Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (national proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicant was born in 1972 and lives in Hamburg (Germany).

On 8 September 1992 a Mr S. was fatally injured by a shot fired at a Gypsy encampment in Rome. The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing.

On 15 October 1992 the Rome investigating judge made an order for the applicant's detention pending trial. However, the order could not be enforced as the applicant had become untraceable. As a result, the Italian authorities considered that he had deliberately evaded justice and on 14 November 1992 declared him to be a “fugitive” (latitante). The applicant was identified as Cloce (or Kroce) Sejdovic (or Sajdovic), probably born in Titograd on 5 August 1972, the son of Jusuf Sejdovic (or Sajdovic) and the brother of Zaim (ou Zain) Sejdovic (or Sajdovic).

As the Italian authorities had not managed to contact the applicant to invite him to select his own defence counsel, they assigned him a lawyer, who was informed that his client and four other persons had been committed for trial on a specified date in the Rome Assize Court.

The lawyer attended the hearing, but the applicant did not.

In a judgment of 2 July 1996, the text of which was deposited with the registry on 30 September 1996, the Rome Assize Court convicted the applicant of manslaughter and illegally carrying a weapon and sentenced him to twenty-one years and eight months' imprisonment. One of the applicant's co-defendants was sentenced to fifteen years and eight months' imprisonment for the same offences, while the three others were acquitted.

The applicant's lawyer was informed that the Assize Court's judgment had been deposited with the registry. He decided not to avail himself of his right of appeal under Italian law. The applicant's conviction accordingly became final on 22 January 1997.

On 22 September 1999 the applicant was arrested in Hamburg by the German police under an arrest warrant issued by the Rome public prosecutor's office. On 30 September 1999 the Italian Minister of Justice requested the applicant's extradition. He added that, once he had been extradited to Italy, the applicant would be entitled to apply under Article 175 of the Code of Criminal Procedure (“the CCP”) for leave to appeal out of time against the Rome Assize Court's judgment.

At the request of the German authorities, the Rome public prosecutor's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him. The public prosecutor's office was not in a position to say whether the applicant had contacted the lawyer assigned to represent him. In any event, the lawyer had attended the hearing and had played an active role in conducting his client's defence, having called a large number of witnesses. Furthermore, the Rome Assize Court had clearly established that the applicant, who had been identified by numerous witness as Mr S.'s killer, was guilty. In the opinion of the public prosecutor's office, the applicant had absconded immediately after Mr S.'s death precisely to avoid being arrested and tried. Lastly, the public prosecutor's office stated:

“A person who is to be extradited may seek leave to appeal against the judgment. However, for a court to agree to re-examine the case it has to be proved that the accused was wrongly deemed to be a 'fugitive'. To sum up, a new trial, even in the form of an appeal (during which new evidence may be submitted), is not granted automatically.”

On 6 December 1999 the German authorities refused the Italian Government's extradition request on the ground that the requesting country's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened.

In the meantime, the applicant had been released on 22 November 1999.

The relevant parts of Article 175 §§ 2 and 3 of the CCP provide:

“A person convicted in absentia ... may apply for leave to appeal out of time against the judgment where he is able to prove that he was not effectively notified [of the judgment] ... [and] on condition that there has been no negligence on his part or, if the judgment delivered in absentia has been served ... on his lawyer ..., that he has not deliberately refused to apprise himself of the steps taken in the proceedings.

An application for leave to appeal out of time must be lodged within ten days of the date ... on which the accused learned [of the judgment], failing which it shall be inadmissible.”


The applicant, a Swiss citizen born in 1954, is a construction engineer residing in Amriswil in Switzerland. Before the Court he is represented by Mr Dähler, a lawyer practising in St. Gallen.

On 16 March 1993 at 00h35 hours the applicant was driving a car in Gossau in Switzerland when he was stopped by the police. His blood level was checked, disclosing an alcohol level of 1,5 ‰ .

On 11 May 1993 the Road Traffic Office of the Canton of St. Gallen (Strassenverkehrsamt) withdrew the applicant's driving licence for a period of four months.

On 9 June 1993 the Gossau District Office (Bezirksamt) issued a penal order (Strafbescheid) in which it found the applicant guilty of driving under the influence of alcohol. It imposed on him a prison sentence of two weeks suspended on probation for a period of two years as well as a fine of 1,100 Swiss Francs (CHF). No appeal was filed against this penal order which acquired legal force.

Against the decision of the Road Traffic Office of 11 May 1993 the applicant filed an appeal in which he complained of the length of the withdrawal of his driving licence. The appeal was dismissed by the Administrative Appeals Commission (Verwaltungsrekurs-kommission) of the Canton of St. Gallen on 25 May 1994.

The applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht) in which he complained that he had not had a public hearing as required by Article 6 § 1 of the Convention, and that the measure imposed on him was excessive. In its judgment of 11 January 1995 the Court considered, with reference to Swiss doctrine and practice, that Article 6 § 1 of the Convention was applicable to the case concerning the withdrawal of a driving licence. Thus, even if the matter had already been decided by the criminal judge, the authorities withdrawing the driving licence were “determining a criminal charge” within the meaning of this provision. According to Article 6 § 1, the applicant should have had an oral hearing which he did not have. As a result, the Court quashed the decision of the lower court.

Proceedings were resumed before the Administrative Appeals Commission. By letter of 19 May 1995 the President of the Commission informed the applicant of the public hearing (öffentliche Verhandlung) fixed for 31 May 1995 in which the applicant would be questioned and the lawyer would have the opportunity to comment on the evidence. A representative of the Road Traffic Office would also have the possibility to speak.

The applicant's lawyer replied on 22 May 1999 that he intended to plead the case fully and not merely to limit himself to comment on the evidence. Any limitation in this respect would contradict the purpose of an oral hearing.

By letter of 23 May 1995 the President of the Administrative Appeals Commission informed the applicant's lawyer as follows:

“In reply to your letter of 22 May 1995 I can inform you that on 31 May 1995 there shall not be a 'trial' ('Hauptverhandlung') but a public hearing (öffentliche Anhörung) of the appellant, based on Article 6 § 1 of the Convention.

As a lawyer of the appellant you may be present at the hearing and you may thereafter comment thereupon. If at the hearing new legal issues arise you will have the opportunity to express yourself.

I would explain this manner of proceeding essentially as follows. The appeals proceedings continue to be in writing ... Despite a public hearing they are not replaced by oral proceedings. It is therefore not admissible to repeat or to add appeal grounds in open court (an Schranken). In the present case, the exchange of statements has occurred long ago and the content is known to the court.“

By letter of 24 May 1995 the applicant's lawyer replied that the oral hearing should be the same as a trial conducted in criminal proceedings, and that he would speak before the court on his complaint of ne bis in idem.

By letter of 26 May 1995 the President informed the applicant's lawyer of a judgment of the Federal Court according to which the principle ne bis in idem was not breached in the applicant's situation. The letter continued: “it can be left open whether this statement (Vorbringen) is admissible in court”.

The hearing before the Administrative Appeals Commission took place on 31 May 1995. The President prepared notes for this hearing which mentioned its conduct and contained prepared statements for each stage. According to the notes, the applicant was first questioned. The notes continue:

“I now wish to give the floor to [the applicant's lawyer]. He may comment on the duration of the withdrawal of the licence based on the questioning of the appellant. Actual legal explanations which amount to a repetition of the written appeal statement are not admissible. Thus, the exchange of written statements has been closed, the content of the case-file is known to the court. In this sense I now ask (the applicant's lawyer) to take the floor.

(To the extent that [the applicant's lawyer] evidently departs from this topic, he must be admonished. Possibly there should be a reproach (S. 69 of the Court Act) if [the applicant's lawyer] continues along the same lines. A disciplinary fine should only be imposed in last resort.)

..... listen to the statements of [the applicant's lawyer]

..... at the end thank [the applicant's lawyer] for his statement.”

A representative of the Road Traffic Office was heard, and the applicant was given the final word.

On 31 May 1995 the Administrative Appeals Commission gave its judgment in which it dismissed the applicant's appeal. The judgment recalled that the applicant had been questioned at the hearing; that his lawyer had been able to make comments; that the applicant had been given the final word; and that the applicant's lawyer had disagreed with this procedure, requesting a trial corresponding to criminal proceedings.

The judgment continued that the topic of the appeal was limited in that the administrative authority was bound both factually and legally by the result of the criminal proceedings. As a result, the main topic in the applicant's case was the length of the withdrawal of the driving licence. With reference to Article 6 § 1 of the Convention the Administrative Appeals Commission found that the withdrawal of a driving licence resembled in many respects a criminal sanction, but it remained an administrative measure in respect of which written proceedings were in principle called for.

The judgment then dealt with the applicant's complaint of ne bis in idem which he had raised in open court and also in his letter of 24 May 1995. This principle was not breached as the withdrawal of a driving licence was an administrative measure which was distinct from the penal sanction. Both the criminal and the administrative authority were called upon to consider all sanctions in their entirety when meting out the punishment. The judgment concluded that the applicant could not be acquitted on this ground, “independently thereof whether it was admissible to raise this matter at all in open court”.

The applicant filed an administrative law appeal in which he complained, inter alia, of a breach of ne bis in idem and that at the hearing his lawyer had on a number of occasions been interrupted and admonished not to make any pleadings.

The appeal was dismissed by the Federal Court on 5 December 1995. Insofar as the applicant complained that he had not had an oral hearing as required by Article 6 § 1 of the Convention, the Court noted that the applicant was heard orally and publicly before the Administrative Appeals Commission, and the applicant's lawyer was able to comment in court on ne bis in idem. To the extent that the lawyer complained that he had been interrupted when speaking on this matter, he had not claimed that he had been unable to comment on the points relevant for the judgment.

In respect of the applicant's complaint of a breach of ne bis in idem, the Court found that the criminal judge and the administrative authority had different jurisdictions, and this was not called in question by the criminal nature of the withdrawal of the driving licence within the meaning of Article 6 § 1 of the Convention.


The applicant, Mr Edmund Kranz, is a Polish national, who was born in 1919 and lives in Bydgoszcz.

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

On 19 July 1966 the applicant and his wife obtained a divorce decree. On 5 November 1975 the applicant’s ex-wife filed with the Bydgoszcz District Court (Sąd Rejonowy) a petition for division of the matrimonial property.

On 16 October 1978 the Bydgoszcz District Court gave a decision. Both parties appealed. On 30 May 1979 the Bydgoszcz Regional Court (Sąd Wojewódzki) quashed the first-instance decision and remitted the case.

In 1982 the applicant’s ex-wife donated her share in the disputed property to A.H. and E.H., who became parties to the proceedings.

On 2 December 1990 the applicant sent a letter to the Minister of Justice, complaining about the slow progress of the proceedings. On 15 February 1991, in reply to his complaints, the President of the Bydgoszcz Regional Court acknowledged that the proceedings were indeed lengthy.

Prior to 1 May 1993, the Bydgoszcz District Court held a number of hearings and obtained several expert reports.

On 2 October 1996 the Bydgoszcz District Court gave a decision. The court granted ownership of the entire property (plot of land and a house) to A.H. and E.H. The court also ordered them to pay off the applicant’s share in the estate.

On 5 June 1997, on the applicant’s appeal, the Bydgoszcz Regional Court partly amended the first-instance decision. On 19 September 1997 the applicant lodged a cassation appeal.

In March 1998 A.H. and E.H. sold their share in the property to a certain J.S. On 28 April 1999 the Supreme Court (Sąd Najwyższy) quashed the decision of 5 June 1997 and remitted the case to the Bydgoszcz Regional Court (Sąd Okręgowy).

On 20 December 2000 the Bydgoszcz District Court issued an interim order allowing the applicant to install central heating in his part of the house. On 25 June 2001, upon an appeal by J.S., the Bydgoszcz Regional Court quashed this decision.

It appears that the proceedings are pending before the Bydgoszcz Regional Court.


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant, Mr Vladimir Nikolayevich Alekseyev, is a Russian national who was born in 1952 and lives in Ivanovo, a town in the Ivanovo Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant is a bailiff. In February 2002 (according to the applicant) or January 2003 (according to the Government) the applicant sued his employer, the Ministry of Justice, for unpaid night shifts and overtime.

On 16 October 2003 the Justice of the Peace of Circuit 4 of the Frunzenskiy District of Ivanovo ordered the Ministry to recalculate the applicant’s salary from 2000, to pay arrears, and to amend the applicant’s contract.

On 4 December 2003 the Frunzenskiy District Court of Ivanovo upheld this judgment on appeal and the judgment became binding. It was gradually enforced by 22 December 2004.

Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.


The applicant is a Polish national born in 1952. He is a milling machinist and is currently detained in Włodawa prison.

Between 1977 and 1991 the applicant served a prison sentence. In 1986 he informed the medical service of Strzelce Opolskie prison that he had pain in his testicles. The applicant submits that after his problems with the testicles had started in 1986, until his release on probation in 1991 he was treated only by a dermatologist and a surgeon while his condition had called for a treatment by an urologist.

In August 1992 the applicant underwent a surgery in the Ostrowiec Świętokrzyski Hospital. It resulted in the removal of his left testicle on which a cyst had been found.

On 4 April 1994 the applicant was detained after he had attempted to commit a murder.

On 15 April 1994 the applicant was examined by a physician but did not complain about any significant medical problems.

Between 14 July 1994 and 28 September 1994 the applicant was detained in the psychiatric ward of the Cracow Detention Centre Hospital where he underwent observation. During his stay in that facility the applicant was also examined by a surgeon who diagnosed an infection of the testicle. The surgeon prescribed antibiotics and decided that the applicant qualified for a surgery. However, the applicant informed the Director of the Cracow Detention Centre Hospital that he would agree to the surgery only after the surgeon who was to perform it confirmed in writing that it would not cause any damage to the testicle and that there would be no further metastasis of the cyst. That statement was considered by the prison health service as a refusal to undergo the surgery.

In the meantime, the applicant sent letters to the Governor of Załęże prison, the Director of the Cracow Detention Centre Hospital and the Opatów District Prosecutor, in which he requested that he be examined by an urologist and an oncologist. On 24 August 1994 the Opatów District Prosecutor informed the applicant that, according to the information he had received from the Cracow Detention Centre Hospital, the applicant’s condition did not call for an examination by an oncologist and that he would be offered surgery as soon as he agreed to it.

On 29 September 1994 the applicant was transferred from the Cracow Detention Centre Hospital to Rzeszów prison.

On 4 October 1994 the applicant was admitted to the urology clinic of the Rzeszów Regional Hospital. On 10 October 1994 he was examined by an urologist who recommended that the applicant undergo surgery. In a letter of 14 October 1994, the Deputy Director of the Cracow Detention Centre Hospital informed the Governor of Rzeszów prison that the applicant could undergo a surgical treatment in that facility after having agreed to it.

Between 15 and 22 November 1994 the applicant remained in the Cracow Detention Centre Hospital.

On 19 December 1994 the Penitentiary Judge replied to the applicant’s letter of 2 November 1994 in which he had claimed that his state of health had called for his release from the prison. The judge pointed out that after the applicant’s brother had raised a complaint in that regard, the Central Prison Board together with the Chief Medical Officer of the prison service had conducted an investigation which had showed that the complaint was ill-founded. Moreover, the applicant had not reported any significant problems during his first medical examination on 15 April 1994. The judge also considered that, after the applicant had complained about his state of health, he had received proper medical treatment. He further observed that the applicant himself had made surgery impossible since he had refused to undergo it without a written guarantee that it would be successful, a statement which could not be made by any health service.

On 28 December 1994 the applicant had an ultrasound scan of the testicle administered in the surgical ward of the Łódz Prison Hospital. It showed a presence of a cyst.

In a letter of 21 January 1995 the Penitentiary Judge informed the applicant that his requests for oncological treatment were unfounded as his medical record showed that his condition was not due to cancer.

On 20 June 1995 the applicant was examined by an urologist and agreed to the surgery. On 22 June 1995 the Director of the Rzeszów Prison Surgery issued a health certificate stating that the applicant’s testicle should be removed in the urological ward of the Łódz Prison Hospital.

On 4 September 1995 the Director of the Central Prison Board informed the applicant that his complaint about inadequate medical treatment in the Rzeszów Prison Surgery was ill-founded.

On 5 December 1995 the applicant was examined in the urological ward of the Łódz Prison Hospital.

On 29 January 1996 the applicant filed with the Rzeszów Regional Court an action against the State Treasury in which he claimed compensation for inadequate medical treatment provided by the prison health service. In particular, he claimed that his medical problems with his testicles had started in 1986 while he had been detained and had worked in unhealthy conditions. The applicant further contended that he had been treated by doctors with inappropriate specialisations and had been refused surgical treatment.

On 7 February 1996 the Regional Court exempted the applicant from the court fees. On an unspecified later date he was granted legal aid.

On 21 March 1996 an urological surgeon issued an expert opinion on the applicant’s state of health, as requested by the Regional Court. He stated that the applicant had received adequate medical treatment during his detention. The opinion referred to an ultrasound examination of the applicant’s testicle administered in April 1995 in the urological ward of the Rzeszów Regional Hospital and to an examination on 5 December 1995 in the urological ward of the Łódz Prison Hospital. It pointed out that those examinations had showed that the applicant’s testicle was in a good condition, which proved the adequacy of the pharmaceutical treatment received by the applicant.

On 14 April 1996 the applicant submitted to the Regional Court written pleadings in which he challenged the conclusion of the expert opinion and requested that he be again examined by doctors. On an unspecified date the court ordered that the applicant be re- examined by another court-appointed expert. The examination took place on 26 June 1996 in the urological ward of the Rzeszów Regional Hospital. It consisted of two physical examinations of the applicant’s testicle and prostate gland and an ultrasound of the testicle. The expert opinion issued on the basis of those examinations concluded that the applicant had received proper medical treatment during his detention and that his condition did not call for either surgical or further pharmaceutical treatment. On 17 May 1996, the Penitentiary Judge informed the applicant that he considered his complaint about inadequate medical care, which the applicant had lodged during an interview with the judge held on 30 April 1996, to be ill-founded. On 15 July 1996 the Rzeszów Regional Court dismissed the applicant’s action, considering that the evidence before it had proved the applicant’s claim to be unfounded. On 14 November 1996 the Rzeszów Court of Appeal dismissed the applicant’s appeal against the judgment of the Regional Court.

On 19 March 1997 the Penitentiary Judge informed the applicant that he would not grant his request to be examined by a medical panel since the medical opinion issued on 17 March 1997 by the Rzeszów Prison Surgery had stated that the applicant could be treated in that facility.

Since 1 April 1997 the applicant has complained about his state of health to numerous institutions including, inter alia, the President of Poland, the Ombudsman, a member of parliament and the prison administration.


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

The applicant, Mr John Joseph McGlynn, is an Irish national, who was born in 1952. He is detained at HMP Woodhill, Milton Keynes. He is represented before the Court by Ms B. Goff, a lawyer practising in Bray, County Wicklow, Ireland.

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

On the night of 14/15 October 1987, an eighty-eight year old woman, VC, was raped both vaginally and anally in the course of a burglary at her home. Soon afterwards, VC gave a statement to the police in which she stated two black men had broken into her house and she had been raped by a large black man with an ordinary English accent. She stated that she had the impression that the men were older than teenagers but could not be sure. In the course of the police investigation, semen was found on her nightdress, on a bed sheet and on swabs taken from her body. The samples were placed in storage. No-one was charged at the time of the offences and VC died in 1995.

The applicant is white, slightly built and has an Irish accent. He was thirty-five years of age at the time of the offences. In 2009 his DNA was found to match that found on the nightdress and bed sheet. He was arrested, charged with rape, false imprisonment, buggery and burglary, and went to trial before a judge and jury at the Aylesbury Crown Court from 1–9 June 2010. The applicant’s defence was that he had been having an affair with VC and that they had consensual sex on a number of occasions, the last being the day before the rape took place, which explained the DNA on the bed sheet and nightdress. He denied, however, that he had been responsible for the burglary and rape.

At the start of the trial the prosecution applied for VC’s police statement to be read to the jury under section 116 of the Criminal Justice Act 2003. The trial judge allowed the application. He considered that it was proper to have regard to the likelihood of it being possible for the defence to controvert the statement of the witness by the defendant himself giving evidence and/or calling evidence of other witnesses. He noted that, while the evidence of VC was important, and without it there would be no prosecution, it was not the sole or decisive evidence in the prosecution case. The trial judge further considered the defence complaint that they could not explore the grounds for VC’s belief that she had been raped by a black man and could not be examined as to the affair the applicant said they had been having. The trial judge took the view that these were important matters but could be addressed by an appropriate direction to the jury in his summing up.

After VC’s statement had been read to them, the police officer who took the statement gave live evidence to the effect that VC was well-spoken, “old school”, stoic, and prim and proper. VC had told the police officer that she had not married until she was sixty years of age, that she had been a virgin when she had married and that she and her husband had sexual intercourse infrequently.

The jury also heard evidence from VC’s friends to whom she had confided that she had been raped by a black man. The friends also gave evidence that VC had been a lively, intelligent and active woman, who was involved in her local church. She had developed a tendency to be forgetful after she turned ninety.

A neighbour, AB, aged seventy-four at the time of trial, also gave evidence that she and VC had met the applicant at a café. She (AB) had exchanged numbers with him. She had seen him a few times afterwards, once in the company of a black man. (The applicant denied this last part of her evidence.) They had slept together once. (The applicant maintained it was on at least six occasions.) To her knowledge, the applicant and VC had never met each other after their meeting at the café.

The jury also heard expert evidence that the chances of the DNA on the bed sheet and nightdress belonging to someone other than the applicant were less than one in one billion. There was also forensic evidence that the applicant’s fingerprints had been found in seven places in VC’s home, including the window which had been forced open to obtain entry.

The prosecution also applied for leave to introduce the applicant’s four previous convictions for domestic burglaries, which had been committed between 1979 and 1984, on the ground that they were relevant to an important matter in issue between the defendant and the prosecution, namely whether the applicant had a propensity to burgle. The defence opposed that application, arguing that there was not a sufficient degree of similarity between the past burglaries (which had not involved targeting the elderly or any sexual offences) and the present case, where the principal charge was one of rape. The trial judge nonetheless allowed the introduction of the previous convictions, agreeing with the prosecution that the test was only whether the applicant had a propensity to burgle and whether this was an important matter in issue between the defendant and the prosecution. He was satisfied that this was the case and was further satisfied that the admission of the convictions was not so prejudicial as to outweigh its probative value.

The applicant gave evidence in his own defence. He said that, after meeting VC at the café, he had performed odd jobs for her, including repairing her window, which explained the fingerprints. In any event, given his previous experience of burglary, he would have known to use gloves, had he been the burglar. On two occasions VC had complained of joint or muscle pains and he had rubbed some oil on the painful areas. On a further occasion he had been helping VC move items into her bedroom. He had made a pass at her and they had proceeded to make love on the bed. In total, they had sex on about eight or nine occasions and at least twice in the bedroom. After the last occasion, on 13 October 1987, he finished his relationships with VC and AB and moved away from the area. He did so because he worked in the building industry and was obliged to move wherever there was work.

In respect of VC’s statement, the trial judge directed the jury in these terms:

“...you should examine it with particular care, bearing well in mind that it does have certain limitations which I draw your attention to now.

You have not had the opportunity of seeing or hearing [VC] in the witness box or of assessing her as a witness. When you do see and hear a witness you may get a much clearer idea of whether their evidence is honest and accurate. Her statement was not made or verified on oath and her evidence has not been tested in cross-examination, and you have not had the opportunity of seeing how her evidence would have survived some form of challenge. Her statement only forms part of the evidence and it must be considered in the light of all of the other evidence in the case. You must reach your verdict having considered all of the evidence. You should also have regard to the following discrepancies between her statement and her complaint and the prosecution evidence and the discrepancy [that] she was adamant that she was raped by a black man.”

The trial judge went to outline for the jury the ways in which they could test the reliability of VC’s statement, including the circumstances in which it was made, her comments to her neighbours after the rape, her lifestyle (including her tendency, later in life, to become forgetful), whether the statement was supported by or consistent with the other evidence in the case, and whether VC had any reason to be untruthful. He also instructed them that, to find the applicant guilty, they had to be sure that VC had been wrong in thinking that a black man had been responsible. They also had to discount the possibility that VC was having a secret affair with the applicant. Finally, the trial judge reiterated that the jury had to consider the amount of difficulty involved in challenging the statement in the absence of cross-examination.

In respect of the applicant’s previous convictions, the jury were directed as follows:

“The prosecution argue that those convictions are relevant because it establishes that the defendant has a propensity to burgle people’s houses, as happened to [VC] on the night that she was also tied up, handcuffed, raped and buggered. If you agree, then the prosecution suggest that it makes it more likely that this defendant committed the offence alleged, namely, burglary. The defendant admits those convictions. You must decide whether it establishes a propensity in him to burgle [VC]’s home, in other words a propensity to commit burglary and therefore help you as to whether he is the burglar. The defence case, as you know, is that it was not this defendant, he was not the burglar and was not at the home of [VC] on the night she was attacked, and in consequence could not and is not therefore guilty of any of these offences. ... So you must ask yourselves, does it establish the propensity that the prosecution contend for then if it does then it is a matter for you to judge how far that assists you in resolving the question of whether it was this defendant who acted as the burglar on this occasion, and whether, whilst burgling the property, it was him who tied up and sexually assaulted [VC].

Evidence of previous behaviour is only part of the evidence in the case. Its importance should not be exaggerated and it does not follow that just because the defendant behaved in a certain way in the past that he did so again on this occasion. Bad behaviour in the past cannot alone prove guilt; that is obvious.”

The trial judge concluded his summing up by reminding the jury, as he had done at the starting of his summing up, of the respective cases of the defence and prosecution. He first summarised the defence case and then that of the prosecution.

On 9 June 2010, the applicant was convicted by the jury of rape, false imprisonment, buggery and burglary. The total sentence was one of fifteen years’ imprisonment.

The applicant appealed against his conviction, inter alia on the ground that the trial judge erred in admitting VC’s statement and the evidence of his previous convictions. He also argued that the trial judge’s summing up had been unfair to him. On 16 March 2011 the appeal was dismissed by the Court of Appeal.

In respect of VC’s statement, the court concluded:

“[W]e in fact agree with the [trial] judge that the complainant’s [VC’s] evidence was not the sole or decisive evidence, albeit it is true that the prosecution might not have been pursued without it. The significance of the complainant’s statement was that it established that these offences had taken place. [Counsel for the applicant] conceded that had the statement not made any identification of the persons who had committed this offence, and had it merely established that the relevant offences had been committed, then he could not sensibly have opposed it being adduced before the jury. What makes the difference, he submits, is that there was this identification and he was not able to cross-examine in relation to it. It is, we have to say, a somewhat bizarre submission, given that the identification itself is, of course, the most powerful evidence in favour of [the applicant].

It is true that the Crown was seeking to introduce the complainant’s evidence and then seeking to persuade the jury that they could be sure that she was wrong about part of it, namely the colour of the attacker and that he had an English accent. As the court noted in R v. Cairns, Zaidi & Chaudhary [2003] 1 Cr.App.R. (S) 38, there is no rule of law prohibiting the Crown from calling a particular witness in order to rely on a part only of the evidence. [Counsel] does not dispute that principle, but say that a different principle applied where the Crown is relying only on hearsay evidence. He referred us specifically to paragraph 108 of the judgment of Lord Phillips in the Horncastle case, where Lord Phillips said this, after referring to the provisions of the 2003 Act:

“I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.”

[Counsel for the applicant] submits that the key here is that the Crown is not relying on the reliability of the statement. That is not entirely accurate. It is reliable, say the Crown, with respect to the fact that those offences were committed in precisely the way that the complainant alleges. What the Crown say is not reliable is the identification evidence which she provides. But the statement does not have to be reliable in every respect before it can be properly admitted.

In this case, in our judgment it would have been contrary to the interests of justice to deprive the court of this statement. Indeed, it would have the effect that this defendant would effectively be immune from conviction because a witness has died, which is precisely what the 2003 Act was designed to prevent. In this case there was a strong prima facie case against the defendant on various serious charges and it would have been wrong, it seems to us, to have deprived the jury of an opportunity to consider his guilt because of the unfortunate death of the victim.

Accordingly, we consider that it was entirely in accordance with the principles in Horncastle that this statement should be admitted. Insofar as it assisted the [applicant] to establish his innocence, it was in his favour.”

In respect of the applicant’s previous convictions, the court found that they were plainly relevant to a propensity to burgle, one of the charges on the indictment. The court did not accept that, because a more serious charge was also on the indictment, it became unfair to admit the evidence.

For the trial judge’s summing up, the court accepted that it might have been better if the judge, in his summary of the respective cases, had put the defence case last, but that was of no real moment. Moreover, although he had failed to refer to the fact that VC had identified her attacker as a black man with an English accent, that was plainly at the forefront of the jury’s mind; it had been a fundamental pillar of the applicant’s defence. The point had been made earlier in the summing up; it was an unfortunate oversight on the part of the trial judge that it was not referred to specifically when the summary of the respective cases had been given, but nothing more.

The relevant provisions of the Criminal Justice Act 2003 and the judgment of the Supreme Court in R. v. Horncastle and others [2009] UKSC 14 are set out in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 43-45 and 57-62, ECHR 2011.

Bad character evidence is regulated by Part 11, Chapter 1 of the Criminal Justice Act 2003. Section 98 defines evidence of a person’s bad character as:

“evidence of, or of a disposition towards, misconduct on his part, other than evidence which —

(a) has to do with the alleged facts of the offence with which the defendant is charged, or .

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.”

Section 101 allows for the admission of evidence of a defendant’s bad character. It provides:

“(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— .

(a) all parties to the proceedings agree to the evidence being admissible,

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c) it is important explanatory evidence,

(d) it is relevant to an important matter in issue between the defendant and the prosecution,

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f) it is evidence to correct a false impression given by the defendant, or.

(g) the defendant has made an attack on another person’s character.

(2) Sections 102 to 106 contain provision supplementing subsection (1).

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.”

Section 103, where relevant, provides:

“‘Matter in issue between the defendant and the prosecution’

(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include —

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—

(a) an offence of the same description as the one with which he is charged, or

(b) an offence of the same category as the one with which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2) —

(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

(5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6) Only prosecution evidence is admissible under section 101(1)(d).”

Section 112(1) defines “important matter” as a matter of substantial importance in the context of the case as a whole.


CASE OF MARKT INTERN VERLAG GMBH AND KLAUS BEERMANN v. GERMANY

C. Russo;J.A. Carrillo Salcedo;N. Valticos

The first applicant, markt intern, is a publishing firm, whose registered office is at Düsseldorf. The second applicant, Mr Klaus Beermann, is its editor-in-chief.

Markt intern, which was founded and is run by journalists, seeks to defend the interests of small and medium-sized retail businesses against the competition of large-scale distribution companies, such as supermarkets and mail-order firms. It provides the less powerful members of the retail trade with financial assistance in test cases, lobbies public authorities, political parties and trade associations on their behalf and has, on occasion, made proposals for legislation to the legislature.

However, its principal activity in their support is the publication of a number of bulletins aimed at specialised commercial sectors such as that of chemists and beauty product retailers ("markt intern - Drogerie- und Parfümeriefachhandel"). These are weekly news-sheets which provide information on developments in the market and in particular on the commercial practices of large-scale firms and their suppliers. They are printed by offset and are sold by open subscription. They do not contain any advertising or any articles commissioned by the groups whose cause they espouse.

Markt intern claims to be independent. Its income is derived exclusively from subscriptions. It also publishes other series of bulletins containing more general consumer information, such as "Steuertip", "Versicherungstip" and "Flugtip", which are aimed respectively at taxpayers, holders of insurance policies and air travellers.

On several occasions undertakings which had suffered from the applicants’ criticism or their calls for boycotts instituted proceedings against them for infringement of the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act").

On 20 November 1975 an article by Mr Klaus Beermann appeared in the information bulletin for chemists and beauty product retailers. It described an incident involving an English mail-order firm, Cosmetic Club International ("the Club"), in the following terms:

"‘I ordered the April beauty set ... from Cosmetic Club International and paid for it, but returned it a few days later because I was not satisfied. Although the order-form clearly and expressly stated that I was entitled to return the set if I was dissatisfied, and that I would be reimbursed, I have not yet seen a pfennig. There was also no reaction to my reminder of 18 June, in which I gave them until 26 June to reply.’ This is the angry report of Maria Lüchau, a chemist at Celle, concerning the commercial practices of this English Cosmetic Club.

On 4 November we telexed the manager of the Club, Doreen Miller, as follows: ‘Is this an isolated incident, or is this part of your official policy?’ In its swift answer of the following day, the Club claimed to have no knowledge of the set returned by Mrs Lüchau or of her reminder of June. It promised however to carry out a prompt investigation of the case and to clarify the matter by contacting the chemist in Celle.

Notwithstanding this provisional answer from Ettlingen, we would like to put the following question to all our colleagues in the chemists and beauty product trade: Have you had similar experiences to that of Mrs Lüchau with the Cosmetic Club? Do you know of similar cases? The question of whether or not this incident is an isolated case or one of many is crucial for assessing the Club’s policy."

"‘Habe beim Cosmetic-Club International das Schönheits-Set ... von April bestellt und bezahlt, aber wegen Nichtgefallen nach wenigen Tagen zurückgesandt. Obwohl auf dem Bestellcoupon klar und deutlich geschrieben steht, dass ich bei Nichtgefallen berechtigt bin, das Set zurückzusenden und mir Erstattung zugesichert wird, habe ich bis heute keinen Pfennig wiedergesehen. Auch auf meine Abmahnung vom 18. Juni mit Fristsetzung 26. Juni erfolgte keine Reaktion.’ So der empörte Bericht der Celler Drogistin Maria Lüchau über die Geschäftstätigkeit des aus England importierten Cosmetic-Clubs.

Unser Telex vom 4. November an CCI-Geschäftsführerin Doreen Miller: ‘Handelt es sich hier um eine Einzelpanne, oder gehört dieses Verhalten zu Ihrer offiziellen Politik?’ In seiner prompten Antwort tags drauf will der CCI weder etwas von Frau Lüchaus Set-Retoure noch von ihrer Abmahnung im Juni wissen. Er verspricht aber eine sofortige Untersuchung des Falles sowie eine klärende Kontaktaufnahme mit der Drogistin in Celle.

Unabhängig von dieser vorläufigen Antwort aus Ettlingen unsere Frage an alle Drogerie/Parfümerie-Kollegen: Haben Sie ähnliche Erfahrungen wie Frau Lüchau mit dem Cosmetic-Club gesammelt? Oder sind Ihnen ähnliche Fälle bekannt? Die Ein- oder Mehrmaligkeit solcher Fälle ist für die Beurteilung der CCI-Politik äusserst wichtig."

Previously, on 20 September and 18 October 1974 and on 29 October 1975, markt intern had already published articles on the Club and advised retailers and manufacturers to be cautious in their dealings with it because the Club had failed to respect certain dates and promises. On 29 October 1975 markt intern described as correct the Club’s statement in a legal pleading that "a change in the attitude of the industry show[ed] that the call for a boycott [had] not failed to make an impression".

The Club instituted proceedings in the Hamburg Regional Court (Landgericht) which, on 12 December 1975, pursuant to Articles 936 and 944 of the Code of Civil Procedure, issued an interim injunction prohibiting markt intern from repeating the statements published on 20 November.

Since the applicants had requested a decision as to the main issue (Articles 936 and 926 of the Code of Civil Procedure), the Club instituted the appropriate proceedings within the time-limit laid down by the court. It asked the court

"to restrain markt intern from publishing in its information bulletins:

the statement that Mrs Lüchau had given an angry account of the Club’s commercial activities to the effect that she had returned the beauty set - because she was dissatisfied with it - but had not been reimbursed despite sending a reminder,

without stating at the same time that the Club had immediately sent to Mrs Lüchau an enquiry, which it had prepared, for submission to the postal authorities, and that it had assured her that it would reimburse her expenses;

the statement that in its immediate response to markt intern, sent on the following day, the Club had stated that it had no knowledge of the beauty set’s being returned or of the reminder sent in June,

without making clear at the same time that there was no intention to raise doubts as to the accuracy of the Club’s statement;

the question asking colleagues of the chemists and beauty product retailers trade whether they had had similar experiences to that of Mrs Lüchau or knew of similar cases - because it was of the greatest importance in assessing the Club’s policy to know whether this case was an isolated incident or whether there had been others,

without making clear at the same time that it was not sought to insinuate that the Club’s official policy was to accept payment without immediately supplying the products due".

The Regional Court gave its decision on 2 July 1976. It dismissed the Club’s first head of claim because the statement was accurate and there was no reason to think that markt intern would disseminate it again without indicating what had occurred since the publication of its information sheet of 20 November 1975 (enquiries made to the postal authorities, etc.). On the other hand, it allowed the other two heads of claim, basing its decision on Article 824 of the Civil Code, according to which, "anyone who untruthfully alleges or disseminates a fact liable to affect adversely a person’s creditworthiness or to cause him other disadvantages relating to his earning capacity or his career advancement, shall be liable to pay compensation for any such damage he may have caused". It found that Article 823 of the Civil Code was not applicable and left open the question whether the Club could also rely on the 1909 Act.

In the Regional Court’s view, in writing that the Club claimed to have no knowledge of the return of the beauty set and of Mrs Lüchau’s reminder (the Club’s second head of claim), markt intern had not only expressed doubts as to the accuracy of this information but had also virtually asserted, without providing any proof, that the information provided was untruthful.

By inviting chemists to inform it of any "similar experiences" with the Club (the Club’s third head of claim), markt intern had solicited information, which, if possible, was to be of a negative character regarding the Club, despite the fact that there were not at that stage sufficient grounds to suggest that the Club’s commercial policy was reprehensible.

The Regional Court acknowledged that economic activities were subject to critical review by the press. However, it considered that the principles of the protection of legitimate interests (Article 193 of the Criminal Code) and of the freedom of expression (Article 5 of the Basic Law) did not protect the repetition of untruthful statements.

The court concluded that the applicants’ conduct was culpable. Markt intern ought not to have generalised from the case of Mrs Lüchau, the circumstances of which had not yet been clarified, and used it to formulate criticism of the Club. This method of proceeding could not be reconciled with the obligations incumbent on journalists. The defendants ought to have begun by taking their enquiries further, but not in the form of their request for information from the retailers.

Under the terms of the judgment, for each contravention the applicants were liable to a fine (Ordnungsgeld) or detention (Ordnungshaft) to be fixed by the court, but not exceeding DM 500,000 or six months, respectively.

On 31 March 1977 the Hanseatic Court of Appeal found for the applicants and quashed the Regional Court’s judgment.

In the Court of Appeal’s view, the 1909 Act was not applicable because, by publishing its article on 20 November 1975, markt intern had not acted from competitive motives, in other words with a view to increasing the turnover of chemists and beauty shops, to the detriment of the Club; it had sought to inform its readers that the Club had not dealt as it should have done with a matter concerning one of its own customers. Nor could the Club rely on Articles 824 and 823 of the Civil Code because the allegations published on 20 November 1975 were not untruthful.

As regards the return of the beauty set and Mrs Lüchau’s reminder (the Club’s first head of claim), the applicants’ statements had been consistent with their obligations as journalists. The Criminal Code (Article 193) in principle allowed unfavourable assessments regarding business services in so far as they sought to protect legitimate interests. Article 5 of the Basic Law recognised that the role of the press was to contribute to the forming of public opinion. Finally, there was no risk that markt intern would repeat this particular statement.

The statement that the Club had claimed to have no knowledge of the beauty set and Mrs Lüchau’s reminder ("will ... weder ... noch ... wissen The form of words merely indicated to the readers that markt intern could not confirm the information provided by the Club.

By its request for information from chemists (the Club’s third head of claim), markt intern had not cited facts or made allegations suggesting that the incident in question represented the Club’s official policy. It had simply recommended that its readers verify the Club’s commercial practices and, indeed, had left open the question whether Mrs Lüchau’s case was an isolated incident. It had of course expressed the opinion that it was, in its view, possible that there had been a number of other cases of the same type. This was, however, merely a value judgment.

The Club appealed to the Federal Court of Justice which, on 16 January 1980, set aside the Hanseatic Court of Appeal’s judgment and, varying the Hamburg Regional Court’s judgment, ordered the applicants to refrain from publishing in their information bulletin the statements disseminated by markt intern on 20 November 1975 in the form referred to by the Club in its heads of claim at first instance (see paragraph 14 above).

For each contravention, the applicants were liable to a fine or detention to be fixed by the court, but not exceeding DM 500,000 or six months, respectively.

The Federal Court of Justice based its judgment on section 1 of the 1909 Act, according to which:

"Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices may be enjoined from further engaging in those acts and held liable in damages."

"Wer im geschäftlichen Verkehre zu Zwecken des Wettbewerbes Handlungen vornimmt, die gegen die guten Sitten verstossen, kann auf Unterlassung und Schadensersatz in Anspruch genommen werden."

(a) Notwithstanding the lack of a competitive relationship between markt intern and the Club, the 1909 Act was said to apply because it was sufficient in this respect that the contested conduct was objectively advantageous to an undertaking, to the detriment of a competitor. That was exactly the aim pursued in this instance. On these points, the Federal Court referred to the established case-law, and in particular its own, concerning the 1909 Act.

In so far as the Court of Appeal had held that the applicants did not intend to intervene in favour of the specialised retail trade to the detriment of the Club, its judgment did not stand up to scrutiny. It had not taken sufficient account of all the circumstances nor attached the correct weight to the evidence adduced. Having regard in particular to the previous reports published by markt intern on the Club (see paragraph 12 above), the Court of Appeal ought to have found that the applicants had not merely provided information as an organ of the press, but had embraced the interests of the specialised chemists trade and, in order to promote those interests, had attacked the Club’s commercial practices. The Court of Appeal ought consequently to have concluded that markt intern intended to act in favour of the specialised trade and to the detriment of the Club. In general, it was extremely unusual for the press and the news media to cite an isolated incident such as the case of Mrs Lüchau - according to markt intern it could even have been simply "a breakdown in communications" - in order to raise immediately in public the controversial question whether this case reflected the Club’s official policy. The Court of Appeal ought to have regarded markt intern’s call for information from its readers concerning negative experiences of a similar type as an even more unusual step, which again revealed the intention to influence the market.

(b) Section 1 of the 1909 Act was thus applicable in this case. It was infringed because the disputed statements were contrary to honest practices on the following grounds:

"By their publication of the article complained of ..., the respondents acted in a way contrary to honest practices within the meaning of section 1 of the 1909 Act. It is immaterial in this connection whether the statements regarding the witness Lüchau (first head of claim) were true. The mere fact that a commercially damaging statement is true does not necessarily constitute a defence against a charge of acting in breach of the principles of fair competition. According to the rules of competition, such statements are acceptable only if they are based on sufficient grounds and if the manner and extent of the criticism in question remains within the limits of what is required by the situation because it is contrary to honest practices to engage in competition by making disparaging statements about competitors (see Federal Court of Justice, Gewerblicher Rechtsschutz und Urheberrecht ("BGH GRUR") 1962, pp. 45 and 48 - Betonzusatzmittel). In this case, at the time of the publication there was not sufficient cause to report this incident. The exact circumstances had not yet been clarified. The appellant in its reply had agreed to undertake an immediate investigation and to contact Mrs Lüchau in order to clarify the position. The respondents were aware that criticism of the appellant could not be fully justified before further clarification had been sought, as they themselves had described the appellant’s reply as a provisional answer. Accordingly, they should have taken into consideration that any such premature publication of this incident was bound to have adverse effects on the appellant’s business, because it gave the specialised retailers an effective argument which was capable of being used against the appellant with their mutual customers, and one which could be used even if the incident should turn out to be an isolated mishap from which no conclusion could be drawn as to the appellant’s business policy. In these circumstances, at all events at the time of the publication, there were not sufficient grounds for reporting this isolated incident. Such conduct is, moreover, very unusual in business competition.

As regards the second head of claim, the appeal on a point of law must be allowed for the simple reason that the sentence: ‘The Club claimed to have no knowledge of the set returned by Mrs Lüchau or of her reminder of June’ can be understood only in the light of the information contrary to honest competition which is referred to under the first head of claim. As, simply, an additional and related item of information, it qualifies for the same legal assessment, in particular because it was liable to strengthen the unfavourable impression which inevitably resulted from the mere recounting of the incident. The Court of Appeal considered that this was no more than an illustration of the fact that the journalist had not been in a position to verify what had been told to him, but this observation conflicts with its earlier conclusion that the wording used expressed at least serious doubts as to the accuracy of the information and that in this case, consequently, the description of events put forward by the appellant was presented as being, probably, unreliable. The Court of Appeal ought therefore to have stated on what basis it reached a conclusion contrary to the ordinary meaning of the words. It did not do so, so that it may be presumed that at least a significant proportion of the readers of the bulletin would interpret the words employed in accordance with general usage, which was liable to show the appellant in an even more unfavourable light.

The Court of Appeal’s dismissal of the third head of claim was based on the following considerations. The question put to chemist and beauty store colleagues asking whether their experiences with the Club had been similar to that of Mrs Lüchau or whether they knew of similar cases, which was said to be very important in assessing the Club’s policy, indicated that the respondents considered it possible that a number of cases of this type had occurred. However, this merely represented a value judgment, and as such could not give rise to objections. Yet, under section 1 of the 1909 Act, the decisive issue is not whether the statement is to be regarded as a value judgment or as an allegation of fact. The expression of a value judgment can also exert an unacceptable influence in the field of competition under section 1 of the 1909 Act (see BGH GRUR 1962, p. 47 - Betonzusatzmittel). In this case, there were in any event not sufficient grounds for such a sweeping suspicion. A single case of this type did not constitute evidence for suspecting immediately that the appellant’s commercial policy was fraudulent. It is moreover contrary to honest commercial practices to solicit, in such circumstances and at such an early stage, compromising information.

As the respondents were aware of the circumstances giving rise to the criticism that they had acted contrary to honest practices, there can be no reservations, from the subjective point of view, against finding a contravention of section 1 of the 1909 Act. As regards the risk of repetition, regard must be had to the principle laid down by the Federal Court of Justice in its case-law, according to which, where the rules of competition are infringed, there is a presumption of fact that such a risk exists (see Federal Court of Justice, civil cases ("BGHZ") 14, pp. 163 and 171 - Constanze II). This is the case for articles in the press where - as here - the nature of the questions dealt with gives grounds for supposing that the debate was not closed by the publication of the first article (BGHZ 31, pp. 318 and 319 - Alte Herren; BGH, Neue Juristische Wochenschrift ("NJW") 1966, pp. 647 and 649 - Reichstagsbrand). The respondents have not put forward any legally valid evidence that the danger no longer existed."

The applicants then appealed to the Federal Constitutional Court, claiming a violation of the freedom of the press (Article 5 § 1 of the Basic Law).

Sitting as a committee of three judges, the Constitutional Court decided, on 9 February 1983, not to entertain the appeal. It considered that the appeal did not offer sufficient prospects of success, for the following reasons:

"As the Federal Constitutional Court held in its decision of 15 November 1982 (1 BvR 108/80 and others [Entscheidungen des Bundesverfassungsgerichts, volume 62, pp. 230-248]), the requirements which must be satisfied in order for freedom of expression and of the press to override other legal interests protected under statutes of general application are not fulfilled where an item published in the press is intended to promote, in the context of commercial competition, certain economic interests to the detriment of others. This is the case as regards the statements prohibited by the Federal Court of Justice. The second sentence of Article 5 § 1 of the Basic Law did not therefore require a different interpretation and application of section 1 of the 1909 Act from that given by the judgment appealed.

As that decision is not based on a violation of the second sentence of Article 5 § 1 of the Basic Law (freedom of the press), it is immaterial that the Federal Court did not, in the reasons given for its decision, expressly address the question of the scope of the freedom of the press in relation to the application of section 1 of the 1909 Act."

Mrs Lüchau was not the only customer to complain about the Club. Two others informed the applicants that they had encountered similar difficulties; the first approached them before the publication of the bulletin of 20 November 1975 and the second after it.

According to its own statements, the Club sold 157,929 beauty sets between 1 December 1974 and 30 November 1975. In 1975, 11,870 identifiable persons returned the sets and were reimbursed.


The applicant, Owen Oyston, is a United Kingdom national, who was born in 1934 and lives in Lancaster, England. He is represented before the Court by Mr David Price, a lawyer practising in London.

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

On 22 May 1996, the applicant was convicted at the Liverpool Crown Court of raping and indecently assaulting a young woman, J. He was sentenced to six years’ imprisonment for rape and three years’ imprisonment for indecent assault, the two sentences to run concurrently. The applicant was acquitted at the same time of raping a second woman, B.

The background of the case may be described as follows. When J. was aged 14 she joined a modelling agency in Manchester and began attending weekend classes. The agency was owned by Peter Martin, a friend of the applicant, and the weekend classes took place at Martin’s home. When J. was aged 15, she started staying overnight at Martin’s house on Fridays and Saturdays. A number of other girls aged between 13 and 20 also stayed at the house. Martin exerted control over the girls, to the extent that he would tell them what to wear, what to eat, when to wash and when to go to bed. J. left school when she was aged 16 and went to live permanently at Martin’s house at about Easter 1992. Martin used to take the girls to restaurants. On one such occasion, about eight weeks after J. began living with him, Martin pointed out the applicant to her, telling her that he was “a very important man and dead rich”. About two weeks later, when Martin, J. and another girl from the agency L. were at the restaurant, the applicant was also present. After the meal, Martin said that they were to drive the applicant home in Martin’s car.

At the trial, J. gave evidence that she got into the back of the car at Martin’s suggestion, while L. sat in the front with Martin who was driving. J. stated that during the journey the applicant forced her to have oral sex with him. On arrival at the applicant’s home, Martin told J. and L. to get out as the applicant wanted to show them his house. J. followed the applicant and L. and ended up in a bedroom. The applicant and L., who was his girlfriend, had sexual intercourse. The applicant then told J. to take off her clothes and made her have sexual intercourse with him. J. and L. then left the house and joined Martin who was waiting in the car. J. said that she did as the applicant wanted because she was dominated by Martin, and was afraid of upsetting the applicant, whom she knew to be Martin’s friend.

J. contacted the police in October 1994. On 9 February 1995, the applicant was arrested and charged with a number of offences of a sexual nature allegedly committed against young women from the modelling agency. Martin, who had been arrested in September 1994 was also charged with a number of offences of a sexual nature committed against young women from the modelling agency, including the rape of J.

The applicant was originally charged with six offences. His defence to each charge was that the event alleged had never taken place. The applicant’s evidence was that he had no recollection of J. having visited his home, and that there had been no contact of a sexual nature between him and J. at any time.

At the end of J.’s examination in chief by the prosecution, the applicant’s leading counsel obtained leave from the trial judge pursuant to section 2(1) of the Sexual Offences (Amendment) Act 1976 (see below) to cross-examine J. on her sexual experiences with Martin, and in particular on the fact that she had been raped by Martin and about the alleged control that he exerted over her. It was the defence case that J. was obsessed with a hatred of Martin and it was this which motivated her allegation against the applicant. J. was extremely distressed by this cross-examination.

L. gave evidence for the defence. She had started working at Martin’s agency when aged 11 and had begun a relationship with the applicant when aged 16. She stated that on one occasion she had travelled to the applicant’s home with Martin, the applicant (with whom she was then having a relationship) and J.; that Martin had driven the car, she had travelled in the front passenger seat, and the applicant and J. had travelled in the back of the car; that L. had gone into the applicant’s bedroom in order to use the toilet in the en suite bathroom. When L. came out of the toilet, she saw J. and the applicant lying on the bed, fully clothed. They all then left. Nothing improper occurred.

L. was asked in cross-examination by the prosecution about her relationship with the applicant, who had been introduced to her by Martin. She was also asked about sexual relationships with other men introduced to her by Martin. She accepted that she had had sexual intercourse with four of the men, when she was aged between 16 and 19 years, and in the case of two of the men, while she was still conducting a relationship with the applicant. When re-examined by defence counsel, she described these relationships as “almost dirty or sordid” and contrasted them with her relationship with the applicant, which she said was “[r]omantic, how it should have been”. L. was also asked by prosecution counsel about an abortion which she had had at around this time, and was asked whether she had had “three in a bed” sex involving the applicant.

No reference was made to L.’s sexual experience by either counsel in their closing speeches, or by the judge in summing up the case for the jury. The jury proceeded to convict the applicant.

On 12 June 1997, the Court of Appeal granted the applicant’s application for leave to appeal against conviction and sentence. The applicant applied at the same time for leave to adduce fresh evidence, in the form of a number of witnesses whose evidence was not available at the trial because, the applicant submitted, he was unaware of their existence or of the fact that they had material to make available to him. One of the witnesses was a young man with whom J. had had a sexual relationship while on holiday in Crete in 1992, and to whom she had subsequently written a letter, a copy of which formed part of the fresh evidence which it was sought to adduce. The Court of Appeal gave the applicant leave to amend his grounds of appeal in order to contend that his convictions were in all the circumstances unsafe, having regard to the fresh evidence.

Lord Bingham CJ said, in giving judgment granting leave:

“While we conclude that these witnesses are not in a position to give evidence which would have been admissible at the trial, we nonetheless consider that this is material which could have been used to attack the credit of J. and which the applicant should be free to draw to the attention of the court in support of his submission that in the light of these materials and of the case as a whole this court should consider the convictions of the applicant to be unsafe.”

On 9 December 1997, the Court of Appeal dismissed the applicant’s appeal against conviction and sentence. The Court of Appeal received the fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968, and then considered its significance in the context of the appeal. Phillips LJ said, in giving the judgment of the Court of Appeal:

“...the full Court ruled that we should give the new material such weight as it deserves when considering the extent to which the credit of J. might have been shaken had it been available to the defence at the time of the trial. The Court did not consider, however, that it amounted to evidence which could be placed before the jury. Before us [applicant’s counsel] challenged that conclusion. He submitted that where, as here, the prosecution case turns exclusively on the evidence of the complainant, evidence that bears on the credit of the complainant is not merely collateral, but goes to the heart of the case... It seemed to us somewhat arid to invite lengthy argument about the basis upon which we should consider the significance of the new material. If it proved such as to to lead us to doubt the credibility of the complainant, we would be loth to entertain argument that the convictions should nonetheless stand because of a technical rule of evidence against the admissibility of evidence going solely as to credit. ... In these circumstances, we decided that the convenient course was to receive the evidence under section 23(1)(c) of the Criminal Appeal Act 1968 and, having done so, to evaluate the significance of that material.”

As regarded the significance of the evidence of J.’s holiday on Crete when it was alleged that she had had sexual intercourse with a young man, Lord Phillips said:

“[Applicant’s counsel] urged that this evidence was significant and could have been admitted by the Judge on three bases:

(1) it showed that J. was not as vulnerable as she appeared.

(2) it had significance in relation to a pregnancy test.

(3) the evidence was in conflict with other evidence J. had given and thus tended to destroy her credibility.

J.’s vulnerable appearance

To seek to introduce this evidence simply to counter the general impression that J. was making in the witness box would have been a paradigm example of the type of conduct that section 2 of the 1976 Act is designed to prevent. We have no doubt that the judge would have refused an application made on that basis. The fact that J. had enjoyed the brief relationship with a young man, which is reflected by the letter, whether before or after the date on which the offences were alleged to have been committed by the [applicant], is of itself of no relevance to the question of whether she was raped and indecently assaulted by a man nearly four times her age.

The pregnancy test

J. had a pregnancy test on 16th June 1992. The defence were aware of this, but naturally asked her nothing about it. The new material indicates that the test probably resulted from anxiety as a result of having had sexual intercourse with [the young man in Crete] so that it would have been safe to cross-examine as to why J. did not have a pregnancy test after the alleged rape by the [applicant]. This argument does not attach intrinsic significance to the evidence itself, nor constitute any reason why it should have been introduced at trial. There are various reasons why the victim of a rape might not think it necessary to have a pregnancy test and the fact that the defence refrained from asking about this under a misapprehension does not affect the safety of the verdicts.”

Concerning alleged inconsistencies revealed in J.’s evidence, Lord Justice Phillips said:

“In her evidence in chief, J. said nothing about the effect that the alleged offences had had on her. Under cross-examination she volunteered the statement that “when I came back from the house I spent a year of my life trying to forget what happened.” We do not find that the Cretan holiday, if it took place during the year in question, is inconsistent with that statement...[applicant’s counsel] submitted that the Cretan holiday was inconsistent with the statement that Martin had messed up her life completely and that she hated having sex...[applicant’s counsel] said that if all this material had been available he would have adopted a completely different approach to J.’s statement as to what happened...

This puzzled us for we could not envisage how [applicant’s counsel] could have hoped to persuade the Judge to allow him to adduce evidence about what J. had said in relation to events at [Martin’s house] in order to cross-examine her on the truth of those statements. Furthermore, J. had given evidence at Martin’s trial which ended in his conviction in September 1996 on counts which included rape of J. We asked [applicant’s counsel] if he was suggesting that J.’s account of the sexual abuse and rape that Martin inflicted on her was untrue. He answered that he could not say that. It seems to us that that concession, which was inevitable, undermines the points that [applicant’s counsel] has sought to make on inconsistencies. There can be no doubt that J. was subjected to appalling sexual abuse by Martin. In whatever way she behaved thereafter, her behaviour cannot be an indication that this abuse never occurred, and thus we do not see it can be an indication that abuse at the hands of the [applicant] never occurred.”

Section 2 of the Sexual Offences (Amendment) Act 1976 provides as follows:

“(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.

(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made by him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”