Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant, Mr Evgen Nevmerzhitsky, is a Ukrainian national, who was born in Kyiv in 1970 and currently resides there. He was formerly the manager of a branch of the Poltava Bank in Kyiv. The applicant was represented by Mr Portyanik, a lawyer practising in Kyiv.

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

On 28 September 1995 police officers seized 184,761 US dollars (USD) that had been stored by the applicant on the premises of the Poltava Bank in readiness for their sale to a customer, Y.G.L.

On 18 October 1995 the Investigative Division of the main department of the Ministry of Internal Affairs of Ukraine in Kyiv (“the Investigative Division”) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant.

On 8 April 1997 the Investigative Department initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case. On the same date an investigator from the division decided that the applicant should be detained as a suspect pending a decision concerning the appropriate preventive measure. He was accordingly placed in custody that day.

On 14 April 1997 an investigator from the Investigative Division charged the applicant with, inter alia, engaging in unlawful currency transactions (Article 80 § 2 of the Ukrainian Criminal Code 1960 – hereafter the “UCC”), theft of substantial amounts of currency (Article 86-1 of the UCC) and tax evasion (Article 148-5 § 2 of the UCC).

On 8 December 1997 and 2 March 1998 the applicant was additionally charged with abuse of power by an official (Articles 165 § 2 and 166 § 3 of the UCC) and fraud and forgery committed by an official (Articles 172 § 2 and 194 §§ 1 and 3 of the UCC).

Between 15 January and 14 April 1998 the applicant lodged applications with the Investigative Department for a medical examination and challenged the appointment of the investigator. On 7 April 1998 the General Prosecution Service of Ukraine instructed the investigator to arrange for the applicant's medical examination. The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by the Ministry of Health due to various diseases that he suffered from, including the skin infections of scabies and eczema.

On 13 March 1998 the investigator charged the applicant with offences under Articles 80 § 2, 86-1, 148-5 § 2, 166 § 3, 170 § 1, 172 § 2 and 194 § 3 of the UCC.

On 8 September 1998 the investigation into the case was completed and the accused, including the applicant, were allowed to inspect the case-file. On 9 August 1999 the accused finished their inspection.

On 9 August 1999 the criminal case-file was sent to the Kyiv Prosecution Service for approval of the indictment.

On 13 August 1999 the prosecution service transmitted the case to the Kyiv City Court (the “City Court”).

On 27 August 1999 the Moskovsky District Court of Kyiv rejected as unsubstantiated the applicant's complaint against the investigator of the Investigative Department, in which he had claimed that the investigator had acted unlawfully and requested that criminal proceedings be instituted against him for abuse of power.

On 1 November 1999 the City Court remitted the case to the prosecution service for an additional investigation (додаткове розслідування). On 5 November 1999 it lodged a separate application (окреме подання) for an order setting aside the City Court's ruling. On 16 December 1999 the Supreme Court of Ukraine granted the application in part. Although it held that the case should be remitted for an additional investigation, it specified that certain matters did not have to be investigated further since the information previously obtained was sufficient.

On 5 January 2000 the prosecution service finished a supplementary investigation into the case and the applicant was allowed to inspect the file.

On 7 February 2000 the additional investigation was completed and the applicant was allowed to familiarise himself with the material in the case-file.

On 22 February 2000 the preliminary investigation was reopened in order to conduct additional investigative acts.

On 30 October 2000 the City Court ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and Article 80 of the UCC repealed.

On 19 February 2001 the City Court convicted the applicant of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months' imprisonment, and ordered the confiscation of all his personal property. It acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. On the basis of the Amnesty Law of 11 May 2000, and because the applicant had already been detained for two years, ten months and fifteen days, the City Court decided to exempt him from serving the sentence. None of the parties appealed to the Supreme Court.

On 8 April 1997 an investigator of the Investigative Division decided that the applicant should be temporarily detained as a suspect (затриманий в якості підозрюваного) in accordance with Article 115 of the Code of Criminal Procedure (“the CCP”). He was accordingly placed in custody that day.

On 11 April 1997 the Prosecutor of Kyiv sanctioned a warrant issued by the investigator authorising the applicant's arrest (санкцію на арешт) as a preventive measure pending trial (Article 155 of the CCP).

On 12 May 1997 the applicant applied to the Moskovsky District Court of Kyiv for orders to quash the warrant and release him. On 28 May 1997 the District Court rejected the applicant's claims as unsubstantiated. It also held that the applicant's detention was lawful.

From 8 April 1997 until 22 February 2000 the applicant was detained in the Temporary Investigative Isolation Unit of the Kyiv Region (SIZO No. 1 of the Kyiv Region).

The duration of the investigation and the applicant's detention were extended on successive occasions: to six months on 29 May 1997 by the Prosecutor of Kyiv, to nine months on 1 October 1997 by the Deputy Prosecutor General of Ukraine, to twelve months on 18 December 1997 by the Deputy Prosecutor General of Ukraine and to fifteen months on 28 March 1998 by the Acting Prosecutor General of Ukraine.

On 12 April 1998 the investigator informed the applicant that the preventive measure of detention could be replaced by release on bail. The Prosecutor of Kyiv informed the applicant by a letter of 20 July 1998 that bail had been fixed in the sum of 232,716 Ukrainian hryvnas (UAH).

On 22 July 1998 that amount was deposited in the account of the Main Department of the Ministry of Internal Affairs in Kyiv by Ukrinbank (the surety and the applicant's former employer). On 19 August 1998 the Department returned the sum and refused to release the applicant on bail.

On 30 June 1998 the Acting Prosecutor General of Ukraine extended the period of the investigation and the applicant's detention for another three months (until 30 September 1998), bringing the total period to eighteen months.

On 1 November 1999 the City Court refused to change the preventive measure, requiring the applicant to remain in custody. On 16 December 1999 the Supreme Court of Ukraine upheld that decision.

The applicant was detained during the prosecution's further investigation from 1 November 1999 onwards.

On 22 February 2000, owing to the expiry of the maximum statutory period of detention, the Kyiv Regional Prosecutor decided to release the applicant on his undertaking not to abscond. The applicant was released on 23 February 2000.

The applicant went on hunger strike on 13 April 1998, consuming only water. On 17 April 1998 the applicant's medical condition was examined and, following an acetone analysis of his urine on 20 April 1998, he was subjected to force-feeding as of 23 April 1998. The applicant suspended his hunger strike on 14 July 1998, only to resume it again in October 1998.

On 1 December 1999 the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and, because of his continuing hunger strike, was being force-fed.

The Government mentioned that between 27 May 1997 and 7 February 2000 the applicant was examined by doctors on sixty-one occasions. However, they made no reference to any medical examinations of the applicant in the period from 5 August 1998 to 10 January 2000 (see paragraph 50 below).

On 5 February 1998 the doctor of the detention centre diagnosed the applicant as having allergic dermatitis (алергійний дерматит).

On 8 April 1998 the doctor of the detention centre, after examining the applicant, diagnosed him as also suffering from streptococcal impetigo (стрептодермія) and chronic cholecystitis (хронічний холецистит).

On 8 May 1998 the forensic medical examination No. 58 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant suffered from microbic eczema, chronic cholecystitis and neurocirculatory dystonia. It recommended that the applicant undergo specialised medical treatment for eczema as an inpatient.

On 2 June 1998 the doctor of the Central Hospital of Kyiv, Dr Glukhenky, found that the applicant had contracted disseminated microbic eczema (розповсюджена мікробна екзема). He also recommended that the applicant undergo medical treatment as an inpatient.

On 13 July 1998 the Deputy Head of the Investigative Department requested that the applicant be admitted to the Kyiv Specialist Dermato-Venerological Hospital for further treatment of his skin diseases as from 14 July 1998.

On 14 July 1998 the applicant was taken to the hospital and, after his preliminary medical examination there, he was diagnosed as suffering from scabies (чесотка) and pyodermatitis (піодерматит). The hospital recommended that the applicant be returned to SIZO No. 1 for further medical treatment for scabies.

On 20 July 1998 the forensic medical examination No. 88 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant had suffered from disseminated microbic eczema from 8 May to 2 June 1998. It also found that the applicant suffered from scabies and that this disease could be treated in SIZO No. 1 if there were no appropriate conditions for his treatment as an inpatient. On the same date the investigator of the Investigative Division rejected as unsubstantiated the applicant's request for medical treatment as an inpatient.

The applicant underwent medical treatment for scabies on 31 July 1998 in the medical unit of the detention centre.

The applicant continued his hunger strike between 10 January and 7 February 2000. During this period he was examined by a doctor on eighteen occasions.

According to the applicant, his last hunger strike lasted from 5 October 1998 to 23 February 2000. In accordance with the timetable of medical examinations provided by the Government, no medical examinations of the applicant were performed between 5 August 1998 and 10 January 2000 (see paragraph 40 above).

Following his release on 23 February 2000, the applicant was admitted to Kyiv City Hospital from 24 February until 17 March 2000. He subsequently continued to receive medical treatment under the general supervision of a psychiatrist.

On 2 February 2000 the applicant's sister, on behalf of the applicant, lodged complaints with the Constitutional Court of Ukraine seeking to establish that it was unconstitutional to hold the applicant in custody after the maximum statutory term of detention had expired. She also petitioned the Constitutional Court for a ruling that Article 156 of the CCP, which allowed suspects to be detained while the case was being investigated, was unconstitutional. On 25 February 2000 the Registrar of the Constitutional Court rejected his complaints, as the court had no jurisdiction to consider them.

The relevant provisions of the Constitution read as follows:

“Every person has the right to freedom and personal inviolability.

No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law.”

“Human and citizens' rights and freedoms are protected by the court.

Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers.

...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

“13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.”

The relevant provisions of the CCP read as follows:

“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent his attempts to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions.

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.

If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.

If a preventive measure is applicable to a suspect, he shall be charged within ten days of the imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”

“The preventive measures are as follows:

(1) a written undertaking not to abscond;

(2) a personal surety;

(3) the surety of a public organisation or labour collective;

(3-1) bail;

(4) remand in custody;

(5) supervision by the command of a military unit.

As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”

“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged crime, the person's age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person, shall be taken into consideration.”

The terms for remand in custody during the investigation of criminal offences shall not be more than two months. These terms can be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds to change the preventive measure. Further extension of this term to six months from the moment of arrest shall only be effected if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or prosecutors equal to them in rank.

Further periods of remand in custody can be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the General Prosecutor.

After that, no further extensions of detention on remand are allowed. The accused must then be immediately released.

If it is impossible to terminate the investigation within these remand periods and there are no grounds to change the preventive measure, the General Prosecutor or his Deputy shall be entitled to remit the case to the court in that part which relates to accusations which could be proved. In relation to the incomplete investigation, the case shall be divided into separate proceedings and terminated in accordance with the general rules.

The materials of the terminated part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, established by paragraph 2 of this Article.

The time taken by the accused and his representative to familiarise themselves with the materials in the case shall not be taken into account in calculating the overall term of remand in custody.

“Detention during pre-trial investigations shall not exceed two months. In cases in which it is impossible for the investigation of the case to be completed within the period provided for by Part One of this Article and there are no grounds for discontinuing the preventive measure or substituting a less restrictive measure, the period of detention may be extended:

(1) to four months - on an application approved by the prosecutor who supervises compliance with the laws by bodies of inquiry and pre-trial investigation or by the prosecutor who, or a judge of the court which, issued the order for the application of the preventive measure;

(2) to nine months - in cases of serious and especially serious crimes, on an application approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the regions, the prosecutor of the cities of Kyiv and Sevastopol and the prosecutors of equal rank, or submitted by the same prosecutor for consideration to a judge of an appellate court;

(3) to eighteen months - in particularly complex cases involving especially serious crimes, on an application by the Prosecutor General of Ukraine or his Deputy, or submitted by the same prosecutor for consideration to a judge of the Supreme Court of Ukraine;

In every case in which it is impossible to complete the investigation in full within the periods specified in Parts One or Two of this Article, the prosecutor supervising compliance with the law during the investigation into the case shall have the right to consent to the charge for which there is evidence being referred to the court. In such an event, the part of the case concerning uninvestigated crimes or criminal offences shall, in accordance with the requirements of Article 26 of this Code, be severed into a separate set of proceedings and completed under the general procedure.

The period of detention during the investigation shall be calculated from the moment the detention is ordered and, if the detention was preceded by time spent in police custody, from the moment of arrest. The period of detention shall include any time spent by the person concerned in undergoing expert examination as an in-patient in a psychiatric medical institution of any type. In the event of repeated detention orders being made against a person in the same case, or in a case joined to it or severed from it, or of new charges being brought, previous periods of detention shall be taken into account when calculating the length of the detention.

The period of detention during pre-trial investigations shall expire on the day the court receives the case-file; however, the time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case-file shall not be included in the calculation of the period for which the accused has been detained as a preventive measure.

In the event that the case is withdrawn from the court by a prosecutor on the basis of Article 232 of this Code, time shall start to run again on the day the case is received by the prosecutor.

In the event that the case is returned by the court to the Prosecutor for a supplementary investigation the period of detention shall be calculated from the moment the case is received by the Prosecutor and shall not exceed two months. The period specified shall be further extended by taking into account the time the accused was held in detention before the referral of the case to the court, in accordance with the procedure and within the time-limit prescribed by Part Two of this Article.

Save where the period has been extended pursuant to the procedure established by this Code, in the event of the expiry of the maximum period for detention as a preventive measure allowed by Parts One and Two of this Article, the body of inquiry, the investigator, or the prosecutor shall be obliged to release the person from custody without delay.

Governors of pre-trial detention centres shall promptly release from custody any accused in respect of whom a court order extending the period of detention has not been received by the time the period of detention allowed by Parts One, Two and Six of this Article expires. They shall notify the person or body before whom the case is pending and the prosecutor supervising the investigation (Article 156 in the wording of Law No. 1960-12 of 10 December 1991, as amended by Laws Nos. 2857-12 of 15 December 1992, and 3351-12 of 30 June 1993; in the wording of Law No. 2533-III of 21 June 2001 – which entered into force on 29 June 2001).”

“After deciding that the evidence collected in the case is sufficient for an indictment, and after complying with the terms of Article 217 of this Code (familiarisation of the victim, civil plaintiff and civil respondent with the materials in the case file), the investigator is obliged to announce to the accused that the investigation in his case has ended and that he has a right to familiarise himself with all of the materials in the case file personally and/or with the assistance of an advocate, and that he can lodge a motion to initiate an additional preliminary investigation. The investigator is obliged to explain to the accused his right to lodge petition for his case at first instance to be heard by a single judge or by a court composed of three judges.

If the accused has not shown any interest in familiarising himself with the materials of the case-file with the participation of the representative, he shall be personally provided with all of the materials in the case file (for familiarisation). In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the case-file materials.

The announcement of the termination of the criminal investigation and the authorisation for the accused to familiarise himself with the case-file shall be mentioned in the verbatim record.

The accused and his representative shall not be limited in the time which they require to familiarise themselves with the materials in the case file. However, if the accused and his representative intentionally delay this process, the investigator has the right, by it's a reasoned resolution, to fix a deadline for the accused to complete the familiarisation exercise. This resolution shall be approved by the prosecutor.”

“The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court...

The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.”

(Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure (Amendments) Act of 21 June 2001.)

The relevant provisions of the Resolution of the Plenary Supreme Court of Ukraine read as follows:

“... in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for detention of the suspect or accused, and not the decision of the investigator or the body of inquiry concerning the applicable preventive measure of taking into custody; nor the decision of the court (judge) to detain the defendant.”

(This resolution was annulled on the basis of the new Resolution of the Plenary Supreme Court of Ukraine of 25 April 2003 on the courts' practice of applying the preventive measure of detention and the prolongation of detention at the stages of the inquiry and pre-trial investigation.)

The relevant extracts from the reservation of Ukraine provide as follows:

“...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor.

Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001...

The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.”

The relevant extracts from the Transitional Provisions of the Constitution of Ukraine provide as follows:

“13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person's home and other property, shall be retained for five years after the entry into force of the present Constitution.”

The relevant extracts from Article 106 of the CCP that regulate detention by a body of inquiry of a person suspected of committing an offence provide as follows:

“A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds:

if the person is discovered whilst committing an offence or immediately after committing one;

if eye-witnesses, including victims, directly identify this person as the one who committed the offence;

if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home.

If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established.

For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, on his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release.

The body of inquiry shall inform the suspected person's family of his detention if his place of residence is known.”

The relevant extracts from Article 157 of the CCP, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows:

“The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest, the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory.

The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.”

The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows:

“... The situation in investigation wards is perhaps the worst, [due to] their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine's investigation wards had available space for 32,800 detainees, but in reality held 44,700.

The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions.

... The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy.

In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in penitentiary institutions. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media.

... The inspections of the Commissioner proved that on average people are held [in detention] for six months while courts delay processing their cases for unjustifiably long periods. Every year the statutory time for considering criminal cases is violated in relation to 10,000 people. Of the persons who are detained in custody to date 46% (or 21,000) are detained under the courts' responsibility; in some detention centres this category of detainees exceeds 90%, although 10 years ago they accounted for only 18-20%. ...

Above everything else, this is caused by the unjustifiably widespread practice of pre-trial detention on formal grounds. Of the 112,600 arrested persons 15,000 (13%) were released from investigation wards in 1998, and of these every seventh arrested person was given a non-custodial sentence. Under the transitional provisions of the Constitution, there still exists the procedure of arresting and taking people into custody on the basis of the sanction issued by the public prosecutor. The introduction of judicial control over detention and prolongation of the period of custody has had no practical impact...

Some legislation which is inconsistent with the provisions of the Constitution and international human-rights standards sets unjustifiably long terms of pre-trial detention. Owing to strictly ministerial interests, these terms were increased to a year and a half, from which is excluded the time taken by detainees and their lawyers to familiarise themselves with the case-file. The lack of an organised system of pre-trial investigation infringes the terms of detention of tens of thousands of persons.

The legislation in force does not establish any restrictions whatsoever as to the maximum period of detention once the case is referred for consideration on the merits. For this reason defendants have to wait for months and sometimes years for a hearing or completion of the judicial examination.”

The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention, severe overcrowding, lack of adequate medical treatment and assistance, inadequate nourishment, and the inadequate financing of the needs of the pre-trial detention facilities. The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases. It mentioned for instance that in 1999 only 19.7% of the necessary food supplies were financed from the State budget (12.7% in 2000), and 6.7% of the medical supplies (12.7% in 2000). The average medical expenditure per person was UAH 18.7 in 2000 (compared to the required amount of UAH 220) and UAH 20.7 in 2001 (compared to the required amount of UAH 245.2).

The relevant provisions of the Decree of 4 March 1992 read as follows:

“...1.2. Upon discovery of the detainee's refusal to take food, the head of the institution or the person acting on his behalf must interview the detainee within twenty-four hours in order to document the reasons for the refusal. He shall also inform the authorities responsible for this person's detention and the prosecutor supervising the execution of the judicial decisions in criminal cases and, in the event of serious grounds for the refusal to eat, shall take appropriate measures to satisfy the lawful demands of the detainee.

...1.3. Within twenty-four hours of the refusal of the detainee to take food, the head of the institution or the person acting on his behalf shall order the placement of the detainee in a separate cell, where he/she shall generally be held in isolation from other detainees and be kept under constant supervision.

...1.4. The detainee shall be provided with breakfast, lunch and supper in accordance with the envisaged timetable and the established nutritional norms. In the event of a refusal to eat, it shall be removed after two hours; this shall be noted in the record of the food taken by the detainee.

1.5. Within the time-period established by the administration of the institution, and taking into account the particular circumstances, but not more than three days from the time of the refusal to take food, the person shall undergo a compulsory medical examination during which a doctor shall explain the negative consequences of the hunger strike for the detainee's health. On-going and emergency medical treatment shall be provided to the detainee unless there is a need to admit him/her as an in-patient...

1.7. Where the refusal to take food is not a result of a disease or illness, the representatives of the institution must continuously explain to the person the harmful effect that a lack of food inflicts on the body.

1.9. The force-feeding of a detainee on hunger strike shall be a measure of last resort aimed at preserving life and may only be used where the educational work and other measures of influence have had no effect on the detainee, and his/her further refusals to take food are endangering his/her life.

The decision to force-feed shall be adopted by the head of the institution, or the person acting on his behalf, on the basis of a written report by the medical commission establishing a life-threatening decline in the state of health of a detainee on hunger strike...

The prosecutor supervising the lawfulness of the execution of judgments in criminal cases shall be informed about the decision to force-feed the detainee.

The detention centre's doctor shall determine the length of time necessary to force-feed the detainee, taking into account his/her general state of health.

The doctor shall decide on the content of the food in accordance with the daily food ration composed of different products.

The doctor shall make a note in the medical file of the detainee on hunger strike at the time of the force-feeding, mentioning the date, components and quantity of the food; the surname and rank of the person who administered the force-feeding shall also be noted...

The procedure for force-feeding a detainee refusing to take food

2.1. Force-feeding shall be administered in the presence of one of the administrators of the institution, the doctor, a member of the medical staff and the necessary number of junior inspectors.

Before beginning the force-feeding, the doctor shall explain to the detainee the risks that threaten his/her health and the necessity of taking food.

If the detainee refuses the force-feeding, he/she can be handcuffed, and the junior inspectors shall hold him in such a position as is necessary for this procedure.

The force-feeding shall be conducted by a member of the medical staff under the doctor's supervision, taking into account all the measures necessary to avoid possible injuries and accidents. In the course of this procedure the mouth of the detainee shall be opened and held open by a mouth-widener (роторозширювач).

A medical tube with a funnel on the free end, cooled down after having been boiled, but soft, has to be placed through the mouth opening and the pharynx into the alimentary canal (oesophagus). In the course of this procedure the doctor has to make sure that the tube does not get into the trachea. If the position of the tube is correct the member of the medical staff shall pour into the can a small quantity of cooled boiled water and then the food.

2.2. The medical staff must have with them the necessary medical supplies and medicines for providing emergency medical aid in the event of injuries that might occur in the course of force-feeding.

2.3. If the state of health of the detainee on hunger strike improves, the force-feeding shall be suspended and this shall be noted in the medical file of the detainee; a reasoned conclusion shall be drawn up by a doctor.”

The relevant extracts from the European Prison Rules read as follows:

“... Discipline and punishment

Instruments of restraint

The use of chains and irons shall be prohibited. Handcuffs, restraintjackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances:

...b. on medical grounds, by direction and under the supervision of the medical officer;

c. by order of the director, if other methods of control fail, in order to protect a prisoner from selfinjury, ...

The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must be applied no longer than is strictly necessary.”

The relevant extracts from the Recommendation of the Committee of Ministers provide as follows:

“... Referring to the specific declarations of the World Medical Association (WMA) concerning medical ethics, in particular the Declaration of Tokyo (1975), the Declaration of Malta on hunger strikers (1991) and the Statement on body searches of prisoners (1993); ...

C. Patient's consent and confidentiality ...

... The indication for any medication should be explained to the inmates, together with any possible side effects likely to be experienced by them.

Informed consent should be obtained in ... situations when medical duties and security requirements may not coincide, for example refusal of treatment or refusal of food.

Any derogation from the principle of freedom of consent should be based upon law and be guided by the same principles which are applicable to the population as a whole. ...

It should also imply [that a doctor must be] advising the prison management on matters concerned with nutrition or the environment within which the prisoners are required to live, as well as in respect of hygiene and sanitation.

E. Refusal of treatment, hunger strike

In the case of a refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. ...

The clinical assessment of a hunger striker should be carried out only with the express permission of the patient, unless he or she suffers from serious mental disorders which require the transfer to a psychiatric service.

Hunger strikers should be given an objective explanation of the harmful effects of their action upon their physical well-being, so that they understand the dangers of prolonged hunger striking.

If, in the opinion of the doctor, the hunger striker's condition is becoming significantly worse, it is essential that the doctor report this fact to the appropriate authority and take action in accordance with national legislation (including professional standards).”

The relevant extracts from Chapter III of the CPT Standards of “Health care services in prisons” [CPT/Inf/E (2002) 1, Rev. 2004] and extracts from the 3rd General Report [CPT/Inf (93) 12] read as follows:

“46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint.

They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor.

Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.

A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs (eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause.

In the event of a hunger strike, public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts.”

The relevant extracts from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 read as follows:

“...110. At Zhytomyr Prison No. 8, the building reserved for women and minors (No. 2) offered the best material conditions of the establishment. All the cells were clean and well maintained, properly equipped, benefited from good natural and artificial lighting, and had toilets that were partitioned off. In many cells, the living space, although far from ideal, was greater than that found in the other detention areas. For example, a cell measuring 29.7 m² accommodated seven women. Among the minors, a 29 m² cell accommodated three boys; it was, however, designed for eight, which is excessive. Generally speaking, the delegation observed that the potential occupancy rates of the cells in the building allowed for a living space of only 2.5 to 2.8 m² per person.

The CPT welcomes the fact that, in the parts of building No. 1 reserved for remand prisoners, administrative prisoners and prisoners subject to the “Tyurma” regime, there was proper access to daylight and fresh air, except in certain cells where the windows were still fitted with obstructive devices (for example, wire mesh). Otherwise, material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin.

Given the number of prisoners they accommodated at the time of the visit, the living space in certain cells could be considered tolerable or even acceptable. For example, among the remand prisoners, a 42 m² cell accommodated twelve prisoners, a 46 m² cell housed thirteen prisoners, a 19 m² cell was occupied by four people and a 13 m² cell by three. But here again, the living space was completely taken up by surplus beds.

Finally, heating was, generally speaking, a problem, as the temperature was barely above 18o.

The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). Some women complained, however, that they were unable to obtain the special hygiene products they needed (sanitary towels/tampons). The delegation raised the issue with the prison governor, who gave assurances that the situation would be remedied. The CPT would like to obtain confirmation that the problem has now been resolved.

In SIZO No. 21 in Odessa, the situation of overcrowding, exacerbated by generally precarious material conditions, could legitimately be considered to amount to inhuman and degrading treatment.

The prisoners were crammed into a tiny living space. For instance, there were up to six prisoners in cells measuring 7 to 8 m², up to fifteen in 18 m² and up to thirty-seven (with forty beds) in 78 m². According to information gathered by the delegation, some parts of the prison had apparently been even more overcrowded in mid-November 2002. For instance, up to thirty-two prisoners had been placed in cells measuring 18 m² in the admissions unit, where they had had to share ten beds.

Most of the cells were very dilapidated, with damp-ridden walls and ceilings. The facilities were in a bad state of repair, the bedding was often dirty and inadequate (prisoners had to rely on relatives for sheets and blankets), and the toilets were not properly partitioned off, if at all. Moreover, in many cells, the toilets did not have a proper flush, which added to the ambient insalubrity. Worst of all, the cells were teeming with cockroaches.

In certain cells, prisoners were obliged to put blankets over the windows to keep out the draught, as panes of glass were missing. In addition, in many cells, the heating left something to be desired, as the temperature was only 17o.

In fact, the only positive feature was that the cells all had proper access to daylight and adequate artificial lighting.

The delegation received numerous complaints about the lack of basic hygiene and cleaning products, including toilet paper. In addition, prisoners had to wash their belongings and sheets and blankets in their cells with the means at their disposal, under highly dubious conditions of hygiene.

Furthermore, in view of the small number of showers per prison section (for example, two showers for over 170 prisoners) and their very dilapidated state, prisoners had great difficulty in maintaining satisfactory personal hygiene.

In their letter of 15 April 2003, the Ukrainian authorities stated that, in order to reduce overcrowding, it was planned to build a new building with a capacity of 250 places and to transfer a number of prisoners to other remand establishments in the region.

They also referred to other steps taken to remedy the hygiene problems observed (such as the provision of disinfectants and the washing of the bedding in the SIZO laundry) and indicated that prisoners were now provided with the necessary hygiene products.

Although the visit to Colony No. 14 focused on particular aspects ... the delegation noted that in the two sections (4 and 7) which it visited the dormitories were well-lit and ventilated, and equipped with beds with full bedding, bedside tables and storage space. The sanitary annexes were clean and relatively well maintained.

The dormitories were crowded. In section 4, for instance, dormitories measuring about 61 m² were accommodating up to 35 people; however, this was somewhat offset by the fact that prisoners could move about freely during the daytime in their section and had access to an exercise yard.

In this establishment, the delegation received numerous complaints about the lack of warm winter clothes (coats and hats). The matter was raised with the prison governor who assured the delegation that there were sufficient supplies to meet prisoners' needs. The CPT wishes to obtain confirmation that the prisoners in Colony No. 14 have clothes suitable for the weather conditions.

In the light of the above, the CPT recommends that:

in Prison No. 8:

- the necessary repairs to building No. 1 be carried out so that the material conditions equal those in building No. 2, reserved for women and minors, in all respects;

- the cells be adequately heated;

in SIZO No. 21:

- the material shortcomings observed be remedied, in order to ensure that:

- every prisoner has his own bed with full and clean bedding;

- the toilets in all the cells are properly partitioned off and have a working flush;

- the windows in all the cells have glass panes in them;

- the cells are adequately heated;

- the showers are in a satisfactory state of repair and that, as soon as possible, the number of showers is increased;

- the scheduled construction of the new building with a capacity of 250 places is completed;

- the occupancy rates in the cells/dormitories of the three establishments be reduced, the objective being to provide 4 m² of living space per prisoner.”

The relevant extracts from the Report of the CPT on a visit to Turkey [CPT/Inf (2001) 31] read as follows:

“1. Management of hunger strikers

... The delegation had earlier been informed that these directives indicated that the management of hunger strikers should be based on a doctor/patient relationship. In fact, they deliver the clear message that “The duty of health workers is to assist in the continuation of life. The right to life, the most basic of the rights and freedoms, may not be limited by any norm or criterion.” Turning to specifics, it is stipulated that “From the instant organ deterioration is noted, total parenteral nutrition is to be administered”.

At the time of the December 2000/January 2001 visit, no prisoner had yet reached a stage where it was necessary to take a decision on possible artificial feeding against his/her wishes. However, cases of artificial feeding have subsequently occurred. Ministry of Health officials informed the CPT's delegation during the April 2001 visit that they were not aware of any cases of forced-feeding of prisoners who were conscious, but that prisoners had been artificially fed after losing consciousness.

As was acknowledged in the preliminary observations dated 29 January 2001, the issue of the artificial feeding of a hunger striker against his/her wishes is a delicate matter about which different views are held, both within Turkey and elsewhere. The CPT understands that the World Medical Association is currently reviewing its policy on this subject.

To date, the CPT has refrained from adopting a stance on this matter. However, it does believe firmly that the management of hunger strikers should be based on a doctor/patient relationship. Consequently, the Committee has considerable reservations as regards attempts to impinge upon that relationship by imposing on doctors managing hunger strikers a particular method of treatment.”

The relevant extract from the 1975 Declaration reads as follows:

“...5. Where a prisoner refuses nourishment and is considered by the doctor as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent doctor. The consequences of the refusal of nourishment shall be explained by the doctor to the prisoner.”

The Declaration of the World Medical Association on Hunger Strikers reads as follows:

“PREAMBLE

The doctor treating hunger strikers is faced with the following conflicting values:

1.1. There is a moral obligation on every human being to respect the sanctity of life. This is especially evident in the case of a doctor, who exercises his skills to save life and also acts in the best interests of his patients (Beneficence).

1.2. It is the duty of the doctor to respect the autonomy which the patient has over his person. A doctor requires informed consent from his patients before applying any of his skills to assist them, unless emergency circumstances have arisen in which case the doctor has to act in what is perceived to be the patient's best interests.

This conflict is apparent where a hunger striker who has issued clear instructions not to be resuscitated lapses into a coma and is about to die. Moral obligation urges the doctor to resuscitate the patient even though it is against the patient's wishes. On the other hand, duty urges the doctor to respect the autonomy of the patient.

2.1. Ruling in favour of intervention may undermine the autonomy which the patient has over himself.

2.2. Ruling in favour of non-intervention may result in a doctor having to face the tragedy of an avoidable death.

A doctor/patient relationship is said to be in existence whenever a doctor is duty bound, by virtue of his obligation to the patient, to apply his skills to any person, be it in the form of advice or treatment. This relationship can exist in spite of the fact that the patient might not consent to certain forms of treatment or intervention. Once the doctor agrees to attend to a hunger striker, that person becomes the doctor's patient. This has all the implications and responsibilities inherent in the doctor/patient relationship, including consent and confidentiality.

The ultimate decision on intervention or non-intervention should be left with the individual doctor without the intervention of third parties whose primary interest is not the patient's welfare. However, the doctor should clearly state to the patient whether or not he is able to accept the patient's decision to refuse treatment or, in case of coma, artificial feeding, thereby risking death. If the doctor cannot accept the patient's decision to refuse such aid, the patient would then be entitled to be attended by another physician.

GUIDELINES FOR THE MANAGEMENT OF HUNGER STRIKERS

Since the medical profession considers the principle of sanctity of life to be fundamental to its practice, the following practical guidelines are recommended for doctors who treat hunger strikers:

DEFINITION

A hunger striker is a mentally competent person who has indicated that he has decided to embark on a hunger strike and has refused to take food and/or fluids for a significant interval.

ETHICAL BEHAVIOUR

2.1. A doctor should acquire a detailed medical history of the patient where possible.

2.2. A doctor should carry out a thorough examination of the patient at the onset of the hunger strike.

2.3. Doctors or other health care personnel may not apply undue pressure of any sort on the hunger striker to suspend the strike. Treatment or care of the hunger striker must not be conditional upon him suspending his hunger strike.

2.4. The hunger striker must be professionally informed by the doctor of the clinical consequences of a hunger strike, and of any specific danger to his own particular case. An informed decision can only be made on the basis of clear communication. An interpreter should be used if indicated.

2.5. Should a hunger striker wish to have a second medical opinion, this should be granted. Should a hunger striker prefer his treatment to be continued by the second doctor, this should be permitted. In the case of the hunger striker being a prisoner, this should be permitted by arrangement and consultation with the appointed prison doctor.

2.6. Treating infections or advising the patient to increase his oral intake of fluid (or accept intravenous saline solutions) is often acceptable to a hunger striker. A refusal to accept such intervention must not prejudice any other aspect of the patient's health care. Any treatment administered to the patient must be with his approval.

CLEAR INSTRUCTIONS

The doctor should ascertain on a daily basis whether or not the patient wishes to continue with his hunger strike. The doctor should also ascertain on a daily basis what the patient's wishes are with regard to treatment should he become unable to make an informed decision. These findings must be recorded in the doctor's personal medical records and kept confidential.

ARTIFICIAL FEEDING

When the hunger striker has become confused and is therefore unable to make an unimpaired decision or has lapsed into a coma, the doctor shall be free to make the decision for his patient as to further treatment which he considers to be in the best interest of that patient, always taking into account the decision he has arrived at during his preceding care of the patient during his hunger strike, and reaffirming article 4 of the preamble of this Declaration.

COERCION

Hunger strikers should be protected from coercive participation. This may require removal from the presence of fellow strikers.

FAMILY

The doctor has a responsibility to inform the family of the patient that the patient has embarked on a hunger strike, unless this is specifically prohibited by the patient.”


The applicant, Ms Olga Ivanovna Sherstyuk, is a Ukrainian national who was born in 1965 and lives in the town of Popasnaya of the Lugansk region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.

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

In October 1988 the applicant opened a fixed-term deposit account in the USSR Savings Bank. Under the contract, the annual interest rate on the deposit was 3 %.

By a decision of 20 March 1991, the Verkhovna Rada (Parliament) of Ukraine declared the Ukrainian branches of the USSR Savings Bank being a property of the Ukrainian State. The operation of banks and banking activities was regulated by law (see Relevant domestic law, below).

Since 1992, Ukrainian economy experienced hyperinflation, with its peak in 1993.

On 30 June 1993 the regional branch of the Ukraine Savings Bank (hereinafter – “the Bank”) placed an announcement in the Lugansk Regional Council’s newspaper called “Nasha gazeta”. The announcement read as follows:

“The Savings Bank informs

As of 1 July this year the annual interest rate on fixed-term deposits and on special deposits for children is set at 220 per cent. No new formalities are required for previously opened fixed-term deposits and special deposits for children.”

According to the applicant, having read this announcement and having received confirmation in the local office of the Bank, the applicant decided, contrary to her initial intentions, not to withdraw her money deposited with the Bank.

In 1996 the Ukrainian authorities implemented a monetary reform intended to replace the former monetary unit, the karbovanets coupon, with a new currency, the Ukrainian hryvnia (українськa гривнa, UAH), at an exchange rate of 100,000 karbovanets coupons for 1 hryvnia.

According to the applicant, in June 2001, having difficulties in understanding the information written in her account statement records, she consulted an expert who, after having examined the above records, found out that since 1994 the annual interest rate on her deposit had been lower than 220%. According to the applicant the annual interest rate on her deposit was 194.7% in 1994, 86.8% in 1995, 29.9% in 1996, 13.7% in 1997, 6.9% in 1998, 7.3% in 1999, and 6.3% in 2000.

In July 2001 the applicant instituted proceedings in the Popasna District Court of the Lugansk Region against the Bank seeking compensation for damages caused by decreasing the annual interest rates on her deposit without informing her and without seeking her prior consent. She complained that the Bank fell short of its obligations to pay on her deposit the interests of 220% per year fixed in 1993 after publication of the announcement in the official newspaper of the regional council.

According to the applicant, during the hearing, the representative of the Bank, explained, among other things, that in accordance with the Bank’s Statute and instructions of 3 October 1980 and 8 July 1998, the Bank was not obliged to disseminate information about the applicable interest rates, but such information had always been available in branches of the Bank and the applicant could have consulted it there.

By its judgment of 25 December 2001, the court rejected the applicant’s claim as unsubstantiated, for the following reasons:

“...the defendant, having changed unilaterally the interest rates on the fixed-term deposit had acted in accordance with Article 41 of the Law of Ukraine “on Banks and Banking Activities” in the wording of 1991, under which the Savings Bank of Ukraine sets the interest rates on deposits within the maximum interest rates set by the National Bank of Ukraine.

At the same time, this Law does not foresee any other conditions for setting interest rates on deposits, including agreement of depositors.

Taking into account, that Laws ... have the highest legal force and are obligatory for implementation by all legal persons and citizens of Ukraine, the court considers that the defendant’s actions on unilateral changes of the interest rates on the fixed-term deposit of the applicant had been lawful, therefore the claims ... are unsubstantiated...”

The applicant appealed against this judgment to the Lugansk Regional Court of Appeal.

On 4 April 2002 the Lugansk Regional Court of Appeal upheld the judgment of the first instance court. In its decision the appellate court, having repeated the reasoning of the first-instance court, also noted that the applicant had deposited her money in 1988 with the interest rate of 3 per cent. Since 1 July 1993 the Bank had been changing the interest rate but the latter never went lower than the original rate of 3 per cent.

The applicant appealed in cassation.

On 23 June 2003 the panel of three judges of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.

Article 41

“Everyone has the right to own, use and dispose of his or her property, and the results of his or her intellectual and creative activity...

No one shall be unlawfully deprived of the right of property. The right of private property is inviolable...”

Article 41. Interest rates of the Ukraine Savings Bank

“The Ukraine Savings Bank fixes the interest rates on the deposits of the population within the limits of the maximum interest rates, established by the National Bank.”


Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 6-1

Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in 1966 and lives in Simferopol. In 1999 the applicant obtained a university degree in law and at the material time was serving as a police officer in Simferopol.

On 1 July 1999 the applicant was arrested on suspicion of having taken part in a robbery on 10 February 1999.

At 9:20 a.m. on 1 July 1999 the applicant signed a procedural rights notification form, having noted in it that he wished to appoint M. as his advocate.

At 9:25 a.m. on the same date the applicant was questioned, without a lawyer, about the robbery. During this questioning the applicant provided various personal details and stated that he had no knowledge of the robbery, as on the date at issue he was dividing his time between his professional duties as a police officer and his studies at law school. He also named witnesses on his behalf. The interview transcript started with the following paragraph, undersigned by the applicant in addition to his general signature under the document:

“My rights have been explained to me under Article 63 of the Constitution of Ukraine, according to which I have a right to refuse to testify concerning myself. I wish to testify concerning the case at issue”.

On 3 July 1999 the applicant, being questioned in the presence of M. (the advocate, mentioned by the applicant in his rights notification form), stated that he confirmed his testimony of 1 July 1999 and had nothing to add.

In the course of further investigation, the authorities increased the charges, eventually imputing to the applicant organisation of a gang and participation in over thirty robberies. The investigation questioned some 120 witnesses, carried out some twenty reconstructions of crime scenes and ordered numerous expert assessments.

On 20 July 2000 the pre-trial investigation was completed and the applicant, along with eighteen other individuals implicated in membership of his gang, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea, and hereafter “the ARC Court”).

On 4 May 2001, following familiarisation of the defendants with the case file materials and completion of other procedural formalities, the ARC Court held a preliminary hearing in the case and scheduled the trial for 5 June 2001.

Having held some eighteen hearings between June and December 2001, the ARC Court adjourned the proceedings following a request by one of the defendants that the hearings be recorded, for which the technical means were not available at the time.

On 15 May 2002 the ARC Court resumed consideration of the case.

On 17 January 2003 the applicant complained in court that he had been tortured during the pre-trial investigations. Following an inquiry in respect of his complaint, on 5 February 2003 the Prosecutors’ Office of the ARC refused to institute criminal proceedings against the police officers implicated by the applicant in his ill-treatment, for want of evidence of any such ill-treatment. According to the materials in the case file the applicant did not appeal against this decision.

On 29 January 2003 A.K., the applicant’s co-defendant, complained that Judge Sh., presiding over the case, was not impartial. In particular, in the beginning of the trial she had given an interview to the Flag Rodiny newspaper, expressing an opinion about the defendants’ guilt. A.K. presented a copy of the newspaper published on 29 June 2001, featuring the article entitled ‘Changelings with police epaulettes’. In this article the Judge was, in particular, quoted as saying:

“Most often it was the well-off residents of the Crimea or the Zaporizhzhya Region who were the victims of armed assaults ... The robbers acted cruelly and coldheartedly, using any means to get the money. They acted as persons absolutely certain of their impunity. Such audacity ... I, frankly speaking, have never encountered during my eleven years of judicial practice. Yes, I am aware of occasions when criminals have used police uniforms for various criminal plots, however, those individuals had nothing to do with the law-enforcement bodies, unlike Paskal and his comrades, who managed to combine law-enforcement service with robbery. The defendants, I should say, admit their guilt in part, however, their conduct is extremely challenging. They constantly lodge absolutely unfounded requests for the removal of the judge and the prosecutor. I assume, however, that in the course of the hearings their arrogance will vanish. The hearings are likely to last a long time”.

On the same date Judge Sh. addressed a letter to the Prosecutor of the ARC requesting that the circumstances of the publication be investigated. She maintained that the publication, which, in her opinion, could adversely influence the proceedings, was inaccurate, as she had never given the said interview to the newspaper.

Following Judge Sh.’s application, the Prosecutors’ Office established that the Flag Rodiny newspaper belonged to the Black Sea Fleet of the Russian Federation in Sevastopol. A request was sent to the Military Prosecutors’ Office of the Russian Federation to investigate the matter. According to the case file materials, there was no further follow-up.

Between 15 May 2002 and 22 May 2004 the ARC Court held some 150 hearings in the applicant’s case.

On 17 November 2004 the ARC Court pronounced its judgment, which was presented on some 200 pages. The court convicted the applicant of being a member of a gang and of numerous counts of robbery, and sentenced him to fourteen and a half years’ imprisonment. The court examined in detail and rejected the complaints by the applicant and his coaccused that they had been ill-treated by the investigative authorities.

On 22 December 2004 the applicant appealed in cassation, alleging that the trial court had erred in its assessment of the facts and application of the law and imposed a disproportionately heavy sentence on him.

On 15 August 2005 the applicant amended his initial appeal. He contended, in particular, that Judge Sh. was not impartial, since she had given an interview to the Flag Rodiny newspaper implying that the applicant was guilty long before the conviction had been pronounced. He also complained in general terms that his right to defence had been infringed, in particular as the trial court had not allowed him to be represented by several unnamed defenders and as the initial bill of indictment allegedly contained fewer charges than those examined by the court.

On 16 March 2006 the Supreme Court rejected the applicant’s appeal, finding that the trial court had properly assessed the facts and applied the law to his case and that there were no procedural irregularities in the proceedings such as would prejudice the applicant’s right to a fair trial. It likewise found that there was no evidence that the applicant had been illtreated.

On 3 July 1999 the Prosecutors’ Office of the ARC remanded the applicant in custody for ten days pending determination of the grounds for his indictment.

On 12 July 1999 the applicant was presented with a bill of indictment and his detention was extended until 1 September 1999. Subsequently, on several occasions the Prosecutors’ Office of the ARC took decisions to extend the term of the applicant’s detention, the reasoned texts of which, if any, have not been provided to the Court.

Initially the applicant was held in several Temporary Detention Centres (ITU), which were purportedly not suitable for long-term detention. Eventually, by May 2000 he was transferred to the Simferopol Pretrial Detention Centre (SIZO) no. 15, where he had allegedly no access to quality medical assistance, in particular to the services of a specialist in endocrinology.

On 7 April 2000 the Prosecutors’ Office of the ARC extended the applicant’s detention until 3 May 2000. According to the applicant, after this date and before the date of his conviction on 17 November 2004 his detention was not based on any formal decision. The applicant raised a relevant complaint before the Supreme Court of Ukraine in amendments to his cassation appeal and obtained no response.

According to the Government, on 4 May 2001 the ARC Court extended the applicant’s detention for the period of the trial, finding that there were no reasons to release him and modify the custodial preventive measure in his respect. The Government did not provide a copy of this decision.

On 7 June 2005 the applicant instituted civil proceedings against Flag Rodiny and several other newspapers and a local television company which had provided media coverage of the trial, complaining that they had portrayed him as a criminal before he had been finally convicted.

On 7 May 2007 the Kyivsky District Court of Simferopol rejected his claims, in particular, as lodged outside the one-year statute of limitations without any valid grounds for the delay.

On 5 March 2008 the ARC Court upheld this decision.

On 14 July 2008 the Supreme Court of Ukraine refused the applicant’s request for leave to appeal in cassation.

The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine of 1996 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).

The relevant provisions of the Code of Criminal Procedure of Ukraine of 1960 concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008.


KAVEKO INTERNATIONAL S.R.O. AND OTHERS v. SLOVAKIA

The three applicants are identified below. The respondent Government were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková.

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

The first applicant, KAVEKO INTERNATIONAL spol.s r.o. Košice, is a private commercial limited liability company having its head office in Košice and a separate legal personality under Slovakian law, distinct from that of its owners. The second and third applicants, Mr Vladimír Kamarič and Ms Helena Kamaričová, are Slovakian nationals who were born in 1958 and 1956 respectively and live in Košice.

In 1997 the second applicant and the third applicant acquired jointly 75% of the shares in the first applicant. The second applicant is the first applicant’s statutory representative. The second applicant at the same time holds shares in and is one of the statutory representatives of another commercial limited liability company (“company K”). Company K was the founder of and held shares in the first applicant.

In the early 1990s company K made a credit arrangement with a bank in order to pay for the lease of machinery from a private lessor. In 1992 the bank entered the leasing arrangement in that it obtained an option to buy the machinery at the end of the lease term for a residual value.

In 1994 the first applicant took over the debt owed to the bank on the condition that, at the end of the lease term, the bank would exercise its option and obtain and subsequently transfer the ownership of the machinery to the first applicant.

The bank did not exercise the option, as a result of which the lessor was free to sell and did in fact sell the machinery to a third party. Company K thus lost a substantial component of its operations.

In 1996 the bank brought several actions against the first applicant claiming that it was in default of payment of the bank credit. The bank claimed damages.

The actions were subsequently stayed pending the outcome of insolvency proceedings in respect of the first applicant (see below). The proceedings have still not been resolved.

On 17 June 1998 the bank petitioned for an insolvency order against the first applicant. It was argued that the first applicant was in default of payment of the debt owed to the bank; that it had several creditors; and that it would be unable to meet its obligations in the near future.

On 3 August 1998 the Košice Regional Court (Krajský súd) made the order, appointed an insolvency administrator and invited creditors to register their claims within sixty days. The order was upheld on the first applicant’s appeal by the Supreme Court (Najvyšší súd) on 4 June 1999, and became final and binding on 3 August 1999.

By virtue of the insolvency order, pursuant to Article 14 § 1 (a) and (h) of the Insolvency Code, the capacity to make dispositions in respect of the insolvent estate and to exercise rights and duties related to the making of dispositions in respect of the estate was transferred to the insolvency administrator and all powers of attorney granted by the first applicant automatically ceased to exist.

The bank’s claims against the first applicant were contested and, as a result, the bank had to seek their judicial recognition by way of a separate action (incidenčná žaloba). The action was allowed at first instance on 25 March 2003, but the judgment was quashed on appeal on 29 April 2005 and is still pending.

By decisions (opatrenie) of 25 October 1999 and 25 June 2001 the Regional Court authorised a direct sale without a public auction by the administrator of various movable and immovable items from the assets of the first applicant. The authorisation was not subject to appeal.

Further items from the insolvent estate of the first applicant have been sold off in the course of the proceedings. The applicants maintain that the sales were based on manifestly unfavourable terms and that they were contrary to both substantive law and procedural rules. They complained on numerous occasions to the Regional Court that the actions of the insolvency administrator in connection with the sale were illegal and contrary to their interests. All their complaints were to no avail. The insolvency proceedings as such are still pending.

Under Article 8 § 5 of the Insolvency Code, an insolvency court can replace the insolvency administrator on the motion of the insolvent person or the trustee provided there are important reasons.

On 24 October 2000 the first applicant, acting through a lawyer, lodged a petition (podnet) under Article 130 § 3 of the Constitution with the Constitutional Court (Ústavný súd) contesting the insolvency order of 3 August 1998.

On 28 June 2001 the Constitutional Court declared the petition inadmissible as being manifestly ill-founded. The first applicant’s objections were held to be of a fourth-instance nature and, as such, fell outside the scope of the Constitutional Court’s review.

On 6 May 2003 the second applicant lodged a fresh complaint (sťažnosť) under Article 127 of the Constitution with the Constitutional Court. He sought to contest, in the name of the first applicant, the length of the proceedings in the bank’s civil actions and asserted that those proceedings had been marked by the violation of a variety of procedural rights.

On 18 June 2003 the Constitutional Court declared the complaint inadmissible ratione personae. It observed first of all that the complaint was intended to be brought in the name of the first applicant. However, by virtue of the insolvency order, the capacity to act in the name of the first applicant had passed to the administrator (Article 14 § 1 (a) of the Insolvency Code), civil actions against it had been ex lege stayed (Article 14 § 1 (d) of the Insolvency Code) and could be resumed solely on motion by the administrator (Article 14 § 5 of the Insolvency Code) and any new proceedings could commence only on motion by the administrator (Article 14 § 1 (c) of the Insolvency Code). The present complaint had however not been brought by the administrator or her lawful agent and, therefore, could not be accepted as having been lodged in the name of the first applicant.


The applicant is an Irish citizen. At the time of lodging his application he was detained in H.M. Prison The Maze, Northern Ireland.

He is represented before the Court by Mr P.J. McGrory, a lawyer practising in Belfast.

A.

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

On 23 May 1994, between 13:35 and 13:40, N.S., a security guard, was shot dead by two men in Fountain Street in the centre of Belfast. The gunmen’s escape was caught on video cameras positioned in the vicinity. The gunmen were wearing workmens’ white safety helmets, dust masks and gloves. One of the gunmen was wearing a jacket which had a blue/grey check or plaid, the other a tan coloured jacket. They were shown on the video film retrieved from the cameras running towards the Hercules Bar at the junction of Castle Street and Chapel Lane, not far from the scene of the killing. The gunmen’s flight was subsequently taken to have occurred at 13.38. At the applicant’s trial the judge was satisfied that the time shown on a video camera filming the gunmen’s escape was one minute eight seconds slow in comparison with the speaking clock. The sequence of events was not disputed at the applicant’s trial.

On 7 June 1994 the police conducted a search of the house of the applicant’s girlfriend where the applicant was staying. Among the items seized was a child’s red coat with a black trim round the collar, which belonged to the applicant’s daughter. After the search the police arrested the applicant and cautioned him, pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, in the following terms:

“You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.”

The applicant did not reply to the caution. He was taken to Castlereagh Police Office where the police handed him a written copy of the caution together with an explanatory sheet.

On the same day the police conducted a search of the applicant’s brother’s house and seized a white or cream shirt which was at that time being worn by the brother.

The applicant was interviewed on numerous occasions between 7 June 1994 and 12 June 1994. A caution was administered at the start of the first interview and again before the beginning of some of the other interviews. The applicant refused to answer any questions, including questions concerning his movements on the afternoon of 23 May 1994. He also refused to watch a video recording or still photographs taken from the recording showing him entering the Castle Court Centre immediately after the shooting with a child in his arms.

The police also arrested a certain S. who similarly refused to answer questions or react to his appearance in the video recording carrying a child in his arms.

The applicant and S. were charged with the murder of N.S. and with possession of a revolver and a quantity of ammunition with intent to endanger life. They were tried at Belfast Crown Court before a single judge sitting without a jury.

At the trial, Witness A. testified that he was having a drink in the Hercules Bar and saw two men enter through the Castle Street entrance wearing white safety helmets and face masks. They passed through the bar to the porch leading onto Chapel Lane. He saw one of the men take off his safety helmet, gloves and jacket. He was met by a woman and a young child. He handed a package to the woman and picked up the child, whom he recalled as being blond and wearing something red. Witness A. gave a description of the men and their clothing. His evidence in respect of the clothing was found to be flawed.

Witnesses B. and C. testified that they saw two women at the Chapel Lane entrance to the Hercules Bar sometime after 13.30. Two men were standing inside the entrance and were removing anti-dusk masks and blue workmens’ overalls. The two women then each handed a small child to each of the men. The couples walked quickly down Chapel Lane, each man carrying a child. Witness B. last saw the couples at the end of Chapel Lane by the junction of Berry Street. He also stated that he saw an army landrover turning at the junction. Witness C. confirmed Witness B.’s account. Witness B. said he saw the discarded clothing in Chapel Lane. One of the discarded jackets had a blue/grey check or plaid on the outside.

On the basis of this testimony the trial judge was satisfied that the two men carrying children last seen by Witnesses B. and C. at the end of Chapel Lane and going in the direction of the Castle Court Centre were the gunmen who killed N.S.

The prosecution adduced video recordings in support of its case that the applicant and his co-accused, S., were the gunmen. The court heard that Camera 38 was filming persons crossing Berry Street from the end of Chapel Lane and heading towards the entrance to the Castle Court Centre. Camera 47 was filming persons entering the Centre. Camera 38 recorded two men carrying children walking within a few feet of each other towards the Berry Street entrance of the Castle Court Centre. The time was 13.38. Camera 47 recorded one man carrying a small child enter at 13.41. A second man, walking a few paces behind the first man, then entered with a small girl in his arms. The child was wearing a red coat with a black trim around the collar. The applicant’s features are distinguishable from the recording of the second man. On the video film retrieved from Cameras 38 and 47 an army landrover, also referred to in the testimony of Witnesses B and C, is clearly visible. It was not disputed that there was only one army landrover in the centre of Belfast on the afternoon in question.

The video cameras also picked out a “third man” carrying a small child and crossing Berry Street from the direction of Chapel Lane and entering the Berry Street entrance of the Castle Court Centre. The man was wearing a blue garment with a very conspicuous logo on the back and front. In the film he is first seen carrying a child wearing a red or pink coat or jacket and when in the Castle Court Centre he is seen holding the child’s hand.

In addition to the witness evidence and the video evidence, the prosecution relied on the following:

– the red coat seized at the house of the applicant’s girlfriend was an exact match of the coat worn by the child seen being carried by the second man in the video film, identified as the applicant.

– forensic evidence that a blue/grey check jacket discarded by one of the two men who had entered the Hercules bar after the killing had come into contact with the child’s red coat found at the applicant’s girlfriend’s house. Red fibres from the coat had been found on the jacket.

– forensic evidence that one of the white safety helmets discarded by the two men in the Hercules Bar had blood on it of the same rare type as that of the victim’s.

– forensic evidence that there were firearms residue on each of the two jackets discarded outside the bar.

At the close of the prosecution case, the applicant’s counsel, who had accepted that the applicant was the second man filmed on Cameras 38 and 47, asked the judge to rule that there was insufficient evidence against his client to constitute a prima facie case that he was one of the gunmen.

Without any reference to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”), the trial judge concluded that a “strong prima facie case” had been made out that the applicant was one of the killers. The judge had regard to the following considerations: the strong visual likeness between the man filmed on Camera 47 and the applicant; the timing of the events as filmed; the link between the applicant and the gunmen seen by Witnesses B. and C. was strengthened by the fact that both witnesses had seen the landrover turning at the end of Berry Street at almost the same time as the arrival of the gunmen at that spot and strong forensic evidence of contact between the discarded blue/grey jacket and the child’s red coat found at the home of the applicant’s girlfriend.

In reaching this conclusion the judge had due regard to the weakness of Witness A.’s recollection of the colour of the jacket worn by the first man who entered the Hercules Bar, alleged to be the applicant. He also noted that Witness A. had incorrectly described the colour of the child’s hair as blond. It was in fact dark. Furthermore, the judge acknowledged that Witness B. was incorrect in his recollection that he had seen two men removing blue overalls at the Hercules Bar. In the judge’s opinion, these discrepancies did not detract from the weight of the prosecution case against the applicant. He observed that Witness A.’s description of the nose and hair of the first man to enter the bar reasonably tallied with the applicant’s. The judge did not accept the applicant’s submission that the third man filmed carrying a child entering the Castle Court Centre could have been one of the gunmen. He considered that the video evidence and the timing of all three men’s appearances in the recordings suggested that there was a sixteen to nineteen seconds gap between the camera sighting of the third man in Berry Street and the appearance of the two gunmen. For the judge, it would have been most unlikely that there would have been such a distance between the two gunmen who had last been seen together by Witnesses B. and C. at the end of Chapel Lane.

At the end of the prosecution case, the applicant gave evidence. Answering the only question put to him by his counsel, the applicant denied any involvement in N.S.’s murder. In cross-examination he stated that on 23 May 1994 he had taken his small daughter to Belfast and had gone to the Castle Court Centre to allow her to throw coins into the fountain before going on an errand. The applicant accepted that he was one of the men recorded on Camera 47 entering the Castle Court Centre carrying the girl in the red coat, at about 13.41.

The applicant further stated that he had refused to give this explanation when interviewed by the police because he had an unfriendly relationship with the police, and that he was angry because they had arrested his girlfriend and had caused distress to his children. The applicant denied being in the company of S. on that day.

Having ruled that the two accused had a case to answer, the judge drew a very strong inference against the applicant under Article 3 of the 1988 Order from the applicant’s failure to answer the questions put to him by the police. The judge considered the following:

“Notwithstanding that [the applicant] has no previous convictions and the relevance of this consideration to the issue of his credibility I am satisfied that [the applicant] told a tissue of lies in the witness box as to the reasons why he did not tell the police when interviewed in the Castlereagh Police Office that he had entered the Castle Court Centre on the afternoon of 23 May 1994 carrying a child, that he had nothing to do with the murder of N.S. and that he had entered the Castle Court Centre for the innocent purpose of allowing his child to throw coins into the fountain, and as to his reasons for failing to watch the video film and to acknowledge that he was one of the men shown on it and to say that his reason for entering the centre was innocent. I am also satisfied that [the applicant] lied in the witness box when he said he had nothing to do with the murder of [N.S.] and that he was in the area of Castle Street for an innocent purpose.

If the account which [the applicant] gave in the witness box for his movements on the afternoon of 23 May were true, and if he were innocent of the murder of [N.S.], then notwithstanding whatever hostility he may have felt towards the police, and notwithstanding any feelings of anger and upset he may have had against the police for arresting his girlfriend Patricia, and leaving his children crying for their mother, it is quite unbelievable and completely contrary to common sense that [the applicant] would not have given his innocent explanation to the police in the hope that this would secure the release of his girlfriend and also his own release.”

Having regard to the very strong case against the applicant and the very strong inference drawn against him under Article 3 of the 1988 Order, the judge was satisfied that the applicant was one of the gunmen who murdered N.S. and found him guilty on both counts of the indictment.

The applicant appealed against conviction to the Northern Ireland Court of Appeal. He argued that, on the evidence, the trial judge had erred in finding that he had a case to answer. He also challenged the judge’s decision to draw an adverse inference from his silence at Castlereagh Police Office in application of Article 3 of the 1988 Order.

In its judgment of 14 March 1997, the Court of Appeal found that the judge was justified in ruling on the evidence before him that there was a prima facie case against the applicant. The court rejected the applicant’s suggestion that the forensic evidence linking the red coat to one of the gunmen’s jackets was less than compelling. In the opinion of the court, that evidence was a very significant element in the prima facie case. The court, like the trial judge, also dismissed the applicant’ submission that the fact that a “third man” carrying a child raised a reasonable possibility that the applicant was not one of the gunmen. It concluded that that, according to the timings on the videos, the “third man” had been well clear of the junction between Berry Street and Chapel Lane by the time the landrover appeared. Witnesses B. and C. put the two gunmen at that junction at the same time as the landrover. Even if Witness A. had been mistaken about the colour of the top worn by one of the gunmen, the judge had been entitled to hold that the uncontradicted evidence of Witnesses B. and C. on timing and the presence of the landrover was accurate. The court further observed that although the “third man” was wearing a top with a very conspicuous logo, neither of these witnesses had recalled this logo which “would have stood out”. The Court of Appeal also considered that the judge was justified in regarding the difficulties in accepting the correctness of Witness A.’s evidence as insufficient to prevent the Crown’s evidence from being accepted as creating a prima facie case.

As to the drawing of an adverse inference, the Court of Appeal agreed with the trial judge’s conclusion that it was “quite unbelievable and contrary to commonsense” for the applicant not to have advanced an innocent explanation for his movements on the afternoon of the murder, if there was one.

The Court of Appeal rejected the applicant’s submission that the trial judge had been wrong to draw an inference because there was a reasonable possibility that the applicant’s “policy” of not talking to the police was the true explanation for his not having done so. In his judgment, the Lord Chief Justice stated that the assertion of such a “policy” could not preclude a court from drawing adverse inferences. Otherwise, in his view, Article 3 of the 1988 Order would be undermined and effects could be negated in every case simply by an accused claiming a “policy” of not talking to the police. The Lord Chief Justice concluded:

“We are quite satisfied that the judge was entitled, and indeed entirely correct, to draw an adverse inference ... . We are also satisfied that he was correct in holding that on the whole of the evidence the Crown had established that the [applicant] was one of the gunmen who murdered [N.S.].”

B. Relevant domestic law

Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant:

“Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc.

(1) Where, in any proceedings against a person for an offence, evidence is given that the accused

(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.

(2) Where this paragraph applies:

(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer,

(b) a judge, in deciding whether to grant an application made by the accused under Article 5 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (application for dismissal of charge where a case of fraud has been transferred from a magistrates’ court to the Crown Court under Article 3 of that Order), and

(c) the court or jury, in determining whether the accused is guilty of the offence charged,

may

(i) draw such inferences from the failure as appear proper;

(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”