during the police interviews and of the subsequent answers relied upon by the applicant during his evidence at trial and added:
“[The applicant] knew, as he accepted when he gave evidence before you, that he had been arrested for armed robbery. He admits that he failed to mention any of the facts to which I have just referred, when he was interviewed and he says his reason for that, was that although well knowing that others had been arrested for the much more serious offence of armed robbery, as he had been, he didn't want to incriminate them in the stealing of cars.”
17. The judge concluded with the following direction:
“You must decide, whether in the circumstances, these facts to which I have referred, were facts which the defendant could reasonably have been expected to have mentioned in the light of that caution, which was repeatedly given to him, over that period from March to June.
If you find that he could reasonably be expected to have mentioned those facts, then the law is, that you may draw such inferences as appear proper, from his failures to mention such matters when interviewed.
I reminded you of the period of the interviews. Failures to mention such matters cannot on their own prove guilt, but you may hold such failures against the defendant when deciding whether he is guilty, that is to say, you may take them into account as some additional support for the prosecution's case. You are not bound to do so, it's a matter entirely for you to decide whether it is fair to do so.”
18. On 18 June 1998 the jury found the applicant guilty of the offences charged. He was sentenced to 26 years' imprisonment. The Criminal Cases Review Commission (see paragraph 21 below) summarised the comments of the trial judge on sentencing as follows:
“111. In sentencing Mr Adetoro, the judge noted that he had six previous convictions dating from 1998, including a conviction for conspiracy to rob ...The trial judge described him as a dangerous, cunning and intelligent man and he was satisfied that after he had joined the conspiracy, he had played a commanding role ...
112. Mr Adetoro did not take part in the first four robberies because he was in prison in respect of a previous matter connected with armed robbery. He was released in September and by October was associating with his co-accused ... Thereafter he joined the conspiracy. Once he had joined the tactics and execution of the various robberies increased in gravity. The judge noted that he was satisfied that Mr Adetoro was involved in the sixth robbery and ignored his assertion that he was with Mr Shearer and Mr Stephenson at the material time. He was a 'rather clever and determined liar' and his alibi 'fell apart'. The judge was not prepared to place reliance on anything he said and made no finding in respect of Mr Shearer and Mr Stephenson's presence or absence in the circumstances of the sixth robbery.”
19. The applicant appealed to the Court of Appeal arguing, inter alia, that the summing up contained a Lucas direction (a direction to the jury in relation to lies – see paragraph 33 below) where it was wholly inappropriate; and that the trial judge had not given any direction to the jury regarding the drawing of adverse inferences from the applicant's silence during the police interviews in circumstances where such a direction was appropriate.
20. On 21 June 1999, the Court of Appeal handed down its judgment. It agreed that there had been no need for a Lucas direction. However, it considered that the fact that one was given did not prejudice the applicant's defence or the safety of his conviction. Regarding the adverse inferences direction, the court concluded, having regard to the transcript of the trial judge's summing up, that the judge had given such a direction to the jury. It considered the applicant's case in the round and noted that the evidence against the applicant was overwhelming. The applicant's appeal against conviction was dismissed. However, his sentence was reduced to 22 years' imprisonment.
21. On 20 July 2005, the Criminal Cases Review Commission (“CCRC”) referred the applicant's conviction to the Court of Appeal on the basis of the trial judge's direction to the jury in relation to the applicant's silence at the police interviews. The main ground of appeal was that the direction on adverse inferences was defective in that the jury were not directed that an adverse inference could only be drawn where it was satisfied that the real reason for the applicant's silence was that he had no answer to the questions asked, or no answer that would hold up to scrutiny. The CCRC report noted that legal advice dated 9 July 1998 on the merits of an appeal made reference to the omission in the jury direction but that this issue was not pursued beyond the initial advice and was not incorporated into the applicant's grounds of appeal at that time. The Court of Appeal subsequently observed that this ground:
“was not one of the ten grounds of appeal advanced by experienced counsel who appeared for the appellant at trial.”
22. On the morning of the appeal hearing, counsel for the prosecution informed counsel for the applicant that he considered there to be no justification for opposing the appeal and that the only issue would be whether or not there ought to be a retrial.
23. The Court of Appeal disagreed and found that, despite the misdirection by the trial judge, the conviction was safe. It distinguished between cases where an accused exercised his right to silence pursuant to legal advice or because he was tired or ill and those where, as in the present case, the reason for not answering questions was linked to the accused's defence itself. It found that the jury had rejected the applicant's defence and, in doing so, must also have rejected the applicant's explanation of why he failed to answer questions in the police interview, noting:
“Here the appellant's explanation was inextricably linked to his defence which was: 'I was involved with the others in buying and selling stolen cars, but not in armed robbery'. In saying that he did not answer questions because he did not wish to implicate others in this business, the appellant was necessarily advancing his own defence. The jury rejected this defence and it seems to us that in doing so they must also have rejected the appellant's explanation for his failure to mention facts at interview.”
24. The court also noted that the judge had given the jury an unnecessary Lucas direction which, in the event, provided assistance to the jury in how to approach the question of adverse inferences which could be drawn from the applicant's failure to provide an explanation of his conduct during the police interviews. It concluded that:
“The direction the judge gave could only have related to lies told by the appellant in court. The jury were told that if they thought there was an innocent explanation for any such lie told by the appellant they should not hold it against him. So, as the jury must have concluded that the appellant's explanation for his silence ('I wanted to protect others') was a lie, following the judge's direction they would have had to consider whether there was an innocent explanation for it before they could have used it as supportive of the Crown's case. If therefore they did use his lying explanation against him, the jury must have concluded that the lie was not innocent – in other words the reason he was lying about why he had not answered the questions was because he had no answer to them or none which would withstand scrutiny.
... So on analysis if the jury in this case did draw adverse inferences against the appellant from his silence at interview, they could only have done so by following the same thought processes as they would have had to follow if the proper section 34 direction had been given. This is therefore not a case in which one cannot say what the jury would have done if such a direction had been given. Put shortly, if they did draw adverse inferences against the appellant following the directions which they were given, they could only have done so if they considered that the reason for his silence was that he had no or no sustainable answer to the questions he was asked.”
25. The court referred to the earlier judgment of the Court of Appeal, which found the evidence against the applicant to be overwhelming, and concluded:
“This was not therefore a case in which one could say that the correct direction would have tipped the balance”.
26. The applicant's appeal against conviction was dismissed on 7 June 2006.
27. Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“(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 under caution 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;
...
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, subsection (2) below applies.
(2) Where this subsection applies
...
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(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.
...”
28. Section 38(3) provides that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
29. A number of domestic cases have considered the application of section 34 in practice. In R v. Cowan ([1996] 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
30. Subsequently, in R v. Argent ([1997] Criminal Appeal Reports 27), Lord Bingham CJ (as he was then) added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression 'in the circumstances' restrictively: matters such as the time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
31. Guidance as to the direction which the judge should give the jury are provided by the Judicial Studies Board, which provides specimen directions. The present specimen direction on section 34 is based on the five “essentials” listed in R v. Cowan, as applied in subsequent section 34 cases before the domestic courts, including R v. Argent, and by this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000V).
32. The Judicial Studies Board specimen direction, which was last amended in December 2004, prior to the applicant's second appeal, provides as follows (the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant's trial):
“1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies - see Note 10). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution's case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution's case ... and when deciding whether his [evidence/case] about these facts is true.
3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution's case against him is so strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant's silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”
33. A Lucas direction is a direction from the judge to the jury to the effect that the fact that the accused has told lies, or is alleged to have told lies, does not in itself indicate guilt. The jury should be invited to consider other explanations why the accused might have lied, including any he provides during the trial. The relevant case is R v. Lucas ([1981] Q.B. 720), in which it was held that:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1