The applicant, Mr Ernő Szabó, is a Hungarian national who was born in 1953. He is currently serving a prison sentence in Hungary. He was represented before the Court by Mrs L. Farkas, a lawyer practising in Budapest. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs.

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

On 18 December 2000 the Malmö District Court (tingsrätten) convicted the applicant of committing a drugs offence with aggravating circumstances and of attempting to commit a drug smuggling offence with aggravating circumstances on 21 September 2000, and sentenced him to ten years’ imprisonment. The court also ordered that he be permanently expelled from Sweden.

On 6 February 2001 the Skåne and Blekinge Court of Appeal (hovrätten) upheld the judgment of the District Court. The applicant did not appeal against the appellate court’s judgment, which accordingly became legally binding on 6 March 2001.

On 26 March 2001 the National Prisons and Probation Authority (Kriminalvårdsmyndigheten) determined the period during which the applicant was to remain in prison. It noted that he had begun to serve his sentence on 6 March 2001 and that the last day of the prison term, having regard to the total period spent in detention, would be on 22 September 2010. The Authority further determined that the applicant would be eligible for conditional release on 25 May 2007 at the earliest.

On 15 August 2002 the National Prisons and Probation Administration (Kriminalvårdsstyrelsen, hereafter “the Administration”) declared its intention to make a request to the applicant’s country of origin, Hungary, for him to serve the remainder of his sentence there.

The applicant declared on 2 September 2002 that he did not consent to such a transfer.

On 2 October 2002 the Administration requested the transfer of the applicant to Hungary under the Convention on the Transfer of Sentenced Persons (hereafter “the Transfer Convention”) and its Additional Protocol. On 4 November 2002 the Swedish Ministry of Justice forwarded this request to the Hungarian Ministry of Justice.

In an order dated 13 December 2002 the Budapest Regional Court decided that the conditions for taking over enforcement of the Swedish sentence were met.

On 8 January 2003 the Hungarian Ministry of Justice informed its Swedish counterpart that the Minister of Justice had approved the transfer of the applicant to Hungary, that the competent Hungarian court had converted his sentence into ten years’ imprisonment in conformity with Hungarian law and that he would be eligible for conditional release on 22 September 2008 at the earliest.

On 14 July 2003 the Administration made a final decision on the applicant’s transfer to Hungary. It stated that, since the applicant’s expulsion had been ordered and he would most probably be expelled to Hungary, there were grounds under the Transfer Convention and the Additional Protocol for the applicant to serve the remainder of his sentence in Hungary.

The applicant appealed against the decision to the Government, stating, inter alia, that he would be serving a longer sentence in Hungary and that he would be placed in a “higher security prison” where the conditions would be much more severe than those in Swedish prisons.

On 4 September 2003 the Administration confirmed its decision.

On 25 September 2003 the Swedish Government, stating that it shared the Administration’s conclusion, dismissed the applicant’s appeal.

The applicant was transferred to a Hungarian prison on 28 October 2003.

The applicant was summoned to appear before the Budapest Regional Court, sitting as a first-instance court, on 8 January 2004. On that date a single judge decided that the applicant’s sentence was to be converted into ten years’ imprisonment under Hungarian law, to be served under a strict prison regime (fegyház). The effect of the latter condition was that he would become eligible for conditional release after having served four-fifths of the sentence. The applicant appealed against that decision and requested to serve his sentence under a normal prison regime (börtön), which would have made him eligible for release on parole at an earlier date. On 17 February 2004 the Budapest Regional Court, sitting as a chamber of three judges at second instance, dismissed the appeal. The Hungarian courts did not make any fresh assessment of the applicant’s guilt but accepted the Swedish courts’ findings as to the facts of the case.

Section 3 of the Drug Offences Act (Narkotikastrafflagen; 1968:64) provides that anyone who commits a drugs offence with aggravating circumstances shall be liable to between two and ten years’ imprisonment. In addition, under section 3 of the Smuggling of Goods (Penalties) Act (Lagen om straff för varusmuggling, 1960:418), which was in force at the material time, the same range of prison sentences applied in respect of drug smuggling with aggravating circumstances. With regard to attempted offences, the latter Act referred to chapter 23 of the Penal Code (Brottsbalken, 1962:700), section 1 of which stipulates that the punishment for an attempted offence shall not exceed the applicable penalty for a complete offence and shall not be less than imprisonment if the penalty for a complete offence is two or more years’ imprisonment.

Pursuant to section 20 of the Term of Imprisonment (Calculation) Act (Lag om beräkning av strafftid m m, 1974:202), the National Prisons and Probation Administration determines the expiry date of the prison term for a person who has started serving a sentence. If the sentence exceeds one month’s imprisonment, the Administration must also determine the earliest date of conditional release. It further sets the probationary period, which, in accordance with chapter 26, section 10, of the Penal Code, corresponds to the remaining portion of the sentence but cannot be less than one year.

Chapter 26, section 6, of the Penal Code provides that a person sentenced to imprisonment shall, as a rule, be conditionally released when he or she has served two-thirds of the sentence.

Under chapter 26, section 7, of the Penal Code, if the sentenced person breaches to a significant extent the conditions for serving the sentence, the date of release on parole can be postponed to a later date, but not by more than 15 days on any one occasion.

The preparatory work in respect of the latter provision (Vissa reformer av påföljdssystemet, 1997/98:96) states that “to a significant extent” means that release may be postponed only for the more flagrant breaches and that a general assessment of whether the inmate has misbehaved is not sufficient. Incidents such as escape or attempts to escape, refusal to work, contact with drugs, drunkenness and threats or violence towards other inmates or a civil servant are examples of cases entailing a postponement of a prisoner’s conditional release. No postponement is to be ordered, however, if the breach results in a criminal indictment.

Chapter 26, sections 11-23, of the Penal Code provide that certain restrictions and supervision by a probation officer may be imposed during the probationary period on a person who has been conditionally released. If the person breaches his obligations during that period, he may forfeit all or part of his conditional liberty.

The Execution of Criminal Verdicts (International Co-operation) Act (Lag om internationellt samarbete rörande verkställighet av brottmålsdom, 1972:260) is based, inter alia, on the Transfer Convention and its Additional Protocol. Under the Act, an appeal lies to the Government against a decision of the Administration concerning any issue other than the appointment of officially assigned counsel.

The objectives of the 1983 Transfer Convention (European Treaty Series, ETS, No. 112), including its 1997 Additional Protocol (ETS No. 167), are to develop international co-operation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. According to the Preamble to the Transfer Convention, these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.

Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer.

Article 9 of the Transfer Convention (“Effect of transfer for administering State”) provides:

“1. The competent authorities of the administering State shall:

a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or

b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.

The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.

The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”

Article 10 of the Transfer Convention (“Continued enforcement”) provides:

“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”

Article 11 of the Transfer Convention (“Conversion of sentence”) provides:

“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:

a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;

b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;

c. shall deduct the full period of deprivation of liberty served by the sentenced person; and

d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.

If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”

Article 3 of the Additional Protocol (“Sentenced persons subject to an expulsion or deportation order”) provides:

“1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.

Article 7 of the Additional Protocol (“Temporal application”) provides:

“This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.”

Article 21 of the Transfer Convention contains a similar provision on temporal application.

The Explanatory Report to the Additional Protocol recalls in paragraph 30 that persons may be expelled only subject to the provisions laid down in Article 1 of Protocol No. 7 to the European Convention on Human Rights.

The Additional Protocol entered into force in respect of Sweden on 1 March 2001 and in respect of Hungary on 1 September 2001.


The applicant is a British national, born in 1952. He is currently serving a prison sentence in the United Kingdom.

He is represented before the Court by Mr Dennis A. Clarke, a lawyer practising in Tonbridge, England.

In July 1997 the applicant was tried before a jury at Maidstone Crown Court on a charge of murdering his girlfriend (“T.”) at her home.

The court heard that the police were called to T.’s home in the early hours of 2 June 1996 and found her body in the kitchen. The applicant was lying on the floor with his head resting on her stomach. T. had been stabbed eighteen times, most of the wounds being to her left hand. There were two deep wounds, one to her face and one to her left breast area.

According to Dr Rouse who carried out the post mortem analysis on behalf of the Crown, either of those wounds was fatal. Dr Rouse also examined stab wounds, seven in all, found on the applicant’s body. He advised that there was no evidence of defensive injuries either to the applicant’s arms or hands. At the same time, Dr Rouse was unable to determine whether or not the wounds were self-inflicted or inflicted by a third party.

D.L., a friend of the deceased, testified at the trial that the applicant telephoned her shortly after midnight on 2 June 1996 and exclaimed that:

“T.’s dead and I’m dead.”

When she arrived at T.’s house, the applicant was holding a kitchen knife. He told her:

“I’ve killed T., I’ve got to kill myself.”

According to two police officers who arrived at the scene, the applicant stated:

“Well lads, I’ve done it now but I tell you what, I love her.”

The police recovered two blood-stained carving knives from the kitchen, either of which could have caused the injuries to T. and the applicant.

The applicant was taken to a hospital where he underwent lengthy surgery for his injuries. He remained in intensive care for a period of time and was finally discharged on 17 June 1996. He was taken directly to a police station. Although a doctor had expressed the opinion on 13 June 1996 that the applicant was not fit to be interviewed, a contrary opinion was given by another doctor who examined him on the morning of 17 June 1996 and found that, although in pain, he was fit to be interviewed. The applicant was subsequently interviewed between 10.52 a.m. and 12.50 p.m. on 17 June 1996.

The applicant was cautioned as follows in the presence of his solicitor:

“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”

The applicant’s solicitor advised him not to answer police questions and referred to the pain which the applicant was suffering as well as his lack of sleep. On the strength of that advice the applicant made no comment to the questions put to him during the interview. The questions centred on his presence at the deceased’s house, the presence of blood on his clothes and body, his being in possession of knives when the police arrived at the scene and the injuries which he had sustained. He was also questioned about the defence injuries to the deceased’s body and the absence of any defence injuries to his own body.

On 17 June 1997 the applicant was charged with T.’s murder.

At his trial the applicant did not dispute that he had stabbed T. However he pleaded that he had acted in self-defence. In the alternative, he relied on the defence of diminished responsibility under the terms of section 2(1) of the Homicide Act 1957, as well as that of provocation.

As to the latter defences, he relied on the testimony of Dr Beck, a clinical psychologist, and Dr Eastman and Dr Sugarman, both consultant psychiatrists. Dr Eastman stated that, in his opinion, the applicant was suffering from a mild to moderate depressive illness at the time of the incident. In Dr Sugarman’s opinion the applicant was suffering from a moderate depressive illness at the time. They both expressed the view that the applicant was suffering from an abnormality of mind sufficient to impair substantially his mental responsibility. As to the defence of provocation, Dr Eastman testified that if the court concluded that the applicant had not got over his mother’s death and that his condition arose out of inadequacies in his personality, and if it were accepted that the applicant was suffering from mild to moderate depressive illness at the time of the offence, that would be relevant to explaining the applicant’s reaction and his susceptibility to some types of alleged provocation. Dr Beck observed that the applicant had real difficulty in processing multiple sources of information, a failing which could be linked to possible brain damage which the applicant sustained in a traffic accident when he was young. The other doctors had earlier stated that their conclusions would be reinforced by evidence of brain damage.

In connection with his plea of self-defence the applicant told the jury that T. had become argumentative when they went back to her home after an evening spent at a club. T. suddenly began to stab him with a kitchen knife and he defended himself with a fork. T. then attacked him with a bigger knife. He stated in his testimony that he must have taken out a knife from the kitchen drawer during this time. He tried to wrestle her to the floor, but she continued to stab him. He must have lashed out and caused the injury to her face, but did not remember doing so. Eventually she stabbed herself in the chest, telling him that she loved him. He then pulled the knife out of her body. The witness, D.L., arrived at some stage and he had to smash a glass panel to let her into the house. He told her: “I think T. is dead. I love her, I’m going with her.” With those words, he stabbed himself in the throat and on the chest and lay down on the kitchen floor with his head resting on T.’s stomach.

When cross-examined as to why he did not give this account of the incident to the police on 17 June 1996 during interview, the applicant replied that he wanted to answer the questions put to him but:

“[that his] solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything. ... I had to keep trying to remember. I tried to remember the best I could. ... I must have been responsible for it, cos she wouldn’t be dead.”

When asked by prosecution counsel what he had remembered on the day of the interview, the applicant replied that he knew that T. had attacked him, that she had deliberately plunged a knife into him and that he had reacted as he did in self-defence.

He was then asked whether he could have told the police about these matters on the morning of the interview. The applicant replied in the affirmative adding:

“... I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad.”

In the course of the trial, the prosecution invited the judge to leave the jury with the option of drawing adverse inferences from the applicant’s silence during police interview on the ground that the applicant’s account of the incident had been fabricated before interview and that he knew that it would not withstand police questioning.

Counsel for the applicant, with reference to the Court of Appeal’s judgment in R. v. Condron ([1997] 1 Criminal Appeal Reports, p. 185) contended that adverse inferences could only be drawn from an accused’s silence under caution when the failure to mention facts in interview which are later relied on at the trial can only be explained in terms of their fabrication after the interview.

The trial judge rejected the applicant’s submission. At the close of the trial the judge in his summing up reminded the jury of the answers given by the applicant under cross-examination. He directed the jury in the following terms:

“Those were questions asked by [prosecution counsel] in cross-examination, members of the jury. You will remember that [counsel] was asking them to establish what the defendant said was his state of knowledge at the interview. He was telling you in evidence that at the interview he knew full well that [T.] had struck him the first blow, was the aggressor. He knew full well that she had caused a situation where he was acting in self defence. He knew full well that, in the end, she had plunged that knife deliberately into her chest.

Now those are all matters which you heard about in evidence, but which the officers in the interview ... did not hear at all, because when they asked questions directed to these matters the answer was no comment.

You have been rightly told as to what the law is in relation to inferences that you can draw. I told you a little earlier this morning that I would come to the law on this subject after I had dealt with the answers the defendant had given in his evidence before you as to why he did not mention those facts at the time of the interview. I now, therefore, give you this direction in law. As it is a direction in law, you must take the law from me. The facts, of course, are for you.

The defendant, as part of his defence, has relied on facts which he alleges. Those facts include the fact that [T.] attacked him and struck him first, and that what he did was only in self defence. She then plunged the knife into herself. He admits that he did not mention those facts when he was questioned under caution, before being charged with the offence.

The prosecution case is in the circumstances, when he was questioned, he could reasonably have been expected then to mention those facts. If you are sure that he did fail to mention them when he was questioned, and he accepts that, then you decide whether, in the circumstances, they were facts which he could reasonably have been expected then to mention. If they were, the law is that you may draw such inferences as appear proper from his failure to mention these matters at that time.

Failure to mention such a fact cannot on its own prove guilt but, depending on the circumstances, you may hold it against him in deciding whether he is guilty. That is, take it into account as some additional support for the prosecution case. You are not bound to do so. It is for you to decide whether it is fair to do so.

There is evidence before you, on the basis of which [defence counsel] invites you not to hold it against him that he failed to mention these facts. That evidence I have just reminded you of. It is evidence as to the state of his health at the time, the pain that he was experiencing and that he was acting on legal advice. If you think that that amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not, in your judgment, provide an adequate explanation, or you are sure that the real reason for his failure to mention these facts was that he had no answer, or none that would stand up to cross-examination, then you may hold the adverse inference against him.

Let me warn you as to one inference which I direct you is one that you may not draw against him. You may not draw against him an inference that his account was only made up after the interview, and that it is therefore a post interview fabrication. That is because in his trial he was cross-examined. He said at the interview he was fully aware, when the police officers were questioning him, that T. had attacked him, that she had plunged the knife into herself, and that he had been acting only in self defence.

When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference they invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and examination, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all.

That is the law in relation to inferences. You are entitled to look at the situation in that light, and come to the conclusion whether you will draw inferences against the defendant, or whether you will not.”

In a separate direction the trial judge also directed the jury that if they were to find the applicant guilty of manslaughter by reason of his diminished responsibility at the time of the offence they had to be satisfied that the applicant was suffering from an abnormality of mind, that that abnormality was caused or induced by disease or injury and that the abnormality “substantially impaired” the applicant’s responsibility for his act. The judge stated with reference to the expert medical witnesses called by the applicant and to the statutory requirements of section 2(1) of the Homicide Act 1957:

“You will probably be quite satisfied that the defence has established an abnormality of mind, has established that it was caused by disease. It will be the third element that you will move on to. Abnormality of mind proved to the necessary standard by the defendant. Abnormality induced by disease, the disease of a depressive illness, again proved.

So you would have to go on to the third question, which is whether the defendant’s mental responsibility was or was not substantially impaired by that abnormality of mind. You will want to consider the views of the experts on that question. But as you have heard, and as is the law, the decision as to whether or not his responsibility was substantially impaired is a matter for you, the jury.”

The trial judge subsequently advised the jury on the issue of “expert evidence” and the approach which they should take to the evidence given by the medical experts called by the applicant. He noted that Dr Eastman had stated under cross-examination that even if all three of the requirements contained in the Homicide Act 1957 were satisfied, his view depended on what he had been actually told by the applicant after the commission of the offence. The trial judge concluded his summing up by stating that the decision as to whether or not the applicant’s responsibility was “substantially impaired” was a matter for the jury to decide and that they were not bound by what the medical witnesses had said. The jury was told that if there was no evidence to cast doubt on the medical evidence, then they must accept that evidence. The judge then dealt with the issue as to what the defendant had said to the doctors on the basis on which they had formed an opinion. He reminded the jury that Dr Eastman had acknowledged that if that evidence was undermined, the basis for his opinion would disappear.

On 31 July 1997 the applicant was convicted of murder. He was given a mandatory life sentence.

On 8 December 1997 the Single Judge refused the applicant’s application for leave to appeal against conviction.

The applicant’s renewed application was heard by the Court of Appeal (Criminal Division). In his perfected grounds of appeal, the applicant asserted, inter alia, that the trial judge had misdirected the jury by leaving them the option of drawing an adverse inference in circumstances where the prosecution had not alleged that his account at the trial had not been recently fabricated. He maintained in the alternative that the trial judge was wrong to leave the jury the option of drawing adverse inferences in circumstances where the applicant had given unchallenged evidence that he could have given his account of the incident in interview.

The applicant also maintained before the Court of Appeal that the trial judge had misdirected the jury as regards the medical evidence which supported his defence of diminished responsibility. He referred in particular to his concerns that the judge’s first directions on this matter were contradictory and that the judge had failed to say what evidence pointed against the medical experts’ opinion.

The Court of Appeal dismissed the applicant’s appeal in its judgment delivered on 3 April 1998. Lord Justice Evans stated with respect to the issue of adverse inference:

“The third suggested ground of appeal arises under section 34 of the 1994 Act with regard to inferences that the jury might draw from the ‘No comment’ answers in interview. In his summing-up the learned judge reminded the jury of what had happened and in particular of the fact that the defendant’s solicitor had advised him not to answer questions at that stage. He referred also to the parts of the evidence where the defendant had been asked about this, and in particular he quoted the defendant’s answers which were as follows: ‘My solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything.’ He said, ‘I had to keep trying to remember. I tried to remember the best I could.’ He tried to work out what went on.

He was also asked: ‘You had the ability that day to say all of those things to the police, did you not?’ He said he could have said them to the police. He was asked, ‘You could have said those things?’, and said, ‘But I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad’.

Then the learned judge proceeded to consider the question of inferences, and he gave the jury an extended direction... He concluded as follows:

‘When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference that [they] invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and information, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all.’

It was, in other words, not put to the defendant that he had invented or fabricated his account after the interview.

The submission made to us, as it was made to the learned judge in the course of the trial, was that no inference was possible and therefore the jury should have been directed, since the prosecution did not rely upon that inference, that no inference should be drawn by them against the defendant. This had been the subject of a ruling on 23rd July before speeches began. The judge ruled that it was unnecessary for the defence to call the solicitor who had given the advice because there was no suggestion of recent fabrication, meaning post-interview intervention.

We would hold that the submission which [prosecution counsel] made, and which the learned judge upheld, was correct. The inference described by the learned judge to the jury was a possible inference for the jury to draw. It would mean that the defendant already had it in mind to say that he had acted in self-defence, and the question would remain, if that was in his mind, why should he not say so? We therefore reject that suggested ground of appeal also.”

As to the issue of how the trial judge dealt with the applicant’s defence of diminished responsibility, Lord Justice Evans stated that he had no hesitation in holding that the trial judge’s directions on the matter were sufficient since he had made it clear to the jury that the doctors had agreed at the trial that their opinions were based on what the applicant had told them after the offence about his mental condition. It was in that context that the jury had to consider whether or not the applicant’s account to them was truthful.

Section 34 of the Criminal Justice and Public Order Act 1994 provides that:

“1. Where in any proceedings against a person for an offence, evidence is given that the accused –

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

(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

Where this subsection applies ...

(c) the court, in determining whether there is a case to answer; and

(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

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

Section 35(2) and (3) provides:

“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”

Section 38(3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Further details of the law and practice governing the interpretation of these provisions are set out in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97, to be published in the Court’s official reports).

“Where a person kills or is a party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.”


The applicant, Järvi-Eristys Oy, is a Finnish limited liability company. Before the Court it was represented by Jouko Kauppila, a lawyer practising in Pori. The respondent Government were represented by their Agent, Arto Kosonen, Director in the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.

In October 1993 the applicant bought 38 tons of copper in Russia and paid for it in cash with US dollars. During the customs clearance the Finnish customs authorities found that the information noted in a bill of consignment was false insofar as the identity of the seller company and the buyer company were concerned. Furthermore, a certain other company was mentioned in the false documents as a forwarding company. The signature of M.M., operational manager of that company, had been forged in those documents. None of these companies had anything to do with the freight. It also appeared that the seller did not have a licence to sell the copper even though such a licence was obligatory when exporting copper from Russia.

The Finnish customs issued a prohibition of transfer of the copper and reported the case to the police. It appears that in December 1993 the Russian authorities announced that the copper had been stolen in Russia. The owner of the applicant company was suspected of aggravated concealment of illegally obtained goods and of having forged the bill of consignment.

On 7 June 1994 the Russian customs authorities informed the Finnish police that the Russian company which purported to sell the copper to the applicant did not exist. The Russian managing director who had supposedly signed the contract and the company from which the Russian seller had purported to buy the copper did not exist, either. As the copper had not been sold legally in Russia and as it had been illegally exported to Finland, the Russian authorities claimed that the Russian Federation was its legal owner and that it had to be returned to Russia.

By a letter of 29 July 1994, Inspector K. from the Police District of Kotka informed the Finnish customs that according to the pre-trial investigation carried out into the matter, and on the basis of reports obtained from Russia concerning the identification of the copper, the Russian Federation was the legal owner of the copper. He stated that there were no obstacles on the part of the police to returning the copper to its legal owner. The applicant argued that the letter had the character of a decision. The Government argued that the purpose of the letter was to communicate information to the custom authorities.

On 13 October 1994, after the pre-trial investigation had been completed, the matter was transferred to a public prosecutor for consideration of charges. On 30 January 1995 the public prosecutor decided not to prosecute the owner of the applicant company as there was no evidence supporting the allegations that the copper had been stolen or that he had known that the bill of consignment had been forged.

Meanwhile, in May and October 1994 the applicant company instituted civil proceedings before the Kotka District Court (käräjäoikeus, tingsrätten) against the State of Finland and the Russian Federation, respectively, requesting that the prohibition of transfer be revoked and that the District Court confirm that the applicant company was the legal owner of the copper. In its decision of 20 October 1995 the District Court found that it was not competent to examine the request that the prohibition of transfer be revoked. As to the ownership issue the District Court considered, taking into account that no one had ever claimed that the State of Finland was the legal owner of the copper, that it could not be considered a party to the proceedings. Thus, the claims made against the State of Finland could not be examined. Insofar as the Russian Federation had claimed the ownership of the copper but had not made any submissions to the District Court, the court found that it had no competence to examine an issue concerning a foreign State's ownership rights, being prevented by the international principles concerning the foreign sovereign states' immunities. It appears that the applicant company appealed and that on 27 June 1996 the Kouvola Court of Appeal (hovioikeus, hovrätten) upheld the decision.

Meanwhile on 23 October 1995, the applicant company requested that the customs authorities hand over the copper. The same day the forwarding agency informed the applicant company that the copper had been sold on to a Finnish company by the Russian Federation in co-operation with the Finnish customs.

On 5 December 1995, the applicant company instituted civil proceedings for public-sector liability for damages under the Tort Liability Act (vahingonkorvauslaki; skadeståndslagen; 412/1974) against the State of Finland, claiming the amount of 463,000 Finnish marks (equivalent to EUR 77,871) as compensation for the lost copper. It argued that the State was liable for the damage as a police officer, K., when acting as public authority, had overstepped his powers in ordering that the copper be returned to Russia even though there was no proof that it had been stolen.

On 24 May 1996 the Pori District Court rejected the applicant's claims, finding that the police officer in question had been entitled to agree with the findings of the Russian authorities that the copper had been stolen, having regard to the fact that the bill of consignment was forged, that the purchase price amounted to only about one fourth of the copper's real value and was paid in cash, that the company's representative did not know the identity of the seller's representatives, that the driver had been instructed to visit the customs authorities at a precise time and that the applicant company's representatives had not contacted the seller to sort things out following the prohibition of transfer. These circumstances warranted the conclusion that there was something shady and secret about the purchase. The wording of the police officer's communication to the customs indicating that there was no obstacle to returning the copper to Russia did not, however, decide the question of the ownership of the copper. As the copper had most probably been stolen in Russia, the applicant company had, in accordance with section 11 of the Decree Implementing the Penal Code (rikoslain voimaanpanemisesta annettu asetus, förordningen om införande av strafflagen), been obliged to return the copper to its legal owner without compensation. In accordance with the said provision, the applicant was entitled to seek compensation from the seller of the copper or from the person who had stolen it. Insofar as the State had argued that the applicant company, prior to commencing an action for compensation, should have appealed against the customs' decision with a view to minimising any possible damage, the District Court noted that the applicant had no interest in demanding a written decision as to the refusal to customs clear the copper delivery and to appeal against such a decision, as the company had considered that the customs' actions so far had been justified.

On 4 February 1997 the Turku Court of Appeal upheld the District Court's judgment.

On 5 September 1997 the Supreme Court refused the applicant leave to appeal.

Section 11 (515/1948) of the Decree Implementing the Penal Code reads, in so far as relevant, as follows:

“If a dispute arises concerning an item that has been stolen, ... from its previous holder, and if the one who has become the holder of the item proves that he received it in good faith, the holder of the item in dispute shall be obliged to hand it over without compensation and may seek compensation from the person he received the item from or from the person through whose offence he received it.”

According to the amended section 48 (1165/1987; as in force at the relevant time) of the Customs Act (tullilaki, tullagen), a decision of the district customs office could be appealed against to the National Board of Customs. According to section 50 of the Customs Act, unless otherwise provided, a decision of the National Board of Customs may be appealed against to the Supreme Administrative Court in accordance with the provisions of the Act on Appeals in Administrative Matters (muutoksenhausta hallintoasioissa annettu laki, lagen om ändringssökande i förvaltningsärenden; 154/50), as in force at the relevant time.

According to section 8 (f) of the Customs Act (573/1978), as in force at the time, a person had the right of possession of goods if he was their importer, exporter or owner or otherwise had possession or control over the goods.

According to section 9 (2) of the Customs Decree (574/1978; tulliasetus, tullförordningen), as in force at the time, the customs authorities had to ensure, to the extent possible, that the goods were delivered to the person who has a lawful right of possession in respect of them.

According to chapter 3, section 4 of the Tort Liability Act a person, who has suffered injury or damage owing to an erroneous decision by a state or municipal authority and without an acceptable reason has failed to appeal against the said decision, shall not be entitled to damages from the state or the municipality for injury or damage that could have been avoided by appealing.


The applicant, Mr Aleksandr Petrovich Sardin, is a Russian national, who was born in 1947 and lives in Omsk.

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

Between May 1968 and September 1969 the applicant performed military service near the Semipalatinsk nuclear tests site. On 25 May 1998 the Ministry of Defence of Kazakhstan issued the applicant with a certificate confirming that he had been exposed to radioactive emissions during his military service.

In 1998 and 1999 the applicant unsuccessfully applied to various Russian authorities to be granted the status of a victim of the Semipalatinsk nuclear tests.

In October 1999 the applicant lodged a civil action against the Social Security Agency of the Omsk Regional Administration (“the Agency”). He challenged the refusal of the Agency to issue him with a certificate for citizens who had been exposed to radioactive emissions as a result of nuclear tests on the Semipalatinsk test site (“the Semipalatinsk certificate”).

On 23 March 2000 the Tsentralniy District Court of Omsk granted the applicant’s action and ordered the Agency to provide him with the Semipalatinsk certificate confirming his entitlement to certain social benefits. The Agency did not appeal against the judgment and it became final on 3 April 2000.

On 20 June 2000 the court bailiffs opened enforcement proceedings.

The Agency did not execute the judgment and requested the Omsk Regional prosecutor’s office to bring an application for supervisory review.

On 6 July 2000 the Omsk Regional prosecutor’s office ordered the court bailiffs to suspend the enforcement proceedings and lodged an application for supervisory review (протест в порядке надзора) with the Presidium of the Omsk Regional Court. The prosecutor submitted that the area where the applicant had served was not in the Russian list of areas that had suffered from radioactive emissions and the Kazakh legislation could not be applied by analogy.

On 20 July 2000 the applicant received a court summons advising him that the hearing on the prosecutor’s complaint would take place on 1 August 2000. The applicant submits that on 25 July 2000 he filed written observations, but they were not accepted and he was promised that he would be given time to make oral submissions.

On 1 August 2000 the Presidium of the Omsk Regional Court held a hearing. According to the applicant, his representatives were not given an opportunity to speak before the court and the written memorandum was only accepted by the court registrar after the hearing finished. The Presidium of the Omsk Regional Court, by way of supervisory review, quashed the judgment of 23 March 2000 on procedural and substantive grounds and remitted the case for a new examination.

On 26 September 2000 the Tsentralniy District Court of Omsk made a new determination of the applicant’s action against the Agency and dismissed it as having no grounds in the domestic law.

On 31 January 2001 the Civil Chamber of the Omsk Regional Court upheld, on the applicant’s appeal, the judgment of 26 September 2000.

The Law “On the social protection of citizens who had been exposed to radioactive emissions as a result of nuclear tests on the Semipalatinsk test site” (no. 149-FZ of 19 August 1995), which was in force at the material time, provided that certain benefits and compensation available to the Chernobyl victims should be extended to those citizens who had lived in the area surrounding the Semipalatinsk test site and their descendants of the first and second generations. Articles 2 and 3 specified that the scope of the benefits and compensations should be determined by reference to a person’s exposure to radioactive emissions. These benefits and privileges included, in particular, free medical treatment, free medical insurance, housing maintenance subsidies, special payments to offset the loss of potential earnings, preferential treatment under labour laws, etc.

Under Article 5 the Semipalatinsk certificates were the documents confirming a person’s entitlement to benefits and compensations set out in the Law.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1980.

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

On 21 November 2005 the applicant’s wife’s car was stolen. G. contacted the applicant and asked for money for return of the car. The applicant reported this to the police and on 25 November 2005, under instructions from police officers, he gave the money to G. and recorded the conversation on audio tape. On the same day G. was arrested. On 5 June 2006 G. was charged with theft and extortion, mainly on the basis of the aforementioned evidence. On 14 July 2006 the criminal case was referred to the court.

Meanwhile, on 7 November 2005 the Aizkraukle District Prosecutor’s Office brought charges against the applicant concerning repeated misappropriation.

On 16 November 2005 the applicant entered a plea of guilty and confirmed that the examination of evidence was not necessary. He explicitly refused the assistance of defence counsel. On the same day the criminal case was referred to the court.

10 On 4 January 2006, during the hearing, the applicant confirmed that defence counsel and examination of witnesses were not necessary. The Aizkraukle District Court found the applicant guilty and sentenced him to three years’ and nine months’ imprisonment. The applicant was taken to Central Prison from the courtroom.

On 26 January 2006 the Zemgale Regional Court examined the applicant’s appeal and upheld the judgment of the lower court. According to the records of the hearing the applicant said in his statement to the court that he had been beaten up on his way to the prison and that it had happened because of his previous cooperation with the police.

In his appeal on points of law of 16 February 2006 the applicant complained about the severity of the sentence. He also mentioned his cooperation with police, and that as a result he had suffered bodily injuries in prison.

On 23 February 2006 the applicant asked the Prosecutor General to reduce his final sentence. He mentioned, inter alia, that because of his cooperation with the police he had encountered problems in prison, specifically that his nose had been broken and he had also sustained other body injuries. In March 2006 he sent a similar request to the Aizkraukle District Court.

On 7 March 2006 the Supreme Court dismissed the applicant’s appeal on points of law.

On 1 September 2006, at the request of the Prosecutor General’s Office, the Aizkraukle District Court reduced the applicant’s sentence by one year, owing to the fact that he had helped to disclose a serious criminal offence.

On 22 June 2007 the applicant was released from prison after serving his sentence.

The applicant arrived at Central Prison on 5 January 2006 and was placed in a filtering cell with eleven other inmates.

According to the applicant, during the night of 5-6 January 2006 he was physically and sexually assaulted by his fellow inmates: his nose was broken and he was raped. He complained about this to the Central Prison doctor, who rendered medical assistance but refused to draw up a medical report in this connection; similarly, a prison guard refused to initiate an investigation into the assault.

On 6 January 2006 he was transferred to cell 72, which provided services to the prison canteen.

According to a report drawn up by the head of the medical unit of the Prison Administration, on 6 January 2006 the applicant was examined by the Central Prison doctor, who recorded the applicant’s complaints about inflammation of the duodenum. On 16 January 2006 the applicant had a prophylactic examination by the same doctor, who assessed him as in good health and fit for work in the prison canteen.

On 14 March 2006 the applicant asked the Prison Administration to transfer him to specialised detention facilities in Matīsa Prison, arguing that he had been receiving threats from those he had testified against.

On 21 March 2006 an officer of the Security Department of the Prison Administration met the applicant. According to the report drawn up by the officer during the meeting the applicant complained about possible threats, in that the people he had testified against were known to some of his fellow inmates. The applicant denied having any problems in Central Prison where he was employed in the canteen.

Further, according to the same report, in a telephone conversation on 22 March 2006 a police officer in charge of G.’s criminal case confirmed that the applicant was cooperating, and acknowledged that the applicant might therefore encounter problems in prison, but he refused to confirm this in writing. With the agreement of the deputy head of the Prison Administration it was decided to transfer the applicant to Jēkabpils Prison. The report also stated that on 22 March 2006 a representative of the Prison Administration had advised the head of Jēkabpils Prison by telephone to take the applicant “under control”.

On 30 March 2006 the applicant was transferred to Jēkabpils Prison.

On 13 August 2006 the applicant complained to the Ombudsman (the Bureau for the Protection of Human Rights at that time) that he had been ill-treated on 6 January 2006 in Central Prison. At the Ombudsman’s request in September 2006 the Prison Administration requested information from Central and Jēkabpils Prisons about the applicant’s situation there.

On 25 September 2006 the head of Jēkabpils Prison reported that when the applicant arrived his personal file did not contain any indication that he required isolation from other inmates, and that he had not raised any complaints about physical ill-treatment while detained in Jēkabpils Prison. It was also noted that according to the prisoners’ internal classification the applicant was “kreisais” (someone who had allegedly, inter alia, cooperated with the law enforcement authorities).

On 27 September 2006 the head of Central Prison informed the Prison Administration that the applicant had never complained about the incident of 6 January 2006. The letter contained statements from three of the eleven fellow inmates with whom the applicant had been placed on 6 January 2006; they all denied any ill-treatment of the applicant.

Relying on the above reports, on 3 October 2006 the Prison Administration informed the Ombudsman’s Office that there was no information about the applicant’s ill-treatment.

In response to the request of the Government Agent, on 2 November 2007 the Office of the Prosecutor General stated that they had not received any complaints from the applicant concerning ill-treatment in Central Prison on 6 January 2006 or in any other prison. The letter confirmed that by virtue of section 6 of the Law of Criminal Procedure the Office of the Prosecutor would have decided on the opening of criminal proceedings if it had received a complaint from the applicant of physical or sexual ill-treatment or a refusal by the prison administration to review the complaint.

Aiming to ensure that the applicant attended G.’s trial, on 4 September 2006 the prosecutor in charge asked the Prison Administration to transfer the applicant from Jēkabpils Prison to Rīga. In her letter the prosecutor noted that G. had been detained in Central Prison and that his criminal case contained compelling information that G. had previously intimidated the applicant. Therefore the Prison Administration was asked to transfer the applicant to the specialised detention facilities in Matīsa Prison. The prosecutor referred to a report addressed to the Office of the Prosecutor General which confirmed the attempt to intimidate the applicant.

It appears that on two occasions the applicant had been transferred to Matīsa Prison in Rīga in order to attend G.’s trial.

In September and October 2006 the Prison Administration dismissed the applicant’s requests to allow him to continue serving the rest of his sentence in Matīsa Prison.

Sections 159 and 125 of the Criminal Law provides criminal sanctions for rape and other forms of sexual assault, the severity of sanctions varying according to the qualification of the offence.

Section 6 of the Law of Criminal Procedure provides that the official authorised to perform criminal proceedings has a duty in each case where the reason and grounds for initiating criminal proceedings have become known, to initiate proceedings and to direct them towards fair regulation of the criminal law as set out in the Criminal Law.

By virtue of section 369 parts one and two, one reason for initiating criminal proceedings is information which indicates that a criminal offence has been committed, if such information has been submitted to, or acquired by, an investigating institution (izmeklēšanas iestāde), the Office of the Prosecutor, or the court. The information referred to above may be submitted, inter alia, by a person who has suffered as a result of a criminal offence; by controlling and supervising institutions; by medical practitioners or institutions; or by any natural or legal person regarding possible criminal offences from which that person has not directly suffered.

Section 370 provides that criminal proceedings may be initiated if there is an actual possibility (reāla iespēja) that a criminal offence has been committed. Criminal proceedings may also be initiated if the information received described circumstances relating to a criminal offence which may have taken place and the examination of such information is possible only by methods applicable to criminal proceedings.

Section 371 sets out the responsibility for instituting investigations and those of the Office of the Prosecutor and the courts in the initiation of criminal proceedings. In particular, an investigator has a duty to initiate criminal proceedings, within his or her competence, if any of the factors referred to in Section 369 of this Law are present. A public prosecutor may send materials for examination to an investigating institution or commence criminal proceedings within the scope of his or her competence, in connection with any reason referred to in section 369 of this Law. Besides, a decision of a public prosecutor regarding the initiation of criminal proceedings, and the materials related to such decision, shall immediately be sent to an investigating institution, except for particular cases referred to in section 38, paragraph 3 of this Law.

By virtue of sections 386 and 387 the Prison Administration shall carry out pre-trial criminal proceedings and investigate criminal offences committed by detained or convicted persons, or by employees of the Latvian Prison Administration in places of imprisonment.

According to part 9 of the transitional provisions the terms izziņas iestāde (institution of an inquiry) and izziņas izdarītājs (person presiding over an inquiry) used in other legal enactments shall hereinafter be understood as the terms izmeklēšanas iestāde (investigating institution) and izmeklētājs (investigator).

According to section 1, an administrative act is a legal instrument issued by an institution in an area of public law. It further specifies that decisions regarding, inter alia, criminal proceedings and court adjudications, are not administrative acts.

The other relevant parts of the Law of Administrative Procedure as applicable at the material time concerning the right to challenge administrative acts and actions of public authorities are summarised in Melnītis v Latvia; no. 30779/05, §§ 24-26, 7 February 2012, not yet final.

The relevant provisions of the Law on the Prosecutor’s Office applicable at the material time are summarised in Leja v. Latvia, no. 71072/01, § 34, 14 June 2011. In particular, according to section 15 a prosecutor shall supervise the execution of sentences of deprivation of liberty and the places of that detention.

Section 16 provides that a prosecutor shall, in accordance with the procedures prescribed by law, carry out an examination if the information received contains assertions regarding either a crime or violation of the rights and lawful interests of, inter alia, detainees.

According to section 2 paragraph 5 the Prison Administration is an institution of an inquiry (izziņas iestāde) in criminal proceedings instituted to investigate offences committed by detained or convicted persons. By virtue of section 6 paragraph 4 the head of the Prison Administration shall have the power to launch an investigation in such criminal proceedings.

According to section 5 the special protection measures specified in this law are ensured by the following institutions: a specially authorised division of the State Police; a specially authorised department of the Latvian Prisons Administration and at the place of imprisonment – a specially authorised division of the place of imprisonment, as well as other persons performing investigative operations, if, in accordance with the instructions of the Prosecutor General, it is necessary to ensure special protection.

According to section 6 the reasons of applying special protection shall be an actual threat to the life, health or other legal interests of a person, expressed imminent threats or other sufficient grounds indicating that the danger may be imminent owing to a person’s participation in criminal proceedings. The special protection shall be appplied based on either a written request of a person testifying in criminal proceedings and a proposal of the investigating authority; or the initiative of a court, if a reason for applying special protection has arisen during the course of adjudication; or a written submission of another person to whom the special protection has been assigned.

The report of 13 March 2008 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 5 to 12 May 2004 notes the following:

“46. During the 2004 visit, the delegation examined several internal investigation files on inquiries conducted by the Security Departments into serious incidents of inter-prisoner violence at Daugavpils Prison and Rīga Central Prison. The delegation also had consultations with the competent prosecutor in Rīga.

It came to light that, in several cases, no criminal investigations had been initiated, despite the fact that medical evidence consistent with allegations of inter-prisoner violence was available. In this connection, the delegation was informed that, as a rule, instances of inter-prisoner violence were only reported to the prosecutor if the victim made explicit allegations to this effect in his written statement to the Security Department. In this connection it appeared to be immaterial whether or not the prisoner concerned had previously made such allegations to the doctor and the allegations had been recorded in his medical file.

It is also of concern that, even when the prosecutor had become aware of serious cases of inter-prisoner violence, he had not always initiated investigation not taken a formal reasoned decision on the matter. In fact, the Security Department’s investigation file was simply returned to the prison, without any record being kept that the prosecutor had examined the case.

The CPT recommends that the existing procedures be reviewed in order to ensure that whenever injuries are recorded by a doctor which are consistent with allegations of inter-prisoner violence, the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him.

More generally, the CPT calls upon the Latvian authorities to develop strategies with a view to addressing the problem of inter-prisoner violence in the establishments visited (and, as appropriate, in other prisons in Latvia).

In the light of the above, the CPT calls upon the Latvian authorities to take immediate steps to review throughout the prison system the role played by the Security Departments, in the light of the remarks made above ... .

In particular, steps should be taken to ensure that:

- criminal investigations into instances of ill-treatment by staff as well as inter-prisoner violence are no longer carried out by the Security Departments. Such investigations should be conducted by a body which is independent of the establishment concerned, and preferably of the prison system as a whole.

- prisoners are allocated/transferred to cells under the responsibility of the Director of the establishment concerned”.

At Rīga Central Prison, neither the complement of qualified nursing staff nor the psychiatric/psychological services had been strengthened, despite the specific recommendations made after the 1999 visit and reiterated after the 2002 visit. ....

In the light of the above, the CPT reiterates its recommendation that steps be taken, as a matter of priority, to ensure that:

- the complement of qualified nursing staff at Daugavpils Prison and Rīga Central Prison is increased;

- every newly-arrived prisoner is properly interviewed and physically examined by a medical doctor (or a fully qualified nurse reporting to a doctor) as soon as possible after his admission to Daugavpils Prison; save for exceptional circumstances, the interview/examination should be carried out on the day of admission;

In both establishments (including the Prison Hospital), the examination of medical files revealed that the injuries observed (upon admission or after violent incidents within the prison) were frequently not recorded in detail, and that no additional information was given as to the causes of the injuries sustained.

The CPT must therefore reiterate its recommendation that steps be taken at Daugavpils Prison and Rīga Central Prison (as well as in other prison establishments in Latvia) to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains:

(i) a full account of statements made by the prisoner concerned which are relevant to the medical examination, including any allegations of ill-treatment made by him;

(ii) a full account of the objective medical findings based on a thorough examination;

(iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between allegations made and the objective medical findings; these conclusions should be made available on request to the prisoner concerned and his lawyer.

Further, whenever injuries are recorded by a doctor which are consistent with allegations of ill-treatment made by a prisoner, the record should be immediately brought to the attention of the relevant prosecutor (see also paragraph 47)”.

In response to the above report the Latvian Government referred to an instruction of 29 March 2004 adopted by the Prison Administration. According to the instruction, in case there has been an incident of ill-treatment in a prison establishment, the prison doctor has to examine the detainee and to inform the administration of the prison. The latter has to inform the Prosecutor’s office and carry out an investigation according to the procedure established by law.

The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes:

“78. ... As was the case during all previous visits, the delegation observed a number of shortcomings in the manner in which injuries were recorded at Rīga Central Prison. First of all, several newly-arrived prisoners met by the delegation displayed visible injuries on various parts of the body (including on the face), but no injuries at all were recorded in the medical file, despite the fact that these injuries had apparently been sustained prior to admission. Further, although objective medical findings relating to injuries were recorded in other cases, they were frequently not accompanied by an account of the statements made by the persons concerned which are relevant to the medical examination. In particular, medical records frequently failed to note the prisoner’s account of the origin of these injuries (or to note if the person concerned had refused to reply to the relevant questions asked by the doctor) as well as the doctor’s conclusions in the light of the objective findings and the prisoner’s account. Further, at Jēkabpils Prison, the delegation found instances where visible injuries had not been recorded at all in the prisoners’ medical files (including after violent incidents in the prison).

The CPT must recommend once again that steps be taken at Rīga Central Prison and Jēkabpils Prison, as well as in all other prisons in Latvia, to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains:

(ii) a full account of objective medical findings based on a thorough examination;

(iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between any allegations made and the objective medical findings; these conclusions should be made available to the prisoner and his lawyer.

Recommendation Rec (2005)9 of the Committee of Ministers of the Council of Europe to member states on the protection of witnesses and collaborators with justice.

“II. General Principles

Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation.

While respecting the rights of the defence, the protection of witnesses, collaborators of justice and people close to them should be organised, where necessary, before, during and after the trial.

Acts of intimidation of witnesses, collaborators of justice and people close to them should, where necessary, be made punishable either as separate criminal offences or as part of the offence of using illegal threats”.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr William Durham, is a British national who was born in 1934 and lives in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.

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

On 13 August 2003, the applicant, owner of a van, received a notice from the police stating that his vehicle had been photographed speeding at 50 miles per hour in a restricted zone on 10 August 2003. He was asked to name the driver.

A final reminder was sent to him on 19 September 2003 allowing him a further fourteen days to provide the required information, failing which he would be prosecuted for the additional offence of failing to give the name and address of the driver, contrary to section 172 of the Road Traffic Act 1988.

He replied stating that he did not know who the driver was and that he did not believe it was his van in the photograph.

On 17 January 2004, the applicant received two summonses to appear before the Magistrates’ Court, one stating that he was the driver of the van and the second that he had failed to give information as to the driver of the vehicle.

On 24 March 2004, the Magistrates’ Court acquitted the applicant of being the driver of the vehicle alleged to have been exceeding the speed limit. It convicted him of failure to give information about the driver. He was fined GBP 220, with his licence to be endorsed with three penalty points.

The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...


The applicant, Mr Alwin Tamosius, is a United States national, born in 1951 and living in the United Kingdom. He is represented before the Court by Mr Lockley, a lawyer practising in the Sheffield.

The applicant is a lawyer and partner of the firm Tamosius & Partners, based in offices in London. Since about 1996, one of his clients, Mr Frestadius, had been under investigation by the Inland Revenue.

On 20 July 1998, the Inland Revenue sought to execute a search warrant on the applicant’s offices. The applicant claimed legal professional privilege in relation to the files which they wished to examine and seize. The Inland Revenue agreed not to examine or seize any of them.

On 10 August 1999, Mr Frestadius was committed for trial on two counts of cheating the revenue of tax payable. It was alleged that he had taken part in a scheme to evade tax by diverting commission offshore.

On 21 September 1999 the Inland Revenue obtained from the Crown Court an ex parte search warrant in order to search the applicant’s premises for documents evidencing offences of serious tax fraud, suspected to have been perpetrated by one or more of the applicant’s clients. The Inland Revenue also suspected that the applicant might himself have committed such offences, in particular that he had been involved in the arrangements for the diversion of commission offshore and assisted in concealing those arrangements from the Inland Revenue.

The wording of the warrant was as follows;

‘any officer who enters under the authority of this warrant may; (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever relating to or appearing to relate to serious tax fraud in relation to Corporation Tax, Income Tax and other obligations touching upon them and which he has reasonable cause to believe may be required as evidence for the purposes of proceedings in respect of such an offence as is mentioned above and; (c) search or cause to be searched any person found on the premises whom he has reasonable cause to believe to be in possession of any such things; but no person shall be searched except by a person of the same sex. No item may be taken from the premises which is subject to legal privilege (as defined in section 10 of the Police and Criminal Evidence Act 1984) (‘PACE 1984’)’.

The warrant was executed on 29 September 1999, but no property was initially examined or seized. Discussions took place between the parties to agree the resolution of issues of legal professional privilege, but no resolution was reached. The same day solicitors on behalf of the applicant applied for leave to judicially review the grant of the warrant. On 30 September 1999, leave was granted subject to the Inland Revenue giving an undertaking that any material removed from the premises would be sealed in opaque bags and not inspected until the full hearing. The first warrant was due to expire on 30 September and the Inland Revenue obtained a second ex parte warrant with identical wording apart from the following addition; ‘...obligations touching upon them, in relation to the persons named in the attached schedule, which he has reasonable cause...’ The attached schedule contained the names of 35 companies and persons involved in the arrangements which the Inland Revenue alleged were designed to cheat.

On 1 October 1999, the second search warrant was then executed. Some 69 documents, files and books were examined and seized. The procedure was as follows. Officers searched for relevant material. Once relevance had been decided, material was then reviewed by the counsel nominated by the Attorney-General and instructed by the Inland Revenue for the purposes of advising whether any document or other thing shown to him (a) was subject to legal professional privilege, (b) was not subject to legal professional privilege, (c) would have been subject to legal professional privilege but for the fraud/crime exception set out in section 10(2) of PACE 1984. Any document found to be subject to legal professional privilege was handed back to solicitors for the applicant. All the documents seen by counsel were listed, with counsel’s opinion as to each.

On 5 November1999, the Divisional Court took the view that neither warrant was unlawful.

It rejected the applicant’s arguments that the warrant failed to give adequate particulars of the materials which could be seized, holding that the there was nothing in the statute which required the particularity for which he contended. The validity of the warrant depended not upon its particularity but upon there being reasonable suspicion that an offence of serious fraud had been committed and there being reasonable ground for suspecting that evidence was to be found on the premises.

“The fallacy in the applicant’s argument lies in the content that greater particularity will provide greater protection against the seizure and removal of things which are irrelevant to the investigation or which are subject to legal professional privilege. ... The protection against the seizure and removal of irrelevant or privileged material lies in sub-section 4. Even if the warrant had been more specific it would provided no greater protection. Greater particularity of the kind for which the applicant contended would and could not have prevented officers of the revenue seizing and removing that which they were permitted to take by virtue of sub-section 3.”

As regarded the applicant’s complaints against the scrutiny of counsel instructed by the Inland Revenue, the court stated:

“The prohibition under subsection (4) is absolute. If a document is the subject of professional privilege it cannot be seized or removed. If therefore, an officer does seize and remove documents which are properly the subject matter of professional privilege, he acts unlawfully and can be prevented from so doing by the court. The court would also order him to return such documents. Moreover if the officer has acted unlawfully, the revenue may be liable in damages. Thus if it subsequently turns out that counsel was wrong, his presence will not assist the revenue to resist any action taken by the court in an attempt to remedy the unlawful seizure and removal of documents subject to professional privilege. It is for the court to determine whether the documents in fact seized and removed were subject to such privilege. The fragility of professional privilege is to be protected, under the statutory regime, by the processes of and the sanctions imposed by the courts. It is only when they are found wanting that one can see that the rights to privacy and access to lawyers have been infringed. Therein lies a difficulty for this applicant. The complaint as to infringement of its rights would be easier to assess in the context of a complaint that professionally privileged documents were, in fact, seized and removed; That issue, possibly, remains to be litigated, but, as yet, there is no evidence that any of the documents seized and removed was privileged.

In the meantime it was open to the revenue in seeking to protect itself against unlawful seizure and removal to obtain the assistance of counsel nominated by the Attorney General. Such presence also protected the applicant... the lawfulness of the seizure and removal was not tainted by the presence of counsel. Indeed, I would have thought that his presence, in cases such as these, was to be encouraged, so long as it is understood that his presence should not inhibit a solicitor who wishes to assert a genuine claim to legal professional privilege from making his assertion as speedily as he can before the courts.”

The applicant petitioned the House of Lords for leave to appeal and was refused on 17 April 2000.

On a date unspecified, some two years later, a decision was taken not to prosecute the applicant.

Section 20C of the Taxes Management Act 1970 (as amended) provides:

“(1) If the appropriate judicial officer is satisfied on information given on oath given by an officer of the board that

– (a) there is reasonable ground for suspecting that an offence involving serious fraud in connection with, or in relation to, tax is being, has been or is about to be committed and that evidence of it is to be found on premises specified in the information; and (b) in applying under this section, the officer acts with the approval of the board given in relation to the particular case, the authority may issue a warrant in writing authorising an officer of the board to enter the premises, if necessary by force, at any time within 14 days from the time of issue of the warrant and search them. ...

(3) An officer who enters ... may (a) take with him such other persons as appear to him to be necessary; (b) seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence.

(4) Nothing in sub-section (3) above authorises the seizure and removal of documents in the possession of a barrister, advocate or solicitor with respect to which a claim to professional privilege could be maintained.”

Role of the counsel instructed to review the materials removed during the search

According to the instructions issued to counsel nominated by the Attorney-General to act on such searches, counsel’s role was to advise in relation to any document or thing over which a claim of legal professional privilege (LPP) is or could be made to decide whether it was:

(a) subject to LPP and the fraud/crime exception does not apply;

(b) relevant and not subject to LPP; or

(c) relevant, LPP would ordinarily apply but the fraud/crime exception defeats the claim of LPP.

Counsel was told:

“1.4 You are not part of the search team but there to give independent advice. You must not allow yourself to become part of the evidential trail as to the discovery of items during the search. Once they have been discovered by an officer who could give evidence about it if the matter proceeded to trial, it is your task to examine them for the specific purpose set out in these instructions.

2.1 In the event of a claim of LPP being made in relation to any item or in the event that any officer uncovers an item which may attract LPP, it will be your responsibility to assess the validity of that claim. Although you received your instructions to attend from the Revenue, you are there to act independently in assessing whether the item attracts LPP.”

Section 10 of the Police and Criminal Evidence Act 1984 provides:

(1) Subject to subsection (2) below, in this Act, “items subject to legal privilege” means-

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; and

(c) items enclosed with or referred to in such communication and made-

(i) in connection with the giving of legal advice; or

(ii) in connection with or in the contemplation of legal proceedings and for the purposes of such proceedings...

(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”


Violation of P1-1;Remainder inadmissible;Pecuniary damage  - reserved

Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Victoria Vassallo, is a Maltese national who was born in 1954 and lives in Zebbug, Malta

The applicant is one of eleven owners of a piece of land in Birkirkara, Malta, having an area of 1,578 square metres (“sq.m.”).

The land was the subject of a declaration by the Governor General dated 29 November 1974, stating that it would be expropriated for a public purpose. The public purpose intended was a social housing project.

At the time, the initiation of compensation proceedings was an action which could only be undertaken by the authorities and to which no time-limit applied. However, in the 1990s domestic case-law confirmed that the ordinary courts had the competence, upon a request made by persons in the applicant’s position, to set a time-limit for the performance of the obligation by virtue of Article 1078 of the Civil Code, a long-standing provision.

Following twenty-five years of silence on the part of the authorities, on 9 February 1999 the Government issued a notice to treat and offered the owners of the land 5,600 Maltese liri (MTL), approximately 13,045 euros (EUR). This reflected the value (on the date of valuation) of the property as agricultural land, including some rural structures according to an independent architect’s evaluation commissioned by the Government on 21 November 1998. The owners refused this offer and proceedings were initiated before the Land Arbitration Board (“LAB”) to assess the amount of compensation due. These proceedings are still pending to date since they have been suspended pending the completion of the ordinary and constitutional proceedings instituted (see below).

From 1974 to 2000 the property remained unused. On 1 December 2000, pending the proceedings mentioned below, the authorities ordered the restitution to the owners of part of the land measuring 324 sq.m., which was eventually released in 2002. On 2 April 2002 the applicant and the other owners signed a sworn declaration to the effect that no further claims for compensation or damages would lie in respect of this piece of land.

The remaining land (1,254 sq.m.) was kept by the authorities with the aim of building a social housing project. In 2002 the Government started constructing apartments and maisonettes. While the price offered for the remaining land still has to be apportioned by the LAB, the Government estimated that a fair pro rata value would amount to MTL 4,450, approximately EUR 10,369.

On 14 May 1999 the applicant’s predecessor instituted ordinary civil proceedings. He contended that the order of expropriation had not been made for a public purpose, since the land had remained unused and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. In consequence, they requested that the expropriation be declared null and void.

On 5 March 2004 the Civil Court dismissed the claim, holding that it had not been proved that the expropriation had been in contravention of the law, namely the Land Acquisition (Public Purposes) Ordinance.

No appeal was lodged against this judgment.

On 23 July 2004 the owners of the land (including the applicant) instituted constitutional redress proceedings. They claimed a violation of their rights under Article 1 of Protocol No. 1 to the Convention in that the expropriation had not been carried out for a public purpose, since the land had remained unused for twenty-five years and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. They further argued that the measure had not been proportionate in view of the compensation offered and that they should be compensated according to the market value of the land at that date.

On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 1 of Protocol No. 1 to the Convention and awarded the owners EUR 50,000 in compensation for non-pecuniary damage. It held that the land had originally been taken in the public interest, namely for the housing project, construction of which, however, had only recently started. However, this public purpose had not been pressing, since the land had remained unused for twenty-five years, during which the authorities had not initiated compensation proceedings. In consequence the owners’ property rights had been breached. Lastly, noting that the owners were not calling into question the relevant compensation provisions of the law, but simply arguing what compensation should be payable, it refused to take cognisance of the claim regarding compensation for pecuniary damage, since the amount payable still had to be determined by the LAB. The expenses were to be borne by both parties.

By a judgment of 30 April 2009, the Constitutional Court, on appeal, altered the first-instance judgment in part. While considering that a public interest had existed originally, and had persisted since indeed some apartments had eventually been built, it confirmed that there had been a delay on the part of the authorities in initiating proceedings, which had been to the detriment of the owners, and this constituted a breach of their property rights. However, it noted that although the owners had an available remedy to speed up the process, they had done nothing about it. In consequence, while upholding the finding of a violation, the Constitutional Court reduced the award in respect of non-pecuniary damage to EUR 15,000. It further confirmed that the complaint regarding compensation for pecuniary damage was premature, that issue still having to be determined by the LAB. It ordered the expenses to be borne by both parties.

The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows:

Section 3

“The President of Malta may by declaration signed by him declare any land to be required for a public purpose.”

Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that:

Section 12(1)

“...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.”

Section 13(1)

“The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner (...).”

Section 22

“If the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.”

Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows:

“Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed:

(b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to the circumstances.”