The first applicant, Mr Dettmar Delbos, is a German national who was born in 1950 and lives in Munich. The second applicant, Mr Guy Goeffers, is a Belgian national who was born in 1946 and lives in St Petersburg. The third applicant, Mr Jan Willem Schipper, is a Netherlands national who was born in 1941 and lives in Breda.

The applicants were represented before the Court by Mr D. Foussard, of the Conseil d’Etat and Court of Cassation Bar, and Mr P. Xavier-Bender, of the Paris Bar.

The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

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

The first applicant is the production manager of Philip Morris GmbH, a company incorporated under German law. The second applicant is the production manager of Philip Morris Holland B.V., a company incorporated under Netherlands law. The third applicant is the managing director of Philip Morris Holland B.V.

These two companies manufacture several brands of cigarettes and distribute them in France. In accordance with the legislation and regulations passed pursuant to Council Directive 89/622/EEC of the Council of the European Communities of 13 November 1989, they printed the words “Tobacco seriously damages health” on one side of the cigarette packets sold on the French market. However, the message was preceded by the phrase “According to Law no. 91-32”.

On 16 September 1996 the National Anti-Smoking Committee (Comité national contre le tabagisme – “the CNCT”) brought proceedings against Philip Morris Holland B.V. and Philip Morris GmbH, and against the three applicants in their capacity as managers of the companies, in the Quimper Criminal Court. It accused them, inter alia, of breaching Article L. 355-27 of the Public Health Code and the Order of 26 April 1991 (see below) by printing that phrase on the cigarette packets.

On 13 November 1997 the Criminal Court found the applicants guilty of the offence punishable under Article L. 355-31 of the Public Health Code. It sentenced them to a fine of 150,000 French francs (FRF) each and declared Philip Morris Holland B.V. and Philip Morris GmbH jointly and severally liable for payment. It also ordered the applicants and the two companies jointly and severally to pay FRF 400,000 in damages to the CNCT.

The judgment states, inter alia, the following:

The addition of the phrase ‘According to Law no. 91-32’

Under Article 4.3 of the Directive of the European Council of 13 November 1989, ‘member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author’.

The French State has not opted to do so.

It is clear [from Article L. 355-27 II and III of the Public Health Code, Article 9 of the Order of 26 April 1991 and Article 4.3 of the aforementioned directive] that there is an obligation to print health warnings aimed at informing consumers and, accordingly, complying with the formal requirements binding on cigarette manufacturers; that the possibility of adding an indication of the authority that is their author is in all cases reserved to member States of the EEC alone; and that on pain of breaching those provisions cigarette manufacturers must print at least the minimum statutory message, the wording of which is strictly defined by the legal provisions, and can only supplement it on condition that the addition reinforces the message.

That is not the case regarding the phrase ‘According to Law no. 91-32’ which Philip Morris B.V. and Philip Morris GmbH have printed before the health warning on cigarette packets since that addition distorts the meaning of the message in question by weakening its import because it may suggest that the basis for alerting consumers to the harm done by tobacco is not medical but legal, whereas the harmfulness of tobacco has been proved by recognised scientific studies.

Under the aforementioned provisions, the phrase in question is therefore unlawful.

Despite having been warned by letters of 4 April 1993, 12 May 1993 and 2 April 1995 [from the CNCT] that the packets they were manufacturing and importing into France did not comply with the applicable regulations, the Philip Morris company managers refused to change the packaging even when injunction proceedings to that end were brought against them in the Quimper tribunal de grande instance in June 1995.

The wilful and persistent violation of the applicable legal and regulatory provisions attest to the guilty intention of the defendants, who cannot validly rely on the fact that the additional phrase in question had been tolerated for twenty years in France since that tolerance did not create rights. Nor can they properly argue that it was compulsory in their country of origin since that fact does not alter their liability under French law.

The three elements – statutory, material and intentional – of the offence constituted by the unlawful addition of the words ‘According to Law no. 91-32’ therefore appear to have been made out.

Responsibility for the offence

It is not disputed that at the material time Jan Willem Schipper was the managing director of Philip Morris Holland B.V., Guy Goeffers the manufacturing director of that company and Dettmar Delbos the production manager of Philip Morris GmbH ...

... it would appear that, having regard to their level of responsibility and their sphere of action, the three [applicants] (managing director and manufacturing directors) could not have been unaware of the particular sphere of application of the relevant French regulations and were under a duty to ensure that their manufacturing processes complied with those regulations.

In a judgment of 4 February 1999, the Rennes Court of Appeal modified the sentence imposed by the lower court – increasing it to a fine of FRF 300,000 against each applicant – and upheld the remainder of the judgment. The Court of Appeal indicated, in particular:

Article L. 355-27 of the Public Health Code requires that both a general and a specific health warning be printed on cigarette packets in accordance with the terms of the implementing decree of 26 April 1991, which uses the terms ‘notice’ and ‘specific message’. These terms presuppose the transmission of information in writing.

It is clear from those provisions that if the warning is worded in such a way that, for reasons of form or presentation, it no longer constitutes the ‘message’ or ‘notice’ required by the Code the law will have been breached.

The phrase ‘According to Law no. 91-32’ indicates the authority that is the author of the warning elliptically, with a misleading definition and only a vague reference to the identity (references to legislation customarily being made by the date or sometimes by the date and number, but never the latter alone); the conclusion must therefore be drawn that the phrase ‘According to Law no. 91-32’ is not informative.

An examination of the wording used shows that a distancing effect is created between the emitter of the message and the opinion of its author. That distancing effect can only be perceived by readers as a formally neutral position to which they do not have to adhere and which is open to criticism. It amounts to a form of implicit comment on a compulsory and unjustified measure, which absorbs and transforms the sense of the health message.

These considerations show that the obligation to provide the statutory information is circumvented in such a way as to load the wording of the compulsory notice with an implicit but clear meaning that twists and distorts the sense and import of the statutory message.

The conclusion that has to be drawn in these circumstances is that where the statutory message is combined with the words ‘According to Law no. 91-32’ it is emitted in conditions which breach Article L. 355-27 of the Public Health Code.

[The applicants] cannot justify infringing the law on the basis of foreign practices or obedience to a European directive in a situation in which the directive was not binding on them and, moreover, they have respected neither the letter nor the spirit of it.

The intentional element is sufficiently made out by the subtle nature of the enigmatic wording of the text added to the statutory message, which allows it both to avoid conveying any information and potentially to take refuge behind the legislative authority.

The applicants appealed on points of law against that judgment. Relying on, inter alia, Article 7 of the Convention, they argued in particular that in finding them guilty of a criminal offence, whereas Article L. 355-27 II of the Public Health Code and Article 9-1 of the Order of 26 April 1991 did not penalise an addition such as ‘According to Law no. 91-32’ before ‘Tobacco seriously damages health’, the lower courts had violated the principle that only the law can define a crime and prescribe a penalty and the principle that the criminal law must be strictly interpreted. They added that Article L. 355-31 of the Public Health Code was in any case imprecise and that the lower courts should therefore have refused to apply it.

On 15 February 2000 the Criminal Division of the Court of Cassation dismissed the appeal on the following grounds:

As stated in the Court of Appeal’s judgment, Dettmar Delbos, Guy Goeffers and Jan Willem Schipper, the respective managers of the companies of the Philip Morris group, were prosecuted for adding the words ‘According to Law no. 91-32’ before the health warning ‘Tobacco seriously damages health’ on cigarette packets marketed by the companies.

In holding that the offence had been made out, the Court of Appeal found that by modifying the text of the general health warning required by the legal and regulatory provisions the defendants had distorted its meaning.

Accordingly, the Court of Appeal justified its decision.

As the optional provisions of Article 4.3 of Directive 89/622/EEC of 13 November 1989 were not transposed into domestic law, any alteration of the text of the health warning required by the provisions of Article L. 355-27 II of the Public Health Code amounts to an offence punishable under Article L. 355-31 of the Public Health Code.

On 13 November 1989 the Council of the European Communities adopted Directive 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the member States concerning the labelling of tobacco products. Article 4 (as amended by Directive 92/41/EEC of 15 May 1992) was worded as follows:

“1. All unit packets of tobacco products shall carry, on the most visible surface, the following general warning in the official language or languages of the country of final marketing: Tobacco seriously damages health.

With regard to cigarette packets, the other large surface of the packet shall carry, in the official language or languages of the country of final marketing, specific warnings alternating in accordance with the following rule:

– each member State shall draw up a list of warnings taken exclusively from those listed in Annex 1,

– the specific warnings selected shall be printed on the unit packets so as to guarantee the appearance of each warning on an equal quantity of unit packets, with a tolerance of around 5%.

2a. ...

Member States may stipulate that the warnings referred to in paragraphs 1, 2 and 2a be combined with the indication of the authority that is their author.

On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet, excluding the indication of the authority provided for in paragraph 3. This percentage shall be increased to 6% for countries with two official languages and to 8% for countries with three official languages.

The required warnings on the two largest surfaces of each cigarette packet:

(a) shall be clear and legible;

(b) shall be printed in bold letters;

(c) shall be printed on a contrasting background;

(d) shall not be printed in a place where they may be damaged when the package is opened;

(e) shall not be printed on the transparent wrapper or any other external wrapping.

That directive was transposed into French law by Law no. 91-32 of 10 January 1991. The following Article was thus inserted into the Public Health Code:

II. Every unit packet of tobacco or tobacco products shall carry, in accordance with the terms and conditions specified by order of the Minister of Health, the notice ‘Tobacco seriously damages health’.

III bis. All unit packets of tobacco and tobacco products shall carry, in the manner determined by an order of the Minister of Health, a specific health message.

On the basis of those provisions, the Minister of Health issued an order on 26 April 1991 “determining the methods for analysing the nicotine and tar contents and the methods for verifying the accuracy of the notice on packaging and the manner in which the health messages and compulsory notices should feature on packets of tobacco and tobacco products”, Article 9 of which was worded as follows:

“1. All unit packets of tobacco and tobacco products shall carry, on the most visible surface, the following general warning: ‘Tobacco seriously damages health’.

With regard to cigarette packets, the other large surface of the packet shall carry one of the following specific warnings:

Smoking causes cancer;

Smoking causes heart disease;

Smoking when pregnant harms your baby;

Smoking damages the health of those around you;

Don’t smoke if you want to stay healthy.

On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 4% of each large surface of the unit packet.

(a) shall be clear and legible;

(b) shall be printed in bold letters on a contrasting background;

(c) shall not be printed in a place where they may be damaged when the package is opened;

(d) shall not be printed on the transparent wrapper or any other external wrapping.

Under Article L. 355-31 of the Public Health Code, “anyone who commits a breach of the provisions [of Article] L. 355-27 shall be liable to a fine of between FRF 50,000 and FRF 500,000”. Article L. 355-32 authorised “associations that [had] been formally registered for at least five years at the material time and whose articles of association includ[ed] the fight against smoking [to] exercise the rights conferred on civil parties in respect of [the above-mentioned offence]”.


Violation of Art. 6-1;Violation of Art. 6-3-c;Violation of Art. 34

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in 1961 and is serving a prison sentence in Orenburg.

On 6 May 2001 the applicant was arrested on suspicion of murder. On 7 June 2001 he was released on an undertaking not to leave town.

The applicant was subsequently apprehended on suspicion of another murder. According to him, the arrest took place on 18 October 2001. The Government submitted that he was arrested on 19 October 2001. It appears that the applicant was not provided with any legal assistance when questioned by the investigator. A lawyer was appointed to represent him on 13 January 2002. It appears that the applicant was dissatisfied with the quality of the lawyer’s services and dismissed him.

On 17 January 2002 the Shadrinsk Town Court found the applicant guilty of murder and sentenced him to fourteen years’ imprisonment. On 26 February 2002 the Kurgan Regional Court quashed the applicant’s conviction on appeal and remitted the matter for fresh consideration.

On 6 May 2002 the Shadrinsk Town Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. On 28 May 2002 the Kurgan Regional Court upheld the conviction on appeal.

On 15 February 2002 the Kurgan Regional Court opened another trial. Lawyer V. was appointed to represent the applicant.

On 26 February 2002 the applicant asked the court to dismiss the lawyer, alleging that he was not performing his duties properly. His request was denied.

On 13 June 2002 the Kurgan Regional Court found the applicant guilty of murder and sentenced him to life imprisonment. On 10 January 2003 the Supreme Court of the Russian Federation upheld his conviction on appeal. The applicant, who was not represented, made oral submissions to the court by means of a video teleconference. The prosecutor was present and argued in favour of dismissing the applicant’s appeal.

On 21 September 2004 the Sol-Iletskiy District Court of the Orenburg Region commuted the applicant’s sentence to twenty-two and a half years’ imprisonment.

Between 8 and 10 April 2003 the applicant was detained at transit prison IZ-56/1 in Orenburg. According to the Government, the relevant internal regulations required that, for the time of the applicant’s stay there, his personal property was withheld from him for security reasons. His personal belongings were duly logged and then returned to him at the end of his stay. According to the applicant, neither the documents nor many of his personal belongings were returned to him.

The applicant lodged a complaint with the General Prosecutor’s Office on 16 April 2003 alleging that his documents had been unlawfully seized and his personal property had been stolen. The complaint was transferred to the regional department of corrections. They questioned one of the guards and the applicant. The guard claimed that all the applicant’s belongings had been returned to him against a signed receipt. According to the Government, the applicant withdrew his allegations. They submitted a copy of a statement by the applicant dated 22 September 2003 where he confirmed in writing that he did not have any claims against the administration of the transit prison.

On an unspecified date the applicant lodged a complaint with the Leninskiy District Court of Orenburg in respect of the loss of his personal effects. On 31 August 2005 the court dismissed it without consideration on the merits due to the applicant’s failure to comply with certain procedural requirements. It appears that the applicant did not appeal.

Between 10 April 2003 and 16 December 2004 the applicant was detained at correctional institution IK-6 in Sol-Iletsk.

According to the applicant, he sent out two letters to the Court on 5 May and 9 July 2003. The letters never reached the Court. Nor were they registered in the outgoing correspondence log of the correctional institution submitted by the Government. The applicant’s next letter of 27 October 2003 reached the Court. That letter was not registered in the log either.

The letter which the applicant dated as of 13 January 2003 was dispatched by the administration of the correctional colony on 31 March 2004.

The applicant allegedly tried to send another letter to the Court on 14 September 2004. He claimed that his letter was not accepted for dispatch and the guards beat him up for persisting in his correspondence with the Court.

The applicant further alleged that on 21 October 2004 the administration of the correctional institution refused to dispatch his letter of 12 October 2004 addressed to the Court. The letter was returned to the applicant with a handwritten note on the envelope which read “what kind of news is that?” («Что за новости?»).

According to the copies of the logs of outgoing correspondence submitted by the Government, the applicant asked the administration of the correctional institution to send out three letters in 2003 and seven letters in 2004 respectively. Two of the letters sent out in 2004 were addressed to the Court. Both of them reached their destination.

It appears that the applicant was repeatedly transferred from one correctional institution to another. Between 12 April 2005 and 1 March 2006 he served his sentence at correctional institution IK-4 in Nyrob in the Perm Region. Then he was taken to transit prison IZ-56/1 in Orenburg where he arrived on 6 April 2006. According to the applicant, he sent a letter to the Court notifying it of the change of his address. The letter never reached the Court.

On 26 May 2006 the applicant was transferred back to correctional institution IK-6 in Sol-Iletsk. On 27 June 2006 he arrived and stayed there for a month. On 5 September 2006 he arrived at correctional institution IK-8 in Orenburg where he has been detained to date. According to the applicant, on 7 and 9 September 2006 he sent two letters to the Court notifying it of the change of his address. The letters did not reach the Court.

On 6 September 2006 the Court decided to give notice of the application to the Government. The relevant letter addressed to the applicant did not reach him. The Court further sent two more letters to the applicant on 3 January and 12 February 2007. The applicant did not receive the letters. Once the time-limit established by the Court for the submission by the applicant of his observations had expired, on 22 November 2007 the Court requested the Government to submit further information confirming the receipt by the applicant of the Court’s correspondence. A copy of the letter addressed to the applicant did not reach him. All the correspondence was forwarded to correctional institution IK-4 in Nyrob.

According to the copies of the incoming correspondence registration logs submitted by the Government, the above-mentioned letters from the Court did not reach the correctional institution to which they were addressed.

The Government also submitted copies of the outgoing correspondence registration log of IK-8, which indicated that the applicant sent out two letters to the Court on 10 April and 19 July 2007. The said letters did not reach the Court.

On 28 June 2007 the Court sent another letter to the applicant by registered mail. It appears that correctional institution IK-4, to which the letter was addressed, forwarded it to correctional institution IK-8, where the applicant was actually detained. On 5 August 2008 the administration of IK-8 registered the letter in the incoming correspondence log as received for the applicant from the Federal Service of Corrections (UFSIN). The letter was opened by an officer on duty and the applicant refused to accept it. The administration of the penitentiary establishment interpreted his refusal as a decision not to pursue further his application lodged before the Court and informed the Government accordingly.

On 22 and 28 August and 5 September 2007 the administration of the correctional institution summoned the applicant in order to deliver the Court’s letter to him. The applicant did not show up.

On 5 December 2007 the applicant had a meeting with one of the officers of the correctional institution concerning the updating of his personal file. The officer tried again to deliver the Court’s letter to the applicant, who refused to take it. He agreed to accept the letter only on 1 February 2008.

It appears that the officer who was responsible for the opening of the applicant’s letter was subjected to disciplinary dismissal.

The Court’s letter of 8 January 2008 sent to correctional institution IK-4 by registered mail was returned to the Court by the post office with a note that the applicant had not been found at the address indicated.

According to the Government, the letters sent by the Court to the applicant on 25 April and 6 June 2008 did not reach correctional institution IK-8.

On 19 September 2008 the applicant received the Court’s letter of 3 September 2008, as per the registration log submitted by the Government.

On 29 October 2008 the applicant submitted another letter to be dispatched to the Court. The letter was returned to him. The post office had allegedly refused to mail it because the envelope was covered with adhesive tape. The applicant resubmitted the letter in a new envelope without adhesive tape on 24 November 2008. It was duly sent to the Court.

The Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides:

Article 51

“1. Participation of legal counsel in criminal proceedings is mandatory if:

1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;

5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;

In the circumstances as set forth in paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request of, or with the consent of, the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”

Article 52

“1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the suspect or accused’s own initiative. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act.

Pursuant to Article 373, the appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal court may directly examine evidence, including additional material submitted by the parties.

In accordance with Article 376, upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the detained convict should be summoned to the hearing. If the convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court.

Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court of the Russian Federation ruled as follows (decision no. 497-O of 18 December 2003):

“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”

That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings.

In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the participation of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.

The Code of Corrections of the Russian Federation (in force from 1997) provides:

Article 91

“2. The incoming and outgoing correspondence of persons serving a prison sentence is subject to censorship by the administration of the correctional institution. The correspondence maintained with a court, a prosecutor’s office, a supervising body of corrections, as well as with the Ombudsman of the Russian Federation, a public monitoring commission established in accordance with applicable legislation of the Russian Federation, and the European Court of Human Rights shall be free of censorship.”

The Internal Regulations of Correctional Institutions (in force from 3 November 2005) provides:

“53. The letters addressed to a person serving a prison sentence and received after his departure from a correctional institution shall be forwarded to his new address within three days of their receipt.”


The applicant, Mr Gary Marshall, is an Irish national, born in 1968 and living in Lurgan, Northern Ireland. He is represented before the Court by Mr Paul Mageean, a lawyer working with the Committee on the Administration of Justice, a non-governmental organisation based in Belfast, Northern Ireland. The Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office, London.

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

On 21 February 1998 around 3.15 p.m. the applicant was arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) by a military patrol accompanied by an officer of the Royal Ulster Constabulary (“RUC”). The applicant was brought to Castlereagh Holding Centre in Belfast where he was questioned about his involvement in serious paramilitary activity including the abduction and murder of an individual.

On the morning of 23 February 1998 an application was made to the Secretary of State for an extension order under section 14(5) of the 1989 Act, extending the applicant’s detention for a further three days. Notice of the application was given to the applicant, who consulted his lawyer on the terms of the application. No representations were made by the applicant to the Secretary of State. The application was granted by the Secretary of State.

At 11.40 a.m. on 26 February 1998 the applicant was given notice that a further application had been made to the Secretary of State for an extension order for a further period of forty-eight hours in order to check an alibi statement which the applicant had advanced during interview and to await the results of forensic tests. No representations were made by the applicant to the Secretary of State, who granted the extension requested.

On 27 February 1998 at around 5.05 p.m. the applicant was released without charge. His period of detention from arrest was six days, one hour and fifty minutes.

While in detention the applicant was never brought before any judicial authority. Throughout the period of detention the applicant was able to have access to a solicitor including before the start of each interview. The applicant saw his solicitor on ten occasions during his detention. His detention during the first forty-eight hours was regularly reviewed by senior police officers not directly involved in the case as required by the 1989 Act and the Code of Practice issued under section 52 of the Northern Ireland (Emergency Provisions) Act 1996.

The applicant has drawn attention in his observations in reply to those of the Government to his claim that police officers made intimidating and abusive remarks about his solicitor during his detention and to the fact that she was subsequently murdered on 15 March 1999. The applicant also criticises the austerity of the holding conditions in the Castlereagh Centre where he was detained.

In its Brogan and Others v. the United Kingdom judgment (29 November 1988, Series A no. 145), the Court held that there had been a violation of Article 5 § 3 of the Convention in the case of all four applicants, who had been detained under section 12 of the Prevention of Terrorism Act 1984, which was the predecessor provision of section 14 of the 1989 Act. The applicants had been held for periods ranging between six days and sixteen-and-a-half hours and four days and six hours without being brought before a judicial authority. The Court found that even the shortest of the periods of detention, namely four days and six hours, fell outside the strict constraints as to time permitted by the first part of Article 5 § 3. In the Court’s view, the undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not on its own sufficient to ensure compliance with the specific requirements of Article 5 § 3.

Following that judgment, the United Kingdom informed the Secretary General of the Council of Europe on 23 December 1988 that the Government had availed themselves of the right of derogation conferred by Article 15 § 1 to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 § 3 of the Convention. Part of that declaration reads as follows:

“... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government’s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice...”

In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require.

The 1989 Act has been renewed annually ever since.

Section 14 of the 1989 Act provides as follows:

“14. (1) Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be–

(a) a person guilty of an offence under section 2, 8, 9, 10 or 11 above;

(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this section applies; or

(c) a person subject to an exclusion order.

(2) The acts of terrorism to which this section applies are–

(a) acts of terrorism connected with the affairs of Northern Ireland; and

(b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.

(3) The power of arrest conferred by subsection (1)(c) above is exercisable only–

(a) in Great Britain if the exclusion order was made under section 5 above; and

(b) in Northern Ireland if it was made under section 6 above.

(4) Subject to subsection (5) below, a person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest.

(5) The Secretary of State may, in any particular case, extend the period of fortyeight hours mentioned in subsection (4) above by a period or periods specified by him, but any such further period or periods shall not exceed five days in all and if an application for such an extension is made the person detained shall as soon as practicable be given written notice of that fact and of the time when the application was made.

(6) The exercise of the detention powers conferred by this section shall be subject to supervision in accordance with Schedule 3 to this Act.

(7) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.”

The notification made by the United Kingdom Government under Article 15 § 3 of the Convention was withdrawn on 19 February 2001, with effect from 26 February 2001.

The political and security situation covering the years 1974-1987 is described in the Court’s Brannigan and McBride v. the United Kingdom judgment of 26 May 1993 (Series A no. 258, pp. 38-39, §§ 12-15).

Official statistics indicate that between 1969 and 1999 (3 June) a total number of 3,295 persons (military and civilian) have died due to the security situation. The number of deaths (military and civilian) due to the security situation between 1989 and 1999 (3 June) is as follows:

1989: 62; 1990: 76; 1991: 94; 1992: 85; 1993: 84; 1994: 62; 1995: 9; 1996: 15; 1997: 22; 1998: 55; 1999: 6.

Official statistics indicate that between 1968 and 1999 (3 June) a total of 42,766 persons (military and civilian) have been injured as a result of the security situation. The number of persons injured (military and civilian) over the period 1989 to 1999 (3 June) is as follows:

1989: 959; 1990: 906; 1991: 162; 1992: 1066; 1993: 824; 1994: 825; 1995: 937; 1996: 1419; 1997: 1237; 1998: 1564; 1999: 550.

The reviews undertaken by the authorities of the Prevention of Terrorism (Temporary Provisions) Act 1974 and of the amending Act passed in 1976 are summarised at paragraphs 13 to 15 of the Brannigan and McBride judgment.

Reviews of the operation of 1989 Act were undertaken by JJ Rowe QC for each of the years 1993 to 1998.

In his 1996 Report, which was completed on 4 February 1997, the reviewer noted that there had been a marked increase in the level of terrorist activity in the wake of the IRA’s decision to end the cease-fire which it called in August 1994.

In his 1997 Report, which was completed on 16 February 1998, the reviewer noted that the threat of terrorism continued to be real and observed that, while in principle, there should be judicial participation in the extension of detention, “this was not yet possible ... because the judges in [Northern Ireland] cannot yet be asked to do this work.”

In his 1998 Report, which was completed on 11 February 1999, the reviewer observed that, despite the cease fire declared by the major paramilitary groups in 1994 “there are dissident elements who are intent upon causing injury and damage, and they have the capacity to do so. All in all there is a real threat that some terrorist activity will continue in Northern Ireland ... My conclusion is this, criminals with a terrorist or paramilitary disposition have the means to carry out attacks with explosives and firearms at any time; furthermore, some of them have maintained an organisation which has structure and influence.”

As to the continuing use of the power of extended detention, the reviewer reiterated his view expressed in earlier reports, that he favoured judicial involvement in the decision-making process. He noted that the appropriate place to examine this issue thoroughly was in the Consultation Paper which the Government of the day had presented to Parliament in December 1998.

The Consultation Paper proposed judicial participation in applications for extension. In their submissions in the instant case, the Government indicated that they envisage the introduction of legislation to include provisions for a form of judicial involvement in extensions of detention.

An analysis of court remedies relevant to arrest and detention under the prevention of terrorism legislation including section 14 of the 1989 Act is contained in the above-mentioned Brannigan and McBride judgment (pp. 1645, §§ 16-29).


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant, Mr Vladimir Ivanovich Kolobov, is a Russian national who was born in 1955 and lives in Magnitogorsk, in the Chelyabinsk Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the then 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.

In 1999 the applicant’s son, A. Kolobov, was suspected of several offences, including murder. On 12 March 1999 the applicant’s son was driving the applicant’s car VAZ-2108 when he was stopped by the police. A car inspection record was drawn up on the same day. The car was taken to the district police station car park. The applicant was told that the car was subject to a restraint order (решение о наложении ареста на имущество).

On 29 July 1999 an investigator from the Magnitogorsk prosecutor’s office issued an impounding order in respect of the car, worded as follows:

“[H]aving examined the criminal case file in respect of A. Kolobov, and given that his criminal activity has caused pecuniary damage to [the victims]; considering that the damage has not been remedied in full, as well as the fact that Kolobov used the car for committing criminal offences; noting that the investigation has established that certain parts of the car were taken as a result of assaults and murders against their owners; for the purpose of returning the property, securing civil claims and confiscating property, and pursuant to Article 175 of the RSFSR Code of Criminal Procedure, I order that the car, owned by V. Kolobov and currently in the possession of A. Kolobov, be impounded and placed in the [police station] car park”.

According to the inventory list drawn up on 29 July 1999 after a visual inspection of the car’s exterior (because no key was available), the car was in good condition.

In reply to the applicant’s complaint, by a letter of 15 November 1999 the prosecutor informed him as follows:

“...the impounding order imposed by the investigator on the car...was lawful and justified because the car was a piece of physical evidence in the case. The seizure did not seek to secure civil claims or a confiscation order in respect of A. Kolobov’s property since he was not the owner of the car in question.

A request for lifting the impounding order should be addressed to the court trying the case against A. Kolobov.”

On 26 April 2000 the Chelyabinsk Regional Court convicted the applicant’s son of murder and robbery. He was sentenced to a term of imprisonment and ordered to pay compensation to the victims. According to the Government, it could be seen from the judgment that the robbery had been committed with the use of the applicant’s car, as various items taken away from the victims and firearms had been transported in that car.

In the same judgment, the trial court lifted the restraint order and ordered the authorities to return the car to the applicant. However, it also held that unspecified “parts of the car body should be destroyed”. The judgment became final on 19 February 2001.

In reply to the applicant’s request for the car to be returned, on 18 April 2001 the town prosecutor’s office advised him that he should contact the person in charge of the police station car park for further information. The police station, in their turn, told the applicant that he was obliged to pay a parking fee. The applicant refused. On 15 June 2001 the town prosecutor’s office confirmed that this requirement was unlawful.

In reply to the applicant’s further complaint, on 31 July 2001 the regional prosecutor’s office informed him that the car would be returned to him on 3 August 2001. The car was returned to him on that date in a dilapidated condition. According to the applicant and an expert report drawn up on the same date, tyres were damaged and two fog lights were missing. The applicant and Mr K. also alleged that several objects (a stereo and its speakers, a radio scanner, a first-aid kit, a fire extinguisher, floor mats, etc.) were missing.

In September 2001 the applicant brought civil proceedings against the town prosecutor’s office and the police department. His claims read as follows:

“On 12 March 1999 my car was taken to the Pravoberezhniy district police station car park. However, a restraint order was issued only on 29 July 1999. On the same day, an inventory list was drawn up...As followed from the judgment of 26 April 2000 concerning my son, the car had to be returned to me...The judgment became final on 19 February 2001...The car was not returned to me because the [authorities] told me that I had to be a fee...I sustained pecuniary damage because of the loss or deterioration of several parts of the car...Unreasonable and unlawful actions of the authorities caused moral suffering because I had to spend time and effort to initiate proceedings and complaints...”

The case was assigned to a justice of the peace in the First Circuit of the Leninskiy District of Magnitogorsk. He held several hearings and ordered several adjournments, in particular at the applicant’s request, to collect evidence and to hear witnesses. The judge decided that the Pravoberezhniy police station, as well as the federal Ministry of Finances and the Prosecutor General’s Office, were the appropriate defendants in the case.

On 14 August 2002 the court established that the car had been considered as physical evidence in the criminal case against the applicant’s son; it had been lawfully placed in the police station car park. The justice of the peace, however, considered that the authorities’ refusal to return the car after February 2001 and the requirement to pay for its safekeeping had been unlawful. With reference to the inventory list drawn up on 29 July 1999, the court considered that the available materials confirmed the loss of the fog lights, the stereo and its speakers, the radio scanner and the floor mats, as well as the damage to the tyres. The court granted the pecuniary claim in part, as well as the court, expert and lawyer’s fees. It awarded the applicant 11,725.37 Russian roubles. The court also held as follows:

“As to the claim in respect of non-pecuniary damage, the court reiterates that compensation in respect of moral or physical suffering caused by actions affecting non-property rights or interest may be awarded under Article 151 of the Civil Code. [The applicant] adduced no evidence to confirm that the respondents’ actions had violated his personal non-property rights or interests. Under Article 1099 § 2 of the Civil Code compensation in respect of moral suffering caused by an action or inaction affecting material rights should be awarded, if prescribed by law. The applicable legislation does not provide for compensation in respect of moral suffering caused by the damaging of a car or by the delay in its return to the owner...”

The applicant appealed arguing as follows:

“The first-instance court wrongly rejected one part of my pecuniary claims...Also, I was refused compensation in respect of non-pecuniary damage...As to moral suffering, from 12 March to 29 July 1999 and from 19 February to 3 August 2001 I could not use my car; I was unlawfully required to pay a parking fee and had to spend my time and effort seeking redress before national authorities...”

On 5 February 2003 the Leninskiy District Court of Magnitogorsk upheld the judgment in the following terms:

“The court rightly dismissed the claim concerning non-pecuniary damage because [the applicant] had omitted to justify it with reference to any ill health or psychological distress. Instead, he justified it with reference to real losses owing to the impossibility of using the car and the loss of time in reclaiming it.”

In November 2003 the applicant received the amount awarded.