SELLICK AND SELLICK v. THE UNITED KINGDOM

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicants, Mr Santino Sellick and Mr Carlo Sellick, are brothers who were born in 1981 and 1982 respectively. They are British nationals and they are currently detained at HMP Whitemoor. They were represented before the Court by Mr Paul Martin, a lawyer practising in Romford with Paul Martin & Co Solicitors, assisted by Mr S. Solley QC and Mr A. Dos Santos, counsel.

At about 7 p.m. on 3 December 2001 Mr Paul Chambers was shot and killed in the car park of the Talisman public house in Wolverhampton.

The present application concerns the applicants’ conviction for the murder of Mr Chambers. They were tried together with a third man, Dominic Marandola, who was acquitted by the jury. Their main ground of complaint to this Court is that, at the men’s trial, the trial judge (Butterfield J) allowed the statements of four people to be read to the jury because he was satisfied either that they had been kept away through fear or that they could not be found and reasonable steps had been taken to trace them.

The circumstances of Mr Chambers’ murder, the trial and the applicants’ subsequent, unsuccessful appeal to the Court of Appeal may be summarised as follows.

As stated above, Carlo and Santino Sellick are brothers. Their halfbrother, Lee Sellick, was a friend of Mr Chambers. Lee Sellick’s girlfriend was Ms Carla Wedge. Santino Sellick’s girlfriend, Ms Tammy Pardoe, was Ms Wedge’s niece. Ms Carina Jackson, a friend of Tammy Pardoe, had been in a relationship with Carlo Sellick, which ended before the shooting. It was the statements of Lee Sellick, Carla Wedge and Carina Jackson (together with that of a fourth person, Ms Donna Mills) which came to be read at trial in the circumstances described in paragraphs 13–15 below. Tammy Pardoe gave live evidence, but as a hostile witness for the prosecution: see paragraph 16 below.

It was the prosecution’s case that Santino was the gunman. His motive for shooting Mr Chambers was that the deceased was a rival drug dealer and, just before the shooting, Santino had found out that Mr Chambers had slept with Tammy Pardoe. The prosecution also alleged that Carlo was Santino’s partner in drug dealing, that he drove Santino to the murder scene and that he provided the murder weapon. Mr Marandola was alleged to have been present at the scene as part of the joint enterprise of murder. It was also the prosecution’s case that, after the shooting, the three men had met Lee Sellick, Tammy Pardoe and Carla Wedge at a hotel where they discussed the shooting and how to ensure no one talked about it.

Santino’s defence was that he had been ill in bed at the time of the shooting. Carlo’s defence was that he was not present at the shooting and had no knowledge that it would take place. Mr Marandola’s case was that he was present at the scene of the shooting but did not know it would take place and was not a party to it.

In the course of the investigations, the police obtained the following witness statements.

Lee Sellick’s statements were made to the police after he had been arrested for conspiracy to murder Mr Chambers. He stated that he had been involved, with Carlo and Santino, in buying crack cocaine from Mr Chambers. In the days before the shooting, the brothers had owed GBP 2,000 to Mr Chambers, which Mr Chambers wanted paying. He also stated that, the day before the shooting, Tammy Pardoe and Santino had rowed because Ms Pardoe had told Santino that she had slept with Mr Chambers. On the day of the shooting he, Lee, had spoken to Mr Chambers about the money owed and learned that he would be at the Talisman that evening. He had told Carlo this and later telephoned Carlo from the pub to say that Mr Chambers was there. He had then left the pub for Carla Wedge’s flat. He returned to the pub with Ms Wedge when told about the shooting.

In the telephone calls after the shooting he had asked Carlo what was going on; Carlo had told him to make sure no one saw anything. When Lee asked how he could do that, Carlo told him to sort himself out or he would get the same. Carlo had also asked him whether Mr Chambers was dead or alive. The following day, Santino called him to tell him to book them into a hotel. When Carlo, Santino and Mr Marandola arrived there, Santino said “it was not supposed to happen like that”. Carlo said (referring to Mr Marandola) “How do you think he feels? He only came along for the ride”.

In the course of his statements Lee Sellick also told the police that he was scared, not only for himself, but for his family and for Carla. Later he also said that he was frightened for his safety and for any revenge Carlo and Santino might take against him, but he was willing to go to court.

Carla Wedge in her statements also said that, before the shooting there had been a row at her flat between Santino and Tammy Pardoe in which Santino had used considerable violence on Ms Pardoe. Her account of events at the hotel was similar to Lee Sellick’s account. She agreed that, if asked by the police, she would limit her account to events in the car park after finding Mr Chambers collapsed. She did so out of fear for herself, Lee Sellick, Ms Pardoe and her children. Ms Wedge also stated that she too was scared and that she “had her children to think about”.

In her statement Carina Jackson stated that the three brothers had dealt in drugs and that she understood that Carlo and Santino obtained their supplies from Mr Chambers. Her relationship with Carlo ended before the shooting. After it she had seen Tammy Pardoe with a black eye. There had been an occasion in November 2001 when Carlo had asked her to hide a balaclava and gun for him.

Donna Mills, an ex-girlfriend of Santino, provided a statement as to the types of car that he drove.

After making their statements, Lee Sellick and Carla Wedge were admitted to the witness protection scheme. On an unspecified date they left the scheme and returned to Wolverhampton, only to then disappear. When the matter came to trial at Birmingham Crown Court, neither Lee Sellick nor Carla Wedge could be found, despite witness summonses being issued for their attendance. The prosecution took the view that there had been a concerted attempt to subvert the trial and that this had been done on behalf of the defendants by members of their extended family. Accordingly, it applied for the statements of Lee Sellick and Carla Wedge to be read to the jury pursuant to section 23 of the Criminal Justice Act 1988 (see paragraph 33 below). Before determining that application, the trial judge heard evidence in chambers from Ms Wedge’s mother, Mrs Fox, and from two police officers who had attempted to trace Mr Sellick and Ms Wedge. One of the police officers gave evidence as to a conversation with Ms Wedge in which she recounted an incident where family members of the applicants approached her outside her son’s school and told her that “she should not be a grass”.

Having heard that evidence, the trial judge allowed the statements to be read. He ruled:

“Having heard and seen the witnesses called in this application, I am satisfied so that I am sure of the following facts:-

(1) Following the arrest of the defendants in February 2002, both Carla Wedge and Lee Sellick were made subjects of a witness protection scheme;

(2) Both Carla Wedge and Lee Sellick voluntarily withdrew from that scheme in about April 2002 and returned to the Wolverhampton area where the murder had been committed. They were then living together and continued to live together until November of this year;

(3) Carla Wedge and Lee Sellick were informed in writing of the date of this trial in August 2002 and September 2002 and were notified on those occasions that they were required to attend as witnesses;

(4) On 18th September 2002, Carla Wedge attended Billeston Street Police Station where she spoke to DC Hutton. In that conversation, she described an incident which had taken place outside her son’s school when members of the Gamboni family, associates of the defendants, told her she should not be a grass;

(5) Carla Wedge told DC Hutton on 18th September that she felt intimidated by the approach made to her by the Gamboni family and that she anticipated that that intimidation would become more intensive as the trial date approached. DC Hutton believed, from what Carla said to him and her general demeanour, that the Gamboni connection was capable of intimidating her and that she was fearful for her own safety and that of her family;

(6) In November 2002, Carla Wedge and Lee Sellick both knew of the trial date, the place of trial and that they were required to attend to give evidence at trial;

(7) From 18th November 2002 onwards, police officers have made repeated attempts to find Carla Wedge and Lee Sellick. Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry. Despite all those efforts, neither witness has been found;

(8) The mother of Carla Wedge, Mrs Fox, has not seen her daughter for the past two weeks. Carla Wedge has left her home and her children, two boys aged nine and 15 months, and effectively disappeared. The children are being cared for by Mrs Fox. Mrs Fox has no knowledge of her daughter’s whereabouts and does not know how to get in touch with her. Since Carla Wedge left, her younger child was admitted to hospital but even that event, of which Carla learned through telephone contact with her grandmother, did not prompt her to reappear;

(9) Mrs Fox told WDC Pearson that Carla was staying away from her children for two weeks until the trial was over to avoid getting killed and putting her children in danger;

(10) Mrs Fox told WDC Pearson that Lee Sellick was frightened and thought he would be killed whether he gave evidence or not. He had tried to commit suicide;

(11) Mrs Fox herself is a very frightened woman. She refused to make a written statement about the events surrounding the disappearance of her daughter. Her attendance at court had to be secured by a witness summons and a threat of arrest. The public gallery had to be cleared before she was prepared to give evidence.

I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both Carla Wedge and Lee Sellick but neither witness can be found. I reject the suggestion that the police should have done more to keep in contact with the witnesses in the months leading up to the trial. I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them.

There is, in my judgment, clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police. There is further admissible evidence that Carla Wedge was fearful about giving evidence in September 2002. There is, however, no admissible evidence that Lee Sellick was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was, I am not able, in his case, to exclude the reasonable possibility that other factors may have influenced his disappearance. It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I cannot be sure of that conclusion. However, in the case of Carla Wedge, I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has, abandoning her own children even when one of them was admitted to hospital. I am further satisfied, in the case of both witnesses, that no adjournment will secure their attendance.

, in my judgment, wholly credible. The defendants are all in a position to controvert the contents of the statements if they dispute them. I accept, however, that there is a disadvantage to the defence if the statements are read and if they are admitted, the jury must receive clear directions emphasizing that disadvantage. Further, so far as Lee Sellick is concerned, the defence point to a number of features which they submit undermine his credibility. However, Section 28 of schedule two of the 1988 Act [see relevant domestic law and practice at paragraph 34 below] provides a wholly sufficient remedy for that concern.

Having taken into consideration all the submissions made and given full weight to the provisions of Section 26, I am of the clear view that the statements made by Lee Sellick and Carla Wedge ought to be admitted in the interests of justice. I so rule.”

After the trial had started, the prosecution applied for leave to have the statements of Carina Jackson and Donna Mills read. They again relied on statements of police officers who had sought to trace the women. The trial judge allowed each woman’s statement to be read. In the case of Ms Jackson he found the evidence was “quite overwhelming” that she had been intimidated and that it was not possible to secure her attendance by any reasonable means. For Ms Mills, he was not satisfied that she was in fear, but was satisfied that all reasonable steps had been taken to find her. The statements were cogent, innately credible and, in each case, controvertible by evidence from the defendants and, indeed, by other possible means. It was in the interests of justice that the statements be admitted.

Tammy Pardoe gave evidence as to the three brothers’ drug dealing. She confirmed that she had slept with Mr Chambers. Santino had found out in the course of a row they had on 2 December and he had hit her. The following night, they met in the Talisman. Santino was angry and threatened to kill Mr Chambers, and had said that this would be Ms Pardoe’s fault. She left the pub and had been in Carla Wedge’s flat at the time of the shooting. At the hotel, Santino said that no one would know who pulled the trigger except him and Carlo. If she told anyone she would get the same. Carlo also told her to keep her mouth shut. She had another conversation with Santino on 30 December in which he admitted to being the gunman. There had been a further conversation, when Santino was in prison for other reasons, in which he said to her that the police had nothing on them. In crossexamination she accepted that her testimony was based on the account she had given to the police after she had been arrested for conspiracy to murder, but maintained that it was the truth.

Two witnesses gave evidence that they had seen a group of men in the car park, had heard shots and had then seen three people running to a car and driving away. A third witness testified that he had seen the deceased, heard a raised voice and then a bang, and that the deceased had then fallen over. A fourth witness testified that he had seen two men joined by a third and had heard some discussion which could have been about drug dealing. Moments later he heard two loud bangs.

The jury also heard evidence from a Mr Allen, who testified that he had gone to Lee Sellick’s flat after the shooting because he knew the person who had been with the deceased at the pub had gone to the flat with Lee Sellick about half an hour before. Lee Sellick, Carla Wedge and another woman returned to the car park with him.

Evidence of mobile telephone traffic was also led by the prosecution, which showed that there had been calls between Lee and Carlo Sellick after the shooting, that someone used a payphone at the hospital to call Carlo, Santino and Mr Marandola, and that Carlo’s telephone had been in use near the Talisman prior to the shooting.

For each brother, the prosecution relied on the fact that they had, on the advice of their solicitors, made no reply to any of the questions put to them during his police interview. For Santino, the prosecution also relied on the fact that, even by June 2002, Santino had stated that he was still unable to recall where he had been at the time of the shooting and that it was only by October that year that he had been able to say that he was in bed sick on the evening in question. For Carlo, the prosecution submitted that it was implausible for him subsequently to explain that his silence in interview was because he had been unable to recall driving to Porlock that day, not least because, on Carlo’s own evidence, Lee Sellick had phoned him that evening to tell him about Mr Chambers’ death.

Finally, the prosecution relied on covert recordings of conversations between the brothers while in their cells at the police station, which, the prosecution alleged, showed that they were plotting to subvert the evidence against them. The defence admitted the conversations but said that they were to wind the police up.

Santino gave evidence in which he denied killing Mr Chambers. He was not at the Talisman on the evening of the shooting; he had been in bed sick, where he had found out about the shooting from the television news. His memory had been jogged by being shown his mobile phone records for the day of the shooting.

He said it was Lee who had been dealing in drugs. He was unaware that Tammy Pardoe had been unfaithful to him and had not assaulted her before the shooting. They had only rowed because he had slept with Carina Jackson. He denied the conversation with Tammy Pardoe in the pub after the shooting and had only gone to the hotel to drop off cannabis for Lee. At the hotel he had rowed again with Ms Pardoe over Carina Jackson and she had told him she would get him back. The only discussion of Mr Chambers had been over hearing about the shooting on the news.

In his evidence Carlo denied buying or selling drugs to or from Mr Chambers, but had been a heavy drug user himself. He too maintained that it was Lee who had been dealing with Mr Chambers and that, prior to the shooting, he had spoken to Lee because Lee was trying to borrow money. The evening of the shooting he and Mr Marandola had been driving to Porlock in Somerset to take cannabis to his uncle. When Lee summoned them to the hotel, they had collected Santino on the way back from Somerset. There was no conversation or suggestion that Carlo had been responsible for Mr Chambers’ death.

Mr Marandola did not give evidence, although his police interviews were introduced. When first interviewed he said that he was at his girlfriend’s at the time of the shooting but, in a subsequent interview, he said Carlo and Santino had picked him up in a car and said they were going to meet someone. They told him to stay in the car. He did not and saw the brothers and a third man approach from the pub. He heard two shots and then the brothers returned to the car, and the three of them drove off.

The trial judge’s summing up contained the following direction on the witness statements which had been read:

“You will, I am sure, recall that I told you when the first of those statements was read how you should approach their evidence but it is important that I remind you again of what I told you. Their statements are emphatically not agreed. The defendants would have wished that all of them should be called to give evidence before you. However, there are circumstances where I, as the judge, may permit the prosecution to read the statements of a witness even where the defence wish those witnesses to be called. That is a matter for my decision and you are not, please, to speculate on why I have reached that decision.

You will, of course, immediately appreciate that the defence are disadvantaged by the course I have permitted to take place. You cannot see the demeanour and appearance of the witness when assessing the extent, if at all, you are able to rely on the content of the statements. The defence cannot cross-examine, cannot test the accuracy and honesty of the evidence, cannot suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement.

Thus, when you consider this evidence, bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and, if so, to what extent.

In this connection bear in mind the submissions of the defence on the accuracy and reliability of the statements of those witnesses. It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statement are, submit the defence (my word not theirs) simply weasel words designed to protect themselves, not from any of the defendants, but from the consequences of their own involvement in what occurred on the night of 3rd December. You heard their submissions, you give them the weight you think right.”

The trial judge also explained to the jury that Lee Sellick’s statement had been given at the end of his interviews while he was under arrest for conspiracy to murder and that he had a substantial criminal record, including convictions for robbery. The trial judge instructed the jury that they could have regard to this background in assessing whether they could rely on his statements. When summarising Carina Jackson’s evidence in respect of the gun Carlo had given her to look after, the trial judge also commented that, if the jury chose to accept that evidence, it went no further than showing that, four weeks before the shooting, Carlo was in possession of a weapon of a broadly similar type as that used to shoot the deceased. The trial judge then asked the jury to bear in mind the criticisms that had been made of Carina Jackson and her evidence by the defence.

Further directions were given in the usual terms as to the adverse inferences which could be drawn from Carlo and Santino’s silence during their police interviews and that Dominic Marandola’s interviews were evidence only against him and not his co-accused.

On 16 December 2002 the jury unanimously convicted Carlo and Santino and acquitted Mr Marandola. The brothers appealed against their conviction.

The appeal was dismissed on 14 March 2005. In considering the relevant case-law of this Court, at paragraph 50 of its judgment, the Court of Appeal stated that what appeared from that case-law were the following propositions:

“i) The admissibility of evidence is primarily for the national law;

ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.

iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”

The Court of Appeal then stated:

“The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.

The question we have posed to ourselves is as follows. If the European Court were faced with the case of an identified witness, well-known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no ‘counterbalancing’ measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury’s attention to aspects of that witnesses’ credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European Court would nevertheless hold that a defendant’s Article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of Article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with Article 6(1). We for our part see no difficulty in such a clear case.

More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J’s state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant’s Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be ‘got at’ the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg.”

The Court of Appeal then gave the following guidance when dealing with applications for statements to be read under sections 23 and 26 of the Criminal Justice Act 1988:

“Our view is that certainly care must be taken to see that sections 23 and 26, and indeed the new provisions in the Criminal Justice Act 2003, are not abused. Where intimidation of witnesses is alleged the court must examine with care the circumstances. Are the witnesses truly being kept away by fear? Has that fear been generated by the defendant, or by persons acting with the defendant’s authority? Have reasonable steps been taken to trace the witnesses and bring them into court? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected? It is obvious that the more ‘decisive’ the evidence in the statements, the greater the care will be needed to be sure why it is that a witness cannot come and give evidence. The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule 2. It will, as section 26 states, be looking at the interests of justice, which includes justice to the defendant and justice to the victims. The judge will give warnings to the jury stressing the disadvantage that the defendant is in, not being able to examine a witness.”

Finally, on the facts of the applicants’ case, the Court of Appeal concluded:

“This was a case in which the judge was sure that Carla was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf. So far as Lee was concerned, his view was that it was ‘highly probable’ but he could not exclude the reasonable possibility that other factors may have influenced his disappearance. What he was sure of was that Lee could not reasonably be found, and it was legitimate to make part of his reasoning the high probability.

The judge was further sure that Carina had been kept away through fear. He was simply sure so far as Donna Mills was concerned that she could not reasonably be found. So far as Donna Mills is concerned, her evidence was not of any great importance. Furthermore, so far as Carina was concerned, she supported the fact that the appellants were involved in drug dealing and she provided some evidence that Carlo had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing. But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of Carina and her evidence (see page 35 (c) to (e) of the summing up). Thus the evidence of Carina could certainly not be described as decisive.

Lee and Carla certainly did give important evidence. It was however certainly not the sole evidence. Lee, for example, gave evidence of a conversation with Carlo immediately after the shooting in which Carlo told him ‘to sort himself out, get control or he’d get the same’, which the judge described as ‘very important evidence in the case of Carlo’. (see page 30-31 of the summing up). Both Lee and Carla provided descriptions of the return of Santino, Carlo and Marandola to the Fox Hotel.

However, there was a great deal of circumstantial evidence, including the tracking of the mobile phones of the appellants and Marandola. But, in particular, there was the oral evidence of Tammy. True, Tammy was treated as a hostile witness. True, also, that Tammy’s evidence was strongest against Santino, but it was powerful against Carlo too.

We have no doubt that the judge properly exercised his discretion in this case. So far as Carla and Carina are concerned, they were witnesses kept away by fear, a fear for which the appellants were responsible. It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial. The statements originally taken from Lee and Carla contained statements to the effect that they were fearful of what might happen to them. Mrs Fox, who gave evidence in chambers, was clearly a frightened woman. Tammy was clearly a frightened witness. This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them. Where the judge was sure of that it seems to us that the appellants cannot complain that their Article 6 rights were being infringed simply by references to those witnesses not being at the trial.

So far as Lee is concerned, the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear. In his case it cannot be said that the defendants lose their right to complain of an infringement under Article 6, but even in his case, where the evidence was ‘important’ as against Carlo, even if that meant ‘decisive’, our view is that provided counter-balancing procedures were properly in place the judge was entitled to admit his statement.

Counter-balancing procedures clearly were in place in that the judge took account of section 28 and Schedule 2 [of the Criminal Justice Act 1988]. Lee was an identified witness and it was open to the appellants to attack the credibility of Lee; indeed they did so, suggesting that he was in fact himself responsible for the murder, that being the reason why he made the statement that he did. Furthermore, the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms. He gave them a strong direction at the time the statements were read.

If we had formed the view that there was a breach of Article 6, that would have rendered the trial unfair and we could not have, in those circumstances, upheld the conviction as safe and a retrial would have had to have been ordered. We are quite clear that the appellants’ rights under Article 6 were in no way infringed in this case. We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed.”

The applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 3 November 2005.

At the time of the applicants’ trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. Section 23 of the 1988 Act provided for the admission of first hand documentary hearsay in a criminal trial:

“23.— ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if—

(2) ....

(a) ...the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

[or]

(c) ... all reasonable steps have been taken to find the person who made the statement, but that he cannot be found..

25.—(1) If, having regard to all the circumstances—

(a) the Crown Court—

(i) on a trial on indictment;

(ii) on an appeal from a magistrates’ court; or

(iii) on the hearing of an application under section 6 of the [1987 c. 38.] Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates’ court to Crown Court); or

(b) the criminal division of the Court of Appeal; or

(c) a magistrates’ court on a trial of an information,

is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard—

(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.

26.— Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, ..., for the purposes-

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation,

the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard-

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness in the accused or, if there is more that one, to any of them; and

(iii) to any other circumstances that appear to the court to be relevant...”

Schedule 2 to the Act allowed for the admission of evidence relating to the credibility and consistency of the maker of the statement, where such evidence would have been admissible had he or she given evidence in person, or where the matter could have been put to him in cross-examination. The Schedule also provided that, in estimating the weight, if any, to be attached to such a statement regard had to be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy or otherwise.


The applicant [Mr Costantino Nardella] is an Italian national who was born in 1962 and lives in Foggia.

He was represented before the Court by Mr G. Di Mattia, a lawyer in Foggia.

While he was a first-year law student at the University of Urbino, Mr Nardella applied to the Student Services Office for a bursary (assegno di studio) for the academic year 1981/82 following a competition notice issued in conformity with Law no. 54/79. He stated that he was a member of a family whose income did not exceed the ceiling of four million Italian lire (ITL) above which the bursary, which amounted to ITL 500,000, could not be granted.

In a decision of 21 December 1981, of which the applicant was notified on 28 January 1982, the governing body of the Urbino University Student Services rejected Mr Nardella’s application on the ground that his family’s income exceeded the prescribed limit. The Director of Student Services informed the applicant that he could challenge the decision in the Regional Administrative Court.

On 15 February 1982 the applicant served notice on the governing body of the Student Services that he was appealing to the President of the Republic.

On 27 September 1989 he asked the governing body for information as to progress of the proceedings. On 13 October 1989 the Student Services Office replied that they had none and advised him to address his enquiry to the President of the Republic.

On 4 June 1992, in reply to a letter from the applicant received on 2 June 1992, the office of the President of the Republic informed the applicant that the procedure in question was governed by Presidential Decree no. 1199 of 1971 and that his letter had been forwarded to the Ministry for the Universities and Research Studies, which would be dealing with it.

According to information provided by the applicant, the proceedings were still pending on 12 December 1998.

Special appeals to the President of the Republic (ricorso straordinario al Presidente della Repubblica) are governed by Presidential Decree no. 1199 of 24 November 1971. They are non-contentious administrative appeals by which final decisions can be challenged. They are lodged by the appellant directly with the head of State and are limited to a review of the lawfulness of the decision being challenged.

A special appeal precludes bringing an action in the administrative courts. It follows that once an appellant challenges an administrative decision by way of a special appeal to the President of the Republic, he or she can no longer bring an action in the courts. Since an action in the courts offers better guarantees than a special appeal, the other party (controinteressato) can, within sixty days of receiving notice of such an appeal, request that it be heard in the administrative courts.

A special appeal must be lodged within 120 days of service, communication or knowledge of the decision being challenged. It must, within the same time period, be served on the authority which made the decision and be lodged with the relevant ministry (or the authority which made the decision, which must then forward it to the relevant ministry).

The relevant ministry investigates the case and must complete its investigation within 120 days of the expiry of the time allowed to the other party to submit their observations. When that time has expired, the appellant can ask the relevant ministry whether the appeal has been forwarded to the Consiglio di Stato for an opinion, as is compulsory, and, if no reply or a negative reply is received, can himself file a copy of the appeal with the Consiglio di Stato.

On a proposal by the appropriate minister, the President of the Republic makes a ruling by decree. An application can be made for review of that decree. An appeal could also be lodged with the administrative courts even if there is no express legal provision to that effect.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1957 and lives in Bratislava.

On 29 March 1993 the applicant brought an action against the Bratislava II Housing Cooperative (Stavebné bytové družstvo), of which she had formerly been a member, in the Bratislava II District Court (at that time Obvodný súd, at present Okresný súd). She challenged a decision of the defendant of 26 October 1992 concerning her entitlement to a new flat and the procedure applied by the defendant in dealing with her appeal against it.

On 16 December 1993 the District Court held a hearing at which the applicant provided further particulars of her action in that she was seeking a ruling declaring that she had the right to the new flat.

On 13 January 1994 the District Court ruled that the applicant had a right to the new flat in question. The defendant challenged the judgment by an appeal (odvolanie).

On 13 October 1994 the Bratislava Regional Court (at that time Mestský súd, at present Krajský súd) held a hearing of the appeal and invited the defendant to submit further evidence which the defendant did on 27 October 1994.

On 26 January 1995, following another hearing of the appeal held on the same day, the Regional Court overturned the judgment of 13 January 1994 and dismissed the action.

On 20 April 1995 the applicant challenged the judgment of 24 January 1995 by an appeal on points of law (dovolanie).

On 21 November 1995 the applicant’s lawyer informed the District Court that he was no longer representing her. As legal representation in appeals on points of law was mandatory, the District Court invited the applicant to identify her new representative on 14 December 1995 and, in the absence of a reply, again on 26 March 1996. The applicant finally replied on 25 April 1996. The appeal on points of law was then submitted to the Supreme Court (Najvyšší súd) for a determination.

On 4 October 1996 the Supreme Court returned the casefile to the District Court without a decision, on the ground that the power of attorney for the applicant’s legal representation did not state expressly that it applied to proceedings on appeals on points of law as was required under the applicable procedural rules.

On 11 December 1996 and repeatedly on 21 April 1997 the District Court requested that the applicant’s lawyer correct the power of attorney, which he did on 15 July 1997.

On 28 October 1997 the Supreme Court quashed the judgments of 13 January 1994 and 26 January 1995, finding that the lower courts had determined the action in a manner in which it had never actually been formulated. As the action fell to be determined at first instance by the Regional Court, it was remitted to it.

Between 28 March and 17 October 2000 the Regional Court held 6 hearings.

On 23 October 2000, following another hearing held on the same day, the Regional Court dismissed the action. The applicant challenged the judgment by an appeal.

On 19 December 2001, following a hearing of the appeal held on the same day, the Supreme Court upheld the judgment of 23 October 2000.


The applicant, Robert Doubtfire, is a United Kingdom national, who was born in 1961. He was represented before the Court by Ms Cunneen, a solicitor of Liberty, an organisation based in London.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 May 1993 the applicant was arrested in a depot after he had unloaded a tanker lorry in which ecstasy tablets and amphetamine sulphate had been imported into the United Kingdom.

In January 1994 the applicant appeared before the Maidstone Crown Court to be tried on charges of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of drugs. The applicant accepted that he had unloaded the lorry. However, it was the applicant’s case that he had no knowledge of the nature of the consignment and that he had been set up by someone called “W.S.” as a “cut-out”, i.e. a person put in place by someone in charge of an illegal operation to insulate himself from detection and arrest. As it transpired from the record of all the calls made from the applicant’s mobile telephone, the applicant, while unloading the lorry and at other critical times, had repeatedly called W.S.’s telephone number.

During the trial the prosecution made an ex parte application to the trial judge to withhold evidence. The judge looked at the material and endorsed the prosecution’s view that the material was covered by public interest immunity. The defence were not told the category of the material which was the subject of the application and did not have the opportunity of making representations to the judge.

On 2 February 1994, the applicant’s counsel made ex parte submissions to the judge concerning the relevance of material relating to W.S. to the defence’s case. However, the judge did not accede to the defence’s request for the disclosure of the material which had been withheld, nor to the disclosure of the category of the material, and further declined to make a ruling in open court as to why the applicant was not entitled to material relating to W.S. All the judge could tell the defence was that in cross-examination he would not allow them to ask questions relating to investigations concerning W.S.

On 16 February 1994 the applicant was found guilty and given two sentences of 25 and 12 years’ imprisonment to run concurrently. The applicant appealed relying, inter alia, on the non-disclosure of material concerning W.S. The applicant also submitted that the prosecution might have also withheld evidence concerning another witness, “H”.

A single judge gave the applicant leave to appeal against sentence and referred to the Court of Appeal his application for leave to appeal against conviction.

Two days before examining the applicant’s appeal, the Court of Appeal examined ex parte all the material that was before the trial judge. It decided not to order any further disclosure.

The Court of Appeal’s first judgment was delivered on 30 November 1995. It found that the applicant had been able to run his defence as he wished and had, in particular, been able to put before the jury the fact that W.S. had a criminal record and that the prosecution had suspicions about him. This, together with the applicant’s own testimony, had enabled the jury to assess the extent, if any, of W.S.’s involvement in the case. For these reasons, the Court of Appeal rejected the applicant’s ground of appeal concerning disclosure. The court did not find any merit in the applicant’s other grounds of appeal and upheld his conviction. However, it reduced the first concurrent sentence from 25 to 20 years’ imprisonment.

On 6 July 2000 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s case back to the Court of Appeal on the ground that:

“As a result of the [CCRC’s] enquires, the CCRC has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the [prosecution] to the trial judge in the context of submissions made by the [prosecution] to the trial judge in the course of ex parte hearings. The [CCRC] considers that this failure was material to [the applicant’s] defence and to his mitigation. ...”

The precise nature of the failure of disclosure was expanded upon in a confidential annex to the CCRC’s report.

On 19 December 2000 the Court of Appeal quashed the applicant’s conviction on both counts and quashed the order for prosecution costs. The court examined the confidential annex to the CCRC’s report in private. It held that:

“... the [applicant’s] trial was materially unfair in the way the [CCRC] describes. That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed.”

The Court of Appeal continued:

“We have considered whether it is right that the Court should elaborate on that conclusion by giving detailed reasons, by reference to the confidential material which has been put before the Court, to explain why we have reached that conclusion. We are persuaded that the balance of competing public interest in this case falls on the side of not making the material public, and not making public the detailed reason’s for the [CCRC’s] conclusion.

We have found that particular point a difficult one, and we have sought ... whether there is a halfway house in this case. We have, with some regret, reached the conclusion that there is not, and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public, and that exceptions to this should only occur in cases in which there is indeed an overriding public interest which so requires it.”

As a result of the Court of Appeal’s judgment, the applicant may now apply for compensation for his conviction and imprisonment under section 133 of the Criminal Justice Act 1988.


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

On 23 June 1994 the applicant's husband filed a divorce petition with the Wałbrzych Regional Court (Sąd Wojewódzki).

On 26 August 1994 the applicant filed a pleading. On 19 October 1994 her husband requested the court to find that the applicant was responsible for the marital breakdown.

On 1 September 1995 the court ordered the applicant's husband to pay 170 Polish zlotys (PLN) in family maintenance pending trial.

The court held twelve hearings on the following dates: 26 August, 6 December 1994; 31 January, 21 March, 16 May, 1 September, 28 November 1995; 9 January, 13 February, 19 March, 17 April and 26 April 1996. It heard evidence from at least twelve witnesses.

On 26 April 1996 the court granted a divorce decree. It considered that both spouses had been at fault in respect of the breakdown of their marriage. The court further vested custody rights over their minor child with the applicant and obliged her husband to pay maintenance for the child.

On 28 May 1996 the applicant filed an appeal against the above judgment. She claimed that her husband had been exclusively responsible for the failure of their marriage and that, therefore, divorce was inadmissible in law.

On 5 July 1996 the Wrocław Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Wałbrzych Regional Court.

On 10 October 1996 the applicant filed a request for her maintenance claims to be secured. The court considered that further evidence regarding the financial situation of both parties should be obtained.

On 13 November 1996 the court held a hearing. On 9 April 1997 the court amended its decision of 1 September 1995 concerning the family maintenance pending trial, increasing it to PLN 250. It dismissed the remainder of the applicant's maintenance claims.

On 6 June 1997 the Wałbrzych Regional Court ordered that evidence be obtained from experts in psychiatry, psychology and pedagogics. On 27 November 1997 experts from the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) prepared their report.

Subsequently, the court held hearings on the following dates: 13 February, 16 March, 24 April 1998.

On 15 May 1998 the Wałbrzych Regional Court pronounced divorce, finding that both spouses had been at fault in respect of the breakdown of their marriage.

On 16 June 1998 the applicant filed an appeal with the Wrocław Court of Appeal. On 5 August 1998 it upheld the contested judgment. On the same day the applicant applied to the court to grant her legal assistance and to exempt her from court fees in cassation proceedings. On 28 September 1998 the Wrocław Court of Appeal dismissed her application.

On 12 November 1998 the applicant filed a cassation appeal against the judgment of the Court of Appeal of 5 August 1998. On 5 January 2001 the Supreme Court (Sąd Najwyższy) held a hearing and on the same date it dismissed the applicant's cassation appeal.


Preliminary objection rejected (out of time);Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

At the material time, the first applicant, Mr Ümit Erdoğdu, was the responsible editor of the monthly review Demokrat Muhalefet! (“Democratic Opposition!”), published in Istanbul. In the January 1992 issue of the review, an interview which the second applicant, Mr Selami İnce, had conducted with a Turkish sociologist, Dr İ.B., was published.

A translation of the relevant parts of the interview is as follows:

“Q: How and to what extent will Demirel accept the ‘Kurdish reality’? Can his understanding of the ‘reality’ be deemed to represent State policy?

A: … The government is forced to accept certain facts now that there is armed resistance in Kurdistan. ... Violence by the Turkish forces could not stop the escalation and progress of the PKK [Workers’ Party of Kurdistan] ...

Q: How will the State shape its new official policy on Kurdistan? Which aspects of the official ideology will be changed and how will they be changed? What effects can this have on the daily lives of the Kurdish people?

A: … In Turkey, the government and the State are two very different things. The State functions through institutions and bodies, members of which are designated by appointment. These institutions and bodies represent the power of the State. The government, i.e. the political power, carries very little weight against the power of the State. That is why governments can be overthrown by the State authority so often. Official ideology can only be changed in the long term and the forces which are capable of changing it are non-governmental political and social forces and their struggle. The essence of the ideas and action of the PKK, for example, is such as can change the official ideology, reduce the influence of the appointed bodies of Turkey’s political scene, and increase the weight of parliaments elected by the people. In my opinion, de facto, the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen. And, as that influence grows, more serious steps will be taken by governments in their policies towards recognising the ‘Kurdish reality’. It is evident that the State will try to obstruct the government in that process and will try to distort certain ideas and policies. And it is also manifest that the government will be able to survive so long as it can resist the power of the State and control the appointed institutions and bodies, i.e. so long as it has real power.

These changes will be reflected in the daily lives of the Kurds. Investigations and research will develop in fields such as the Kurdish language, history and folklore. Kurdish culture will be revived. The specificity of a Kurdish society will be emphasised more amongst the Kurdish masses. National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop.

Q: It is now observed that Kurds who, until now, would never have said ‘I am Kurdish and I am engaging in politics for my present life and for my future’ are now clearly beginning ‘to get into politics for their own interests’ throughout Kurdistan and Turkey. What sort of developments have brought about this situation? Do Kurds need a political subject in the legal sphere? If so, what form should it take?

A: Without any doubt, the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years. The guerrilla warfare has brought about major social and political changes in traditional Kurdish society. Traditional values are in turmoil. There has been very widespread support amongst the people for Kurdish guerrilla fighters ever since 15 August 1984. National awareness is now growing in Kurdish society and this process is spreading rapidly. And we see that, within this process, the political establishment has been used for Kurdish interests, for the move towards autonomy and independence. Kurds, who have always been engaged in politics for others and in order to serve other nations, are now engaged in politics in order to serve the Kurdish people. Healthy national awareness is now developing in response to Turkish racism and colonialism. It would no doubt be over-simplifying to say that all this began after the onset of Kurdish guerrilla warfare on 15 August. This process has roots that go further back into the past but what has been decisive is the new process launched by the PKK. ... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ...

Q: What should be done to counteract the wave of chauvinist Turkish nationalism encouraged by the right-wing press and the MCP [Nationalist Workers’ Party]? Is there a possibility of a confrontation between the Turkish and Kurdish peoples? How could that be prevented?

A: … Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan?

Q: It has been under discussion for some time that the PKK hegemony in Kurdistan has reached a stage where one can now talk of a ‘double power’. Öcalan has mentioned in his writings an orientation towards the ‘formation of a Government-State’ in the Botan-Behdinan region. Are there any signs of what the future interventions of the PKK will be in Kurdistan and in Turkish politics?

A: … The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan. ... This could be perceived as the beginning of the formation of a State ...”

In an indictment dated 23 March 1992 the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing the above interview. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act” – see paragraph 19 below).

In the proceedings before the National Security Court, the applicants denied the charges. They pleaded that the incriminated interview was a mere transcript of Dr. İ.B.’s statements. They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in Turkey.

In a judgment dated 12 August 1993 the Istanbul National Security Court found the applicants guilty of offences under section 8 of the 1991 Act. The first applicant was sentenced under the second paragraph of section 8 to five months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL). The second applicant was sentenced under the first paragraph of section 8 to one year and eight months’ imprisonment and a fine of TRL 41,666,666.

In its reasoning, the court relied on certain extracts from the interviewee’s statements as published. It held that the following phrases amounted to propaganda against the indivisibility of the State: “... the government is forced to accept certain facts now that there is armed resistance in Kurdistan ...”; “... Violence by the Turkish forces could not stop the escalation and progress of the PKK ...”; “... The essence of the ideas and action of the PKK ... can change the official ideology ...”; “... the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen ...”; “... National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop ...”; “... the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years ...”; “... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ...”; “... Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? ...”; “... The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ...”; “... This could be perceived as the beginning of the formation of a State ...”.

The applicants appealed against their conviction. On 1 February 1994 the Court of Cassation dismissed the appeals. It upheld the National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence. The judgment was served on the applicants on 21 February 1994.

Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 19 and 20 below), the Istanbul National Security Court ex officio re-examined the applicants’ cases.

On 15 December 1995 the court sentenced the first applicant to five months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to one year, one month and ten days’ imprisonment and a fine of TRL 111,111,110. The court ordered that the execution of the sentences be suspended on probation.

The applicants appealed against these sentences. On 7 April 1997 the Court of Cassation quashed the National Security Court’s judgment. Concerning Mr Erdoğdu, the Court of Cassation pointed out that he had been prosecuted in his capacity as responsible editor and, therefore, the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful. Concerning Mr İnce, the Court of Cassation found that his lawyer had not been properly notified about the date of the hearing before the National Security Court.

On 9 September 1997 the National Security Court held a hearing. Having regard to the provisions of Law no. 4304 which had entered into force on 14 August 1997, the court decided to defer the imposition of a final sentence on Mr Erdoğdu, pursuant to section 1 of that Law. This decision remained subject to the conditions laid down under section 2 (see paragraph 21 below). The court maintained Mr İnce’s conviction and the sentence imposed on him, the execution of which was, however, suspended in the light of his good conduct during the trial.

The relevant provisions of the Press Act 1950 read as follows:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

(before amendment by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[]. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

(as amended by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras …

“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”

However, the provisions of this section shall not apply to convictions pursuant to section 8[].”

“Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct.

The first and second paragraphs of section 19[] … of the Execution of Sentences Act (Law no. 647) shall not apply to the convicted persons mentioned above.”

The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law no. 4126 of 27 October 1995:

“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4[] and 6[] of Law no. 647 of 13 July 1965.”

The following provisions are relevant to sentences in respect of offences under the Press Act:

“The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.

The provision in the first paragraph shall also apply to editors who are already serving their sentences.

The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”

“If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.

Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.

Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”

The Execution of Sentences Act provides, inter alia:

“The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits.

If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor.

The sentence of imprisonment thus substituted for the fine may not exceed three years …”

“… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...”

The Code of Criminal Procedure contains the following provisions:

“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.

Non-application or erroneous application of a legal rule shall constitute unlawfulness[].”

“Unlawfulness is deemed to be manifest in the following cases:

1- where the court is not established in accordance with the law;

2- where one of the judges who have taken the decision was barred by statute from participating;

The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 19 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.

Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April (no. 1998/87) and 17 June 1998 (no. 1998/133).

As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used.


CASE OF TARNOPOLSKAYA AND OTHERS v. RUSSIA

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

The applicants' names and other details are indicated in the appended table.

The applicants emigrated to Israel from the USSR in the 1980s and 1990s and obtained Israeli nationality. Before immigration they had been receiving old-age pensions from the Soviet authorities. However, once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law applicable at the material time. As they left the USSR prior to its collapse, they were not entitled to a pension under the new Russian legislation.

In early 2000 the applicants unsuccessfully applied to the regional departments of the Pension Fund of the Russian Federation (“the Pension Fund”) for the payment of their pensions to be restored. On unspecified dates they brought civil proceedings against the Pension Fund requesting restoration of the payment of their pensions.

By the final judgments listed in the appended table the applicants' claims were allowed and the Pension Fund was ordered to restore pension payments.

In their judgments the courts found, inter alia, that although the pensions had initially been awarded in accordance with the USSR legislation, the latter was also applicable in the Russian Federation. The courts interpreted the relevant legal provisions in the light of the Constitutional Court judgment of 15 June 1998, considering that the pension payments should be restored regardless of the date or place of emigration from the Russian Federation.

The Pension Fund restored the payments in ten cases (see § 43 below).

On 17 June 2005 the Pension Fund, in a letter numbered ГВ2115/6390, asked the Supreme Court of the Russian Federation to provide an explanation of the issue. It based the request on the fact that courts of different regions had different attitudes towards the problem. Thus, it noted that in Moscow, the Moscow Region and in most of the other regions the courts rejected claims for payment of pensions to emigrant pensioners whose pensions had been awarded in accordance with the legislation of the USSR. At the same time, the courts in St Petersburg, in the Samara Region, in the Kaluga Region and in the Yaroslavl Region awarded such payment.

Subsequently the Pension Fund, as a party to the proceedings in the present case, lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants' favour. The Presidia of the regional courts granted the requests, quashed the judgments and dismissed the applicants' claims.

The Presidia found that according to the relevant USSR legislation, under which the pensions had been awarded, there was no possibility to continue the payments to the applicants, as they had left the country. According to their interpretation of the Ruling of the Constitutional Court of 15 June 1998, the payments were to be restored only if the pensions had been awarded in accordance with the legislation of the Russian Federation, not the USSR. The Presidia accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants.

The relevant data on the Presidia decisions is listed below.

For the relevant provisions on the supervisory-review proceedings contained in the Code of Civil Procedure of the Russian Federation see, among many other authorities, the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03 et seq., § 34, 3 May 2007).

According to the law “On the Judicial System of the Russian Federation”, no. 1-FKZ of 31 December 1996, the Supreme Court of the Russian Federation is a supreme judicial body performing judicial supervision over the activities of all the courts of general jurisdiction and, inter alia, providing explanations on the issues of judicial practices.

The relevant provisions on the payment of pensions to those who left the USSR and the Russian Federation are as follows.

According to the Provisions regulating the award and payment of state pensions, which were approved by the USSR Council of Ministers Decree on 3 August 1972, USSR citizens living abroad shall be paid their pensions unless they left the USSR for permanent residence or for capitalist countries.

The law of 24 October 1990 “On the Operation of Legislation of the USSR on the Territory of the Russian Federation” provided that the USSR legal acts operated directly on the territory of the Russian Federation unless they contradicted the Russian Federation legislation.

According to the Order of the Supreme Council of the RSFSR of 11 December 1991 “On Ratification of the Agreement Establishing the Commonwealth of Independent States”, the judicial norms of the former USSR were to be applied in the Russian Federation prior to adoption of the relevant legislation of the Russian Federation.

According to the decree of the Supreme Soviet of the Russian Federation no. 4461-I of 11 February 1993, the Pension Fund was allowed to pay pensions awarded under the USSR legislation to pensioners who had been receiving such pensions in the Russian Federation and had left for permanent residence abroad.

The law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 5318-I of 2 July 1993 provided that upon a written request by a pensioner leaving Russia the pension should be transferred to him or her abroad.

On 15 June 1998 the Constitutional Court ruled (in Decision no. 18P) that law no. 5318-I of 2 July 1993, applied at the material time, contradicted the Constitution in the part concerning the refusal to pay pensions to persons who had left the Russian Federation before 1 July 1993.

According to the law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 21-FZ of 6 March 2001, pensions were to be paid to persons who had acquired the right to receive a pension in accordance with the legislation of the Russian Federation at the time they left the country.

The new law “On State Pensions in the Russian Federation” no. 173FZ of 17 December 2001 reiterated that upon a written request by a pensioner leaving Russia the pension should be paid in Russia by power of attorney or transferred to him or her abroad (Article 24). It also provided that payments that had not been received in time because of the fault of the bodies responsible for the pension award or payment should be paid for the entire previous period (Article 23).

On 29 November 2006 in Ruling no. 85-B06-13 the Supreme Court of the Russian Federation found that no pension payments should be made if they were initially awarded in accordance with USSR, not Russian Federation, legislation. It noted, in particular, that “those who had been entitled to pension in accordance with the USSR legislation [...] and had left the Russian Federation for permanent residence abroad have lost their title to the pension”.