CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES v. TURKEY

Preliminary objections dismissed (locus standi - six-month period);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre

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

By a charter of 12 September 1991, the applicant company chartered a Cypriot-owned vessel called the Cape Maleas (“the vessel”). The charter party was on an amended New York Produce Exchange time-charter form, and was for a time-charter voyage to the south Iranian ports. The duration of the voyage was stated to be fifty days and the purpose to carry general cargo, steels and commercial containers.

By agreement between the parties, namely the applicant company and the owner of the vessel, Seabeach Shipping Ltd, on 18 September 1991 the charter party became subject to “Addendum No. 1”. This provided that the applicant charterer could load 2,500 cubic metres of “IMCO 1” cargo. “IMCO 1” denotes cargo which falls within the “Class 1 – Explosives” category of the International Maritime Dangerous Goods Code.

The applicant company ordered the vessel to proceed to the port of Burgas in Bulgaria and, on 8 October 1991, further cargo commenced loading. This consisted of general cargo but also arms, ammunition and military spare parts which fell within the “IMCO Class 1” category (“the arms cargo”).

The applicant company’s agent in Burgas drew up bills of lading in respect of the cargo, including the arms cargo (“the bills of lading”). These bills of lading described the arms cargo as “special equipment”, followed by a reference to a numbered contract. The port of discharge for the “special equipment” was specified as Tartus in the Syrian Arab Republic. The shipper was stated to be “Socotrade” and the consignee as “to order”.

The applicant company’s agent in Burgas also prepared a manifest of cargo. Like the bills of lading, this described the arms cargo as “special equipment”, and gave the port of discharge as Tartus. The applicant company at all times intended that the arms cargo should be discharged at the port of Bandar Abbas in Iran. The vessel sailed from Burgas at 7 p.m. on 21 October 1991 and was ordered to proceed to Setúbal in Portugal in order to load further cargo. In order to reach Setúbal from Burgas, the vessel had to transit through the Bosphorus.

On 22 October 1991, at about 3.30 p.m., the vessel was about to commence transit through the Bosphorus. Before entering the Straits the master of the vessel requested the assistance of a pilot for navigation through the Bosphorus. The vessel was flying the international signal flag to indicate that it carried dangerous cargo.

As a result of information received by the Turkish customs authorities from a Turkish vessel which had recently arrived from Bulgaria, the Turkish authorities believed that the arms cargo on board the vessel was bound for Cyprus, from where it would be smuggled into Turkey.

According to the Turkish authorities, the vessel was first sighted when it was ten miles outside the Straits. After the vessel had entered the Straits, a pilot went on board and invited the master to declare any hazardous materials which were on board. The master duly did so, and the vessel proceeded for a few minutes through the Straits before the pilot instructed the master to stop the engines.

The Turkish coastguard and other Turkish authorities boarded and seized the vessel. Since the waters were rough at the point where the vessel was stopped, it was towed by a military boat to the Turkish port of Büyükdere. All parties to the case subsequently proceeded on the basis that the seizure of the vessel had taken place in the Straits, governed by the Montreux Convention of 20 July 1936.

At Büyükdere the vessel was searched and the bills of lading and manifest of cargo examined. The Turkish authorities discovered the arms cargo and questioned the master of the vessel. The statement entitled “Protocol of Facts”, in which the Turkish authorities summarised their allegations and the actions which they had taken in respect of the vessel, was prepared and signed by all the officials who were present at the seizure and search of the vessel. The master, the first officer and the radio operator of the vessel were taken into custody by the Turkish authorities.

On 24 October 1991 statements were taken from the master and first officer in the form of affidavits. These formed part of the file which was submitted by the public prosecutor to a single judge of the Istanbul State Security Court.

On 28 October 1991, having examined the file and citing, inter alia, Articles 5 and 6 of the Montreux Convention, a single judge of the Istanbul State Security Court approved the arrest of the vessel and the detention of its crew, namely the master, the first officer and the radio operator. The judge referred in his decision to “systematic weapon smuggling” and stated that the “evidence confirmed that the above-mentioned smuggled weapons could be used against the security of the Republic of Turkey”.

On 30 October 1991 that decision was served on the lawyer instructed on behalf of the vessel and the master. The following day, the lawyer filed an objection against the decision, setting out the relevant provisions of the Montreux Convention and noting that Turkey was not in a state of war with any country within the meaning of the provisions of its Constitution and that there was neither a threat nor a risk of war.

On 4 November 1991 the Istanbul State Security Court dismissed that objection.

On 5 November the Chief Public Prosecutor at the Istanbul State Security Court indicted the master, the first officer and the radio officer of the vessel, charging them with organised transportation of firearms and ammunition. In the public prosecutor’s view, Turkey was at war with Cyprus. He cited various decrees of the Turkish parliament which had authorised the sending of troops to Cyprus, and stated that:

“... notwithstanding the ceasefire achieved through the efforts of the United Nations putting an end to the armed conflict, no treaty having yet been signed, the state of war is ongoing from a legal point of view. Consequently, it has become necessary to enforce Article 5 of the Montreux Convention. ...

Pursuant to [Article 5 of the Montreux Convention], the commercial vessels of countries at war with Turkey do not enjoy free passage through the Straits. Therefore, there being no right of unrestricted passage through the Straits of a ship flying the Cypriot flag and laden with weapons, the Turkish Government may exercise, for its own security and based on its sovereign rights and Article 5 of the said Convention, control over that ship and the weapons contained therein.”

Since the vessel was registered as a Cypriot ship and flew the Cypriot flag, the Turkish authorities concluded that they had been entitled under Article 5 of the Montreux Convention to seize the vessel and to launch proceedings for arms smuggling.

During November and December 1991 the government of the Islamic Republic of Iran sought the release of the vessel and its cargo through high-level diplomatic meetings. The issue was raised at presidential level and, on 11 November 1991, the Iranian ambassador to Turkey visited the Deputy Minister for Foreign Affairs to deliver copies of one of the bills of lading and of the Montreux Convention. This was intended to establish that the arms cargo was in fact being carried on behalf of the Iranian State.

On 12 November 1991 the Turkish Minister for Foreign Affairs wrote to the Ministry of Justice, giving an account of the meetings which had taken place, enclosing copies of the bill of lading and the Montreux Convention and offering to obtain further information on the “special equipment” listed on the bill of lading.

On 13 November 1991 the lawyer acting on behalf of the owners and the master of the vessel pointed out to the Istanbul State Security Court that the assumption that Turkey and Cyprus were at war with each other was the “crucial point” of the case. He requested the Istanbul State Security Court to enquire immediately of the Ministry of Foreign Affairs whether a state of war existed. He also submitted that the Presidency of the Parliament should be asked whether there had been a declaration of war.

On 18 November 1991 the lawyer filed another application with the court reiterating that Turkey was not at war with any country (Cyprus included) and seeking the release of the master on bail.

On 25 November 1991 the lawyer submitted a petition to the Istanbul State Security Court asking the court to rephrase the question which it had put to the Turkish Ministry of Foreign Affairs. He objected to the question which had been put, namely “whether the peace operations in Cyprus have ended with a treaty of peace ...”, and submitted that the proper question to be asked was “whether the Republic of Turkey is in a state of war or not with the State of Cyprus”.

In another communication, dated 29 November 1991, the applicant company’s lawyer sent the Istanbul State Security Court translations of the charter party and the bills of lading. He explained that the nature of a time charter was similar to a lease, and that charterers had control over the cargo and its documentation.

The Turkish Ministry of Foreign Affairs responded to the questions posed by the Istanbul State Security Court in two letters of 13 and 26 December 1991. The letters stated:

“... as there is no ‘state of war’ between Turkey and any other country, including the Greek Cypriot Administration, it is obvious that the seizure of the ship cannot be based on Articles 5 and 6 of the Montreux Convention. In fact, ships carrying the flag of the Greek Cypriot Administration have always traversed the Straits freely.

In the Note sent to our Ministry by the Iranian embassy in Ankara, it was stated that the arms found on the ship belonged to Iran. This had been certified by the Iranian authorities on several occasions.

On the other hand, the Bulgarian authorities stated that the said arms had officially been sold to Iran by an agreement signed between Bulgaria and Iran in 1989 and that the arms had been loaded in Burgas.

Except for the limitations set out in Articles 4 and 5 of the Montreux Convention in ‘time of war’, commercial ships flying foreign flags enjoy full freedom of transit passage at times of peace, whatever their flag and cargo may be. As stated above, it is impossible to invoke the ‘time of war’ provisions of the Montreux Convention in this case because no state of war with the Greek Cypriot Administration exists. Moreover, in accordance with customary international and treaty laws, ships have the ‘right of innocent passage’ through the territorial waters of other countries ...”

On 16 December 1991 the Istanbul State Security Court issued a decision for the release of the master on bail, but ordered the seizure and confiscation of the vessel and its cargo on suspicion of their being intended for use for the commission or preparation of a crime.

On 10 January 1992 the public prosecutor filed his observations on the merits. He maintained his earlier position, relying upon Article 5 of the Montreux Convention, contending that the vessel and the arms cargo should be seized and the master imprisoned.

By January 1992 the applicant company had concluded that attempts to secure the release of the vessel and its cargo through diplomatic negotiations were unlikely to succeed. The applicant company applied through its Turkish lawyer, Mr Aydın, to intervene in the proceedings before the Istanbul State Security Court. In its application, the applicant company set out its interest in the case as the owner of the cargo and stressed that the arms cargo was being carried as part of a normal and legal commercial transaction and that Turkey was not at war with any country. It therefore asked for the unconditional release of the vessel and its cargo. The court ordered that the applicant company be joined as an intervening party in the proceedings.

On 22 February 1992 the then Prime Minister of Turkey, Mr Süleyman Demirel, issued a certificate which stated:

“The Republic of Turkey is not in a state of war with any country, Southern Cyprus included ...”

By a judgment of 12 March 1992, the Istanbul State Security Court acquitted the first officer and the radio operator, but convicted the master of the vessel of importing arms into Turkey without official permission and sentenced him to five years’ imprisonment and a fine of 50,000 Turkish liras (TRL). The court ordered that the arms cargo and the vessel be confiscated pursuant to the final paragraph of section 12 of Law no. 6136, that all the cargo other than the arms be returned to the applicant company and that the master bear the costs of the court hearing. With reference to a judgment of the Court of Cassation in a similar case, the Istanbul State Security Court held that in the present case there was bad faith on the part of the applicant company since the bill of lading gave inaccurate information as to the contents of the cargo and the route of the vessel. It noted that there was no justification for not informing the Turkish authorities of Iranian weapons passing through the Straits. The court further considered the following in relation to the Montreux Convention:

“The second question is whether the Turkish authorities were entitled to seize the munitions and weapons. Pursuant to the relevant Article of the Montreux Convention, the passage of ships carrying firearms and owned by any State with which Turkey is in a state of war is forbidden.

The other important issue is whether Turkey is in a state of war with the Greek Cypriot State, or in other words, whether a peace agreement has been reached after the war. It is known that Turkey has engaged in war with the Greek Cypriot State, as a result of which Cyprus has been divided into two sections, that the Turkish Republic of Northern Cyprus has been established, that the Greek Cypriot State has not recognised the Turkish Republic of Northern Cyprus and until now no agreement has been reached, and that inter-State negotiations are in progress.

Therefore, the letter of the Ministry of Foreign Affairs ... and the letter of the Prime Minister ... were disregarded.”

The judgment went on to refer to the Vassoula case, concerning another vessel, and concluded that “the existence of a state of war has been confirmed”.

Following the judgment of the Istanbul State Security Court, the applicant company paid the hire charge and expenses due to the owner and the charter party in the sum of 1,161,374.50 United States dollars (USD). Although the judgment of the Istanbul State Security Court had ordered the return of the non-arms cargo to the applicant company, it was not returned and, by an order of 29 May 1992, the Istanbul Court of Commerce granted an injunction to the owner of the vessel which imposed a lien of TRL 4,111,168,608 over the cargo to secure the unpaid hire. The owner of the vessel, Seabeach Shipping Ltd, then commenced enforcement proceedings for encashment of the lien over the cargo which belonged to the applicant company.

On 13 March 1992 the applicant company appealed against the judgment of the Istanbul State Security Court. The applicant company disputed the court’s conclusion that a state of war existed between Turkey and Cyprus. The ground of appeal also questioned the legitimacy of the court’s reliance on the earlier Vassoula case, and pointed out that the arms cargo had only been in transit through the Straits.

By a decision of 3 June 1992, the Court of Cassation quashed the Istanbul State Security Court’s judgment. It held that there was no material evidence in the file indicating that the arms would be discharged from the vessel in Turkey. As regards the applicability of the provisions of the Montreux Convention, the Court of Cassation held:

“... that the state of war mentioned in Article 4 of the Convention did not exist as also evidenced by the letters of the Ministry of Foreign Affairs and the Prime Minister which explicitly state that ‘Turkey is not at war with any country, including the Southern Greek Cyprus Administration’ ... and that there is no room for application of Article 6 of the Montreux Convention. ...”

The case was remitted to the State Security Court for retrial.

In an application of 3 September 1992, pending the retrial of the master of the vessel before the Istanbul State Security Court, the applicant company sought removal of the lien which had been imposed by the Istanbul Court of Commerce over the cargo.

On 8 September 1992 the Istanbul Court of Commerce refused the applicant company’s request, so on 18 September 1992 the applicant company agreed to pay the owner some of the hire charges, without prejudice as to liability. In return, the owner agreed to relinquish its lien on the non-arms cargo. Under that agreement the applicant company had to pay 80% of the hire charge in respect of the period from 14 March 1992 to 13 September 1992 inclusive (USD 1,118,074.40). The applicant company also agreed to pay 100% of future charges, as and when the payments fell due. The owner provided the applicant company with a guarantee to repay the sum of USD 1,118,074.40. The applicant company considered that it was obliged to pay the hire charges due, otherwise the Istanbul Court of Commerce and the owner would not have released the vessel and its cargo.

On 30 September 1992 the Istanbul State Security Court acquitted the master on retrial. An appeal by the public prosecutor against that judgment was dismissed by the Court of Cassation in a decision of 12 November 1992, which was approved on 13 November 1992.

On 18 November 1992 the Istanbul State Security Court ordered the release of the vessel and the arms cargo. The vessel left Turkey on 8 December 1992 and was returned to the owner by the applicant company under the terms of the charter party on 9 March 1993.

In a written application of 22 July 1993, the applicant company brought an action before the Istanbul Court of Commerce claiming TRL 38,087,249,964 (equivalent to USD 3,386,598.98) plus interest against the Ministry of Finance and Customs, with reference to the Ministry of the Interior and the Ministry of Defence. The applicant company based its claim on Article 41 of the Code of Obligations and submitted that the seizure and detention of the vessel and its cargo had been unjustified. It argued in this connection that the arms and ammunition had belonged to the Islamic Republic of Iran, that the vessel had been wrongfully impounded for 413 days, 2 hours and 30 minutes and, as a result, it had had to pay USD 3,263,522.92 to the owner, USD 81,978.86 in fuel charges and USD 41,097.20 in harbour fees.

The application went on to distinguish this case from the Vassoula case, and to explain the circumstances in which the applicant company had been forced to pay the hire charges and other expenses to the owner of the vessel.

On 28 September 1994 a first expert report was submitted to the Court of Commerce following its interlocutory order of 9 March 1994. The experts advised that the applicant company’s claim should be declared inadmissible, principally on the basis that the applicant company had chosen voluntarily and without legal compulsion to pay the hire charges under the charter party.

The applicant company objected to the first report and the Court of Commerce ordered the preparation of a second expert report on 11 November 1994.

On 3 April 1995 the second expert report was submitted to the court with the conclusion that the applicant company’s claim should be dismissed. This second panel of experts considered that the owner of the vessel, but not the applicant company, might in appropriate circumstances claim compensation from the Turkish State. They expressed the opinion that the applicant company’s claim might succeed in relation to dock and fuel expenses incurred, as well as supplementary losses under Article 105 of the Code of Obligations, but that the claim in respect of hire charges should fail.

On 13 June 1995 the applicant company filed an objection against the second report and requested the court to rule on the case without obtaining a further report, or alternatively to order a third expert report.

By a decision of 20 September 1995, the Istanbul Court of Commerce dismissed the applicant company’s claim for compensation, holding that the vessel was not a merchant vessel since it was carrying, in part, a cargo of arms. It considered that the security authorities had merely carried out their statutory duty to investigate serious allegations of arms smuggling. The court therefore ruled that there had been no breach of the Montreux Convention or of Turkish law, in particular Article 41 of the Code of Obligations.

On 6 November 1995 the applicant company appealed.

On 27 December 1996 the Court of Cassation dismissed the appeal and upheld the judgment of the Istanbul Court of Commerce. A request by the applicant company for rectification of that decision was rejected by a new decision of the Court of Cassation of 22 May 1997, served on the applicant company on 22 June 1997.

The charter party provided, inter alia, that any dispute arising under it should be referred to arbitration in London. As a result of the seizure and subsequent detention of the vessel and its cargo by the respondent government, a dispute arose between the applicant company and the owner of the vessel concerning the hire charges and other expenses paid by the applicant company.

Following arbitration proceedings in London, on 20 September 1995 the arbitration panel decided that the charter party had been frustrated by the Istanbul State Security Court’s decision of 12 March 1992. The applicant company therefore recovered from the owner of the vessel the hire charges and other expenses which had been paid in respect of the period after 12 March 1992, but was unable to recover USD 1,300,403.83 which it had paid or which it thereupon had to pay to the owner in respect of the period between the seizure on 22 October 1991 and 12 March 1992.

Meanwhile, the owner of the vessel, Seabeach Shipping Ltd, brought an action in the Beyoğlu Commercial Court in Istanbul seeking a lien on the cargo for the hire charges. In a decision of 29 May 1992 the Beyoğlu Commercial Court accepted the owner’s claim on the ground that it was owed freight charges.

The cargo receiver, the Mobarakeh Steel Complex, also brought an action in the Beyoğlu Commercial Court claiming USD 2,236,208 in damages from the Ministry of Finance on behalf of the Ministry of the Interior and the Ministry of Defence. It submitted that it had lost revenue as a result of the detention of its merchandise carried on the vessel and that new commercial goods had been purchased in order to replace the seized merchandise.

In a judgment of 17 January 2000, the Beyoğlu Commercial Court dismissed that claim on the grounds that the seizure of the vessel had been lawful since the arms cargo was not clearly indicated on the bill of lading. On appeal by the plaintiff, the Court of Cassation quashed the judgment. Relying on the outcome of the criminal proceedings, the Court of Cassation noted that the goods in question were not contraband or of a kind requiring them to be confiscated. It accordingly held that the defendant must be liable for the damage resulting from the wrongful confiscation of the goods.

In a judgment of 15 December 2000, the Beyoğlu Commercial Court confirmed its earlier judgment and held that the plaintiff’s claim must be dismissed on the grounds that the seizure and detention of the vessel had been in compliance with domestic law and the Montreux Convention governing the Straits. Taking into account the fact that the vessel had been sailing under the Cypriot flag, and the inconsistency between the cargo and the documents, the court considered that the seizure of the vessel had been lawful. The court further noted that the State of Turkey had acted with the aim of preventing activities designed to undermine it. The plaintiff again appealed against that judgment.

On 21 November 2000 the Court of Cassation sitting as a full civil court upheld the judgment of the Beyoğlu Commercial Court and dismissed the action. It considered that while under the Montreux Convention merchant ships were entitled to innocent passage, this did not outweigh Turkey’s sovereign rights. That being so, any arms trafficking would adversely affect Turkey and would thus mean that the passage was no longer innocent. It further stated the following:

“... On the other hand, the bill of lading described the 2,131 boxes opened as containing ‘Special Equipment’. The Turkish Commercial Code specifies in Articles 1098 and 1114 the points to be included in the bill of lading. The cargo received or loaded onto the vessel for transportation must be described on the bill of lading in order for the acknowledgment of receipt and the delivery contract to be complete ... This description, which is an essential element of the bill of lading, must be such as to allow the cargo to be distinguished at all times from the other cargoes on the vessel and must be complete. The carrier is obliged to indicate on the bill of lading the amount, brand and external appearance as well as the characteristics of the cargo ... Clearly, as is apparent from the bills of lading in the case file, these indications, some of which are mandatory, were not included on the bill of lading and invited suspicion.

A country may purchase the arms it needs for its defence from another country, or may secure them by means such as aid or donations. In other words, arms trading between States is a normal and lawful procedure. Transportation of these arms is also normal and lawful. Arms purchased and transported must be indicated clearly as such on the bill of lading and other documents, in accordance with international rules. There should be no need to conceal them or make use of other channels. The file did not include a sales contract to the effect that the party sending these arms had purchased them lawfully, nor did it include any evidence to the effect that a letter of credit had been opened by banks. Given the manner in which the arms were loaded onto the vessel, it was essential from the point of view of Turkey’s security to inspect the vessel. In the matter of innocent passage, the coastal State has the right to impose sanctions on the vessel and cargo in accordance with the rule on the prevention of non-innocent passage which stems from customary law and the Montreux Convention. The Montreux Convention, customary law and the principle of ex aequo et bono do not prevent Turkey from exercising this right. For these reasons, the trial court’s decision to dismiss the action must be upheld on the grounds that it is in conformity with the law and with statutory procedure.”

The former signatories to the Treaty of Lausanne (1923), together with Yugoslavia and Australia, met at Montreux, Switzerland, in 1936 and abolished the International Straits Commission, returning the Straits zone to Turkish military control. Turkey was authorised to close the Straits to warships of all countries when it was at war or threatened by aggression. Merchant ships were to be allowed free passage during peacetime and, except for countries at war with Turkey, during wartime. The convention was ratified by Turkey, Great Britain, France, the USSR, Bulgaria, Greece, Germany and Yugoslavia, and – with reservations – by Japan. The preamble to the convention stated that the desire of the parties was “to regulate transit and navigation in the Straits of the Dardanelles, the Sea of Marmara and the Bosphorus, comprised under the general term ‘Straits’, in such manner as to safeguard, within the framework of Turkish security and of the security, in the Black Sea, of the riparian States, the principle enshrined in Article 23 of the Treaty of Peace signed at Lausanne on the 24th July, 1923”.

The relevant provisions of the convention read as follows:

“The High Contracting Parties recognise and affirm the principle of freedom of transit and navigation by sea in the Straits.

The exercise of this freedom shall henceforth be regulated by the provisions of the present Convention.”

“In time of peace, merchant vessels shall enjoy complete freedom of transit and navigation in the Straits, by day and by night, under any flag and with any kind of cargo, without any formalities, except as provided in Article 3 below. No taxes or charges other than those authorised by Annex I to the present Convention shall be levied by the Turkish authorities on these vessels when passing in transit without calling at a port in the Straits.

In order to facilitate the collection of these taxes or charges merchant vessels passing through the Straits shall communicate to the officials at the stations referred to in Article 3 their name, nationality, tonnage, destination and last port of call (provenance).

“All ships entering the Straits by the Aegean Sea or by the Black Sea shall stop at a sanitary station near the entrance to the Straits for the purposes of the sanitary control prescribed by Turkish law within the framework of international sanitary regulations. This control, in the case of ships possessing a clean bill of health or presenting a declaration of health testifying that they do not fall within the scope of the provisions of the second paragraph of the present Article, shall be carried out by day and by night with all possible speed, and the vessels in question shall not be required to make any other stop during their passage through the Straits.

Vessels which have on board cases of plague, cholera, yellow fever exanthemic typhus or smallpox, or which have had such cases on board during the previous seven days, and vessels which have left an infected port within less than five times twenty-four hours shall stop at the sanitary stations indicated in the preceding paragraph in order to embark such sanitary guards as the Turkish authorities may direct. No tax or charge shall be levied in respect of these sanitary guards and they shall be disembarked at a sanitary station on departure from the Straits.”

“In time of war, Turkey not being belligerent, merchant vessels, under any flag or with any kind of cargo, shall enjoy freedom of transit and navigation in the Straits subject to the provisions of Articles 2 and 3.

“In time of war, Turkey being belligerent, merchant vessels not belonging to a country at war with Turkey shall enjoy freedom of transit and navigation in the Straits on condition that they do not in any way assist the enemy.

“Should Turkey consider herself to be threatened with imminent danger of war, the provisions of Article 2 shall nevertheless continue to be applied except that vessels must enter the Straits by day and their transit must be effected by the route which shall, in each case, be indicated by the Turkish authorities.

“The functions of the International Commission set up under the Convention relating to the regime of the Straits of the 24th July 1923, are hereby transferred to the Turkish Government.

The Turkish Government undertake to collect statistics and to furnish information concerning the application of Articles 11, 12, 14 and 18 of the present Convention.

They will supervise the execution of all the provisions of the present Convention relating to the passage of vessels of war through the Straits.

As soon as they have been notified of the intended passage through the Straits of a foreign naval force the Turkish Government shall inform the representatives at Angora of the High Contracting Parties of the composition of that force, its tonnage, the date fixed for its entry into the Straits, and, if necessary, the probable date of its return.

The Turkish Government shall address to the Secretary-General of the League of Nations and to the High Contracting Parties an annual report giving details regarding the movements of foreign vessels of war through the Straits and furnishing all information which may be of service to commerce and navigation, both by sea and by air, for which provision is made in the present Convention.”

“Nothing in the present Convention shall prejudice the rights and obligations of Turkey, or of any of the other High Contracting Parties members of the League of Nations, arising out of the Covenant of the League of Nations.”

The relevant provisions provide as follows:

“Nothing in this Part affects:

(a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such;

(b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or

(c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.”

“This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”

“1. In straits referred to in Article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.”

“1. Ships and aircraft, while exercising the right of transit passage, shall:

(a) proceed without delay through or over the strait;

(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

(d) comply with other relevant provisions of this Part.

Ships in transit passage shall:

(a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

This provides as relevant:

“Any person who causes damage to another in an unjust manner, be it intentionally or negligently, shall afford redress for that damage.”

The civil courts are not bound by either the findings or the verdict of the criminal court (Article 53).

Section 12 makes it an offence to smuggle, to attempt to smuggle or to assist in smuggling firearms or ammunition into the country.

Article 36 of the Turkish Criminal Code which was in force at the relevant time prescribed the seizure and confiscation of objects which were used for the commission or preparation of a crime.

The relevant parts of Article 90 § 5 provide:

“International agreements duly put into effect bear the force of law ... In the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”


The applicant, Hallo Çatıkkaş, is a Turkish national, who was born in 1929 and lives in Adana. He is represented before the Court by Mr Mesut Beştaş, Ms Meral Beştaş and Mr Şerif Yılmaz, lawyers practising in Diyarbakır.

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

On 18 May 1995 the applicant was taken into police custody on account of an unnamed intelligence report according to which he was accused of aiding and abetting the PKK.

On 19 May 1995 the Şırnak Police Headquarters requested from the local health clinic in İdil that the applicant be examined by a doctor.

On an unspecified date the applicant was seen by a doctor in İdil who noted in his medical report that there existed no bruises on the applicant’s body resulting from the use of force. It is further noted in the medical report that the applicant complained of health problems that were only indicated with the initials “HT” and “PIS”.

On 25 May 1995 the applicant was interrogated by police officers. During the interrogation he was forced to sign a statement without knowing the contents of it.

In the meantime, on 26 May 1995 O.Ö., a former PKK activist, was interrogated by police officers. He alleged that the applicant had aided and abetted the members of the PKK between 1990 and 1992 and that he had been together with the applicant’s son E. in the “mountain team” of the PKK. O.Ö. added that the applicant’s son had fled to Germany using the PKK’s money. He concluded that the applicant’s other son F. had died during an armed clash between the PKK and the security forces in 1988 or in 1989.

On 26 May 1995 the applicant was brought before the public prosecutor. He gave a statement with the help of a translator, as he was unable to speak Turkish. The applicant rejected the allegations against him and stated that he had sent his son E. to Germany when he had become aware of his son’s involvement in the PKK. He further stated that his son F. had died while he was working in Istanbul but not during an armed clash.

On the same day the applicant was brought before the İdil Magistrate’s Court. He gave a statement with the help of a translator. He reiterated that he had no involvement in the activities of the PKK. The judge ordered his detention on remand.

At a hearing held before the Diyarbakır State Security Court on 31 August 1995 the applicant denied the allegations against him. The court rejected the applicant’s request of release pending trial because of the serious nature of the alleged offences and the state of the evidence.

In a letter addressed to the Diyarbakır State Security Court and dated 20 November 1995 O.Ö. stated that he had erroneously accused the applicant and that he regretted having done so.

On 21 November 1995 the Diyarbakır State Security Court convicted the applicant of aiding and abetting members of the PKK. The court further sentenced him to three years and nine months’ imprisonment under Article 169 of the Turkish Criminal Court and Article 5 of the Prevention of Terrorism Act.

On 9 July 1996 the Court of Cassation quashed the decision of the Diyarbakır State Security Court on the grounds that the latter had not established whether or not the applicant’s son F. had died in an armed clash and the applicant’s other son E. had still been in Germany. Furthermore, the Diyarbakır State Security Court should have clarified whether or not the person accused of aiding and abetting the PKK in O.Ö.’s statement of 26 May 1995 had been the applicant.

At a hearing held on 17 September 1996 the Diyarbakır State Security Court decided to release the applicant pending trial.

On 2 June 1998 the Diyarbakır State Security Court acquitted the applicant. The court found that there existed no evidence to convict the applicant. This decision became final on 6 July 1998 because the parties did not lodge an appeal with the Court of Cassation.


The applicant is a British national, born in 1964 and living in London.

He is represented before the Court by Ms. R. Karp, a lawyer practising in London.

A.

On 18 August 1994 a boy, J, was born to the applicant and Ms C.S., an Italian national. The child's parents were not married and separated towards the end of 1994. The applicant maintained regular contact with J but at no time had a parental responsibility order. J lived with and was cared for by C.S.

On 17 February 1997 the applicant issued an application for a parental responsibility order in the Willesden County Court. He also requested a contact order, an order prohibiting C.S. from taking J to Italy and an order that J be known by his correct name.

On 3 March 1997 C.S. took J to Italy.

On 6 March 1997 the applicant applied to Willesden County Court for a direction that J be returned to the jurisdiction and that the matter be referred to the High Court. On the same date the County Court transferred the matter to the High Court.

On 7 March 1997 there was an ex parte hearing before the High Court. The applicant requested the court to grant him parental responsibility. The court observed that his parental rights had not been breached when C.S. took the child to Italy because the applicant did not have parental responsibility. Even if the court were to grant the applicant parental responsibility at that stage, this would not make the removal of the child unlawful ex post facto.

The applicant also requested the court under Article 8 of the Child Custody and Abduction Act 1985 to declare that J had been removed from the jurisdiction in breach of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, because the applicant's custody rights had not been respected. He submitted in this connection that the notion of “custody” should be interpreted broadly by reference to Article 8 of the Convention on Human Rights. However, the court considered that the applicant did not have custody within the meaning of Article 3 of the Hague Convention. In particular, the court considered that the applicant did not have any formal rights of custody in English law and the European Convention on Human Rights had not been incorporated into domestic law.

Finally, the applicant sought a declaration in wardship. This would have enabled the applicant to seek an order that J be returned to England and Wales. However, the court declined to make such a declaration on the ground that J had always lived with C.S. and it was inappropriate at that stage to demand that C.S. should return with him to England and Wales so that the applicant could visit him. The applicant was treated differently from married fathers because he did not have parental responsibility. The applicant could issue proceedings in wardship or under the Children Act 1989, serve them on the mother and promptly request the appropriate orders. However, the court stressed that, in the circumstances, it would not make any ex parte orders.

The applicant sought leave to appeal. On 24 March 1997 the High Court refused his application. The applicant renewed his application before the Court of Appeal.

On 18 April 1997 the Court of Appeal refused the applicant leave to appeal reasoning as follows: The purpose of the Hague Convention was to ensure the speedy return, without lengthy proceedings or inquiries, of children who had been wrongfully removed from the person having their care. However, J was not cared for by the applicant. The applicant simply had contact with him. The applicant's case could be also distinguished from cases where wards of court had been removed from the jurisdiction. In one such case the court had ordered the return to the jurisdiction of a child that had been made a ward of court on the day following its removal. Finally, the mere fact that the applicant had instituted proceedings before the English courts had not resulted in those courts acquiring custody powers over J. This could have happened only if the courts had made an interim custody order. As a matter of fact, the precedent relied on by the applicant in this connection concerned a case where the child had been removed by a mother in favour of whom the courts had previously made an interim custody order in contested proceedings. As a result of all the above, the Court of Appeal considered that the applicant's case was not an appropriate one for an ex parte order. However, the applicant had the possibility of making further applications in the context of contested proceedings.

B. Relevant domestic law and practice

Section 2 of the Children Act 1989 provides the following:

“(1) Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.

(2) Where a child's father and mother were not married to each other at the time of his birth -

(a) the mother shall have parental responsibility for the child;

(b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act.”

It is within the inherent jurisdiction of the High Court to make children wards of court (wardship jurisdiction). Once a child has been made a ward of court, no important step in its life can be taken without the consent of the court.

Section 8 of the Child Abduction and Custody Act 1985 provides the following:

“The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention.”

The Hague Convention on the Civil Aspects of International Child Abduction provides the following:

Article 3

“The removal or the retention of a child is to be considered wrongful where

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 15

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in 1973 and 1965, respectively, and live in Samsun and Ankara.

On 17 October 2001 the applicant was discharged from his civil service post following his previous criminal conviction by a martial law court. The conviction had been finalised by the Military Court of Cassation's decision of 11 November 1997.

On 4 January 2002 the applicant brought an action before the Samsun Administrative Court to annul the discharge order.

On 5 June 2002 the Samsun Administrative Court rejected the applicant's request.

On 7 February 2005 the Supreme Administrative Court upheld the judgment of the Samsun Administrative Court. The written opinions of the public prosecutor and of the judge rapporteur (“tetkik hakimi”) concerning his appeal request were not communicated to the applicant.

On 31 December 2007 the Supreme Administrative Court dismissed the applicant's request for rectification of its previous decision.

On 11 January 2002 the applicant was discharged from his civil service post after a disciplinary decision. Criminal proceedings were also commenced against the applicant on the same grounds as those which had led to his discharge.

On 15 March 2002 the applicant brought an action before the Ankara Administrative Court to annul the discharge order.

On 25 June 2002 the Ankara Assize Court acquitted the applicant of the offences with which he had been charged. On 22 March 2004 the Court of Cassation upheld the applicant's acquittal.

In the meantime, on 31 March 2003 the Ankara Administrative Court refused the applicant's request to annul the discharge order. Relying on Section 131 of the Law on Civil Servants (Law no. 657), the administrative court held that the applicant's acquittal of the criminal charges did not absolve him from the disciplinary sanction.

On 26 April 2005 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court. The written opinions of the public prosecutor and of the judge rapporteur concerning his appeal request were not communicated to the applicant.

On 23 January 2008 the Supreme Administrative Court dismissed the applicant's rectification request. The final decision was served on the applicant on 4 March 2008.

A description of the relevant domestic law can be found in the case of Meral v. Turkey (no. 33446/02, §§ 22-26, 27 November 2007).


The applicant, Mr Giuseppe Calabrò, is an Italian national, born in 1950 and currently detained in Milan Prison. He was represented before the Court by Mr P. Sciretti, of the Milan Bar.

The facts of the case, as presented by the applicant, may be summarised as follows.

On 19 July 1993 the applicant was arrested in flagrante delicto by the Brescia police for importing a large quantity (approximately 46 kg) of cocaine.

According to the police report, the drugs had been imported into Italy by an “infiltrator” called Jürgen Vervoorst (“Jürgen”) as part of a joint operation by the Italian and German police. On 17 July 1993 Jürgen had stayed at the Euroresidence Hotel in Brescia, which was under close police surveillance. On 18 July 1993 he had telephoned X, a drug trafficker living in Marbella (Spain) who was interested in buying drugs; X said that he had discussed the subject with the applicant. On 19 July 1993 X had informed Jürgen that the applicant was now in Brescia. The applicant had subsequently attended the Euroresidence Hotel, contacted Jürgen and asked him whether he had the “merchandise” (roba, an expression often used in criminal circles to refer to hard drugs). On being told that he had, the applicant had gone up to Jürgen’s room where he was shown a suitcase containing 20 kg of cocaine. He had made a gesture of approval and had immediately been arrested. The scene was recorded with audiovisual devices. Subsequently, X had telephoned the Euroresidence Hotel and pressed for news of the applicant.

By an order of 23 July 1993 the Brescia investigating judge ruled that the applicant’s arrest was lawful and ordered his detention pending trial.

On 5 July 1994 the applicant was committed for trial by the Milan Criminal Court on charges of international drug trafficking.

The trial began on 26 October 1994. Numerous witnesses, including officers from the Italian police and the German federal police (Bundeskriminalamt – “the BKA”) gave evidence. They provided details of the nature of the police operation that had led to the applicant’s arrest and of the procedures used.

On 17 July 1995 the Milan Criminal Court, which considered it “absolutely necessary” to hear Jürgen’s version of the events, issued a request for evidence on commission in which it asked the German authorities to take evidence from Jürgen in Germany. The request was transmitted to the German Ministry of Justice in Stuttgart. In a memorandum dated 1 November 1995 the Wiesbaden district judge informed the Milan Criminal Court that, according to information received from the BKA, it had not proved possible to find Jürgen, despite numerous attempts. He had gone on holiday on 6 September 1995 and had not been in touch since.

On 4 December 1995, in view of the fact that Jürgen could not be located and that the defence had waived its right to have him examined, the Milan Criminal Court withdrew its request of 17 July 1995 for evidence on commission. At the applicant’s request, it decided to place in the case file certain statements made by Jürgen in connected criminal proceedings pending in Germany.

In a judgment of 22 January 1996 the Milan Criminal Court convicted the applicant and sentenced him to fifteen years’ imprisonment and a fine of 300,000,000 Italian lire (ITL) (approximately 154,937 euros (EUR)).

It relied in its decision on the circumstances of the applicant’s arrest (which had been confirmed by an audiovisual recording), the transcripts of telephone conversations Jürgen had had with X and other people implicated in drug trafficking, and statements by the Italian police and the BKA. That evidence showed that Latin-American drug traffickers had asked Jürgen, who was well known in drug-trafficking circles, whether he knew anyone who would be interested in buying cocaine. Three Italian nationals, X, Y and the applicant, had contacted Jürgen to express their interest, while X and the applicant had subsequently given him money.

The Criminal Court did not consider it necessary to examine whether, as an undercover agent, Jürgen was liable to prosecution under Italian law. His statements had not been made in Italy, but in connection with the proceedings in Germany and, under the laws of that country, he was immune from prosecution. Furthermore, most of his statements concerned his links with the German police and were not relevant to the applicant’s case. The only document that was of relevance was one in which Jürgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery. In view of the fact that the German authorities said that Jürgen could not be found, his statements had henceforth to be regarded as “unrepeatable” (irripetibili) and, consequently, admissible in evidence on the merits of the charges against the applicant. His statements corroborated and confirmed other prosecution evidence against the applicant.

In sentencing the applicant, the Criminal Court noted in particular that he had previous convictions (albeit for less serious offences) and that other criminal proceedings were pending against him. It also noted that it was apparent from the nature of the offence that he was active in drug-trafficking circles.

Both the prosecution and the applicant appealed.

The applicant submitted, inter alia, that the operation mounted by the police for the simulated sale of drugs was illegal. He argued that while the relevant Italian legislation (Articles 97 and 98 of Presidential Decree no. 309 of 1990) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases, under no circumstances did it permit the fictitious sale of drugs. In his submission, Jürgen and the other police officers who took part in the case should have been examined as co-defendants, not witnesses. The fact that they had not been examined in that capacity meant that their statements should have been excluded. Furthermore, as the true identity of Jürgen had not been duly disclosed, admitting his statements in evidence infringed the fundamental principles of the Italian legal system.

Lastly, the applicant argued that he should have been acquitted under Article 49 § 2 of the Criminal Code (see “Relevant domestic law” below), as, had it not been for the actions of Jürgen and other police officers, the alleged offence would not have been committed.

On 4 November 1996 the Milan Court of Appeal, which considered it “absolutely necessary” for Jürgen to give oral testimony, issued a request for evidence on commission in which it asked the German authorities to hear Jürgen and to ensure that he was assisted by a lawyer.

The Wiesbaden District Court arranged for a hearing on 24 March 1997 for evidence to be taken from Jürgen in accordance with the relevant provisions of German law. It indicated that the Italian judges, a representative from the public prosecutor’s office and the applicant’s lawyers were entitled to attend.

However, on 21 March 1997 the BKA informed the Milan Court of Appeal that Jürgen’s whereabouts remained unknown. The hearing on 24 March 1997 was cancelled. On 17 April 1997 the applicant, finding the BKA uncooperative, applied for an order requiring Jürgen to appear before the Italian judicial authorities.

The President of the Milan Court of Appeal granted his application on 8 May 1997, ordering Jürgen to appear on 27 June 1997 and inviting him to instruct a lawyer of his choice. The order was forwarded to the German authorities, who were requested to serve it on Jürgen in accordance with Articles 8 et seq. of the European Convention on Mutual Assistance in Criminal Matters. They were advised that Jürgen could remain anonymous.

Jürgen did not attend the hearing on 27 June 1997.

By a judgment of 27 June 1997, which was lodged with the registry on 3 February 1999, the Milan Court of Appeal increased the applicant’s sentence to sixteen years and three months’ imprisonment and a fine of ITL 350,000,000 (approximately EUR 180,759).

It noted, firstly, that it was possible under the German Code of Criminal Procedure for a witness’s identity not to be disclosed in the record if the witness was in danger. In such cases, the papers certifying the witness’s identity were retained by the public prosecutor’s office. It further found that there could be no doubt as to Jürgen’s identity, as the case file showed that, on being questioned on 15 July 1993 by the Panama public prosecutor’s office, he had produced a passport in the name of Jürgen Vervoorst and stated that he had been working as a secret agent for the BKA and the American police for ten years. Lastly, several witnesses had said that he was the man responsible for the operation for importing cocaine into Europe.

The Court of Appeal also said that, although it had made several attempts to obtain oral testimony from Jürgen, this had proved impossible. Accordingly, by virtue of Article 238 § 3 of the Italian Code of Criminal Procedure (“the CCP”), his statements to the German authorities could be placed in the court file and relied on by the court when deciding the case.

As to Jürgen’s status in the Italian proceedings, the Court of Appeal observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was “indirect and peripheral”, that is to say limited to surveillance and observing the actions of third parties. In the case before it, since Jürgen had played an active role in bringing the cocaine from Latin America to Germany and from there to Italy, he should have been treated as a co-defendant in the Italian proceedings. The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable. The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant’s arrest.

As regards the applicant’s objection under Article 49 § 2 of the Criminal Code, the Court of Appeal noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences. Moreover, the intervention of an undercover agent had no effect on a defendant’s acts if the defendant already had an intention to commit the offence. The Court of Appeal said that in the case before it the applicant had taken various preparatory steps: he had asked Jürgen to transport hundreds of kilograms of cocaine, paid him sums of money, remained in touch with him and attended the rendezvous for the delivery of the drugs.

The applicant appealed to the Court of Cassation. He relied mainly on the same grounds of appeal, but also pointed out that Jürgen’s identity had not been established with certainty, and argued that his statements were therefore inadmissible ab initio.

In a judgment of 15 October 1999, the text of which was lodged with the registry on 14 January 2000, the Court of Cassation held that the Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal.

As regards the alleged violation of Article 49 § 2 of the Criminal Code, it noted that an agreement over the arrangements for the sale of the cocaine had already been made in Marbella and that the applicant had decided to perform that agreement of his own free will.

Article 238 of the CCP sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file (and therefore be used in evidence on the merits of the charges). Paragraph 3 of that provision lays down, inter alia, that “depositions which ... cannot be repeated” may in all cases be placed in the case file. Article 78 § 2 of the provisions on execution of the CCP provides: “depositions which cannot be repeated obtained by a foreign police force may be placed in the court file, either with the parties’ agreement or after the maker of the deposition has been heard ...”

Article 49 § 2 of the Criminal Code prohibits punishment being imposed for acts or omissions which, by their nature or owing to the absence of a subject matter, are incapable of producing dangerous or harmful consequences.


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1932 and lives in Šentjur.

On 26 January 1999 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.

On 30 September 1999 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,257,000 tolars (approximately 9,400 euros) for the injuries sustained.

Between 6 April 2000 and 16 January 2003 the applicant lodged four preliminary written submissions and/or adduced evidence.

Between 6 April 2000 and 1 October 2001 he made six requests that a date be set for a hearing.

During the proceedings the court appointed a medical expert.

Of the three hearings held between 28 May 2002 and 25 February 2003 none was adjourned at the request of the applicant.

At the last hearing the parties settled the case and the court terminated the proceedings.


András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant, Mr Liborio Garofolo, is an Italian national, who was born in 1969 and lives in Liestal, Canton of Basel-Landschaft. He was represented before the Court by Mr A. Joset, a lawyer practising in Liestal.

The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. The Italian Government, who had been informed of their right to intervene under Article 36 of the Convention, did not make use of this right.

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

In 2001 the Swiss Federal Gaming Board (Eidgenössische Spielbankenkommission – “FGB”) opened investigations against VSA AG (the “AG”), a stock corporation under Swiss law, on suspicion of having illegally installed gaming machines in establishments other than licensed casinos. On the occasion of a search of the AG’s business premises on 25 April 2001, FGB officials seized documents indicating that the gaming machines had been installed in agreement with the operators or tenants of such establishments who had shared the profits resulting from the machines’ illegal operation with the AG.

It followed from several of the documents seized during the search that two illegal gaming machines delivered by the AG had been operated in a club run by the applicant. For instance, according to two letter agreements addressed to the applicant’s club and dated 13 December 1999 and 9 June 2000 respectively it was stipulated that in each case a gaming machine of a type that was not authorised for use outside licensed casinos was to be installed by the AG at the applicant’s club. It was further agreed that the proceeds from the operation of the respective machines were to be equally split between the parties. The agreement dated 9 June 2000 was accompanied by a delivery note (Lieferschein) of the same date stating the type and serial number of the machine supplied to the applicant’s club. The seized documents further comprised three bills dated 26 February, 6 March and 26 April 2000 respectively, demonstrating that gaming machines installed at the applicant’s club by the AG had generated proceeds which had been divided equally between the AG and the club’s tenant. Each of the receipts carried the signature of R.A. who at the time had been an employee of the AG as well as of a representative of the club’s tenant or - as regards the receipt of 26 April 2006 - the applicant’s own signature. The authorities further seized a list dated 12 November 2000 setting out commissions collected by R.A. on behalf of the AG in connection with the operation of gaming machines installed by the AG at the applicant’s club. The list referred, inter alia, to machines of the type that had been the subject of the aforementioned agreements of 13 December 1999 and 9 June 2000. In addition, the FGB officials seized several computer-generated reports depicting revenues of the AG resulting from the operation of the said two gaming machines.

On 24 October 2001 an official of the FGB accompanied by a police officer carried out a control visit at the applicant’s club, where they discovered an unlicensed gaming machine. The machine carried several stickers indicating that it was for sale. After having verified that the machine, even though switched off, was nevertheless fully operational, the FGB officer ordered that it be confiscated.

On 21 August 2002, the applicant was heard as a witness (Auskunftsperson) in the administrative criminal proceedings (Verwaltungsstrafverfahren) instituted by the FGB against the AG and its management. While conceding that the AG had installed gaming machines at his club’s premises in the past which had included machines of the type appearing on the documents seized at the AG’s premises, the applicant maintained that he had not been aware that the use of such machines outside licensed casinos was prohibited. A machine of the type in question had been operated at his club for a period of two months but had been disposed of in February 2000. By contrast, the gaming machine confiscated by the authorities on 24 October 2001 had not been installed by the AG but had been bought by himself several years back in Italy for private use. The applicant explained that since the machine was no longer functioning he had brought it to the club for the purpose of selling it. The applicant further contended that he did not have any recollection of having been in contact with R.A. in the past.

On an unspecified date, the FGB also commenced an investigation against the applicant without the latter’s knowledge.

On 30 January 2004, R.A. was heard as a witness in the criminal administrative proceedings instituted against P.V., one the AG’s management board members. R.A. specified that as an employee of the AG at the time of the events at issue it had been his task to empty the cash registers of the gaming machines installed by the AG at a given establishment and to divide the proceeds between the AG and the respective tenant in accordance with the previously agreed ratio. R.A. testified in this context that he had also collected proceeds generated by gaming machines installed by the AG at the club run by the applicant, whom he knew personally. He further confirmed that he had drawn up and signed the aforementioned statements on the division of the related proceeds dated 26 February, 6 March and 26 April 2000 at the club’s premises and in the presence of its tenant but did not have any recollection who had signed the receipts on the tenant’s behalf. When presented with a photo of an illegal gaming machine of the type allegedly operated at the applicant’s club, R.A. recalled having seen a similar machine at the club’s premises. He pointed out that it followed from the information on the receipts dated 6 March and 26 April 2000 that proceeds had also been generated by such gaming machine. This clearly showed that the machine had been in use since otherwise its cash register would have been empty. R.A. further stated that he did not know who had drawn up the remainder of the seized reports on revenues generated by the two allegedly illegal gaming machines. In R.A.’s opinion it was unlikely that the applicant had been aware that the operation of these machines had been illegal.

On 26 August 2004 the FGB established the final record (Schlussprotokoll) of its investigations conducted against the applicant which was served on the latter the following day. The record informed the applicant that he was accused of having illegally organised games of chance in violation of Article 56 § 1 lit. a of the Federal Act pertaining to gambling and gambling houses (Bundesgesetz über Glücksspiele und Spielbanken – see Relevant domestic law below). According to the record, the information obtained in the course of the investigations, in particular the documents seized at the AG’s premises, had demonstrated that in the period from 1 April 2000 until 29 January 2001 the applicant had operated up to two unlicensed gaming machines at his club and that the resulting proceeds had been equally split between him and the AG. While the applicant when heard as a witness in the proceedings against the AG had admitted that an illegal gaming machine supplied by the AG had been operated at his club for a period of two months, he had denied that the machine seized at his club had been installed by the AG or operated for commercial purposes. Having regard to the fact that this machine showed the same serial number as indicated on the delivery note dated 9 June 2000, the FGB did, however, conclude that it had been delivered by the AG. It was further specified in the record that according to the documents seized, the profit realised by the applicant in the period at issue as a consequence of the illegal operation of the said machines amounted to a total of 4,405 Swiss francs (CHF 3,619 euros (EUR)).

The final record further informed the applicant that, within a time-limit of ten days, he had the right to comment on the FGB’s findings, to apply for the investigations to be complemented and to inspect the investigation files. It was further specified that since the applicant had so far only been heard as a witness in the proceedings against the AG, he would have the right to request a further hearing in his capacity as accused in respect of the charges brought against him.

As the applicant did not submit any comments within the set time frame the FGB, by an order (Strafbescheid) of 2 November 2004, found him guilty as charged and imposed a fine of CHF 4,000 Swiss francs (EUR 3,286). It further ordered that the confiscated gaming machine be destroyed and sentenced the applicant to pay compensation to the State in the amount of CHF 4,405 corresponding to the profits he had generated by the machines’ illegal operation. He was further informed about his right to file an objection (Einsprache) against the order within a time-limit of thirty days, providing reasons and setting out possible means of evidence in its support.

On 6 December 2004 the applicant, now represented by counsel, objected to the order after having been granted access to the investigation files. He contended, in particular, that while he had been heard as a witness in the proceedings against the AG, he had not been informed that investigations had also been commenced with respect to him. He had thus not been granted an opportunity to defend himself. He further contested having exploited illegal gaming machines at his club for commercial purposes. The confiscated machine had not been in use at the club. As regards any other gaming machines installed by the AG these had been exclusively operated by and for the benefit of the latter.

By a penal order (Strafverfügung) of 3 March 2005 the FGB, endorsing its order of 2 November 2004, dismissed the applicant’s objection. It pointed out that Swiss administrative criminal law did not request a formal decision by the authorities on the opening of investigations against an individual but merely required that the initiation of such proceedings was apparent from the official files. In the instant case it followed from the final record of the investigations served on the applicant on 27 August 2004 that investigations had been opened against him. In accordance with Articles 37 and 38 of the Swiss Code on Administrative Criminal Law (see Relevant domestic law below) such final record could be drawn up even before the accused had been questioned. The record had further informed the applicant about his right to submit comments, to apply for further evidence to be taken and to be heard again by the FGB in his capacity as accused. The applicant had, however, not availed himself of these rights. The FGB further pointed out that the applicant’s allegations that the AG alone had been entitled to the profits resulting from the machines’ operation and that the gaming machine seized at his club had never been used for commercial purposes were clearly refuted by the content of the documents seized and the veracity of which the FGB had no reason to doubt.

Following the applicant’s appeal against the FGB’s penal order, the case was referred at his request to the Basel-Landschaft Criminal Court (Strafgericht Basel-Landschaft) for judicial review in accordance with Article 72 of the Swiss Code on Administrative Penal Law (see Relevant domestic law below).

In his written submissions to the Criminal Court the applicant reiterated his allegations that the proceedings before the FGB had disregarded basic rights of the defence on the grounds already set out in his objection of 6 December 2004 (see § 12 above). He complained that criminal proceedings had never been formally opened against him and he had not been informed in due course of the investigations instituted against him. Furthermore, he had never been heard in his capacity as accused in the course of the investigations but only as a witness in the proceedings against P.V. He further invoked that due to his insufficient command of the German language he had not understood the content of the FGB’s final protocol dated 26 August 2004. He finally maintained that the charges brought against him were time-barred.

The applicant requested that the originals of the seized documents be produced at trial, that the signatures of the club’s representative on the receipts dated 26 February, 6 March and 26 April 2000 as well as the delivery order of 9 June 2000 be compared with his own handwriting and that the files in the proceedings against the AG’s management be included as evidence in his trial. He further requested that R.A., P.V. and two further employees of the AG, namely A.T. and M.S., who had allegedly supplied gaming machines to his club, be heard as witnesses. He argued that R.A. was a key witness in the proceedings since he was the author of several of the documents that had been used by the FGB as evidence against him and the accuracy of which he contested.

By a decision of 5 October 2006 the Criminal Court granted the applicant’s request to hear the aforementioned witnesses and to admit the investigation files against the AG’’s motion on the ground that he had not established why the taking of the requested evidence was relevant for the court’s finding of facts. On 6 November 2006 the Criminal Court decided to abstain from summoning M.S. The witness had informed the Court that he was currently residing in Italy and while he was ready to appear at trial against compensation of his travel expenses, he did in any event not know the applicant or have any recollection of events relating to the period at issue. Under the circumstances, the court concluded that his convocation would be disproportionate.

On 6 December 2006 the Criminal Court heard, inter alia, the applicant, who was represented by counsel and assisted by an interpreter, the FGB official who had seized the illegal gaming machine at the applicant’s club on 24 October 2001, P.V., one of the managing directors of the AG, as well as A.T., an employee of the AG who had been involved in the delivery of gaming machines to the applicant’s club. R.A. did not attend the hearing.

By a judgment of the same day, the vice-president of the Criminal Court (Strafgerichtspräsidium) found the applicant guilty as charged. While reducing the fine previously imposed by the FGB from CHF 4,000 to 2,000 (EUR 1,643) the Criminal Court upheld the remainder of the sentence imposed by the FGB.

The Criminal Court, relying in particular on the contents of the documents seized at the AG’s premises, found it established that the illegal gaming machines had been used at the applicant’s club for commercial purposes. The copy of the letter agreement dated 13 December 1999 on the supply of an illegal gaming machine by the AG to the applicant’s club had provided for the equal splitting of the proceeds resulting from the machine’s operation between the parties. By agreement dated 9 June 2000 it had been agreed that a gaming machine of the type that later was confiscated by the FGB at the applicant’s club was to be delivered by the AG and that the proceeds from its operation were also to be divided equally between the AG and the applicant. The related delivery note of the same date showed the serial number of the installed gaming machine which was identical with the serial number on the confiscated machine. Furthermore, the compilation of commissions collected by R.A. on behalf of the AG dated 12 November 2000 as well as the further reports on revenues obtained by the AG demonstrated that proceeds had been generated by both such machines during the period at issue and showed what proportion of such profits had been allocated to the AG. The related figures corresponded to statements on the amounts of payments credited to the AG’s accounts. The court further pointed out that the applicant’s allegations that the confiscated gaming machine had not been functioning was refuted by the testimony of the FGB official who had been present at the club on the occasion of the control visit on 24 October 2001 and, when heard as witness at trial, had confirmed that the machine had been accessible to the public and fully operational.

The Criminal Court further referred to the witness statement made by R.A. on 30 January 2004 in the proceedings against P.V. (see above § 9). The court explained that it had not been possible to hear the witness in person on the ground that the latter, according to information provided by the cantonal police, was hospitalised abroad. The court, while noting that the applicant had not had the opportunity to confront R.A. at any stage of the proceedings against him, held that R.A.’s statements could nevertheless be admitted as evidence in the instant proceedings since they were not decisive for the applicant’s conviction and the remaining available evidence was sufficient to prove the applicant’s guilt.

The Criminal Court specified in this context that in addition to the aforementioned documentary evidence, P.V. had testified at trial that as a rule the proceeds from the operation of gaming machines had been equally split between the AG and the tenants of the enterprises where the machines had been installed. A.T., who at the time had worked as commercial executive for the AG, had confirmed that the proceeds from the operation of gaming machines installed at the applicant’s club had also been divided equally. He had further confirmed that he had drawn up the documents dated 9 June 2000 in relation to the delivery of the machine that had later been confiscated at the applicant’s club. He had handed the documents over to the chauffeur who had been charged with delivering the machine to the applicant’s club. A.T. had further testified that the conclusion and implementation of agreements on the installation of gaming machines had been within the exclusive competence of P.V. and A.T. and it was inconceivable that machines had been delivered also by R.A. whose function had been limited to emptying the cash registers of machines installed by the AG. P.V. stated in this context that R.A. had been a reliable employee and the commission invoices established by him had always been accurate. In view of these testimonies the Criminal Court concluded that the applicant’s allegations that R.A. had regularly exchanged and replaced the machines installed at his club and that for this reason he had not been aware of the type of machines installed at a given moment, were not credible.

The applicant appealed against the judgment to the Basel-Landschaft Cantonal Court (Kantonsgericht Basel-Landschaft) and by written submissions dated 13 July 2007 requested to be acquitted.

He invoked again that the proceedings had disregarded fundamental rights of the defence in violation of Article 6 of the Convention for the reasons already set out on the occasion of his previous appeals. He further argued that while he had been assisted by an interpreter on the occasion of the trial before the Criminal Court he had not disposed of such assistance at the pre-trial stage in the proceedings before the FGB. For this reason his statements on the occasion of his hearing as a witness in the proceedings against the AG on 21 August 2002 had been contradictory.

The applicant further maintained that neither he nor his counsel had been granted an opportunity to examine R.A., the main witness against him, at any stage of the proceedings in breach of Article 6 § 3 (d) of the Convention. This witness had not only incriminated the applicant on the occasion of his hearing on 30 January 2004 in the proceedings against P.V. but had also produced several of the documents on which the Criminal Court had based his conviction and the veracity of which the applicant contested. In the instant case the national authorities could also not exceptionally dispense with a witness hearing on the ground that R.A. was not in a position to attend the trial due to his hospitalisation. In this context it was relevant that the FGB had failed to provide for a possibility to examine R.A. at the pre-trial stage where such confrontation could have been arranged without problems. The applicant consequently reiterated his request that R.A. be heard as a witness in the proceedings. He further repeated his request for an examination of M.S. at trial.

By a decision of 7 August 2007 the Cantonal Court granted the applicant’s request to hear R.A. and dismissed the remainder of his request for the taking of evidence. On 24 September 2007 the court was informed by the municipal police that R.A. was currently hospitalised in Singapore. This information was confirmed by e-mail messages from R.A. and a representative of the hospital. Furthermore, R.A.’s brother had explained over the phone that R.A. had undergone surgery and had to remain in hospital for further treatment. By a decision of 27 September 2007 the court, pointing out that a confrontation between the applicant and R.A. was not so important as to justify the postponement of the hearing scheduled for 30 October 2007, ordered that the trial be pursued without R.A. being questioned.

On the occasion of the hearing on 30 October 2007 counsel for the defence again requested that R.A. be examined at trial. The FGB, acting as joint plaintiff to the prosecution, moved that the application be dismissed since the court disposed of sufficient further means of evidence for a conviction. The Cantonal Tribunal dismissed the applicant’s request.

In its judgment rendered on the same day the Cantonal Court fully endorsed the Criminal Court’s findings at first instance. The court further took the view that the rights of the defence had been fully respected in the proceedings.

As regards the applicant’s request to hear R.A. as a witness the Cantonal Court, while noting that the applicant had not been granted an opportunity to confront R.A. at any stage of the proceedings, emphasised that by the FGB’s final record of 26 August 2004, the applicant had been informed of his right to request that the investigations be complemented and could thus have asked already at this point in time for R.A. to be examined. The Cantonal Court further pointed out that the courts at both instances had made efforts to enable R.A.’s examination at trial. The Criminal Court had summoned R.A. to appear at the hearing. The latter being hospitalised abroad, however, could not attend the trial. The witness had again been summoned to appear at the hearing on 30 October 2007 in the appellate proceedings. According to information obtained through the competent municipal police on 24 September 2007 and from the witness’s brother, the latter was subject to further treatment in a hospital in Singapore where he had to remain for some time. His examination had thus been objectively impossible. Another adjournment of the hearing would have further delayed the proceedings that had already lasted a considerable time and would have contravened the principle that criminal proceedings should be conducted expeditiously.

The Cantonal Court further stated that pursuant to Article 188 of the Code of Criminal Procedure evidence was only to be obtained to the extent this was necessary with a view to establishing the facts relevant for deciding on an appeal. The Court took the view that in the instant case it disposed of sufficient elements for its findings of fact and that R.A.’s testimony and the documents produced by him were not of significant importance in this respect. The fact that R.A. had not been examined had thus not violated the rights of the defence. The Criminal Court at first instance had based its assessment of the applicant’s guilt on the applicant’s submissions, the testimonies of the witnesses heard at trial as well as the agreements and delivery notes of 9 June 2000 and 13 December 1999 and the reports on profits allocated to the AG. The documents issued by R.A. had been taken into account to the extent they were consistent with and had corroborated these available pieces of evidence.

In the Cantonal Court’s view, on the basis of the whole body of evidence taken together, and even without taking into account R.A.’s testimony, it was established that the applicant had operated two illegal gaming machines at his bar which had been provided by the AG and that the latter and the applicant had equally shared the gains from their illegal operation. The applicant’s submissions to the contrary had all been refuted by the available evidence. The fact that at his hearing before the FGB on 21 August 2002 the applicant had stated that he did not recall having met R.A. in the past whereas in the proceedings before the Cantonal Court he had submitted that R.A. had regularly installed and replaced gaming machines at his club and had also been a good client provided a further indication that his testimony was not credible.

As regards the applicant’s additional complaint regarding the lack of a formal decision by the authorities with respect to the opening of criminal investigations against him and the fact that he had not been heard by the FGB in his capacity as accused, the Cantonal Tribunal reiterated the related explanations provided in the FGB’s penal order of 3 March 2005 (see § 13 above). It recalled that even though in the final record of the investigations established by the FGB the applicant had been informed about his defence rights and had disposed of sufficient time to avail himself of such rights he had failed to do so. The court specified in this context that although the applicant’s knowledge of the German language was limited it could have been expected of him to enquire about the record’s contents.

By a judgment of 20 June 2008 the Federal Supreme Court (Bundesgericht), endorsing the Cantonal Court’s decision, rejected the applicant’s related appeal lodged on 1 February 2008. The Federal Court’s judgment was posted on 2 July 2008 and served on the applicant on 3 July 2008.

Article 56 § 1 lit. a of the Federal Act pertaining to gambling and gambling houses (Bundesgesetz über Glücksspiele und Spielbanken) stipulates that the organisation or commercial offering of games of chance outside licensed gambling houses is subject to imprisonment or a fine of up to CHF 500,000. The Federal Gaming Board is the competent authority for the prosecution of illegal gambling.

The Federal Act on Administrative Criminal Proceedings (Bundesgesetz über das Verwaltungsstrafrecht) of 22 March 1974 as amended provides for the procedural rules to be observed in the event the prosecution of an offence falls within the competence of an administrative authority. Pursuant to Article 20 et seq. of the Act the relevant administrative authority is competent to rule on breaches of administrative criminal law unless a superior authority holds that the offence committed requires that a prison sentence be imposed, in which case the matter is referred to the criminal courts. Officers of the competent administrative authority who are specifically trained for this purpose may conduct the investigations with the support of the cantonal and municipal police. Article 38 of the Act requires that the opening of investigations, their conduct and their outcome shall be apparent from the official files. Articles 40 et seq. stipulate that the investigating officers may collect written and oral evidence and hear witnesses. The provisions further specify under which conditions the search of apartments or business premises and the confiscation of documents or objects be ordered within the scope of ongoing investigations.

According to Article 61 of the Act, once the investigating officer deems the investigations to be complete he or she draws up a final record (SchlussprotokollStrafbescheid), to discontinue the proceedings or to refer the case to the criminal courts. The convict may object to such a decision within 30 days from the date it was served on him. The objection has to be made in writing, contain a specific and reasoned request and set out any related means of evidence. The administrative authority, having re-examined the case, then renders a new decision. The convict may, within a period of ten days after the decision has been served on him, request that the case be referred for judicial review to the criminal courts (Article 72). In this case, the concerned administrative authority transfers the files to the prosecution authorities at the competent cantonal criminal court. Articles 73 to 81 contain rules regarding the ensuing proceedings before the criminal courts. The referral shall constitute the bill of indictment. The accused, the competent public prosecution authorities and the concerned administrative authority are parties to the court proceedings. The evidence gathered within the scope of the administrative criminal proceedings as set out in the investigation file established by the administrative authority shall form an integral part of such court proceedings. The criminal court may on its own motion or at the request of either party order the taking of further evidence. The rules of the Code of Criminal Procedure apply to the proceedings to the extent the Act on Administrative Criminal Proceedings does not contain specific regulations.

Pursuant to Section 145 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton Basel-Landschaft of 3 June 1999 the parties to proceedings before the criminal court may within a time-limit set by its president file an application for the taking of further evidence. The president may, inter alia, refuse a related request in the event the taking of the requested evidence is obviously not necessary or in the event it is impossible to obtain. As regards the proceedings before the Cantonal Court


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant in the first case, Mr Joseph McLean, is a British national, who was born in 1980. He was represented before the Court by Taylor & Kelly, a firm of solicitors based in Coatbridge.

The applicant in the second case, Mr Kevin Cole, is a Jamaican national, who was born in 1974. He was represented before the Court by Leigh Day & Co, a firm of solicitors based in London.

Both applicants are in detention following their conviction for various criminal offences.

The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; elections to the Scottish Parliament on 5 May 2011; a nationwide referendum on the alternative vote on 5 May 2011; local government elections on various dates; and future elections.

Pursuant to sections 1-4 of the Representation of the People Act 1983 a convicted person, during the time that he is detained in a penal institution in pursuance of his sentence, is legally incapable of voting at any parliamentary or local election.

Section 11 of the Scotland Act 1998 provides that only persons who, on the day of the poll, would be entitled to vote as electors at a local government election and are registered in the register of local government electors are entitled to vote as electors at an election to the Scottish Parliament.

Section 8(1) of the European Parliamentary Elections Act 2002 provides, in so far as relevant, that a person is entitled to vote at an election to the European Parliament if, on the day of the poll, he would be entitled to vote as an elector at a parliamentary election.

In so far as relevant, section 2 of the Parliamentary Voting System and Constituencies Act 2011 provided that only those who, on the date of the alternative vote referendum, were entitled to vote as electors at a parliamentary election were entitled to vote in the alternative vote referendum of 5 May 2011.

Each of the four jurisdictions of the United Kingdom (England, Scotland, Wales and Northern Ireland) is subdivided into a number of local authorities. The specific system in place varies depending on the jurisdiction in question.

The system of local government was created by statute. Local authorities’ internal organisation and competences are regulated by statutes enacted by the Parliament of the United Kingdom and by the Parliaments and Assemblies of the three devolved jurisdictions (Scotland, Wales and Northern Ireland).

The functions and powers of local authorities are of a predominantly administrative nature and generally cover areas such as waste management and collection, housing, local planning, council tax collection, licensing, transport and social services. In respect of these various areas, local authorities carry out their duties in accordance with primary legislation governing the area in question and can only act in so far as they are authorised to do so by statute or by subordinate legislation.

Local authorities have the power to make by-laws, which are essentially laws of local application. By-laws usually have to be confirmed by a Government minister or the ministers of the devolved jurisdictions before they can take effect.

On 23 November 2010 the Court (Fourth Section) adopted a pilot judgment in Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010 (extracts). It found a violation of Article 3 of Protocol No. 1 in respect of the blanket ban on voting applicable to convicted prisoners as regards parliamentary elections and elections to the European Parliament. It also imposed a deadline for action, indicating that the United Kingdom had to introduce legislative proposals to amend the incompatible legislation within six months of the date on which the judgment became final, with a view to the enactment of the law according to any time-scale determined by the Committee of Ministers.

On 22 November 2012 the Government published a draft bill on prisoners’ voting eligibility. The draft bill includes three proposals: (1) ban from voting those sentenced to four years or more; (2) ban from voting those sentenced to more than six months; or (3) ban from voting all prisoners. The proposals cover both local and parliamentary elections. Although the draft bill is currently drafted to extend to England and Wales only, the introduction and explanatory notes make it clear that the final bill would extend to the whole of the United Kingdom. The devolved jurisdictions are therefore involved in the pre-legislative process.

On 6 December 2012 the Committee of Ministers, responsible for supervising the execution of the judgment, adopted a decision in which it noted the range of options proposed in the draft bill; endorsed the view that the third option aimed at retaining the blanket ban was not compatible with the Convention; invited the Government to keep it regularly informed of the proposed time-scale; and decided to resume consideration of the case at the latest at its September 2013 meeting.

On 16 April 2013 a motion to nominate the six members of the House of Commons to serve on a joint committee which will conduct prelegislative scrutiny of the draft bill was agreed. On 14 May 2013 a motion to nominate the six members of the House of Lords to serve on the committee was agreed. The committee held its first meeting on 15 May 2013 and will report by 31 October 2013.

On 10 June 2013, there was a hearing before the Supreme Court in the case of McGeoch v. The Lord President of the Council and another. The claimant is a serving prisoner who claims that the prohibition on prisoners voting is incompatible with European Union law.