ITEMID: 001-77785
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GIACOMELLI v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed -non-exhaustion of domestic remedies);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre;Vladimiro Zagrebelsky
TEXT: 10. The applicant was born in 1935 and lives in Brescia.
11. She has lived since 1950 in a house on the outskirts of Brescia, 30 metres away from a plant for the storage and treatment of “special waste” classified as either hazardous or non-hazardous. A joint-stock company, Ecoservizi, began operating the plant in 1982.
12. In a decision (delibera) of 4 April 1989, the Lombardy Regional Council granted Ecoservizi a licence to operate the plant for a five-year period. The different forms of waste treatment covered by Ecoservizi’s licence included, for the first time, the “detoxification” (inertizzazione) of hazardous waste, a process involving the treatment of special industrial waste using chemicals.
13. On 30 October 1991 the Regional Council authorised Ecoservizi to increase the annual quantity of waste treated at the plant to a total volume of 192,000 cubic metres. In particular, the quantity of toxic waste authorised for detoxification was raised from 30,000 to 75,000 cubic metres.
14. On 5 August 1993 the Regional Council approved a number of alterations entailing technological improvements to the facility without any increase in the quantity of waste being treated.
15. In a decision of 11 April 1994, the Lombardy Regional Council renewed the operating licence for a five-year period, on condition that Ecoservizi signed a memorandum of understanding with the local authorities in order to limit the plant’s environmental impact; that condition was satisfied on 18 November 1994.
16. On 13 December 1994 the Regional Council took note of the signing of the memorandum of understanding and confirmed 30 April 1999 as the expiry date for the operating licence.
17. The applicant lodged three applications with the Lombardy Regional Administrative Court in 1994 and 1995 for judicial review of the Regional Council’s decisions of 5 August 1993 and 11 April and 13 December 1994.
She challenged the renewal of the operating licence granted to Ecoservizi and, alleging a breach of Law no. 441/1987, argued that the alterations approved by the Regional Council entailed an increase in activity such as to necessitate a fresh licensing procedure, including an assessment of the plant’s environmental impact.
Ecoservizi applied to intervene in the proceedings.
18. The applicant also sought a stay of execution of the decision to renew the licence. The court allowed her request in an order of 18 November 1994, chiefly because the memorandum of understanding had not yet been signed, and suspended the implementation of the decision. Ecoservizi appealed.
19. On 7 April 1995 the Consiglio di Stato set aside the Regional Administrative Court’s order, holding that the signing of the memorandum of understanding (see paragraph 15 above) had removed the risk of irreparable damage on the basis of which the stay of execution had been ordered.
20. In a judgment of 13 April 1996, the Lombardy Regional Administrative Court, having joined all the applicant’s applications, dismissed them. It noted that all her complaints were based on the alleged need for the Regional Council to conduct a fresh licensing procedure. It considered, however, that the size of the facility and its volume of activity had been determined in the Regional Council’s decisions of 1989 and 1991, which had never been challenged by the applicant. However, the alterations approved in the impugned decisions of 5 August 1993 and 11 April and 13 December 1994 did not entail an increase in the plant’s volume of activity or a change in the types of waste being treated. Accordingly, it was not necessary for the Regional Council to conduct a fresh licensing procedure.
21. The applicant appealed. In a judgment of 6 November 1998, the Consiglio di Stato upheld the Regional Administrative Court’s conclusions and dismissed the appeal. It also pointed out that a facility should be deemed to be “new” and thus to require a fresh operating licence where there was a change in one of the various stages of waste treatment or in the types of waste being treated.
22. In a decision of 29 April 1999, the Lombardy Regional Council renewed Ecoservizi’s operating licence for a five-year period. The decision was subject to revocation in the light of the findings of the environmental-impact assessment procedure (procedura di valutazione di impatto ambientale – “EIA procedure”) which Ecoservizi had initiated in the meantime (see paragraphs 37-52 below).
23. On 12 July 1999 the applicant applied to the Lombardy Regional Administrative Court for judicial review of the Regional Council’s decision of 29 April 1999. The company and the Lombardy Regional Council both applied to intervene in the proceedings.
24. On 20 September 1999 the applicant applied to the Regional Administrative Court for judicial review of a decision of 12 April 1999 in which the Regional Council had authorised Ecoservizi to make an alteration to the facility for processing waste oils.
25. Furthermore, in a decision of 15 October 1999, the Regional Council noted that Ecoservizi had decided not to act on the authorisation granted on 12 April 1999, and confirmed the renewal of the operating licence. The applicant applied for judicial review of that decision.
26. In an order of 18 February 2000, the Regional Administrative Court allowed an application by the applicant for a stay of execution, on the ground that the EIA procedure was still pending. Subsequently, on 11 April 2000, the Consiglio di Stato allowed an appeal by Ecoservizi, which had argued that the latest inspections of the plant demonstrated its “observance of the limits set by the existing regulations”, and set aside the stay of execution ordered by the Regional Administrative Court.
27. In a judgment of 29 April 2003, which was deposited with the registry on 9 June 2003, the Lombardy Regional Administrative Court allowed the applicant’s applications on the merits and set aside the three impugned decisions (see paragraphs 23-25 above).
The court held, firstly, that the site alterations authorised by the Regional Council on 12 April 1999 in order to allow the processing of waste oils should have been classified as substantial. Consequently, in accordance with Articles 27 and 28 of Decree no. 22/1997 (see paragraphs 62 and 63 below), the Regional Council should have suspended Ecoservizi’s operations and ordered the necessary checks to be carried out before renewing the company’s operating licence. The court therefore found that the Lombardy Regional Council’s decision of 29 April 1999 had been unlawful.
As to the fact that the company had subsequently decided not to carry out the alterations in question, the court held that the Regional Council should in any event have carried out a thorough examination of the plant’s operations and condition, as there had been a number of complaints from private individuals and public authorities about Ecoservizi’s activities, giving rise to serious doubts as to their compatibility with environmental standards.
The court referred to the two environmental-impact assessment decrees (“EIA decrees”) issued by the Ministry of the Environment and, holding that the Regional Council had failed to carry out its investigative duties, ordered the suspension of Ecoservizi’s operations pending the final outcome of the EIA procedure.
28. Ecoservizi lodged an appeal with the Consiglio di Stato. On 1 July 2003 the Consiglio di Stato stayed the execution of the judgment of 29 April 2003 further to a request to that effect by the company.
29. In a judgment of 25 May 2004, which was deposited with the registry on 31 August 2004, the Consiglio di Stato dismissed Ecoservizi’s appeal. Upholding the Regional Administrative Court’s judgment, it held that the Regional Council’s decision of 29 April 1999 to renew the operating licence without having carried out any environmental-impact assessment was unlawful and should be set aside.
30. In the meantime, in a decision of 23 April 2004, the Lombardy Regional Council had renewed the operating licence for the plant for a five-year period. The renewal concerned the treatment of special waste, both hazardous and non-hazardous. Industrial waste intended for detoxification remained outside the scope of the licence pending the conclusion of the EIA procedure being conducted by the Ministry of the Environment.
31. A consultation meeting between the local authorities (conferenza di servizi) was held on 31 March 2004 prior to the granting of the licence. At the meeting the Regional Council and the provincial and district councils concerned expressed an opinion in favour of renewing the licence, referring at the same time to the report issued by the Regional Environmental Protection Agency (ARPA) on 28 February 2004.
In the report the ARPA experts indicated what steps had to be taken to avoid any risk of an incident or operational fault at the plant; in addition to these, all the requirements laid down by the Regional Council in its decision of 7 November 2003 (see paragraph 49 below) had to be met.
32. The applicant applied to the Lombardy Regional Administrative Court for judicial review of that decision and sought a stay of its execution.
33. On 30 April 2004 the Regional Council, having taken note of the EIA decree of 28 April 2004 approving the treatment by Ecoservizi of all types of waste, incorporated its latest decision to renew the operating licence into a provisional licence for the detoxification of industrial waste, valid until 22 June 2004, pending completion of the full licensing procedure.
34. In a decision of 28 June 2004, the Regional Council extended the licence until 31 December 2004 to allow Ecoservizi to submit its plans for adapting the plant to meet the requirements set out in the EIA decree.
35. In an order of 23 July 2004, the Lombardy Regional Administrative Court dismissed an application by the applicant for a stay of execution, holding that the decision of 23 April 2004 had been given in accordance with the favourable opinion by the local authorities and had taken into account all factors constituting a potential risk to the properties in the vicinity of the plant. The court further noted that the decision in question had laid down a number of requirements aimed at eliminating the disturbance suffered by the applicant.
36. The proceedings on the merits are still pending before the Lombardy Regional Administrative Court.
37. In a decision of 13 December 1996, the Lombardy Regional Council ordered Ecoservizi to initiate an EIA procedure in respect of the detoxification activities at the plant.
On 11 May 1998 the company submitted its application to the Ministry of the Environment in accordance with section 6 of Law no. 349/1986.
Brescia District Council and the applicant took part in the procedure, together with the local authorities of Borgosatollo and Castenedolo, two villages situated within several hundred metres of the plant.
38. On 24 May 2000 the Ministry of the Environment issued an EIA decree.
The Ministry noted that the plant was built on agricultural land, near the River Garza and a sand quarry, the exploitation of which had gradually eroded the soil. Because of the permeability of the ground in particular, there was a significant risk that the toxic chemical residue generated by the detoxification operations at the plant might contaminate the groundwater, a source of drinking water for the inhabitants of the neighbouring villages.
The Ministry considered that the operation of the plant was incompatible with environmental regulations. However, Ecoservizi was allowed to continue its activities until the expiry on 29 April 2004 of the most recent operating licence granted by the Regional Council, provided that it complied with certain requirements.
39. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the decision and sought a stay of its execution.
40. In an order of 31 August 2000, the Regional Administrative Court suspended the implementation of the decision and ordered the Ministry to carry out a fresh environmental-impact assessment. The Ministry appealed. On 8 May 2001 the Consiglio di Stato declared the appeal inadmissible.
41. In the meantime, on 30 April 2001 the Ministry had issued a further EIA decree confirming that the operation of the plant was incompatible with environmental regulations.
42. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the new decree issued by the Ministry.
43. On 11 July 2001 the court allowed the application by Ecoservizi and ordered the Ministry to carry out a fresh environmental-impact assessment.
44. In an order of 11 December 2001, the Consiglio di Stato dismissed an appeal by the Ministry of the Environment against the above-mentioned order of the Lazio Regional Administrative Court.
45. In a decision of 4 November 2002, the Lombardy Regional Council notified Ecoservizi of the conditions for operating the plant, as laid down in the decrees issued by the Ministry of the Environment.
46. In the meantime, on 4 October 2002, in the course of the fresh EIA procedure ordered by the Regional Administrative Court, Ecoservizi had submitted a plan for altering the facility.
The plan envisaged, among other things, making the ground surface impermeable, building soundproofing devices, raising the site’s perimeter wall so as to avoid any risk of flooding, and improving the system for monitoring hazardous emissions.
47. On 17 October 2003 the local health authority (azienda sanitaria locale – ASL) submitted its opinion to the Lombardy Regional Council on the compatibility of Ecoservizi’s activities with environmental regulations. It stated that, according to the results of technical analyses carried out between 2000 and 2003, which had noted, among other things, the presence of abnormal concentrations of carbon and other organic substances in the atmosphere, the continuation of the plant’s operation could cause health problems for those living nearby. The ASL added that it had not been shown that the precautions envisaged by Ecoservizi were sufficient to protect public health.
48. On 7 November 2003 the Lombardy Regional Council approved the continuation of the plant’s operation, provided that the company implemented a number of requirements.
49. In particular, the company was to:
“draw up a memorandum of understanding with the local authorities for monitoring the waste being treated, with a view to reducing the likelihood of an operational fault at the site ...;
ensure the buffering of the detoxification facilities ...;
close the open-top chambers used in the chemical and biological process and develop an exhaust ventilation and purification system ...;
build a mobile, soundproof structure to cover the macerator ...;
alter the internal sewerage system so as to separate atmospheric water from water produced by the facility;
set up a system for monitoring the quality and quantity of water produced by the plant that flows into the Garza ... and into public sewers;
devise and implement a plan for making the ground impermeable at the site ...;
monitor the site in order to obtain a precise assessment of the presence of any pollutants in the subsoil, the hydrogeological structure of the land and the danger levels for the nearby groundwater supplies used as drinking water ...;
... raise the facility’s perimeter wall to a minimum height of 123 metres above sea level ...”
The Regional Council further directed:
“... the close proximity of residential dwellings means that the plant’s operations must be permanently monitored as regards the dust released into the atmosphere, VOCs (volatile organic compounds) and noise disturbance. Accordingly, a unit should be set up between the site and the dwellings to measure dust emissions and the noise generated by the facility. As regards VOC quantities, the monitoring device should be installed near the facility with the agreement of the relevant authorities;
the company should also carry out periodic reviews of noise emissions.”
The Regional Council decided that the plant’s implementation of the above requirements should be verified when the time came to renew its operating licence, due to expire on 30 April 2004.
50. On 28 April 2004 the EIA procedure ordered by the Regional Administrative Court was completed and the Ministry of the Environment issued a new EIA decree.
The Ministry noted, firstly, that Ecoservizi processed 27% of the waste generated in northern Italy and 23% nationwide. It subsequently stated that the requirements laid down by the Regional Council should significantly improve the conditions for operating and monitoring the plant and expressed an opinion in favour of Ecoservizi’s continued operation of the plant, provided that it complied with those requirements.
51. The applicant applied to the Lazio Regional Administrative Court for judicial review of the EIA decree, at the same time seeking a stay of its execution.
52. In an order of 24 July 2004, the Regional Administrative Court refused the request for a stay of execution on the ground that the applicant had not notified the Ministry of the Environment of her application.
53. Following numerous complaints by the applicant and other inhabitants of the area surrounding the plant, the Brescia ASL’s Public and Environmental Health Office and the ARPA produced a number of reports on Ecoservizi’s activities.
54. In particular, on 21 September 1993 experts from the ASL conducted analyses of the emissions produced at the plant and found that the statutory limits had been exceeded for certain substances, such as nickel, lead, nitrogen and sulphates. The report drawn up by the ASL indicates that the judicial authorities were informed of the findings of the analyses.
55. On 8 March 1995 experts from the ASL inspected the plant. They noted that a deposit of white dust had formed inside and outside the facility following an accident while a silo was being filled with slaked lime.
During the same inspection the experts observed that a number of containers intended for toxic waste were present on the site without having been neutralised after use. In a note dated 27 April 1995, the ASL instructed the company to move the containers in order to avoid any risk of contaminating the ground, particularly as the surface had not been made impermeable. It appears from the report that the ASL lodged a complaint with the appropriate judicial authorities.
56. In a report issued on 31 July 1997, the NAS (special branch of the carabinieri dealing with health issues) informed Brescia Provincial Council that a complaint had been lodged against Ecoservizi’s legal representative for failure to comply with the conditions laid down in the licences for operating the plant.
57. On several occasions between 1999 and 2003 Brescia District Council asked the Lombardy Regional Council to intervene with a view to moving the facility to a safer site better suited to the plant’s growing production needs.
58. On 28 December 2002 Brescia District Council temporarily rehoused the Giacomelli family free of charge pending the outcome of the judicial dispute with Ecoservizi in order to alleviate the disturbance caused to the applicant by the plant.
59. On 15 May 2002 the ARPA issued a technical report on Ecoservizi further to a request by the applicant and her neighbours for an emergency inspection of the site. The experts found a high level of ammonia in the atmosphere, indicating a fault in the detoxification process. They concluded that the company had omitted to activate the necessary devices for ensuring that the waste to be detoxified was compatible with the facility’s specifications. There were also structural deficiencies at the site that could potentially lead to operational faults generating emissions of fumes and gases.
60. Section 6 of the Environment Act (Law no. 349/1986), which was enacted in accordance with European Directive 85/337/EEC, provides that any project which is likely to have significant effects on the environment
“must be submitted, prior to its approval, to the Ministry of the Environment, the Ministry of Cultural and Environmental Heritage and the authorities of the region concerned for an environmental-impact assessment (‘EIA’). The application must state the location of the installation and give details of the liquid and solid waste and the pollutants and noise disturbance which it will generate. It must also outline the measures intended to prevent environmental damage and the environmental-protection and monitoring arrangements. Notice of the application shall be published at the applicant’s expense in the newspaper with the largest circulation in the region concerned and in a national newspaper.
The Ministry of the Environment shall, together with the Ministry of Cultural and Environmental Heritage, after consulting the authorities of the region concerned, give a decision within ninety days as to the project’s compatibility with environmental regulations.
Where the Ministry of the Environment observes any conduct that is contrary to the decision on compatibility with environmental regulations or is likely to endanger the environmental and ecological balance, it shall order the suspension of operations and shall refer the matter to the Council of Ministers.”
61. Article 1 of Prime Ministerial Decree no. 377/1988 lists the types of project that are subject to the assessment procedure provided for in Law no. 349/1986. Point (f) of the Article refers to “facilities for the treatment of toxic and harmful waste by means of a ... chemical process”.
62. Law no. 441/1987, amended by Legislative Decree no. 22/1997, contains provisions on waste treatment and environmental protection.
Article 27 of the Decree governs the licensing of waste-treatment facilities. The regional council conducts a preliminary examination of proposed new facilities for the treatment and storage of urban, special, toxic and harmful waste by means of consultations (conferenze) in which representatives of the region and the other local authorities concerned take part.
If the planned facility examined by the regional council has to undergo a prior environmental-impact assessment within the meaning of Law no. 349/1986, the licensing procedure is suspended pending the decision of the Ministry of the Environment.
63. Once the examination of the project is complete, the regional council awards an operating licence for the facility in an administrative decision laying down the necessary environmental-protection conditions and requirements for the operator to observe. The licence is valid for five years and is renewable.
Where it emerges from inspections of the site that the conditions laid down by the authorities are not being met, the operation of the facility is suspended for up to twelve months. Subsequently, if the facility’s operations have not been brought into line with the requirements set out in the licence, the licence is revoked (Article 28 of Decree no. 22/1997).
64. By section 21 of Law no. 1034/1971, anyone who has cause to fear that his or her rights may suffer imminent and irreparable damage as a result of the implementation of an administrative measure which he or she has challenged or of the authorities’ conduct may ask the administrative courts to take urgent action to ensure, depending on the circumstances, that the decision on the merits can provisionally take effect.
VIOLATED_ARTICLES: 8


ITEMID: 001-58496
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF ROWE AND DAVIS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney
TEXT: 4. During the night of 15 to 16 December 1988, a series of offences occurred in Surrey, England.
The first, which may have occurred sometime after 1.30 a.m., involved an attack on two men in a parked car in a field near a public house in Fickleshall. Just after the conclusion of sexual activities between the two men (Mr Ely and Mr Hurburgh), two masked men appeared. One carried a knife, the other a gun. Ely was pulled out of the car and 10 pounds sterling (GBP) was taken from him. On orders, he lay face down on the ground while the man with the knife kept guard over him. Ely became aware of a third masked man. The robbers wanted to take the car which belonged to Hurburgh, who objected and was attacked. Ely was made to crawl over to where Hurburgh was lying tied up. He was also tied up and gagged. Petrol was spread around both of them. Ely saw a lit cigarette and passed out. When he recovered consciousness, Hurburgh's Austin Princess car had gone and Hurburgh was dead. The attackers had abandoned a stolen Spitfire car in which they had arrived on the scene in the entrance to a field, about 500 metres away.
5. This offence was followed, at about 3.40 a.m., by three masked robbers arriving at the Napier household in Oxted. They entered by a back window. Two of them went into Timothy Napier's room; one had a knife, the other a gun. Meanwhile, Richard Napier (the father) was awakened by the third robber armed with a revolver. He was taken into Timothy's room. Both were told they would be shot if they did not cooperate. They attacked the robbers and forced them downstairs. In the struggle, Timothy Napier's arm was cut and an artery was severed. Richard Napier was forced back upstairs to the bedroom where his wife was waiting. A knife was pointed at her and she was told to remove her rings and jewellery or her fingers would be cut off. The other two robbers ransacked the room before all three fled taking Timothy's Toyota car. Timothy Napier was rushed to hospital. He was found to have a stab wound to his back that had punctured the pleural cavity and required the insertion of a chest drain. Hurburgh's car was found abandoned nearby.
6. At 5 a.m., at the home of Mrs Spicer in Fetcham, she and her partner (Mr Almond) awoke to find three masked men in their bedroom. They were asked for money, jewellery and car keys. They told the intruders where to find them. Spicer and Almond were bound and gagged and the house was ransacked. It was nearly an hour before the robbers left, taking a large amount of property and the couple's two cars, a Renault and a Cavalier. Timothy Napier's Toyota was found abandoned nearby.
7. There was considerable interest in the above events, including publication in the national media between 17 and 19 December 1988 of the offer of a reward of GBP 25,000 for information leading to the conviction of the offenders. On Sunday 18 December the police incident room received information that the persons responsible for the murder and other offences were living at 25 Lawrie Park Road, Sydenham, South London (“No. 25”). In addition, the caller said that a considerable quantity of property which had been stolen during the course of the robberies had been taken by other persons resident at No. 25 and stored at the flat of a female associate at 71 Queen Adelaide Court.
8. No. 25 was owned by Mr Smith, who occupied the ground floor and basement. The remainder of the house, consisting of the two upper floors, was divided into flats occupied by the applicants, Raphael Rowe and Michael Davis, amongst others. Randolph Johnson visited the house from time to time, most recently to help repair the wiring and various electrical appliances, and he was said to have been there on the night of 15 December 1988. Rowe, Davis and Johnson were black.
9. Three white men also lived at No. 25: Mark Jobbins, Norman Duncan and Shane Griffin (“the Jobbins Group”). They were then aged 29, 21 and 19 years respectively. Duncan and Griffin sniffed glue on a regular basis. All three had criminal records.
10. As a result of the information received by the police, search warrants were obtained for each of the two addresses and were executed simultaneously at 7.50 a.m. on 19 December 1988. In a search of No. 25 carried out sometime between 2.15 p.m. on 19 December and 5 a.m. on 20 December, the police found a brooch from the Spicer/Almond robbery in Rowe's wastepaper basket. Other Spicer/Almond items were found in a storeroom and, also in the storeroom, were some porcelain figurines (not connected with these offences) which bore Davis's fingerprints. Blood stains on a jacket found in Rowe's bedroom were analysed and found to be of a blood group shared by 8% of the population, including the murder victim, Hurburgh. Rowe, Davis, Jobbins and Griffin were arrested on suspicion of aggravated burglary. Duncan was arrested on 21 December.
11. Kate Williamson, a 16-year-old school student and girlfriend of Rowe, produced to the police a number of items from the Spicer/Almond robbery, including two eternity rings, a yellow metal watch strap and a lady's watch. She told them that she visited Rowe quite regularly and was there during the night of 15 December 1988. She said that she did not know Jobbins, Duncan or Griffin except by sight.
12. Joanne Cassar informed the police that she had stayed with another resident of No. 25, Jason Cooper, for a period in 1988. She knew Davis, Rowe, Jobbins, Duncan and Griffin. She had been at No. 25 during the night of 15 December 1988 and had stayed in Cooper's room.
13. The other search warrant was executed at 71 Queen Adelaide Court. It resulted in the arrest of the tenant, Bernadette Roberts, who was the girlfriend of Jobbins, and the recovery of a large amount of stolen property.
14. Johnson was arrested on 6 January 1989 after an extensive car chase by several police officers. At the time, he was carrying a revolver. In his statement he agreed that he had been to No. 25 on several occasions and, on the night in question, was probably there until late. He denied involvement in the offences and said in police interviews that he might have spent the night with a girlfriend.
15. The trial of the two applicants and Johnson took place at the Central Criminal Court in February 1990.
16. The prosecution case was that the three men had been involved in each incident. It was argued that there was evidence to link the offences: the Austin Princess stolen from Hurburgh was found at the scene of the Napier robbery; the Toyota stolen from the Napiers was found abandoned close to the Spicer/Almond household; and the vehicles stolen from the latter couple were connected to the occupants of No. 25. In addition, the witnesses to each of the robberies had described a team of three robbers, at least one of whom was carrying a gun and a second one a knife, dressed in black and wearing balaclavas.
17. The prosecution relied substantially upon the evidence of the Jobbins Group. The latter admitted having jointly stolen the Spitfire which had been found abandoned near the scene of the first robbery and murder, and having driven the Renault and Cavalier stolen at the last robbery to a field in Sidcup where they had set fire to them. They gave evidence, inter alia, that on the night of 15 to 16 December, Rowe had asked if he could use the Spitfire and that he, Davis and another black man had requested help in other ways, such as the loan of a balaclava and assistance in starting the Spitfire. The Jobbins Group also gave evidence relating to the events of the following morning (16 December), when Rowe had allegedly made a number of incriminating comments about his own involvement in the crimes and had requested them to dispose of the stolen Spicer/Almond cars and to store the stolen property elsewhere.
18. In addition, the prosecution relied on the evidence of Kate Williamson that Rowe had left her during the night of 15 to 16 December and had returned the following morning at 6.30 a.m.; that he gave her rings from the Napier robbery in order to have them valued; that he scratched his bedroom window with one of the diamond rings and that he told her about the stolen cars. The prosecution also relied on the evidence of Joanne Cassar, that she had been given a plant by Davis that, it was suggested, came from the boot of the car stolen from Almond. Finally, Martin Todd, an inmate at Her Majesty's Prison Brixton where Johnson had been held on remand, gave evidence of incriminating remarks allegedly made to him by Johnson.
19. All three of the accused denied any involvement in the offences. Their defence relied on the facts that Kate Williamson and others had given evidence that Rowe and Davis had been in their company at times during the night of 15 to 16 December which were inconsistent with a sighting of the Spitfire at a similar time close to the scene of the Hurburgh murder and that the victims of the offences, including Ely, the Napiers and Spicer, had described their attackers as white. On behalf of Johnson it was argued that there was no evidence of his involvement in the preparatory acts or subsequent disposals.
20. The defence submitted that many of the witnesses for the prosecution were unreliable. Thus, Ely's evidence included a number of inconsistencies, as did the testimony and statements of the Jobbins Group. It was argued that if anyone from No. 25 had been responsible for the crimes, it was the Jobbins Group, and that Jobbins, Duncan and Griffin had given a deliberately false account to the police in order to implicate the accused and thus exonerate themselves. Joanne Cassar may have been an accomplice because she knew Duncan and Griffin, and Kate Williamson's evidence may have been motivated by jealousy of Rowe's relationship with another girlfriend and was in any event inconsistent with a letter which she had sent to Rowe whilst he was in prison. The defence sought to impugn Todd's evidence on the grounds that he may have lied in order to obtain parole. In addition, the defence referred to the substantial reward which had been offered as a factor which may have motivated prosecution witnesses to give evidence.
21. Davis gave evidence, consistent with his statement to the police, that he had played no part in the offences and had had nothing to do with the Spitfire. He claimed to have spent the evening of 15 December at home, and agreed with Kate Williamson's account of going out and not returning until about 12.30 a.m. Rowe's evidence was also consistent with his statement to the police. He denied having played any part in the offences and said that after returning to No. 25 at 12.30 a.m., he had then slept with Kate Williamson throughout the night. Johnson did not give evidence.
22. On 26 February 1990 the jury returned unanimous verdicts convicting the applicants and Johnson of murder, assault occasioning grievous bodily harm, and three counts of robbery. They were each sentenced to concurrent terms of life, fifteen years' and twelve years' imprisonment.
23. The applicants and Johnson appealed on the grounds, inter alia, that their convictions were unsafe and unsatisfactory because of weaknesses and inconsistencies in the evidence against them.
24. On 20 October 1992, at the first hearing before the Court of Appeal, counsel for the prosecution handed to the court a document which was not shown to defence counsel. He sought the Court of Appeal's ruling on a matter of disclosure (see paragraphs 34-35 below), and informed the court that the matter was sensitive to a degree which would require the court to hear him either ex parte or, if inter partes, only on an undertaking by defence counsel not to disclose what took place to their solicitors or clients. Both defence counsel indicated that they could not conscientiously give such an undertaking and withdrew from the hearing, which proceeded ex parte.
25. On 14 and 15 January 1993 the issue of disclosure was re-canvassed before a differently constituted Court of Appeal (although the Lord Chief Justice, Lord Taylor, participated in both hearings), because defence counsel had reconsidered their position and had concluded that they had been incorrect in withdrawing voluntarily as they had done at the first hearing. It was argued by the defence that (i) defence counsel should have been permitted to hear the application by the Crown without giving an undertaking and (ii) counsel for the Crown should, at the least, have been obliged to disclose the category of material in question so that defence counsel could then have made submissions as to whether or not disclosure of material in that category should be ordered. The Court of Appeal, in its judgment, remarked that the procedure to be followed when the prosecution was in possession of material which it believed should not be disclosed to the defence had been changed by the judgment in R. v. Ward (see paragraph 37 below) in that it was now for the court, and not the prosecution, to decide whether disclosure should be made, and set out a series of procedural guidelines to be followed in such cases (see paragraphs 39-40 below). In conclusion, however, it refused to order disclosure.
26. On 22 June 1993, at the outset of the hearing of the substantive appeal before a differently constituted Court of Appeal, defence counsel invited the court to order the Crown to disclose the name of any person or persons to whom any reward money had been paid for information given to the police concerning the applicants, and sought access to the Police Complaints Authority Report concerning a complaint by Rowe. The prosecution showed the court documents relevant to the request for disclosure which were not shown to the defence. However, defence counsel were able to make submissions as to the factors weighing in favour of disclosure and the nature of the balancing exercise to be undertaken by the court. Having considered those submissions and having examined the relevant documents, the court refused to order disclosure.
27. On 29 July 1993 the Court of Appeal upheld the applicants' convictions and that of Johnson, concluding that there was no basis to say that there was even a lurking doubt about their safety.
28. The applicants applied to the Court of Appeal for leave to appeal to the House of Lords, but this application was refused on 30 September 1993.
29. By a letter of 27 November 1994 the first applicant's solicitor, with reference to R. v. Rasheed (see paragraph 42 below), asked the Crown Prosecution Service for disclosure of any reward claim made prior to the trial by any witness and, in particular, by one of the Jobbins Group, Williamson or Cassar.
30. On 22 November 1995 the Crown Prosecution Service replied:
“Regarding the question raised in paragraph (1) of your letter of 27th October 1994, you will know that the topic of rewards was raised by [defence counsel] at the outset of the appeal in this matter. This resulted in an ex parte application which was heard in camera. This application was upheld and referred to by Watkins LJ in his final judgment in these terms: 'We upheld the claim and refused to order disclosure of any kind for reasons we gave on 22nd June and which are recorded'.”
31. In 1994 the applicants applied to the Home Office for a review of the safety of their convictions. In April 1997 the Criminal Cases Review Commission (“the CCRC”) was set up under the Criminal Appeal Act 1995 and the applicants' case was transferred to it. In August 1997 the CCRC appointed an officer from Greater Manchester Police to investigate the events surrounding the prosecution of the applicants and Johnson. The investigating officer's report was submitted in January 1999.
32. In its report of 7 April 1999 the CCRC found, inter alia, that Duncan was a long-standing police informant, who, on 18 December 1988 had approached a Sussex police officer and told him that the applicants were responsible for the crimes of 15 to 16 December 1988. As a result of his assistance to the police and the evidence which he gave at the applicants' trial, Duncan had received a reward of GBP 10,300, in addition to police protection between 18 and 22 December 1988 and immunity from prosecution in relation to his admitted participation as an accessory to the offences in question. It appeared from police records of the information supplied by Duncan that the latter had never identified Johnson as one of the offenders. These facts had not previously been disclosed to the defence on grounds of public interest immunity. The CCRC also found that “the police were not keen that the Jobbins Group should be prosecuted and there was a corresponding inertia on the part of the prosecuting authorities”, and commented that “if the jury had been aware of this then the credibility of the Jobbins Group might have been assessed in a more critical manner”. Moreover, Todd had retracted his statement concerning the incriminating comments allegedly made by Johnson.
The CCRC concluded that, in the light of this new evidence, there was a real possibility that Johnson was not involved in the offences of 15 to 16 December 1988. Whilst there was evidence linking the two applicants to the robberies, if the prosecution case against one of the three, Johnson, might no longer be sustainable, in the CCRC's view the Court of Appeal ought at the same time to have the opportunity to consider whether the case could still be sustained against Rowe and Davis. It therefore referred the convictions of the applicants and Johnson back to the Court of Appeal, since it considered that there was a real possibility that these convictions would not be upheld if such a reference were made (Criminal Appeal Act 1995, section 13).
33. At the time of the adoption of the present judgment the applicants' case is pending before the Court of Appeal.
34. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
35. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ([1982] 74 Criminal Appeal Reports 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution's power to withhold “unused material”. Under paragraph 1, “unused material” was defined as:
“(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.”
36. According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.
37. Subsequent to the applicants' trial in 1990, but before the appeal proceedings in October 1992-July 1993, the Guidelines were superseded by the common law.
In R. v. Ward ([1993] 1 Weekly Law Reports 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:
“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”
The Court of Appeal described the balancing exercise to be performed by the judge as follows:
“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.”
38. In R. v. Trevor Douglas K. ([1993] 97 Criminal Appeal Reports 342), the Court of Appeal emphasised that, in performing the balancing exercise referred to in Ward, the court must view the material itself:
“In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.”
This judgment also clarified that, where an accused appeals to the Court of Appeal on the ground that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte.
39. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted.
The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court.
Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte.
The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
40. The Court of Appeal observed that, although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.
41. Following the applicants' appeal, the English courts further clarified the principles and procedures relating to the issue of disclosure.
In R. v. Keane ([1994] 1 Weekly Law Reports 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution's duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court's lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen (i) to be relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise.
42. In R. v. Rasheed (The Times, 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction.
43. In R. v. Winston Brown ([1995] 1 Criminal Appeal Reports 191), the Court of Appeal reviewed the operation of the Guidelines. It stated:
“The Attorney-General's objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney-General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the Guidelines, judged by the standards of today, reduce the common law duties of the Crown and thus abridge the common law rights of a defendant, they must be pro tanto unlawful...
[T]oday, the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to discloseable materials, and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly, the Guidelines are not an exhaustive statement of the Crown's common law duty of disclosure: R. v. Ward at 25 and 681D. To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity. [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor's discretion ... Much of what is listed as 'sensitive material' is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity ...”
44. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...
It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter. We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence, present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure.”
45. In 1996 a new statutory scheme covering disclosure by the prosecution came into force in England and Wales. Under the 1996 Act, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
46. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney-General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed.
47. For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia:
“7. ...
(4) The function of the special advocate is to represent the interest of the appellant by -
(a) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded;
(b) cross-examining witnesses at any such proceedings; and
(c) making written submissions to the Commission.
(5) Except in accordance with paragraphs (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission.
(6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes the material available to him.
(7) At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative.
(8) The Commission shall notify the Secretary of State of a request for direction under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made.
(9) Where the Secretary of State makes an objection under paragraph (8), Rule 11 shall apply as appropriate.”
Rules 10 and 11, to which Rule 7 refers, provide:
“10. (1) If the Secretary of State intends to oppose the appeal, he must, no later than 42 days after receiving a copy of the notice of appeal -
(a) provide the Commission with a summary of the facts relating to the decision being appealed and the reasons for the decision;
(b) inform the Commission of the grounds on which he opposes the appeal; and
(c) provide the Commission with a statement of the evidence which he relies upon in support of those grounds.
(2) Where the Secretary of State objects to material referred to in paragraph (1) being disclosed to the appellant or his representative, he must also -
(a) state the reasons for the objection; and
(b) if and to the extent it is possible to do so without disclosing information contrary to the public interest, provide a statement of that material in a form that can be shown to the appellant.
(3) Where he makes an objection under paragraph (2), the Secretary of State must make available to the special advocate, as soon as it is practicable to do so, the material which he has provided to the Commission under paragraphs (1) and (2).
11. (1) Proceedings under this Rule shall take place in the absence of the appellant and his representative.
(2) The Commission shall decide whether to uphold the Secretary of State's objection.
(3) Before doing so it shall invite the special advocate to make written representations.
(4) After considering representations made under paragraph (3) the Commission may -
(a) invite the special advocate to make oral representations; or
(b) uphold the Secretary of State's objections without requiring further representations from the special advocate.
(5) Where the Commission is minded to overrule the Secretary of State's objection, or to require him to provide material in different form from that in which he has provided it under Rule 10(2)(b), the Commission must invite the Secretary of State and the special advocate to make oral representations.
(6) Where -
(a) the Commission overrules the Secretary of State's objection or requires him to provide material in different form from that in which he has provided it under Rule 10(2)(b), and
(b) the Secretary of State wishes to oppose the appeal,
he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal.”
48. In the context of fair employment proceedings in Northern Ireland, the scheme under sections 90 to 92 of the 1998 Act and the relevant Rules is identical to the mechanism adopted under the 1997 Act (above).
49. In addition, the government has recently placed before Parliament two bills which make provision for the appointment of “special counsel” (operating under the same conditions) in other circumstances. The Electronic Communications Bill 1999 provides for the appointment of a “special representative” in proceedings before an Electronic Communications Tribunal to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications. In the context of criminal proceedings, the Youth Justice and Criminal Evidence Bill 1999 makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in a sexual offence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94257
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HARUTIOENYAN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants, Mr Haroutioun Harutioenyan, Mr Khachig Harutioenyan and Ms Haikoesjik Harutioenyan are Armenian nationals who were born in 1954, 1981 and 1982 respectively. The first applicant is the father of the second and third applicants. They live in Musselkanaal and are represented before the Court by Ms P. Scholtes, a lawyer practising in The Hague.
2. , may be summarised as follows.
3. In May 1999, the applicants fled from Armenia to Russia. Allegedly unable to register formally with the authorities there, they managed through bribery of local policemen to reside illegally in Russia until 19 April 2002 when – after the first and second applicant had been briefly held in March 2002 in a police station in Krasnodar (Russia), where they had been illtreated by policemen – the three applicants travelled to the Netherlands, where they arrived on 23 April 2002 and applied for asylum.
4. The first applicant stated that he had been an active member of an Armenian opposition political party. In the campaign for the Armenian presidential elections in May 1998, the first applicant had actively campaigned for an opposition candidate. After having started these activities in March 1998, he had received an anonymous telephone call in which he and his family were threatened if he did not cease his activities. About five days after this call, he had been attacked in the street by two unknown men. He had not filed a criminal complaint with the police, but had mentioned it to persons in the party office.
5. In the subsequent campaign for the Armenian parliamentary elections in May 1999, the first applicant had been one of the campaign leaders of an opposition candidate, due to which activity the first applicant had received fresh anonymous telephone threats. Furthermore, on an unspecified date at the end of April 1999, the first applicant’s car had been vandalised by two unknown persons who had fled in a white car without licence plates. The first applicant had filed a criminal complaint about this incident at the Shahumian neighbourhood police station in Yerevan. The first applicant had continued with his political activities. On 4 or 5 May 1999, the first applicant had again received anonymous threats by telephone.
6. On 7 May 1999 at around 11.00 or 11.30 p.m., after the first applicant had come home from a political meeting where he had given a speech, the applicants’ spouse/mother had gone to the upstairs bedroom where she had been shot and killed by a single shot fired through the bedroom window. The first applicant, who had been downstairs when the shot had been fired, and the second applicant had called an ambulance. The ambulance staff had alerted the police. Two days after his wife’s funeral on 9 May 1999, the first applicant had received an anonymous telephone call. He had understood from that conversation that the perpetrator(s) had sought to kill him and not his wife and that he risked being killed if he continued with his political activities.
7. On 11 May 1999, in order to obtain information about the police inquiry into his wife’ death, the first applicant had gone to a local police inspector who had treated him with indifference. He had then gone to the Ministry of the Interior where he had been refused entry but at the door had spoken with an official who had been called. When the applicant had started to relate what had happened to him, this official had reacted in a very offhand manner.
8. In the course of a political meeting held on 15 May 1999, the applicant had seized the microphone and in a poignant manner had informed the audience about what had happened to his wife. After he had been accompanied home by the second applicant and a friend, the phone had rung. When the first applicant had picked up the phone, no one had answered. Later that night, after the second and third applicant had gone to sleep, the first applicant had heard the sound of breaking glass. When he had checked the cause, he had discovered that fire had broken out in his own bedroom and a guestroom. He and his children had fled outside and after about 20-30 minutes the fire brigade had arrived. The fire brigade had alerted the police, who had questioned the applicants about the origins of the fire and drawn up an official report on the fire. The first applicant was asked to sign a statement drawn up by the police. After having stayed for a couple of days with a friend, the applicants had left for Russia. Their identity and other official documents had gone missing in the fire in their home.
9. The asylum request filed by the second and third applicant was based on their father’s account.
10. After an initial negative decision given on 2 May 2002 by the Deputy Minister of Justice (Staatssecretaris van Justitie) had been withdrawn on 29 May 2002, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister) rejected the applicants’ asylum request in three new, separate decisions given on 13 January 2003. The applicants filed an appeal with the Regional Court (rechtbank) of The Hague. A hearing was scheduled for 21 July 2004.
11. On 2 July 2004, the applicants were informed that the Minister had withdrawn her impugned decisions of 13 January 2003. Consequently, the applicants withdrew their appeal pending before the Regional Court of The Hague on 6 July 2004.
12. On 2 December 2004, the Minister requested the Medical Advice Bureau of the Ministry of Justice to examine the three applicants in order to see whether their state of health militated against expulsion. On 5 April 2005, the Medical Advice Bureau drew up and transmitted its advice in respect of each of the applicants to the Minister. It found that all three were suffering from mental health problems for which treatment was available in Armenia.
13. On 23 June 2005 the Minister informed the applicants of her intention (voornemen) to reject their respective asylum requests. On 21 July 2005 June 2003 the applicants’ lawyer submitted written comments (zienswijze) on this intended rejection.
14. In three separate decisions of 5 October 2005, the Minister rejected the applicants’ asylum requests. As regards the first applicant, the Minister considered inter alia that – apart from the fact that his identity, nationality, and travel itinerary had not been substantiated with documents, which detracted from the credibility of his asylum account – it had not been established that the first applicant had attracted the negative attention of the Armenian authorities or persons in authority or that the events related in the first applicant’s account could be linked to such authorities or persons. This allegation was solely based on personal assumptions and suspicions which did not tally with information set out in official country assessment reports (ambtsberichten) on Armenia drawn up on 15 August 2001 and 21 July 2004 by the Netherlands Ministry of Foreign Affairs, according to which HHS supporters did not encounter any obstacles in Armenia. The Minister therefore found that the first applicant’s account lacked positive persuasiveness and credibility. The Minister further considered that the medical care in Armenia could not be considered to be of such a low standard that, for this reason, the first applicant’s expulsion should be seen as entailing a real risk of a violation of Article 3 of the Convention. The Minister lastly found no reasons of a compelling humanitarian nature that would warrant the issuance of a residence permit. As the asylum requests of the other two applicants depended on their father’s account, their asylum requests were also rejected by the Minister, who did not find that their removal to Armenia would entail a real risk of a violation of their rights under Article 3 of the Convention on account of their state of health.
15. On 31 October 2005 the applicants filed an appeal which was heard on 20 October 2006 before the Regional Court of The Hague sitting in Rotterdam.
16. In its judgment of 1 December 2006, the Regional Court of The Hague rejected the applicants’ appeal. Although it accepted that the first applicant’s account was coherent and detailed, the Regional Court was not convinced of the alleged impossibility for the applicants to obtain replacement identity documents during their three years’ stay in Russia. It concluded that the applicants had not demonstrated that they – if expelled to Armenia – would be exposed to a real and personal risk of being subjected to treatment proscribed by Article 3 of the Convention. If need be, they could seek the protection of the Armenian authorities.
17. The Regional Court further found no compelling reasons of a humanitarian nature warranting the issuance of a residence permit to the applicants.
18. The applicants’ subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) was dismissed on 29 May 2007. It upheld the impugned judgment of 1 December 2006. No further appeal lay against this ruling.
19. On 20 August 2009 the applicants requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel them pending the proceedings before the Court. On 24 August 2009 the President of the Section decided not to issue the interim measure sought by the applicants.


ITEMID: 001-23971
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: GULIYEV v. AZERBAIJAN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Rasul Guliyev, is an Azerbaijani national, who was born in 1947 and lives in New York, USA. He was represented before the Court by Mr O. Kazimov and Mr H. Sadaddinov, lawyers practising in Baku.
The facts of the case, as submitted by the applicant, may be summarised as follows.
(a) Criminal proceedings against the applicant.
From 1990 to 1993 the applicant held a number of the highest managerial posts in the country's oil sector, including the “Azerneftyağ” Production Union and the State Oil Company of Azerbaijan. For a few months in 1993 he worked as a First Deputy Prime Minister and, later, from 1993 to 1996 he was the Speaker of the Milli Mejlis (the Parliament). In 1996 he resigned from his office, allegedly in protest of the Government's policies, and left the country. While abroad, he founded and led the Democratic Party of Azerbaijan (the “DPA”) with its headquarters in Baku. He currently resides in the United States.
As a result of the criminal investigation commenced in 1996, in 1998 the Prosecutor General indicted the applicant for misappropriation of public funds, abuse of power and fraud during his work in the oil companies and in the government. The Prosecutor General sought the applicant's arrest and trial. On 10 October 2000 the Sabail District Court, based on the Prosecutor General's bill of indictment, issued an order for the applicant's detention on remand pending trial. On 17 October 2000 the Court of Appeal upheld the district court's order. However, the applicant was not actually arrested, because he had never returned to Azerbaijan since his departure in 1996.
Believing that if he returned home he would be immediately arrested, the applicant lodged, through his lawyer, a petition with the Sabail District Court, asking for the substitution of the detention on remand by a house arrest pending trial. Under this condition, he would agree to return home and stand trial.
On 5 July 2002 the Sabail District Court dismissed the applicant's petition. It held that the detention on remand was the proper pre-trial measure, because of the gravity of the alleged crimes, the applicant's continued “escape from the investigation,” as well as the reasonable grounds to believe that the applicant would influence other parties to the proceedings in order to hinder the pre-trial investigation and the trial.
The applicant appealed against this decision to the Court of Appeal. On 23 July 2002 the Court of Appeal refused to consider the appeal in substance. In accordance with its interpretation of the domestic criminal procedure law, the court held that no appeal could lie against a first instance court's decision concerning a petition on replacement of a pre-trial detention by a house arrest.
At present, the applicant resides in the United States as a political refugee. The criminal proceedings against him are still pending and the order on his detention on remand is still in force. It follows that the applicant would be arrested and detained upon his return to Azerbaijan.
(b) Rejection of the applicant's candidacy for the presidential elections.
In the summer of 2003 the DPA nominated the applicant as a candidate for the presidential elections of 15 October 2003. However, on 2 July 2003 the Central Election Commission (the “Commission”) rejected the applicant's nomination based on Article 100 of the Constitution and Article 54 § 8 of the Election Code.
The DPA filed a lawsuit in the Court of Appeal, requesting the court to quash the Commission's decision as unlawful. On 7 July 2003 the Court of Appeal rejected this request, holding that the Commission's decision was lawful for two reasons. Firstly, it found that the registration documents submitted to the Commission were not properly certified and legalised and, thus, were not in conformity with the Election Code's requirements. Secondly, the applicant failed to submit evidence of the fact that he had no obligation before any foreign state (in his case, the United States). Upon the DPA's further appeal, on 14 July 2003 the Supreme Court upheld the Court of Appeal's decision.
Constitution of the Republic of Azerbaijan of 1995
Section II. Fundamentals of the State.
According to Article 7, the state power in the Republic of Azerbaijan shall be based on the principle of separation of powers. The legislative, executive and judicial branches of the government shall be independent within the framework of their respective authority.
Section V. Legislative Power.
In accordance with Article 81, the legislative power shall be exercised by the Milli Mejlis (the Parliament) of the Republic of Azerbaijan.
Article 93 authorizes the Milli Mejlis to pass laws, constitutional laws and resolutions on the matters within its competence.
Pursuant to Article 94, the Milli Mejlis has competence to establish rules, by way of passing laws, with regard to all the major spheres of state regulation including, inter alia, the human rights and freedoms, elections, judicial system, status of natural and legal persons, civil law issues, criminal responsibility, litigation procedure, enforcement of judgments, family law issues, labour and social security, finance and banking, taxation and customs, communications and transport, commercial transactions, defence and military service, ratification and denunciation of treaties, and the like.
Section VI. Executive Power.
In accordance with Article 99, the executive power shall be exercised by the President of the Republic of Azerbaijan.
Under Article 109, the President is empowered, inter alia, to sign and publish laws passed by the Milli Mejlis as well as deal with matters not expressly referred to the authority of the Milli Mejlis by the Constitution.
Article 110 provides the President with a right to veto the laws passed by the Milli Mejlis. The Milli Mejlis may overturn the presidential veto by a qualified majority of votes.
In accordance with Article 113, the President shall issue decrees and orders with regard to matters within his competence.
Section X. Legislative System.
In accordance with Article 149, the laws (legislative acts) of the Milli Mejlis shall have the superior legal authority over any other normative legal acts, except the Constitution and acts adopted by public referendum. The presidential decrees and orders shall not contradict the laws passed by the Milli Mejlis.


ITEMID: 001-79631
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KARAYAZGAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Mehmet Karayazgan, is a Turkish national who was born in 1955 and lives in Şanlıurfa. He was represented before the Court by Mr Mustafa Eraslan, a lawyer practising in Istanbul.
The applicant inherited a plot of land from his father in Birecik. This land was in the possession of the applicant’s father for about 50 years. However, neither his father nor the applicant had the title deed to it.
In 1996 the authorities started the construction of the Karakamış Dam. As the applicant feared that his land could be submerged in the waters of the dam, on 30 September 1997 he initiated proceedings before the Birecik Magistrate’s Court, and requested that this plot be registered in his name. He based his case on his father’s uninterrupted possession for more than 30 years.
During the proceedings, the Magistrate’s Court held 48 hearings. It conducted two on-site inspections, namely on 10 November 1997 and 12 July 1999, with the participation of engineers. The Court further requested the Gaziantep University Engineering Faculty to analyse the soil to determine whether or not the land in dispute was sandy. It also obtained 12 reports from experts. As a result, the court decided that the land was made up of sandy soil. Recalling that private possession of sandy land was banned under Turkish legislation, the court held that it was not possible to issue a title deed in the name of the applicant based on uninterrupted possession. Accordingly, on 27 February 2002 the court dismissed the case. The applicant appealed. On 30 January 2003 the Court of Cassation upheld the decision of the first-instance court, finding its reasoning to have been in line with domestic law. This decision was served on the applicant on 28 February 2003.


ITEMID: 001-122243
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BAYKAL AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: A list of the applicants is set out in the appendix. Additionally, the case and decision numbers of the impugned proceedings appear in the appendix.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On various dates, the applicants initiated actions before various civil courts or civil proceedings were brought against them before the civil courts. The procedures lasted several years.
A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no 4860/09, §§ 19-26, 26 March 2013).


ITEMID: 001-22399
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: WALCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jan Walczak, is a Polish national, who was born in 1952 and lives in Łódź. He is represented before the Court by Ms Banasik, a lawyer practising in Łódź.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 August 1997 the Łódź District Court convicted the applicant of uttering threats and battering his wife and sentenced him to four years’ imprisonment, with execution of the sentence stayed for a probationary period of four years. On 9 December 1997 the Łódź Regional Court dismissed his appeal.
The applicant lodged with the Łódź Regional Court a cassation appeal within the thirty days’ time-limit provided for by law, alleging various procedural shortcomings which, in his argument, negatively affected both his defence rights and the outcome of the case. The Regional Court, having examined the appeal, found that it complied with the formal requirements specified by the Code of Criminal Procedure and subsequently forwarded it to the Supreme Court.
On 20 December 2000 the Supreme Court, at a court session held in camera, dismissed his cassation appeal as manifestly ill-founded.
Under the Code of Criminal Procedure of 1998 a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against a final judgment of the appellate court, which has terminated the proceedings. The cassation appeal has to be drafted and signed by a lawyer.
A cassation appeal can be lodged only on the grounds referred to in Article 439 of the Code. These grounds include certain procedural shortcomings, which justify quashing of a first-instance decision, regardless of whether they are invoked by the party lodging any remedy against such decision (for example, wrong composition of the court, lack of legal assistance in cases where such assistance was compulsory, violation of the rules governing jurisdiction of criminal courts, certain breaches of defence rights). A cassation appeal can also be lodged on the ground of another flagrant breach of law, if such a breach negatively affected the judicial decision under appeal.
Article 530 of the Code provides that the court which gave the decision appealed against is competent to decide whether the formal requirements for a cassation appeal are satisfied, and to refuse to accept the appeal, if this is not the case. If the appeal is admissible, it is forwarded to the Supreme Court.
Pursuant to Article 535 of the Code, as amended on 20 July 2000 to take effect as of 1 September 2000, the Supreme Court shall consider the cassation appeal against a judgment at a hearing. However, it is open to the Court to dismiss such appeal at a session held in camera, if it considers that it is manifestly ill-founded. No written grounds shall be prepared for such a decision.


ITEMID: 001-88624
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HOOPER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Thomas John Hooper, is a British national who was born in 1958 and lives in Cardiff. He was represented before the Court by Mr R. Khan, a lawyer practising in Cardiff.
The applicant’s first wife died on 17 December 1986. They had two children from the marriage born in 1984 and 1986. In 1987 the applicant applied for widows’ benefits and was informed that he was not entitled to these benefits as he was a man.
On 10 February 1990 the applicant married his second wife. She died on 27 March 1997, leaving one child born in 1991. He has been in receipt of income support since 1997. His claim for widows’ benefits was made in April 1997 and was rejected in May 1997 on the ground that he was not entitled to widows’ benefits because he was not a woman.
On 10 May 2000 the applicant reapplied for widows’ benefits and on 26 May 2000 he was informed that the benefits agency refused to consider his claim. By a letter of 1 June 2000 the applicant challenged this rejection. By a letter of 10 August 2000 he was informed that his only redress was by way of judicial review in the High Court. The applicant initiated judicial review proceedings which were dismissed on 14 February 2002. The applicant appealed and on 18 June 2003, the Court of Appeal accepted that his Convention rights had been breached but did not award damages. Both parties appealed and on 5 May 2005 the House of Lords accepted that the applicant’s Convention rights had been infringed. However it rejected his claims because the Secretary of State had no power to make extra-statutory payments.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-97928
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHISHKOVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 13
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1953 and 1978 respectively and live in Sofia. They are father and son.
6. On 8 August 1999 the applicants and friends of theirs were holidaying beside a lake near Sofia. In turns, members of the group were riding a jetboat. On several occasions some of them rode close to a sports centre on the opposite shore.
7. Some time later, unexpectedly, two cars without licence plates arrived at the lakeside location where the applicants' group was situated. Seven men wearing camouflage uniforms got out of the cars, some of them wore vests with “Police” written on the back. The men were armed with sub-machine guns. They started insulting the applicants and their friends and threatening them, both verbally and by pointing their guns at them. The men made the applicants and their friends lie flat on the ground and then hit and kicked them repeatedly. The beating continued for several minutes. At the same time, the men repeatedly shot at the applicants' jetboat. After that they left.
8. On 10 and 11 August 1999 the first applicant was examined by doctors who established that he had four broken ribs, a superficial wound on his left temple and several bruises on his face, back and legs. The second applicant suffered bruises on his face, head and right leg.
9. On 11 August 1999 the applicants complained to the prosecution authorities. On 16 and 19 August 1999 the first applicant lodged additional submissions, stating that he and his son were being followed and that he had been threatened in an attempt to induce him to withdraw his complaints.
10. The prosecution authorities opened criminal proceedings in relation to the beating and, on unspecified dates, brought charges against seven police officers working in the Operative Investigation Directorate, a specialised unit of the Ministry of the Interior. It was established that, at the relevant time, the accused had been dispatched to the area where the beating had taken place, with the task of guarding a Ministry of the Interior training centre and a forest reserve.
11. The prosecution authorities collected witness testimonies from the applicants and their friends, as well as from other witnesses, including eyewitnesses to the beating. They commissioned a ballistic expert and carried out confrontations and identity parades.
12. On an unspecified date the applicants were admitted as civil claimants in the criminal proceedings.
13. Up to June 2003 the investigation had not resulted in indictments against the accused.
14. On an unspecified date after June 2003 the accused, relying on a new Code of Criminal Procedure provision, Article 239a (see paragraph 24 below), requested that their case be brought to court or terminated.
15. In October or November 2003 the prosecution indicted the seven police officers for causing bodily harm and for disorderly conduct.
16. On 19 December 2003 the Sofia Military Regional Court remitted the case, finding that the prosecution authorities had committed procedural violations. In particular, it found that: 1) it was not clear from the indictment whether the accused had been armed with sub-machine or automatic guns during the attack against the applicants; 2) the indictment had been based on insufficient evidence, and, in particular, on no material evidence; 3) two of the witnesses had been examined superficially; and 4) the prosecution had failed to comment on exonerating witness testimony.
17. On 21 January 2004 the prosecution filed a revised indictment against the police officers.
18. In a decision of 26 January 2004 the Military Regional Court established that the procedural violations found earlier had not been remedied. In addition, new deficiencies were identified: 1) the prosecution had not commented on the possibility of bringing charges for the verbal threats; 2) the date of the record of the examination of a witness had been amended, but this had not been certified by a valid signature of the witness; and 3) the records showing that the accused had been notified of the results of the investigation had been printed out on a printer but the respective dates and hours had been added on a typewriter; again, this additional information had not been certified by the accused's signatures.
19. Concluding that the deficiencies thus identified amounted to material procedural breaches within the meaning of Article 239a of the Code of Criminal Procedure (see paragraph 24 below), the Military Regional Court terminated the criminal proceedings.
20. The applicants and the prosecution authorities appealed against this decision arguing that the Military Regional Court had erred in concluding that the prosecution authorities had committed material procedural breaches. On 22 March 2004 those appeals were rejected by the Military Court of Appeal because decisions under Article 239a of the Code of Criminal Procedure were not subject to appeal.
21. Apparently, some internal inquiry into the officers' conduct was carried out by the Ministry of the Interior, but the Court has not been informed of its course and findings. No disciplinary punishments were ever imposed on the police officers allegedly involved in the beating.
22. Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another person. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one.
23. Persons claiming that they have been beaten by police officers can seek damages under the State Responsibility for Damage Act 1988. The remedy has been described in more detail in the Court's judgment in the case of Krastanov v. Bulgaria (no. 50222/99, §§ 45-46, 30 September 2004).
24. In June 2003 the new Article 239a of the Code of Criminal Procedure 1974, in force at the relevant time, introduced the possibility for an accused person to request to have his case examined by a court if the preliminary investigation has not been completed within the statutory time-limit (two years for investigations concerning serious crimes and one year for all other investigations). In such instances, the courts would send the case to the relevant public prosecutor's office with instructions to either enter an indictment against the accused within two months or discontinue the criminal proceedings. If the prosecutor's office failed to take action, or if the case was remitted for material procedural breaches, which were not remedied within a new time-limit of one month, the courts would terminate the criminal proceedings themselves. The alleged victims could not participate in the proceedings under Article 239a of the Code of Criminal Procedure.
25. Under domestic law, as it stood at the relevant time, victims of crimes could only participate in pre-trial proceedings as civil claimants. In this capacity they could acquaint themselves with the case file, present evidence, make requests and appeal against acts of the courts to the extent that this was related to their civil claim.
VIOLATED_ARTICLES: 13
3