Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 5-4;Damage - finding of violation sufficient;Costs and expenses - claim dismissed

Mr Abdourahim Soumare, a Malian national, had no fixed abode in France when he was convicted. He now lives in Mali.

He was arrested in Paris and remanded in custody on 22 January 1988 in connection with a heroin-trafficking operation involving five other people. He was charged with illegally importing controlled substances (852 grams of heroin) and of conspiring with a co-accused to import drugs and of being his accomplice.

On 10 November 1989 Bobigny Criminal Court sentenced Mr Soumare to ten years' imprisonment and made an order permanently excluding him from French territory. It also ordered confiscation of the drugs that had been seized and imposed a fine of 2,726,000 French francs (FRF) jointly on the applicant and the other convicted defendants in lieu of confiscation and ordered them, pursuant to Article 414 of the Customs Code (“CC”), to pay a like amount, equal to the value of the unlawfully imported substances, to the customs authorities. The applicant’s joint liability was limited to FRF 1,504,000. Lastly, the court ordered Mr Soumare’s continued detention pursuant to Article 388 CC (see paragraph 22 below), for a period not exceeding the maximum period for imprisonment in default – which, under Article L. 627-6 of the Public Health Code (“PHC” – see paragraph 21 below) was two years –, until the customs’ penalties had been paid.

On 18 May 1990, on an appeal by Mr Soumare and a cross-appeal by the prosecution, the Paris Court of Appeal upheld both the applicant's conviction and sentence and the orders made in favour of the customs authorities. The applicant's appeal to the Court of Cassation was dismissed on 10 June 1991.

On 13 December 1991 the applicant applied to the Ministry of Justice to be transferred to Mali under the Franco-Malian Treaty on the Transfer of Sentenced Persons. On 30 June 1992 the Ministry rejected the application on the ground that the customs fine had not been paid. It added that the application could be reconsidered if all or part of the sum was paid, and that to that end the applicant could, if he so wished, contact the customs authorities with a view to a settlement.

On several occasions Mr Soumare, who was held in Toul detention centre, sought a “settlement with the customs authorities”. On 30 June 1992 he applied for the order for imprisonment in default to be discharged offering to pay FRF 6,500. Further applications, in which he offered to pay FRF 7,000 and then FRF 9,000, were unsuccessful as the Director of the Customs Information and Inquiries National Division had fixed the sum required for discharge of the order at FRF 300,000.

In a letter of 13 June 1994, Mr Soumare renewed his offer of FRF 9,000 while at the same time asking the customs authorities to advise him urgently what they would consider a “reasonable offer” as his prison sentence for the criminal offences was due to end on 21 June 1994.

On 10 August 1994 the customs authorities replied that his offers were too low compared with the penalties imposed, that his tax return showing a nil liability to income tax could not be taken into account as profits derived from drug trafficking were necessarily undeclared and, lastly, that the order for his imprisonment in default would not be discharged until the sum of FRF 300,000, which had previously been indicated, had been paid. That decision would be reviewed once he had served six months’ imprisonment in default. Having regard to the position taken by the customs authorities, the Ministry of Justice also rejected further requests by the applicant to be transferred to Mali.

In the meantime the applicant had, on 8 July 1992, lodged an application with the President of the Nancy tribunal de grande instance to have the order for his imprisonment in default discharged as he was insolvent, insolvency being a ground for not enforcing such orders (Article 752 of the Code of Criminal Procedure – “CCP” – see paragraph 20 below). The President rejected that application on 23 July 1992 on the ground that it was devoid of purpose, since the applicant was still detained by virtue of the criminal conviction and sentence, “a sentence unconnected with imprisonment in default”.

On 11 August 1994 Mr Soumare renewed his application to the President of the Nancy tribunal de grande instance and enclosed the letter from the customs authorities (see paragraph 13 above) and a certificate attesting that he had no income-tax liability. The President was asked to hear the application in his capacity as urgent applications judge, under Article 756 CCP (see paragraph 20 below).

In an order made in that capacity on 23 August 1994 the President asked the public prosecutor’s office, pursuant to the first paragraph of Article 710 and to Article 711 CCP (see paragraph 20 below), to refer the difficulty to the Paris Court of Appeal, which had sentenced the applicant. The order read as follows:

Mr Soumare asserted that he was insolvent and produced a certificate attesting that he has no liability for ITI (income tax on individuals) for 1993.

The urgent applications judge has jurisdiction to order a stay of execution of an order for imprisonment in default if the committal warrant is not prima facie valid.

The prima facie validity of a warrant is not in issue if it was issued by a court in a decision that is final...

Mr Soumare produced a certificate attesting that he has no liability for ITI for 1993. That document does not by itself suffice to show that he is insolvent or justify discharging the order for imprisonment in default.

In these circumstances it is appropriate to ask the public prosecutor’s office to refer the difficulty to the Paris Court of Appeal, which passed the sentence.”

At a hearing on 25 November 1994 the Paris Court of Appeal heard the applicant, the lawyer officially assigned to represent him and the customs authorities; the latter submitted that Articles 752 and 756 CCP were not applicable in the case. On 9 December 1994 the Paris Court of Appeal dismissed the application for discharge, holding that:

“The Court of Appeal considers that the Criminal Court’s decision to prolong the applicant's detention under Article 388 of the Customs Code is not covered by the ordinary criminal-law procedure laid down in Articles 749 et seq. of the Code of Criminal Procedure giving jurisdiction to the urgent applications judge (Court of Cassation, 2nd Civil Division, 30 June 1993).

Consequently, the Court of Appeal holds that Soumare’s application for the order for his imprisonment in default to be discharged is admissible, as it concerns an interlocutory issue over the execution of a sentence, but is unfounded in law.”

The applicant was released on 16 January 1995 after paying the sum of FRF 10,000 to the customs authorities.

Imprisonment in default is an invention of Roman law originally designed to guarantee execution of a court order to pay a sum of money either to the State or to a private individual. It consists in detaining the recalcitrant debtor in a short-stay prison, where he is not obliged to work. It is not an alternative to payment, as the person against whom the order is made remains liable to pay the sum due (Article 762 CCP – see paragraph 20 below), but it may not be imposed a second time for the same debt. Its scope has gradually been whittled away since the nineteenth century, when it was seen as a real means of punishment available to creditors, who could apply to have insolvent civil debtors committed to prison. It was permanently abolished in civil and commercial proceedings by the Law of 22 July 1867, surviving in respect of debts to the Treasury only (Article 749 CCP – see paragraph 20 below), and the rules governing its enforcement have become more lenient (exempting insolvent individuals from imprisonment in default was the most important feature of a reform introduced on 30 December 1985 by Law no. 85-1407, Article 752 CCP – see paragraph 20 below).

Imprisonment in default now serves to guarantee recovery of debts to the State, such as pecuniary penalties – with the exception of those imposed for political or press offences – or any other payment to the Treasury not in the nature of civil damages.

It is governed in many respects by the same principles as those governing execution of sentence: it cannot be executed once the time-limit for enforcing sentence has expired. In extradition cases (Law of 10 March 1927) and for the purposes of rehabilitation (Articles 784 and 788 CCP) its execution is deemed the equivalent of payment. The criminal-law principles that sentences must be adapted to the individual and that consecutive sentences must not be imposed apply.

In spite of these aspects, imprisonment in default is regarded not as a form of imprisonment in lieu of payment but as a guarantee of enforcement directed at the debtor's person. On 4 January 1995, on an appeal on points of law by an offender sentenced to pay three fines of FRF 300 each for contravening a département health regulation on manure tipping, the Court of Cassation pointed out: “Imprisonment in default is not a penalty. It is a means of enforcement automatically attached to any pecuniary order made by a criminal court and satisfies the requirements of both Article 5 [§ 1] (b) of the Convention ... and Article 2 of Protocol No. 4.” After the judgment in the case of Jamil v. France of 8 June 1995 (Series A no. 317-B, p. 28, § 32), in which the Court held that imprisonment in default was a “penalty” within the meaning of Article 7 § 1 of the Convention, the Criminal Division of the Court of Cassation held that in tax cases imprisonment in default is a “punitive” measure and may be ordered only if there has been a conviction for a criminal offence (29 February 1996, Bulletin criminel (Bull. crim.) no. 100).

When a criminal court orders imprisonment in default, it does not have power to vary its duration, which is laid down by law (Articles 749 and 750 CCP – see paragraph 20 below). In certain circumstances, as an exception to the ordinary law, the customs authorities can obtain enforcement of a warrant of committal for default before it becomes final (Article 388 CC).

The Code of Criminal Procedure provides as follows:

“Any interlocutory issue relating to the execution of a sentence shall be referred to the court which passed sentence, which may also rectify any purely clerical errors in its decisions.”

“Where such an issue is referred by the public prosecutor or the convicted person, the court shall rule in chambers after hearing submissions from the public prosecutor’s office, counsel for the convicted person (if counsel so requests) and, where appropriate, the convicted person himself, subject to the provisions of Article 712.”

“Where an order to pay a fine or court costs or to pay the Treasury any other sum not in the nature of civil damages is made in respect of an offence which is not political and does not attract a sentence of life imprisonment, the length of imprisonment in default applicable in the event of failure to comply shall be as laid down in Article 750.

Where appropriate, the length shall be determined according to the total amount of debt outstanding.”

“The length of imprisonment in default shall be:

(1) five days, where the fine and the sums whose payment has been ordered amount to at least 1,000 francs, but do not exceed 3,000 francs;

(2) ten days, where they amount to more than 3,000 francs, but not more than 10,000 francs;

(3) twenty days, where they amount to more than 10,000 francs, but not more than 20,000 francs;

(4) one month, where they amount to more than 20,000 francs, but not more than 40,000 francs;

(5) two months, where they amount to more than 40,000 francs, but not more than 80,000 francs;

(6) four months, where they exceed 80,000 francs.”

“Imprisonment in default may not be enforced in respect of convicted persons who prove that they are insolvent by producing:

(1) a certificate from their local tax-collector, stating that they are not liable to income tax; or

(2) a certificate from their local mayor or police superintendent. The fact that the convicted person is in fact solvent may be proved by evidence in any form.”

“If, when in prison, the debtor wishes to lodge an urgent application concerning his imprisonment in default, he shall immediately be brought before the President of the tribunal de grande instance for the place where he was arrested, who shall rule on the application as a matter of urgency, or, if appropriate, refer the case back to the court which shall rule on the application in accordance with the procedure and subject to the conditions laid down in Articles 710 and 711.”

“A convicted person who has been imprisoned in default of payment shall not thereby be released from the payment obligation.”

Article L. 627-6, second paragraph, of the Public Health Code provides:

“As an exception to the provisions of Article 750 of the Code of Criminal Procedure, the length of imprisonment in default shall be two years where the fine and any other pecuniary penalties imposed for an offence mentioned in the above paragraph [breaches of provisions of statutory instruments concerning poisonous substances or plants classified as dangerous drugs] or for related customs offences exceed F 500,000.”

Article L. 627-6 was repealed by Law no. 92-1336 of 16 December 1992, known as “the transitional law”, on the entry into force of the new Criminal Code and the amendment of certain provisions of criminal law and criminal procedure made necessary by its commencement. It was replaced by Article 706-31 CCP, which came into force on 1 March 1994 and was amended by Law no. 95-125 of 8 February 1995. Article 706-31 provides:

“Prosecution for the serious crimes (crimes) defined in Article 706-26 shall be subject to limitation after thirty years. Sentences passed on conviction for one of these offences shall lapse by limitation after thirty years from the date on which the conviction became final.

Prosecution for the other major offences (délits) defined in Article 706-26 shall be subject to limitation after twenty years. Sentences passed on conviction for any of these offences shall lapse by limitation after twenty years from the date on which the conviction became final.

As an exception to the provisions of Article 750, the length of imprisonment in default shall be two years where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed F 500,000.”

The following provisions of the Customs Code are relevant in the present case:

“1. Judgments and decisions in customs cases may be executed by any means provided for by law.

Judgments and decisions by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default...”

“A person convicted of a customs offence or an offence relating to indirect taxation may, where the court makes an express order to that effect, be kept in detention, even if an ordinary appeal or an appeal on points of law has been lodged, until he has paid the fiscal penalties imposed on him; save in the case of drug offences, any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in the Code of Criminal Procedure for failure to comply with an order to pay a sum equal to the fiscal penalties imposed.”

The remedy available to a person who seeks, inter alia on the ground of his insolvency, to challenge an order for his imprisonment in default, is

an application to the urgent applications judge under Article 756 CCP. If there is an arguable issue over execution of the order, the urgent applications judge refers the case to the trial or appellate court which made the order (see Article 710, first paragraph, CCP).

The issue of the applicability of Article 756 and, therefore, of the ordinary procedure to cases of imprisonment in default of payment to the customs authorities has given rise to conflicting case-law (see paragraph 25 below). In its decision of 9 December 1994 in the instant case, the Court of Appeal held that the ordinary courts have no jurisdiction to review orders for imprisonment in default in customs cases (see, to the same effect, the judgment of the Fort-de-France Court of Appeal of 6 December 1993 – which was however set aside by the Criminal Division of the Court of Cassation on 26 October 1995; and the order of the urgent applications judge of the Bayonne tribunal de grande instance of 27 January 1993). In so doing, it referred to a judgment of the Second Civil Division of the Court of Cassation (Gilborson, 30 June 1993), in which it was held:

“... The trial court's decision to prolong the applicant's detention, made under Article 388 of the Customs Code, is not covered by the ordinary criminal-law procedure provided for in Articles 749 et seq. of the Code of Criminal Procedure, which gives jurisdiction to the urgent applications judge.”

The Criminal Division of the Court of Cassation also came to the same conclusion in a judgment of 28 October 1987 (Bull. crim. no. 377, p. 999):

“No appeal on points of law lies from a decision of the Court of Appeal ruling on an appeal against an order of the urgent applications judge made pursuant to Article 756 of the Code of Criminal Procedure...”

In an earlier decision of 19 January 1983 the Second Civil Division of the Court of Cassation had held that the Paris Court of Appeal had jurisdiction to order a stay of execution of an order for imprisonment in default after it had found that the order for detention was not prima facie valid as the sentence imposed on the person concerned had been time-barred thus precluding the execution of the order made against him.

The Commercial Division of the Court of Cassation initiated a change in the case-law by its judgments of 18 January and 1 February 1994, in which it held:

“... The Court of Appeal did not misdirect itself in law in holding that, by introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 752 and 756 of the Code of Criminal Procedure.” (Commercial Division, 18 January 1994, Bull. IV no. 26)

and

“The urgent applications judge has the power to suspend the enforcement of an order for imprisonment in default in cases in which he considers that the order has become prima facie invalid in the light of new developments since it was made, in particular, where the debtor claims that he is insolvent. However, in such circumstances, the judge must refer the case to the trial or appellate court which made the order.” (Commercial Division, 1 February 1994, D. 1994, IR 48)

That line has also been followed by the Criminal Division of the Court of Cassation in a decision of 26 October 1995, in which it said:

“By introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 710, 752 and 756 of the Code of Criminal Procedure. A judgment declaring inadmissible an application for relief from execution, on the ground of insolvency, of an order for imprisonment in default must be quashed.” (Bull. crim. no. 325)

The issue of the extent of the powers of the urgent applications judge on applications for discharge of an order for imprisonment in default has also given rise to inconsistencies in the case-law. The question has been whether the urgent applications judge has jurisdiction only to determine the prima facie validity of the order or whether he also has jurisdiction to decide whether the debtor is insolvent.

Some urgent applications judges have held that their jurisdiction is limited to reviewing the prima facie validity of the order for imprisonment in default (see Saintes tribunal de grande instance, 31 October 1994, Gazette du Palais, 10–11 March 1995, p. 26, and Mulhouse tribunal de grande instance, 7 July 1995). Others have referred the insolvency issue to the court that made the order (see Draguignan tribunal de grande instance, 26 May 1993, and Toulouse tribunal de grande instance, 1 July 1994), while still others have held that they were empowered to decide the insolvency issue and to discharge the order for imprisonment in default (see La Rochelle tribunal de grande instance, 12 December 1994, and Mulhouse tribunal de grande instance, 17 February 1995).

The Court of Cassation reversed and quashed a judgment of a court of appeal that had held that an urgent applications judge had jurisdiction to decide whether the debtor was insolvent (see the Commercial Division’s decision of 1 February 1994 cited above). The full court of the Court of Cassation held on 5 February 1996 that urgent applications judges do have such power. However, that decision concerned a debtor who was not in prison.


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in 1949 and lives in Kirov.

In August 1997 the applicant was mistreated by the police. He brought two civil actions against them.

On 29 March 2000 and 9 January 2001 the Oktyabrskiy District Court of Kirov held for the applicant and awarded him compensation. It appears that both judgments became binding ten days after their pronouncement. The judgment of 29 March 2000 was not enforced, because the Ministry of Finance had lost the writ of enforcement. The judgment of 9 January 2001 was enforced on 5 June 2006.

Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos

The applicant was born in 1977 and lives in Patras.

On 20 October 2006 the applicant was arrested and criminal proceedings were brought against him for drug related offences.

After four adjournments - three on the court’s initiative and one on the request of the applicant - on 14 March 2008 the Athens First Instance Criminal Court convicted the applicant and sentenced him to life imprisonment and a fine of 55,000 euros (judgment no. 1579/08).

On the same date the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the court’s findings and its evaluation of the evidence, which was scheduled for hearing on 1st October 2010.

After several adjournments the hearing of the appeal took place on 3 June 2011 and the applicant’s sentence was reduced to fourteen years of imprisonment.

There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment.


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in 1949 and lives in Syracuse.

She was a teacher at a private school in Lentini (Syracuse). The school was owned by a limited liability company, G., of which the applicant and three other teachers were members and Mr G. the manager.

In July 1998 Mrs C. lodged a criminal complaint with the Revenue Police (Guardia di Finanza) about irregularities in the management of the school's affairs. She stated that she was a de facto member of G.

The Syracuse public prosecutor's office opened an investigation in respect of the members and manager. On 20 July 1998 the Revenue Police searched the company's head office and the members' homes. At that time the applicant received official notification that she was under investigation.

On an unspecified date the public prosecutor's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion, fraud and forgery. On 12 August 1998 the Revenue Police questioned the applicant.

On 17 November 1998 the public prosecutor's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association, tax evasion and forgery of official documents.

On 28 November 1998 the investigating judge ordered Mrs Sciacca and the other persons charged to be placed under house arrest.

On 4 December 1998 the applicant was served with the judge's decision. Like anyone placed under house arrest, she avoided being remanded in custody. However, the Revenue Police compiled a file on her; photographs and fingerprints were included in it. On the same day the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference.

Two newspapers published articles about the investigation.

The first daily, Giornale di Sicilia, published two articles, on 5 and 6 December 1998. In the first one it referred to “alleged formal and substantive illegalities in the management of a private school”. After stating that the applicant and three others, who had been placed under house arrest, had been charged with very serious offences (criminal association, extortion, forgery, fraud and tax evasion), the newspaper indicated that other persons charged “were allegedly also” victims of acts of extortion committed by the four people who had been arrested. After outlining the measures taken by the investigators, the newspaper stated that the four people who had been placed under house arrest “were allegedly” the de facto managers of the school. The newspaper went on to explain what the extortion had consisted of. It added that “unofficial accounts had been found at the home of the four people concerned” and that “the investigators had found that the pupils enrolled” in two classes “were in fact the husbands and cousins of the women who had been arrested”. The only passage reporting the investigators' statements concerned someone other than the applicant.

The other article – published on the following day together with a photograph of the four arrested women – was similar in content to the first one.

On 5 December 1998 the second daily, La Sicilia, published on the front page a photograph (identity format) of the four people who had been placed under house arrest and stated that they “had set up a bogus school”. The contents of the article were comparable to those of the articles published in the first daily.

The applicant's photograph, together with that of the three other women who had been arrested, was published four times on 5 and 6 December 1998. Each time it was an identity photograph that had been taken by the Revenue Police when the file was compiled, at the time of the applicant's arrest, and released by them to the press.

On 12 December 1998 the applicant challenged the order placing her under house arrest in the tribunale della libertà (a court with jurisdiction to examine preventive measures) of Catania.

On 28 December 1998 the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest.

On 1 March 1999 the public prosecutor's office requested the applicant to be committed for trial. The case was listed for hearing before the investigating judge on 26 May 1999. However, the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure.

The case was therefore set down for hearing before the Syracuse Court on 6 June 2000.

On 8 March 2002 the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution (Article 444 of the Code of Criminal Procedure – “the CCP” (applicazione della pena su richiesta delle parti)), namely, one year and ten months' imprisonment and a fine of 300 euros.

The parties did not provide the Court with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press.

Presidential Decree no. 431 of 29 April 1976 sets forth the implementing regulations in respect of Law no. 354 of 26 July 1975 on the administration of prisons.

With regard to persons charged who have been arrested and imprisoned, paragraphs 1 and 2 of Regulation 26 of the implementing regulations provide as follows:

“A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned. The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her. The ministry shall be informed that the file is being stored.

The references of this personal file shall include civil-status particulars, fingerprints, photographs and any other item necessary for the exact identification of the person.”

It is clear from paragraph 5 of that regulation that the compilation of a personal file also concerns persons placed in pre-trial detention.

Law no. 121 of 1 April 1981 concerns the new rules relating to public safety. The relevant provisions of this Law read as follows:

Section 6 – Coordination and direction of the police forces

“With a view to implementing the guidelines issued by the Minister of the Interior on exercising the functions of coordination and unitary direction in respect of order and public safety, the Department of Public Safety shall carry out the following tasks:

(a) classification, analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime, and distribution to the operational services of the above-mentioned police forces;

“The information and data referred to in section 6, paragraph (a), must relate to information taken either from documents which are stored in one way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with Article 165 ter of the Code of Criminal Procedure or from police inquiries.

In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race, religion, political opinions or adherence to the principles of a trade union, cooperative, charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in one of the above-mentioned spheres.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in 1957 and lives in Magadan.

The applicant was the president of a non-governmental organisation known as Investory Kolymy (Investors of Kolyma). In 2001 he wrote an article entitled “Shares for the Moor of Moscow” (“Акции для московского мавра”). The article was about the acquisition of shares in Kolymaenergo Plc (a local energyproducing company which was at the time a part of the State holding Edinye Energeticheskiye Systemy Rossii) by a group of Moscow-based firms. In the article the applicant described the purchase as a crooked deal and alleged that a high-level official from Moscow, one of the leaders of the progovernment political party, was behind the transaction. The article reads as follows:

“Shares for the Moor of Moscow

Where are the 1,300,000,000 roubles [obtained from] the placement of shares in Kolymaenergo Plc?

We meant well ...

Everything started with an advertisement in [the official daily] Rossiyskaya Gazeta of 1 July 2000, in which Kolymaenergo Plc informed us about the next step in its exploration of market in the country – namely, about the official registration of the issue of 3,231,000,000 simple non-documentary nominal shares. [In that advertisement Kolymaenergo] described in great detail the conditions and procedure for the issue of the shares, including the distribution of the shares amongst prospective buyers in the first priority group and the second priority group, explained how to formulate a request for acquisition of shares, and, naturally, indicated the bank account into which payments for the shares should be made. The payments were supposed to go through a commercial bank situated in Krasnodar [a city in southern Russia]. In other words, a reputable firm got involved, and, as a consequence, the business was put on a solid footing. At least, that was the appearance that the sponsors of the project wanted to create for those who they hoped would “swallow the bait” and, under the influence of the very promising advert – published, by the way, in all the mass media of the Magadan Region – would be prepared to play for high stakes.

At the local level the preparations had started long before the publication of the advert. First of all, the issuer (the corporation issuing the securities) took care to develop convincing arguments which would help to get support for their project from public officials. On 29 April 1999 a consultation meeting took place in the office of the head of the Yagodninskiy District [of Magadan Region], where the question of payment of the local taxes due by Kolymaenergo Plc was discussed. It was no accident that that question was on the agenda of the meeting: by that time the outstanding fiscal debt of the energy industry [vis-a-vis the local authorities], including the carryovers from previous years, amounted to 228,700,000 roubles – a very significant amount for the District [budget]. As a result of the discussion an agreement was reached which provided, in particular, that (direct quote) “the administration of the Yagodninskiy District discharges Kolymaenergo Plc from the payment of 228,700,000 roubles in local taxes. In return, Kolymaenergo Plc transfers [to the administration] its shares worth 228,700,000 roubles, at the market rate applicable at the moment of the transfer”. Both parties signed the minutes of the meeting containing that clause. Naturally, among the signatures were those of Mr F.I.T., the head of the local administration, and Mr G.I.S., the managing director of Kolymaenergo. Some time later Mr. G.I.S. made a similar proposal – “shares in exchange for taxes” – to the financial department of the administration of the Magadan Region and to the mayor's office of Magadan.

The plot thickens. At the beginning of November 1999 the Duma of the Magadan Region adopted the Law on investment in the construction of the Ust-Srednekanskaya HydroElectric Power Plant (HEPP). Almost certainly, everyone has heard about the problems with the financing of that “never-ending construction project”, so the desire of the lawmakers to use every opportunity to get the extra funding is quite understandable. As a result, in the new law, driven by the best aspirations, they stipulated that “... in order to complete the construction of the Ust-Srednekanskaya HEPP plant, which is one of the most important elements in the fuel and energy system of the Magadan Region ... Kolymaenergo Plc may dispose of the fees as a registered member of the special economic zone, due for the period until 31 December 2002, which were earmarked for the special-purpose extra-budgetary fund for social development in the Magadan Region.

Those fees should be considered as a capital investment in the main capital of Kolymaenergo Plc, in particular to pay for the construction costs of the UstSrednekanskaya HEPP, on condition that a corresponding part of the shares is registered as the property of the Magadan Administration” (end of quote). That law was enacted on 3 November 1999.

... But it ended up the same as always

As the saying goes, “everything looked smooth on paper, but they forgot that in reality it was full of cracks”. The fourth additional issue of shares was registered on 16 June 2000, and distribution was supposed to start in two weeks. On different dates, all within the period of open distribution of the shares, a number of potential investors concluded standard acquisition agreements with Kolymaenergo Plc. Edinye Energeticheskiye Systemy Rossii [the biggest State-controlled energy company at that time], for good reason, bought shares for almost 1,680,000,000 roubles, thus investing in the construction of the Ust-Srednekanskaya HEPP. However, the situation has since changed, for the worse as regards most of the investors. One of the local companies, Regiondragmet Ltd, expressed an interest in purchasing shares for 1,200,000,000 roubles. When the director of Kolymaenergo Plc. Mr G.I.S., learned about that offer, he requested that all previous offers and the book where they were registered be destroyed, and decided that henceforth he would take care of the distribution of the shares.

Very soon, instead of the bank account in Krasnodar indicated in the original issue plan, a new bank account was opened, this time with the Korvet bank (Moscow), and, following that, the implementation of the whole scheme, as designed from the very beginning, started. In a very short time, three commercial firms were incorporated in Moscow: Bakkar Ltd, Promstroy TEK Ltd and ONEKS-Consulting Ltd. Bakkar transferred 140,000,000 roubles to Kolymaenergo's account with the Korvet bank; with that money the recipient [Kolymaenergo] paid for the promissory notes issued by ONEKS-Consulting. For those not familiar with of all the subtle details, I should explain that promissory notes, unlike shares, do not need to be secured by any property or financial resources of the company that issued them. That is why any limited company with a charter capital of eight or ten thousand roubles and nothing besides, not a bean, can issue promissory notes for one billion roubles, provided that a buyer comes forward.

In our case the buyer was Kolymaenergo, which at that time had an outstanding debt of more than a billion roubles owed to its employees, the pension fund and the State budget at different levels. The value of the promissory notes was no less than 1,300,000,000 roubles; it's no coincidence that the head of Bakkar earlier transferred 140,000,000 roubles to the account with the Korvet bank (see above). And then that amount was passed ten times through the corresponding bank accounts, with the use of the same photocopied bank payment order. As a result, Bakkar purchased, almost for free, a huge number of shares which amount to 15 per cent of the overall charter capital of Kolymaenergo.

It is easy to guess what the reaction of the would-be investors, who suffered both pecuniary and non-pecuniary damage, was. Numerous legal suits, petitions and complaints were addressed to the Magadan Town Court, the Commercial Court of the Magadan Region, Edinye Energeticheskiye Systemy Rossii and other senior authorities. On 14 May 2001 an NGO called Investory Kolymy was created by a group of persons, and it immediately joined in the process of uncovering the truth. The main goal of that NGO consisted in promoting the interests of the investors, shareholders and other interested persons, and protecting their investment in the energy industry of the Magadan Region before the courts, social policy institutions or any organisations competent to address their concerns in whatever manner. But they received silence in reply [to their petitions]. In particular, the board of directors of Kolymaenergo kept ignoring them, although it had been Mr V.A.P., the head of the board, who had approved the [share] issue plan.

As we can read in a letter from one of the shareholders of Kolymaenergo to the head of the management board of Kolymaenergo, Mr A.S. (with a copy to the head of the management board of Edinye Energeticheskiye Systemy Rossii, Mr A.B.Ch.): “In the internal audit report, under the heading of “Profits and losses” there is no information about any money received from the shares sold. 1,300,000,000 roubles were supposed to be transferred to the bank account of Kolymaenergo Plc. That money was sufficient to pay the outstanding debts of the company, to relaunch normal operations through the bank account of the company and not through [non-monetary] “clearances” in which the company was losing half of what was due to it.

“Furthermore, it became known that some of the shareholders, namely Bakkar and Probstroy TEK, had paid only one tenth of the price [of the shares they had purchased], whereas according to the audit report on the issue of the shares Bakkar had paid [Kolymaenergo] the full price. Why has this been done?” [end of quote]

The arguments of the claimant were considered unpersuasive

That letter was sent as early as May 2001; in June a meeting of shareholders took place, but the author of the letter did not get a reply until now. The question formulated at the end of the quote is, most likely, a rhetorical one, because we are all grown-ups and we all understand why it has been done. We also understand that after that scam with the shares came to an end, all our hopes inspired by the promises of the sponsors of the [share issue] plan, the hope of getting salary arrears paid, of getting tax paid, of investing in the construction of the Ust-Srednekanskaya HEPP, etc., all those hopes have vanished.

A striking example is provided by the situation with the company Metalloeksportnaya, which brought proceedings before the Commercial Court of the Magadan Region, seeking damages from Kolymaenergo Plc for false advertising. That company [Metalloeksportnaya] was prepared to buy 400,000 shares. Last year, on 25 December, it made the first payment, but on the next day the money was returned [to Metalloeksportnaya] since the account indicated in the agreement did not exist and the recipient of the money was not [amongst the clients of the bank] (now we know why – the account with the Krasnodar bank was never opened). The Metalloeksportnaya company immediately sent Kolymaenergo all signed documents and asked them to provide new banking details for the bank transfer. However, there was no reply. A new request in similar terms was made on 2 February 2001, but, again, to no avail. As a result, on 21 May 2001 a tort claim was introduced before the Commercial Court of the Magadan Region, for an amount of 90,000 roubles.

The claimant's arguments were very convincing. Let us take the manipulation with the bank accounts described above. Whereas most of the potential buyers of the shares of the fourth additional issue tried (in vain) to use the account indicated in the issue plan, i.e.. the account that in reality did not exist, those investors for whom Kolymaenergo created a most-favoured regime were able to pay for the shares through a secret account in the Moscow-based Korvet bank. The decision of the court mentioned that fact; however, it was interpreted in a peculiar way. Indeed, as the decision established, “... owing to the absence of the bank account and of a recipient in the bank the money in the amount of 2,000 roubles was returned”. To all appearances, that fact is established. However, on the same page, a few paragraphs below, one can read one of the arguments which the defendant put forward: “... in breach of the agreement on the acquisition of shares the claimant had made the payment before the conclusion of the agreement.” On the next page we see the court's conclusion, which was the central reason for dismissing the tort action: “... at the moment of conclusion of the agreement the claimant had been required to transfer to the defendant no less than 200,000 roubles. The defendant, in accordance with section 3.3 of the agreement, was to forward to the claimant the documents confirming the payment together with a signed copy of the agreement. However, in breach of the agreement, the claimant only transferred 2,000 roubles for the shares”.

Too many inconsistencies, are there not? In fact, contrary to what the court established, the payment had been made on 25 December, i.e., after the conclusion of the agreement, which had been signed on 9 December. What does this mean? First of all, it means that the materials in the case file were not duly studied by the court. Furthermore, what difference would it make if the claimant transferred 200,000 roubles and not 2,000? Would the correct bank account appear in the issue plan? Would it allow the company to become the lawful owner of the shares? Unfortunately, miracles are impossible, especially when nobody wants to produce a miracle. And please pay attention to the phrases which are underlined [in the quote above]. It is hard to reconcile the argument of the defendant (that the payment should have been made after conclusion of the agreement) and the argument of the court (that the buyer was under an obligation to send a signed copy of the agreement together with a document confirming payment). I will further note that the acquisition agreement required [the buyer] to pay 50 per cent of the overall sum of the transaction, but did not specify whether such payment had to be made in instalments or in one go.

And that is not the end. In the section “Distribution of the shares amongst buyers in the second priority group” of the issue plan one can read: “Offers from prospective buyers in the second priority group will be accepted [by Kolymaenergo Plc] in chronological order of their receipt”. That means that the dates of receipt of every offer should be registered in a special logbook. However, the requests by the claimant and by the court to produce such a logbook were to no avail. It was only possible to see the record of existing shareholders, in which, under no. 1, we can see the name of the very same Moscow-based firm which obtained, for unclear reasons, preference in buying the shares. Still, it was impossible to get a clear answer to the question whether an offer from Metalloeksportnaya to buy shares was registered, and, if so, on what date.

Ready or not, here I (don't) come?

Very shortly [I will tell] you about those who stood to gain in this whole obscure story. When the prosecution officials involved in the inquiry into the situation with the shares came to Moscow, they were unable to find Bakkar Ltd, Promstroy TEK Ltd or ONEKS-Consulting at the official addresses given, or those people who were mentioned in the documents of Kolymaenergo Plc. The Moor has done his work, and the Moor has left, without leaving an address or even saying “Goodbye”.

This is the true situation; however, criminal investigation no. 14158 into the abuse of official position by the managers of Kolymaenergo Plc was finally closed for lack of the constitutive elements of a crime.

The decision of the Commercial Court of the Magadan Region was appealed against by the NGO Investory Kolymy; in its grounds of appeal all the breaches of the law in the sphere of the advertisement, selling and buying of shares were described in detail. However, the Court of Appeal again just ignored the arguments of the claimant. None of the facts mentioned above, which clearly spoke against the defendant, were taken into account. As a result, the claimant, together with Investory Kolymy, lodged an appeal on points of law with the Court of Cassation in Khabarovsk. As to the discontinuation of the criminal investigation, we will challenge the decision of the prosecution in this respect by all legitimate and civilised means.

When that dispute started, we informed Mr A.B.Ch., the head of the management board of Edinye Energeticheskiye Systemy Rossii, and the Federal Commission on Securities, of the situation. However, a principle of esprit de corps came into play, and they decided not to wash their own dirty linen in public. As it appears, they want to cover up the affair at all levels.

If we do not succeed, we will still continue fighting. On 15 August 2001 our organisation sent to the Magadan Town Court a statement of claim against Kolymaenergo and the Federal Commission of Securities and the then head of the Board of Directors of Kolymaenergo, the leader of the “United Russia” fraction in the State Duma, Mr P., the General Director of Kolymaenergo Mr. S., and the chief accountant Ms K. What is our organisation asking for before the court? First of all, that it declare the advertisement of the fourth issue of shares abusive, and the issue itself invalid. We think that Kolymaenergo Plc breached the provisions of the federal legislation, in particular, the Standards for the Issue of Shares, the Act on Defence of the Rights of Investors and the Public Limited Companies Act. The legal provisions on which we base our claims are indicated in the statement of claim.

So far the date of the hearing in this case has not been set; it will take place in October or November, after the judge returns from her leave. By the way, the judge took annual leave twenty days after the case had been assigned to her. A similar handling of cases concerning machinations with shares has become almost systemic.

All this squabbling cannot but be detrimental to the investment climate in the region, because Kolymaenergo is a public limited company and its shares can be purchased by foreign investors as well. And now, when Russia is seeking recognition as a country with a market economy, events of this kind will not help it to acquire weight.

In the current situation the NGO Investory Kolymy will insist on an objective examination of its civil claims and of the criminal case, in order to protect the rights of investors.

A. Saliyev,

Head of the Advisory Board of the NGO Investory Kolymy”

On 10 October 2001 the applicant submitted the article to a municipally owned newspaper, Vecherniy Magadan, for publication. He produced documents in support of the facts described in the article. Mr Svistunov, the editor-in-chief of the newspaper, agreed to publish the article. It was included in issue no. 44 of 2 November 2001. That issue, with the applicant's article in it, had a print run of 5,184 copies.

On the morning of 2 November 2001, 2,394 copies of the issue containing the applicant's article were sent to subscribers and to State libraries. Two thousand copies were given to the distributing company Rospechat to be sold at street distribution points, kiosks and newsstands. However, shortly afterwards those copies were withdrawn from the newsstands and they were later destroyed. According to the Government, the withdrawal was requested by Mr Svistunov (the editor-in-chief). They submitted a letter from the editor-in-chief to the head of Rospechat asking the latter to withdraw the copies. The letter is dated 2 November 2001; however, according to the applicant it was backdated. Only the copies that had been sent to libraries and subscribers remained. The Government submitted that a part of the print run had already been sold, with the result that only 120 copies had been withdrawn and destroyed.

On 5 November 2001 the editor-in-chief wrote a letter to the mayor of Magadan asking the latter to release him from the position of editorinchief because he “was unable to perform his duties in a fully professional manner”.

On 10 November 2001 the head of the trade union at the Kolymaenergo hydroelectric power plant wrote a letter to the editor-in-chief of Vecherniy Magadan asking him to explain why issue no. 44 had been withdrawn from the newsstands.

On 11 November 2001 the editor-in-chief replied to that letter explaining that he had not given the relevant order. He claimed that the decision had been taken by the head of the distributing company Rospechat. He, the editor-in-chief, had had to sign a backdated order for withdrawal of the copies, and from a private conversation he had understood that the copies had been withdrawn because of the applicant's article, which had mentioned the names of certain politicians whom the editor-in-chief described as “untouchable”. After that incident he “[had taken] the difficult decision to resign from the position of editor-in-chief of Vecherniy Magadan”, because, in his words, “the newspaper was unable to enjoy freedom of speech and of the press,” and he “did not want to deceive readers”. It appears that soon afterwards the editor-in-chief left Vecherniy Magadan and started working as a journalist on a private newspaper.

In the following months the applicant tried to publish the article in several regional and central newspapers, but to no avail.

On an unspecified date in 2002 the applicant lodged a formal complaint with the regional prosecutor's office concerning the withdrawal of the copies. In his submission, the withdrawal amounted to unlawful interference with freedom of the press, a criminal offence under Article 144 of the Criminal Code.

On 22 January 2003 that complaint was transmitted to the Magadan town prosecutor's office. The case was assigned to an investigator, who questioned the head of Rospechat and the former editor-in-chief.

On 30 January 2003 the head of Rospechat testified before the investigator that the decision to withdraw the copies had been taken by the former editor-in-chief. On the following day the investigator questioned Mr Svistunov, the former editor-in-chief of the newspaper. Mr Svistunov confirmed that he had asked Rospechat to withdraw the copies of the newspaper. He explained that he had agreed to publish the article because it concerned an interesting subject and because the applicant had shown him documents which supported the facts described in the article. The editorinchief had thought that the article would arouse public interest and had decided to publish it. However, after fresh consideration, when the newspaper had already been printed and sent out for distribution, he had decided to withdraw it. He had realised that the editorial staff “would have problems” if the article was published. As to his letter of 11 November 2001, it had not been accurate, because at the time he had been upset over his own decision to resign from the post.

On 31 January 2003, after a preliminary inquiry, the investigator decided not to open a criminal investigation. The investigator found that the decision to withdraw the copies had been taken by the editor-in-chief himself without any coercion. The investigator noted, however, that the decision of the editor-in-chief to withdraw the copies had been motivated by the need to avoid lawsuits and litigation which might have followed the publication of the article, and to protect the editorial staff. The investigator concluded that no interference with freedom of the press had occurred.

The applicant challenged that decision before the court. On 7 April 2003 the Magadan Town Court examined the materials in the case file and heard evidence from the applicant and the former editor-in-chief; the latter testified that he had signed the order to withdraw the copies after they had already been withdrawn from sale. After examining the applicant's complaint, the Town Court decided to quash the decision of 31 January 2003. The court noted that by law the withdrawal of a print run could be ordered only by the judicial authorities. The Town Court also ordered certain additional investigative measures to be carried out by the investigating authorities.

On 23 April 2003 the Magadan town prosecutor ordered an additional inquiry. The case was assigned to another investigator, who questioned the applicant, the former editor-in-chief, the head of Rospechat and a staff member of Rospechat. The applicant testified that when he had learned about the withdrawal of the copies he had called the editor-in-chief, who explained that they had been withdrawn by a decision of Rospechat, and that the head of Rospechat had persuaded him to sign a backdated order for withdrawal.

The head of Rospechat testified that the copies had been withdrawn by order of the then editor-in-chief. He also denied putting any pressure on the editor-in-chief.

The former editor-in-chief confirmed his previous testimony given to the investigator of the town prosecutor's office. As to his testimony before the Town Court, it was his view that the copies had been withdrawn before the order had been signed. Indeed, he had discovered at one of the street kiosks that all copies of issue no. 44 had disappeared. However, he had no proof that they had disappeared because they had been withdrawn.

Finally, the staff member of Rospechat confirmed that on an unspecified date she had helped the then editor-in-chief of Vecherniy Magadan to withdraw the copies from the street kiosks. Altogether, they had managed to withdraw between 100 and 200 copies.

On 3 May 2003 the investigator concluded that there was no case to investigate. His reasoning was similar to the reasoning of the previous investigator of 31 January 2003.

The applicant challenged that decision before the courts. On 20 May 2003 the Magadan Town Court upheld the decision of 3 May 2003. The court concluded that the prosecution inquiry had been carried out with due diligence and that the findings of the inquiry had been properly reasoned. The applicant appealed, but on 25 June 2003 the Magadan Regional Court upheld the judgment of 20 May 2003.

The applicant brought court proceedings seeking to have 2,000 copies of issue no. 44 containing his article reprinted and sold at street kiosks.

On 1 July 2003 the Magadan Town Court dismissed his action. The court stated that the newspaper, as the owner of the copies, could dispose of them of its own free will. The court also found that there had been no contract between the applicant and the newspaper obliging the latter to distribute the issue containing the article.

The applicant appealed. On 5 August 2003 the Magadan Regional Court upheld the lower court's decision, repeating the latter's reasoning.

According to the charter of the newspaper, Vecherniy Magadan was founded by the municipal property committee of the municipality of Magadan (“the municipality”) in the form of a “municipal institution” (муниципальное учреждение), with a view to informing the population of Magadan about social, political and cultural life in the town. The municipality retains the ownership rights in respect of the assets of the newspaper, while the newspaper exercises a right of “operational management” (право оперативного управления) in respect of those assets. The municipality approves the budget of the newspaper and payroll expenses. The newspaper receives its funding from the municipal budget; it can also receive income from other sources such as advertising, subscription fees, and so on. In 2007, according to the Government, all the newspaper's expenses (6,980,000 roubles) had been paid from the municipal budget.

The municipality can “define targets” for the development of the newspaper. The newspaper has an “editorial council” (редакционный совет), a “coordinating and advisory body” composed of the editor-in-chief and several representatives of the municipality.

The editorial policy of the newspaper is defined by the “editorial board” (редакционная коллегия), composed of the editor-in-chief, his deputy, the secretary, and the heads of departments. The editorial board can propose materials for publication or recommend not publishing “controversial material”.

The editor-in-chief of the newspaper is appointed by the municipality. The editor-in-chief appoints the other staff members of the newspaper and acts on behalf of the newspaper vis-à-vis third parties. The municipality cannot compel the newspaper to publish material if it has been rejected by the editorial board, unless the law provides otherwise or the material is of an official nature. The charter of the newspaper does not stipulate, however, who can decide to withdraw or destroy copies of the newspaper or the grounds for doing so.

The Media Act of 27 December 1991, with further amendments, prohibits censorship: State bodies and officials cannot require a communication medium (for instance a newspaper) to obtain prior authorisation for the publication of material. The Act also prohibits banning the distribution of certain material (section 3 of the Act).

Under section 2(10) of the Act the editor-in-chief heads the editorial board and “takes final decisions as to the production and distribution of the medium”.

A communication medium may be established by a State body. The owner (founder) of the medium may interfere with editorial policy only to the extent defined in the charter of that medium (sections 18 and 19 of the Act).

Under section 25 of the Act, non-subscription sales of a newspaper (for example, sales from newsstands on the streets) may be limited only to the extent defined by the Act.

Under section 28 of the Act confiscation or destruction of a print run (тираж) or part of it is possible only pursuant to a court decision [to this end] which has entered into legal force.

Under section 42 of the Act, unless otherwise provided by the law, nobody can compel the editorial board to publish material which has been rejected by that board.

Founders, editors, publishers, journalists and authors may be held liable for breaches of Russian legislation on the mass media (section 56).


The applicant, Royland McCalla, is a Jamaican national who was born in 1972 and lives in Nottingham. He is represented before the Court by Mr F.Vaz, a lawyer practising in Edgware.

The applicant arrived in the United Kingdom in December 1999 and was granted leave to enter as a visitor until 17 January 2000. He applied for an extension which was granted until 20 June 2000. On 5 June 2000, he applied for a further extension as the husband of S., a British citizen whom he had married on 12 May 2000. Leave was granted for twelve months, expiring on 6 December 2001.

S. had a daughter J. (born in 1998), by a previous relationship, who had regular contact with her natural father.

Meanwhile in March 2001, the applicant was arrested for drugs offences. Following a plea of guilty to four counts of supplying crack cocaine and two counts of offering to supply, the applicant was sentenced on 4 June 2001 to five years' imprisonment. The judge did not make any recommendation for deportation.

On 16 December 2001, S. gave birth to the applicant's son, R.

On completion of one half of his sentence, the applicant was released on parole.

On 10 July 2003, the Home Secretary gave notice of his decision to make a deportation order against the applicant, referring to his conviction in view of which he deemed it conducive to the public good to make such an order.

The same day, the applicant appealed.

Following a hearing, by a decision of 16 January 2004, the Adjudicator rejected his appeal. He gave weight to the applicant's good record in prison and his family circumstances. He noted that S. had relatives, including her parents, in Jamaica and had visited there on holiday, although she had lived all her life in the United Kingdom. Having regard however to the fact that the wife had a house and job in Nottingham, that R. had uncertain medical problems and J. had regular access with her natural father, he did not consider that it would be reasonable to expect the wife to emigrate to Jamaica, in particular as it would severe J.'s links with her natural father. Nonetheless, weighing these factors together with the seriousness of his offences, the short period in which the applicant had lived in the United Kingdom and the fact that the applicant and S. had married knowing that he was not a British citizen and did not have indefinite leave to remain, he found that the measure was not unjustified.

On 15 April 2004, the Immigration Appeal Tribunal refused permission to appeal, finding no error in the Adjudicator's balancing of the relative factors.

On 24 May 2004, the High Court refused an application for statutory review.


Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving some brief particulars; for the remaining details, reference should be made to paragraphs 15 to 81 of the Court’s judgment of 28 June 1978 (ibid., pp. 7-27).

That judgment concerned the length of actions brought by Dr. König before the Frankfurt Administrative Court in 1967 and in 1971 to challenge, respectively, the withdrawal of the permit to run his clinic and the withdrawal of the authorisation to practise medicine.

In the second matter, the Administrative Court had dismissed the applicant’s action by a judgment delivered on 9 June 1976 which had been affirmed by the Hessen Administrative Court of Appeal on 2 May 1978. Dr. König lodged an appeal (Nichtzulässigkeitsbeschwerde) and an application to quash (Revision) but these were rejected by the Federal Administrative Court (Bundesverwaltungsgericht), in two final decisions, on 10 September and 18 October 1979.

In the case concerning the clinic, the Frankfurt Administrative Court had dismissed Dr. König’s action on 22 June 1977. An appeal by him against that decision is still pending before the Hessen Administrative Court of Appeal which, with the agreement of the parties, stayed the proceedings on 21 February 1979 pending the outcome of the above-mentioned proceedings before the Federal Administrative Court.

After delivery of the Court’s judgment of 28 June 1978, the Government and the applicant attempted, with the Commission’s assistance, to arrive at a friendly settlement of the latter’s claims, details whereof had been given by Mr. Hofferbert in his letter of 18 September 1978 (see paragraph 3 above). The attempt met with failure in November 1978: Dr. König found that the Government’s offer of DM 20,000 in full and final settlement was not sufficient.

The applicant seeks pecuniary compensation for the two heads of damage allegedly caused to him by the violation of Article 6 par. 1 (art. 6-1): he maintains that his financial and professional situation may have been permanently ruined and, secondly, that his personal and professional reputation had been indirectly lowered. Without quantifying his claims, he furnishes certain particulars – regarding notably the average annual income he could have anticipated as a medical practitioner and as the head of a clinic - on the basis of which he considers it possible to gauge the extent of his aggregate loss and to assess the fraction thereof attributable to the fact that the "reasonable time" was exceeded. In addition, the applicant asks for reimbursement of the expenses he incurred both in Germany, in order to expedite the hearing of his actions, and before the Convention institutions.

Dr. König leaves the assessment of the sum to be awarded to him to the Court’s discretion, thereby confirming the position he had adopted in 1977 (Series A no. 27, p. 41, par. 113).

In their observations of 6 October 1978 (see paragraph 3 above), the Commission’s Delegates stated that they did not wish to comment on the first of the applicant’s claims which they saw as being concerned with the consequences of the two withdrawals of authorisation; at the hearing, they submitted that in their opinion the attribution of specific material losses to the breach found by the Court was impossible, at least on the strength of the evidence before it. On the other hand, the Delegates suggest that account should be taken of the fact that the applicant was left in a prolonged state of uncertainty as to his professional future, and this at a time of life - between the ages of forty-nine (in 1967) and sixty (in 1978) - when a man is normally at the peak of his career. They also consider that the breach of Article 6 par. 1 (art. 6-1), taken by itself, may be another factor having a bearing on an award of just satisfaction.

As far as concerns the costs of the proceedings, the expenditure incurred by Dr. König in order to expedite the domestic litigation and to present his case in Strasbourg is regarded by the Delegates as a relevant item. They express no firm view as to whether the same applies to the expenditure arising from his applications to the German courts for restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise; in their opinion, those applications were aimed not at speeding up the proceedings but at limiting the consequences of their excessive length. Neither do the Delegates comment on the justification for the figures given by the applicant.

The Government’s position is as follows: there is no causal link between the breach found by the Court and the alleged damage to Dr. König’s professional career; on the other hand, "reasonable", "necessary" and proven costs resulting from the exercise of the domestic legal remedies can give rise to compensation to the extent that those remedies were aimed at accelerating the procedure; furthermore, the "reasonable costs" incurred in connection with the proceedings before the Convention institutions should be reimbursed; finally, it is for the Court to determine whether the applicant should be awarded monetary compensation for the "non-material" injury he suffered by reason of the mere fact that the "reasonable time" was exceeded.


The applicant, Eric Albert Chadwick, is a United Kingdom national, who was born in 1942 and lives in Surrey, England. He is represented before the Court by Salhan and Co., a firm of solicitors practising in Birmingham, England. The respondent Government are represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office, London.

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

On 9 December 1994 the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug (amphetamine sulphate). He co-operated with the police during interview, answering the questions put to him.

The applicant told the police during interview that he had been working with a co-conspirator, Liam Walsh, on the production of a drug and had been aware that Walsh was a police informant. The applicant admitted that, at Walsh’s instigation, he had procured some of the ingredients (BMK) for the production of the drug. However, his intention all along had been to persuade others to become involved in the project and that he had acted with Walsh’s knowledge and, as he believed, with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting, amongst others, Ian Pollock.

The applicant, along with Walsh and Pollock and another co-defendant, David Wilson, was tried before a jury at Birmingham Crown Court from 26 February 1996 to 28 March 1996. The charge against the applicant related to the production of a controlled drug contrary to section 1(1) of the Criminal Law Act 1977.

The applicant’s and his co-accused’s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity (“PII”) application. No indication was given of the categories of materials to be incorporated in the application. However, the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that “one matter” which would be raised with the judge would be the position in respect of Walsh’s full “profile”.

The defence lawyers were subsequently informed that the PII hearing had been fixed for 16 February 1996 before His Honour Judge Taylor. At that hearing, the judge ruled in favour of the prosecution. However, he stated that a schedule of information given by Walsh had to be served on Walsh’s lawyers and that consideration ought to be given to disclosure to the applicant and the other co-accused. The prosecution sent a schedule of Walsh’s activities as an informant to Walsh’s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co-accused. Walsh’s lawyers objected to disclosure to his co-accused.

According to the applicant, his lawyers were aware that the trial judge granted PII in respect of at least “one matter” between 26 February and 4 March 1996, but cannot confirm whether a PII order was sought or made in respect of other materials.

The schedule was produced at the trial by Walsh’s lawyers, without objection from any party. According to the Government, the bulk of the source documentation from which the schedule was prepared was disclosed during the trial, some of it in edited form with the approval of the trial judge.

There was a further ex parte hearing during the course of the trial, following an application for disclosure by Walsh’s counsel. The prosecution declined to state the category of material raised during the hearing. The judge approved the prosecution’s PII claim for the material in question.

The essence of the prosecution’s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of the L&W Distribution Company (“L&W”) of a range of chemicals used in the manufacture of amphetamine sulphate including BMK. The documents had been prepared with the knowledge of Walsh, who was a police informant and, at the relevant time, in Sudbury prison along with the applicant and Pollock. L&W was not a legitimate trading company, and had no legitimate need of BMK. An order was placed with Hammond Chemicals through a third party, J., acting on behalf of a company called Trans Global International. Hammond Chemicals was suspicious of the order and informed the police, which authorised a controlled release of the BMK. The applicant, who was on home leave from Sudbury prison, received delivery of a quantity of BMK at Walsh’s home, Walsh being in Sudbury prison at the time. Around this time, the applicant had also bought a quantity of glucose and other chemicals. The applicant split up the chemicals he had obtained, keeping some and storing others with his sister. He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward. The prosecution stressed that Walsh had been repeatedly told by the police not to get involved in the manufacture of drugs. Two police officers were called to confirm that Walsh was acting on his own initiative and without any encouragement from the police.

According to the applicant, he had intended to give evidence at the trial in line with what he had told the police during the interview. A proof of evidence had been prepared in this connection for use at the trial. Evidence of what was said at the police interview was adduced in open court by the prosecution.

On 11 March 1996, two men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock, “he had better make sure he had good fire insurance”. The applicant contacted his solicitor who recalled that the applicant “sounded very frightened and upset”. The solicitor relayed the information the following morning to the applicant’s barrister.

After the close of the prosecution case and before the applicant was due to give evidence, the trial judge, pursuant to section 35 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), informed the applicant of the consequences of his not giving evidence. The applicant was warned:

“You have heard the evidence against you. Now is the time for you to make your defence. You may gave evidence on oath and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer questions, the jury may draw such inferences as appear proper. That means that they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?”

The applicant chose not to give evidence on account of his fear of the consequences for himself and his family. He did not opt to go into the witness box and decline to answer questions about Pollock since, according to the applicant, he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock.

Walsh did not testify at the trial. Pollock and Wilson gave evidence. Pollock was cross-examined by the applicant’s counsel on the basis that Pollock was intimately and actively involved in the manufacture of drugs, had presented himself to the applicant as a “soldier” for major drug dealers including a certain “Frank”, had sent another “soldier” to give the applicant money to finance the operation and had received from the applicant 2.5 litres of BMK at a specific location. According to the applicant, most of the cross-examination of Pollock was conducted by the prosecution.

At a stage when the cases for all the defendants had been concluded and before the summing up, the applicant’s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant’s silence in court. The application was made on the basis of the threats which the applicant had received, threats which, the applicant’s counsel argued, could be confirmed by hearing the applicant’s solicitor on the voire dire.

The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and, whenever a question was asked which he did not wish to answer through fear, to decline to answer it and give the reason. It was also opposed on the basis that it would be unfair for the applicant’s counsel to be permitted to cross-examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect.

According to the applicant, prosecution counsel in effect summarised for the judge the nature of the applicant’s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms.

The judge refused the application, although he was prepared to accept that the applicant was afraid. After the ruling had been given, counsel for the prosecution stated in the presence of all concerned:

“I take it from [the] ruling that you have agreed ... that it would not be right to call [the applicant] on a voire dire, and if [counsel for the applicant] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury, he then being cross-examined in the way I had indicated.”

The judge replied that that was implicit in what he had said. Counsel for the prosecution stated that that was his understanding, but it was as well for the matter to be plain.

The applicant’s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock.

The judge put the applicant’s case to the jury as it appeared from the transcripts of the police interviews. According to the applicant, since neither he nor Walsh testified at the trial there was no evidence before the jury that the applicant had acted at Walsh’s instigation or that the applicant believed that Walsh was a police informant or that the police had approved of the applicant’s actions in the light of the wider entrapment plan.

The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant’s silence in court. The trial judge stated:

“Now, what then are you permitted to consider about ... the failure to give evidence? Now, when a defendant does not give evidence, that is his right. The right to silence, as it is sometimes called, has not been removed. A defendant is entitled, as indeed have [the applicant and Walsh] made it perfectly clear they are entitled not to give evidence. But the law provides now that you may draw such inferences as appear proper from their failure to do so. But before you draw such inferences you have first to be satisfied that there is a prima facie case against them. So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence. You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence.

Now, if you do draw such an inference and you are satisfied that there is a case to answer, then you may ... , but you don’t have to, you make take into account the failure to give evidence.

Now what proper inferences can you draw from the [applicant’s] decision not to give evidence? If you conclude that there is a case for him to answer then you may think that [the applicant] would have gone into the witness box to give you an explanation, or give an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer, I should say, to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. ... It is open to you, it is open to you to hold against [the applicant] his failure to give evidence but only, only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or that none could have stood up to cross-examination.

Now, in [the applicant’s] case, [his counsel] has made a suggestion to you as to why he hasn’t gone into the witness box and his answer is because he, [the applicant], has said it all in his interviews; nothing more to say. Well, you must consider whether that is a good enough explanation because I have already told you that which is said by a defence, a defendant, in interview, in a statement which is not made on oath, not repeated on oath, therefore not subject to cross-examination .... . You may wonder, therefore, whether that is a good explanation. It is a matter for you. (...).

(...) Inference from failure to give evidence cannot of its own prove guilt. Again, I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it, namely that it is what the defendants had in their minds which matters, and it is therefore for the prosecution to disprove the explanation which they have given. (...).”

The applicant’s conviction and appeal

On 28 March 1996 the applicant was found guilty as charged and sentenced to nine years’ imprisonment. Walsh and Pollock were also convicted, each receiving sentences of nine and seven years respectively. The jury were unable to agree a verdict in relation to Wilson. Wilson was later convicted following a new trial.

The applicant appealed against his conviction and sentence to the Court of Appeal with the leave of the Single Judge. He contended before the Court of Appeal that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence.

The applications for disclosure and PII during the appeal proceedings

During the course of the proceedings on appeal, the applicant and Walsh applied for disclosure of certain specific and identified documents, in particular the schedule of Walsh’s activities as a police informant. The Government point out that the applicant’s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to Walsh’s history as an informant.

The Court of Appeal ruled on 20 November 1997 that the applicant and Walsh were entitled to full disclosure in relation to Walsh’s history as an informant, “save that the Maltese Falcon Intelligence Log dated 27 September 1993 be disclosed in edited form.” The latter document was included in the original PII application to the trial judge and was covered by PII immunity in its entirety. However, the prosecution indicated that it was prepared to disclose the content of this document in an edited format. The Court of Appeal approved this proposal. The prosecution also disclosed a further eight extracts from pocketbook entries of police officers. This information had already been served on the defence in the form of intelligence/information reports at the original trial, with the approval of the judge.

The applicant cannot confirm whether any or all of the materials at issue were the subject of the trial judge’s order. The applicant does confirm that the documents listed in the Court of Appeal’s order were disclosed to his lawyers, but did not extend to the further material which the applicant sought. It is the applicant’s understanding that a further disclosure order was made by the Court of Appeal in relation to documents sought by Walsh, and specified as extending to the applicant, but that no documents were disclosed to the applicant.

The issues relating to Walsh’s activities as an informant were again raised by the applicant in applications dated 28 April 1998 and 18 May 1998 to amend and supplement the applicant’s original grounds of appeal. The original schedule of informing was appended to the application of 28 April 1998. The application dated 18 May 1998 stated that full disclosure had not yet been given in accordance with the Court of Appeal’s order of 20 November 1997. The application further noted that the prosecution had claimed PII at the trial and that “it is believed that [the Court of Appeal] will be asked by the Prosecution to consider that much of this evidence requested by [the applicant] in this case should not be disclosed.” The applicant invited the Court of Appeal to reconsider the material that the trial judge had decided should not be the subject of disclosure, and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence, in particular in relation to a schedule of informing concerning Walsh used at the trial. The application of 18 May 1998 also invited the Court of Appeal to have regard to whether or not the requirements of Article 6 of the Convention had been complied with in his case as regards the issues of the judge’s failure to hear evidence on the voire dire and non-disclosure of evidence.

On 18 May 1998 the prosecution gave written notice to the accused’s lawyers that the Crown intended to make an ex parte application on notice to the Court of Appeal. The letter stated that the Crown were not able to disclose the category or categories into which the documentation would fall. The Government point out that the application for PII in the Court of Appeal was identical to that made to the trial judge save that the Maltese Falcon Intelligence Log was disclosed during the appeal proceedings, albeit in edited form.

On 21 May 1998 the Court of Appeal, following an ex parte hearing, granted the Crown’s application in full, including the editing of the Maltese Falcon Intelligence Log and the editing of various passages from the supporting source documentation. The order of the Court of Appeal dated 21 May 1998 contained the following statement: “PII properly claimed in relation to disclosure”.

The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at 10 a.m. on 21 May for a 10.30 hearing and were informed that they could not go into the court because a PII hearing was being conducted in respect of their case. The applicant does not know which documents were covered by the Court of Appeal’s ruling of 21 May 1998.

The outcome of the appeal

The Court of Appeal refused the applicant leave to amend his grounds of appeal in order to raise arguments based on Article 6 of the Convention.

On 22 May 1998 the Court of Appeal, following a hearing, dismissed the applicant’s appeal against conviction and sentence.

In delivering the judgment of the Court of Appeal, Lord Justice Rose expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might, had the applicant’s account of intimidation been subjected to cross-examination, been of positive disadvantage to the defence. He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant’s fear of reprisal. Lord Justice Rose then stated:

“At the close of the prosecution case, it is common ground that the judge had, in accordance with section 35(2), satisfied himself, in the presence of the jury, that the accused knew that he could give evidence, and, if he chose not to give evidence, or, having been sworn, refused to answer particular questions, without good cause, it would be permissible for inferences adverse to his case to be drawn. The warning of risk was heard by [the applicant], as well as by the members of the jury. That warning having been given, [the applicant] (advised by leading counsel) indicated that he would not be giving evidence.

In our judgment, the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated, by virtue of the risk to which he had expressly drawn [the applicant’s] attention, does not change the position adversely to the interests of the defendant. The reality is that [the applicant] knew, from the time of the judge’s warning at the close of the prosecution case, of the risk that a direction would be given permitting adverse inferences to be drawn, and in the light of that knowledge and of the advice which he was given, he decided to take his chance and not give evidence. In our judgment, the subsequent ruling cannot be regarded as having in any way impinged on the safety of his conviction.”

As to the applicant’s further contention that he was not advised that he could give evidence and not answer particular questions, Lord Justice Rose referred to what the trial judge had said in relation to section 35(2) of the 1994 Act.

On 25 May 1999 the Court of Appeal refused the applicant leave to appeal to the House of Lords.

The interpretation given by the domestic courts to section 35 of the Criminal Justice and Public Order Act 1994 as well as the specimen direction applicable at the relevant time are described in the Court’s Condron v. the United Kingdom judgment (no. 35718/97, ECHR 2000-V) and Beckles v. the United Kingdom judgment (no. 44652/98, 10 November 2002) .

Domestic law and practice at the material time on the prosecution’s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the Court’s Rowe and Davis v. the United Kingdom judgment ([GC], no. 28901/95, ECHR 2000-II).