Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Phillips of Worth Matravers

The applicant was born in 1989 and lives in Newtownabbey, Northern Ireland.

In 2006 a solicitor in Northern Ireland was arrested and charged with a number of offences, including inciting paramilitaries to murder and perverting the course of justice. The case arose out of the covert recording of his consultations with clients at Antrim police station. As a direct consequence of the criminal proceedings, solicitors in Northern Ireland became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. Thereafter, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of such surveillance.

When the police refused to give assurances, judicial review proceedings were initiated on the basis that there had been a breach of the common law right to legal and professional privilege, the statutory right to a private consultation with a lawyer, and Articles 6 and 8 of the Convention.

In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply.

The applicants in these judicial review proceedings appealed against the court’s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia, legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued.

As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court’s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance.

Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance.

On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans.

When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the Constable’s murder.

The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance.

On 25 March 2009 the applicant was charged with withholding information about the Constable’s murder.

Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans.

The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without charge.

On 4 May 2010 the applicant was arrested for a third time in connection with the Constable’s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations would not be subjected to covert surveillance. The PSNI informed him that

“[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”.

The applicant sought permission to apply for judicial review of the PSNI’s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise.

On 6 May 2010 he was granted permission to apply for judicial review. In granting permission, the court directed that any subsequent consultations with his solicitor and his medical adviser should not be subject to covert surveillance.

On 7 May 2010 the applicant had his first consultation with a Consultant Psychiatrist.

The applicant was released without charge on 8 May 2010.

The charge of withholding evidence appears to have concluded without trial.

The hearing of the judicial review application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant’s claim.

In dismissing the claim, the court relied on Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”.

The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be justified if it was a truly proportionate response to a real risk posed by the individual who was the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy, the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear.

With regard to the applicant’s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy, were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private.

Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance.

On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows:

“a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations?

b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:-

(i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or

(ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed.

c. Is the Police Service of Northern Ireland’s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR?

d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?”

An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1988 in Margilan, Uzbekistan. He arrived in Russia on 2 October 2014.

On 5 September 2014 the applicant was charged in absentia with participation in the extremist religious movement Hizb ut-Tahrir al Islami and activities threatening the constitutional order. On the same day the authorities ordered his pre-trial detention and issued an international search and arrest warrant bearing his name.

On 24 December 2014 the applicant was arrested in Moscow. On 26 December 2014 the Cheremushkinskiy District Court of Moscow ordered and subsequently prolonged his detention.

On 22 January 2015 the applicant was further charged with organising a local branch of Hizb ut-Tahri al Islami in one of the regions of Uzbekistan.

On 23 January 2015 the Uzbek prosecution authorities requested the applicant’s extradition on the above charges. The request included assurances regarding the proper treatment of the applicant, which were formulated in standard terms.

On 21 May 2015 the applicant’s extradition in respect of certain charges was authorised by the Deputy Prosecutor General of the Russian Federation.

The applicant challenged this decision in the courts, arguing that he belonged to a vulnerable group and therefore faced a real risk of treatment contrary to Article 3 at the hands of the Uzbek authorities.

On 13 October 2015 his appeals were dismissed by a final decision of the Supreme Court of the Russian Federation. Without reference to any relevant evidentiary material, the Supreme Court considered that the applicant’s claims were hypothetical and lacked specific indications regarding the level of risk, and observed that the situation in a requesting state might change over time. It also found that the assurances of the Uzbek authorities were satisfactory.

On 5 June 2015 the applicant lodged a request for refugee status, referring to persecution in Uzbekistan on religious grounds.

On 9 November 2015 his request was refused by a final administrative decision of the migration authorities. The applicant challenged this decision in the courts, referring inter alia to the risk of illtreatment.

On 18 May 2016 his appeals were dismissed by a decision of Moscow City Court.

On 25 December 2015 the Meshchanskiy District Court of Moscow ordered the applicant’s expulsion for violating the migration rules. The applicant’s appeal, which referred to the risk of ill-treatment, amongst other factors, was dismissed by the Moscow City Court on 24 February 2016.

On 16 February 2016 the applicant applied for temporary asylum. No information concerning the outcome of these proceedings was supplied by the parties.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1952 and lives in Beograd.

On 10 June 2002 the applicant filed a claim with the former Supreme Military Court in Belgrade for payment of certain benefits.

On 10 August 2007 the Supreme Court of Serbia which took over the jurisdiction of the Supreme Military Court in Belgrade rejected the applicant’s claim. The applicant received the said judgment on 2 October 2007.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Jevgēņijs Jegorovs, is a “permanently resident noncitizen” of the Republic of Latvia, who was born in 1981 and is currently serving a prison sentence in Olaine. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce.

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

On 11 September 2003 the applicant was admitted to hospital with severe head injuries. Information provided by the Health Inspectorate (Veselības Inspekcija) on 7 May 2010 stated that he “had undergone an urgent operation – skull trephination”.

The hospital records stated that on 21 September 2003 the applicant “had fled” from the hospital. According to information provided by the Health Inspectorate on 7 May 2010, he had left the hospital “without completing the treatment, which [included] possible plastic surgery on his skull, and without receiving further recommendations for treatment ...”. It appears that after having left the hospital the applicant did not request medical assistance.

On 2 March 2004 a doctor visited the applicant at home in connection with cramps. The applicant refused to go to a hospital.

According to the applicant, he started to have epileptic seizures eight months after the surgery in 2003. He learnt from a conversation with a doctor who had operated on him that he would need to pay for the plastic surgery and he could not afford it. On 27 April 2009 the applicant informed the Court that he had enquired with the State authorities whether he could donate one of his kidneys in exchange for payment, in order to have the plastic surgery.

On 2 September 2005 the applicant was detained in Central Prison.

On 25 January 2007 the applicant was transferred from Central Prison to Daugavpils Prison.

On 1 November 2008 Daugavpils Prison was merged with Grīva Prison. The newly established prison was renamed Daugavgrīva Prison.

The applicant was held in the Daugavpils wing of Daugavgrīva Prison.

The applicant submitted that he had been placed in the following prison cells:

- cell no. 203, between February 2007 and 22 April 2008;

- cell no. 205, between 22 April and 8 May 2008;

- cell no. 401, between 8 and 9 May 2008 (investigation cell);

- cell no. 107, between 9 and 10 May 2008 (quarantine cell);

- cell no. 205, between 10 and 14 May 2008;

- cell no. 212, between 14 and 19 May 2008;

- cell no. 217, between 19 May 2008 and an unspecified date.

On 12 November 2010 the applicant was transferred to Olaine Prison to serve the remainder of his sentence.

On 6 or 7 September 2005 the applicant underwent a medical examination in Central Prison. The diagnosis read as follows:

“Consequences following a head trauma with skull trephination in 2003. Symptomatic epilepsy (?) Post-traumatic encephalopathy. Alcohol and heroine dependency since 2001.”

According to information from the Health Inspectorate dated 25 February 2008 (see paragraph 63 below), on 7 September 2005 the applicant had stated that he was having seizures in which he lost consciousness. A prison psychiatrist then recommended that a warden (uzraugs) be assigned to the applicant and that he be supervised by medical staff.

On 26 October 2005 the following entry was made in the applicant’s medical file: “Condition after a paroxysmal seizure with loss of consciousness (stāvoklis pēc paroksizmālas samaņas zuduma lēkmes)”. It was noted that half an hour earlier the applicant had had a seizure with loss of consciousness and cramps, but without biting of the tongue.

In that connection, the applicant was prescribed anti-epileptic medication. He was hospitalised from 11 to 28 November 2005 for monitoring and treatment, and received preventive treatment (Finlepsin). No seizures were observed.

On 29 January 2007 the applicant requested that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) refer him to a hospital for treatment. On 12 February 2007 the MADEKKI responded that the request was outside its competence and advised the applicant to consult the prison medical staff.

In 2007 the applicant requested a disability assessment, which he had not had prior to his detention.

In October 2007 the applicant underwent a full medical examination, including a pulmonary X-ray.

On 18 October 2007 an electro-encephalogram revealed “slightly increased epileptiform activity (nedaudz izteikta epileptiforma aktivitāte)”. The applicant was administered medication for the treatment of epilepsy and for the improvement of the brain function, and tranquilisers.

On 4 December 2007 the applicant was certified category 3 disabled (moderate disability) due to the consequences of the head injuries in 2003 and post-traumatic encephalopathy.

In 2007 the applicant had twenty-eight out-patient medical examinations, fifteen of which related to headaches. In 2008 he had five out-patient examinations, four of which concerned headaches.

The applicant did not have a pulmonary X-ray examination in 2008.

On 11 May 2009 the applicant underwent a pulmonary X-ray examination.

On 21 May 2009 the applicant was taken to the prison hospital in Olaine with suspected tuberculosis.

At the hospital the following diagnosis was made:

“Infiltrative tuberculosis pneumonia [of] the left lung ... Consequences following a serious head trauma with skull trephination in 2003. Symptomatic epilepsy. Prolonged depressive reaction. Alcohol and heroine dependency. Factors contributing to illness – smoking as of age eleven [and] use of alcohol and drugs.”

A neurologist at the prison hospital in Olaine concluded that the applicant had not had an epileptic seizure for a considerable period of time and epileptiform activity had not been observed. Therefore, the applicant was prescribed an anti-epileptic drug (Finlepsin) for six months. The doctor noted that in six months’ time the applicant should undergo an electrocardiogram and a decision would be made about stopping the anticonvulsant medication.

The applicant remained in hospital until 1 December 2009.

On 3 December 2009 the applicant was transported back to Daugavgrīva Prison.

In 2009 the applicant had ten out-patient medical examinations, three of which concerned headaches.

The information from the Health Inspectorate dated 7 May 2010 stated that the applicant did not appear to have had any epileptic seizures while in detention, but that he had received “throughout his detention antiepileptic medication (Finlepsin, carbamazepine) ... in order to prevent possible epileptic seizures ...”. It was also noted that while in detention he had periodically refused to take the medication, which fact had been attested by entries in his medical file.

With respect to tuberculosis, information from the Ministry of Justice dated 10 May 2010 stated that in 2009 the applicant had been provided with full treatment. He had been cured and discharged in a satisfactory state of health.

According to the applicant, he experienced epileptic seizures and required plastic surgery on his skull.

In response to the Government’s additional observations, the applicant submitted the decision establishing his disability for the period from 8 January 2013 to 7 January 2018. That decision stated that the applicant had functional limitations related to traumatic epileptic seizures. It was based on an expert report of 8 January 2013. The applicant did not furnish a similar report indicating that he had experienced epileptic seizures while in Daugavgrīva Prison up until 2010 (see paragraph 13 above).

On 11 May 2008 the applicant complained to the Prisons Administration and the prosecution about the conditions in Daugavpils Prison. He described the conditions of detention and specified the state of affairs in cell no. 205. The description he gave appeared to be broadly the same as the one he submitted before the Court (see paragraph 79 below). He indicated, inter alia, that the conditions were in breach of Article 3 of the Convention and requested that his complaint be considered in substance.

The prosecution forwarded the submission to the Prisons Administration.

In connection with the applicant’s complaints, on 9 June 2008 Daugavpils Prison informed the Prisons Administration that the applicant had been held in cell no. 205, which complied with article 77 of the Sentence Enforcement Code but was in need of “cosmetic repair”.

The Prisons Administration’s response no. 1/12-J/2198/2261 dated 12 June 2008 stated that in the course of its inquiry it had been established that cell no. 205 in Daugavpils Prison, in which “[the applicant] had stayed, [did] not, indeed, comply with the ... statutory requirements and cosmetic repair of the cell [was needed] ...”.

The letter also stated that following the applicant’s submission of 3 June 2008 to the Prisons Administration, the matters raised by him had been explained to him and that he had no claims against Daugavpils Prison. The Prisons Administration thus deemed that it had examined the applicant’s complaints of 11 May 2008.

According to the applicant, he withdrew his complaints under pressure from the Daugavpils Prison administration.

It appears that in July and August 2009 the applicant wrote to the Health Inspectorate, the prosecution and the Prisons Administration in connection with his having contracted tuberculosis.

The applicant claimed that, whereas he was supposed to have been X-rayed every twelve months, he had not been X-rayed at all in 2008 and had had to wait nineteen months, until May 2009, for an X-ray. Referring to document no. 1/12-J/2198/2261 (see paragraph 39 above), he pointed out that the prison governor had agreed that the cells were damp and had told him that there were no funds for repair work. He requested that a comment be made on the fact that he had fallen ill with tuberculosis. The relevant documents would then be attached to his complaint and sent to the Court.

In its reply of 19 August 2009 the Health Inspectorate indicated that the applicant had been suspected of having contracted tuberculosis on 21 May 2009, after the annual pulmonary X-ray, as required by paragraph 5 of Cabinet of Ministers Regulation no. 199 (2007). The applicant had then been referred to the prison hospital.

The Inspectorate stressed that the applicant had had no clinical indications of tuberculosis requiring an unplanned X-ray examination.

The Inspectorate also stated that it had sent to the Prisons Administration the part of the applicant’s request concerning unsatisfactory living conditions in Daugavgrīva Prison.

The Inspectorate did not indicate in its letter that the responses given could be appealed against.

In August 2009 the Prisons Administration received the applicant’s three complaints. One of them had been forwarded by the Health Inspectorate and another by the prosecution.

On 10 and 27 August 2009 the Prisons Administration gave the applicant identical responses to all three complaints, to the effect that they had not been made in the State language. The Prisons Administration referred to section 10(2) of the State Language Law (Valsts valodas likums) and indicated as follows:

“Documents may be submitted in a foreign language in exceptional situations, where immediate action by the State operational services or other competent institutions is required in order to protect a person’s rights and property interests, which may be violated as a result of unforeseen, exceptional circumstances or an offence committed or planned.”

The Prisons Administration found that the circumstances set out in the applicant’s complaints did not amount to exceptional circumstances in which a document in another language could be considered. It refused, therefore, to consider the applicant’s complaints.

The Prisons Administration indicated that each of the three refusals could be appealed against to the Ministry of Justice.

On 14 September 2009 the applicant informed the Court that as of February 2009 he had been complaining to the prison medical unit of weight loss. Therefore he had difficulty understanding the Health Inspectorate’s response of 19 August 2009 (see paragraphs 44 and 45 above).

On 9 June 2007 the MADEKKI received a request from the applicant to expedite the surgery recommended on his skull because he had been suffering from headaches and epileptic seizures.

Between June and September 2007 the MADEKKI carried out an inquiry.

On 20 September 2007 the MADEKKI declared that it had found no violations in the applicant’s treatment in Daugavpils Prison. It stated that no one had seen the applicant’s epileptic seizures and that no related injuries had been observed. The applicant had not submitted any documents on the recommended surgery and his medical file contained no entries about it.

The MADEKKI decided to terminate the administrative violation proceedings.

That decision was subject to appeal to the head of the MADEKKI.

On 24 October 2007 the MADEKKI received a request from the applicant concerning the refusal to carry out a head tomography free of charge at the prison hospital.

Between October and November 2007 the Health Inspectorate (former MADEKKI) carried out an inquiry.

On 28 November 2007 the Health Inspectorate found no violations in the applicant’s treatment between 4 September and 15 November 2007. It noted that he had complained of headaches and dizziness, and had claimed to have had epileptic seizures, which no one had ever seen. Furthermore, on 6 September 2007 he had refused to take his medication.

It decided to terminate the administrative violation proceedings.

That decision was subject to appeal to the head of the Health Inspectorate.

On 5 February 2008 the Health Inspectorate received a complaint from the applicant that the head of the Daugavpils Prison medical unit had not provided in the notes on the applicant’s health (veselības izziņas) the dates of his epileptic seizures.

On 25 February 2008 the Health Inspectorate responded that it had never been recorded in the applicant’s medical file that he had been observed in a state of unconsciousness, suffering from cramps or the consequences of seizures – a bitten tongue or signs of injuries, or in a state of confusion. Seizures with loss of consciousness had been recorded on 2 March 2004, when a doctor had visited the applicant at home, and on 7 September 2005, when the applicant had been examined in Central Prison. However, those entries had been based on information given by the applicant himself. The Inspectorate further provided information as outlined above (see paragraphs 15-17 above).

On 12 March and 1 April 2008 the Health Inspectorate received requests from the applicant that plastic surgery be carried out on his skull because during epileptic seizures he could sustain a brain injury and die.

Between March and May 2008 the Health Inspectorate carried out an inquiry.

On 8 May 2008 the Health Inspectorate established that the applicant had regularly been administered Finlepsin and had received treatment with respect to his complaints of dizziness. The Inspectorate concluded that the applicant was continuing to claim that he was having epileptic seizures which no one had ever observed. The Inspectorate found no violations in the applicant’s treatment in Daugavpils Prison.

Following the Court’s inquiry, on 27 April 2009 the applicant stated that he had appealed against the Health Inspectorate’s decision of 8 May 2008. The appeal had been sent from the prison on 14 May 2008, but it had not been received by the Health Inspectorate.

In his application to the Court the applicant stated that he could have applied to the administrative courts, but that submissions needed to be made in the State language, which he barely knew. No translation service was provided for detainees, and in any case he could not have afforded such a service.

Article 77 of the Sentence Enforcement Code (Sodu izpildes kodekss) reads as follows:

“Convicted persons ... shall be ensured living conditions that are in conformity with epidemiological safety and hygiene standards. The standard living space in dormitorytype prison premises for one convicted person may be no less than 2.5 square metres for men ... but in single-occupancy cells – no less than 9 square metres.

Convicted persons shall be allotted an individual sleeping place (guļamvieta) and shall be provided with bedding items (gultas piederumi). Convicted persons shall be provided with underwear (veļa) corresponding to the season.

Convicted persons shall receive nutrition that ensures the normal functioning of the body. Nutritional norms may vary in view of the nature of work performed by a convicted person.

Paragraph 17 of Cabinet of Ministers Regulation no. 423 (2006), effective from 3 June 2006, provides that penal institutions must ensure that hygiene standards of convicted persons are complied with. Under paragraph 19 of the Regulation, a convicted person must take a sauna or a shower, and change underwear and bed linen, at least once a week.

The Cabinet of Ministers Regulation no. 199 (2007), effective between 28 March 2007 and 23 January 2014, governed the medical care of convicts in penal institutions. Its relevant provisions were cited in the case of Fedosejevs v. Latvia ((dec.), no. 37546/06, § 34, 19 November 2013). Furthermore, under paragraph 5 of the Regulation a preventive examination of a convicted person had to be carried out once a year. The types of preventive examination were determined every year by the head of the Prisons Administration.

The functions under the domestic law of the MADEKKI and its successor, the Health Inspectorate, have been set out in the case of Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63 et seq., 11 February 2014). The Cabinet of Ministers Regulation no. 76 (2008), in force as of 9 February 2008, stipulates the functions of the Health Inspectorate. Its relevant provisions read as follows:

“11. Decisions and action of a public authority (faktiskā rīcība) of the [Health] Inspectorate’s officials may be appealed against ... to the head of the Inspectorate. A decision of the head of the Inspectorate may be appealed against to a court.

Decisions and action of a public authority ... of the head of the [Health] Inspectorate ... may be appealed against to the Ministry of Health. A decision of the Ministry of Health may be appealed against to a court.”

Paragraph 14 of Cabinet of Ministers Regulation no. 827 (2005), effective from 5 November 2005, reads as follows:

“Administrative acts (administratīvie akti) issued by the head of the [Prisons] Administration and his or her action of a public authority may be disputed by applying to the Ministry of Justice. A decision of the Ministry of Justice may be appealed against to a court.”

The Administrative Procedure Law (Administratīvā procesa likums) took effect on 1 February 2004. It provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012).

Section 10 of the State Language Law, which was passed on 9 December 1999 and entered into force on 1 September 2000, reads as follows:

“(1) All institutions, organisations and establishments (companies) shall ensure acceptance and examination of documents drawn up in the State language.

(2) State and local government institutions, courts and institutions belonging to the judicial system, and State or local government establishments (companies) shall accept ... and examine only documents in the State language, except in cases as prescribed in subsection (3) ... The provisions of this section do not apply to submissions of persons to the police and medical institutions, rescue services and other institutions in cases of urgent calls for medical assistance, the commission of crimes or other violations of the law, or calls for emergency assistance in cases of fire, accident or other emergencies.

(3) Documents ... in a foreign language shall be accepted if attached thereto is a translation into the State language, certified in accordance with the procedures prescribed by the Cabinet of Ministers, or notarised. Documents issued on the territory of Latvia by the day this Law comes into force do not require translation into the State language.


CASE OF GORESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants were born in 1929, 1952, 1956 and 1949 respectively. The second and third applicants live in Prilep.

On 12 September 2000 the applicants initiated restitution proceedings. On 20 July 2001 they lodged a “silence of administration” appeal. After one remittal, on 5 October 2005 the Restitution Commission dismissed their claim to have the property restored into their possession and awarded them compensation instead. The type of compensation (видот на надоместокот) was to be decided with a separate decision (дополнително решение). On 12 December 2008 the Administrative Court finally upheld the restitution order. On 23 February 2008 the applicants were requested to specify the type of compensation, which on 3 March 2009 they refused to do until, according to them, the Court would decide their case.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1967 and lives in Plasencia.

On 3 January 2011 following a trial, the Plasencia criminal judge (juez de lo penal) no. 1 sentenced the applicant to six months’ imprisonment for serious disobedience to public authority (desobediencia grave a la autoridad). The applicant was acquitted of other charges against him, namely false accusation of a crime (calumnias), defamation (injurias) and concealment (encubrimiento).

The judge established that the applicant was the webmaster of an Internet forum on which defamatory messages against the complainants in the proceedings had been published, and that he had deliberately disregarded the request made to him by a police officer within the framework of the criminal investigation not to alter the messages in question. In fact, the applicant had proceeded to have the forum webpage removed altogether, despite the police officer’s request to leave it unchanged. As regards the charges for defamation and false accusation of a crime, the judge held that there were reasonable doubts as to whether the applicant had been aware of the messages in question before his police interview and that he should therefore be acquitted in that regard. It was also alleged that he had protected the individuals who had made the defamatory statements; however, the judge considered that he could not be found guilty of concealment as it had not been proved that he had been aware at the time of his police interview that it had been possible for him to have access to the Internet Protocol (IP) numbers of the participants on the forum.

Both the prosecution and defence appealed against the judgment before the Cáceres Audiencia Provincial. The applicant did not request a hearing, nor did the Audiencia Provincial order one. Instead, the court watched a video-recording of the trial.

On 16 May 2011 the Audiencia Provincial upheld the applicant’s conviction for serious disobedience to public authority and, unlike the first-instance judge, found him guilty of continuous and false accusation of a crime (delito continuado de calumnias). His punishment was a daily fine of 15 euros (EUR) for a period of eighteen months. He was also required to pay damages. In finding the applicant guilty, the appellate court stated that it had relied on the facts established by the first-instance judge and on the testimony given by the complainants, the applicant and the witnesses in the earlier trial. The court stated:

“Fourth. The facts declared proved in the first-instance judgment constitute continuous and false accusation of a crime and defamation regulated and punished by section 205 and seq. of the Criminal Code in relation to section 74 of the same Code for which the defendant Jorge Gómez Olmeda should be declared guilty as a principal pursuant to sections 28 and 30 of the Code with the mitigating factor of undue delays pursuant to section 21 paragraph six of the Code.

It is undisputed that documentary evidence does not require judicial immediacy for its assessment because it is written down and can be read and interpreted in the ’ brief and proved in the hearing, both with respect to what was written on the forum and the people against whom those expressions were directed. Those expressions imputed the commission of crimes to the complainants (sexual assault, sexual slavery of a person) and were detrimental to their fame and reputation to the extent that it is obvious that the imputations were serious in themselves and related to public understanding, which is an open-ended concept of which interpretation depends on the particular facts of the case. It is worth remembering that we are speaking here of a small town where everybody knows each other, where everybody runs into each other, where everybody attends the same places, where everyday life is routine and there is little room for novelties, where anything breaking the monotony is something which attracts public attention, where the genealogy of every inhabitant is known to the rest. For these reasons we find the applicant guilty of the crime of continuous and false accusation of a crime ...which he had been acquitted of at first instance.

The applicant states that he was the administrator of the forum; that he did not log onto it very often; that he lacked computer skills and that he had removed some phrases and messages which in his view might be considered insulting for the purposes of the case now before us. We disagree with the accused when he states that he was unaware of what was written on the forum, the argument on which the first-instance judge relied to acquit him of false accusation of a crime and defamation. And we disagree for the following two reasons. Firstly, because it was part of his duties as the administrator of the forum to be aware of what was written on it, to the extent that he was its ‘censor’, so to speak, on account of the fact that he had created it; and secondly, because it is untrue that he was unaware of what was written on it, since he had removed some phrases and messages which were insulting to the complainants, thus proving that he had read what was written on the forum in question and demonstrating that he had regarded what was written there as insulting to a specific individual or individuals, which led him to the decision to remove what he regarded as defamatory or insulting.”

The applicant applied to the Audiencia Provincial to have the previous proceedings before it declared void. His application was dismissed on 29 September 2011 on the grounds that no legal provision had been infringed and none of his rights had been breached in those proceedings.

The applicant lodged an amparo appeal with the Constitutional Court. He cited Article 24 of the Constitution (right to a fair hearing), complaining that the Audiencia Provincial had convicted him on appeal without giving him the opportunity to plead his case in open court.

By a decision served on 13 March 2012 the Constitutional Court declared the applicant’s amparo appeal inadmissible as it had no special constitutional significance.


CASE OF DZHANARALIYEV AND OTHERS v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities, and of the lack of an effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention.


Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos

The applicants were placed in Menemeni police station in Thessaloniki, either in pre-trial detention or serving prison sentences. Applicants nos. 1 and 6 were detained in cell no. 1, applicants nos. 2 and 4 were detained in cell no. 2 and applicants nos. 3, 5 and 7 were detained in cell no. 3. At the time they submitted their application they had been detained for periods ranging from one to six months.

The first six applicants were transferred to Thessaloniki General Detention Facility on the following dates: applicant no. 2 was transferred on 30 November 2013, applicant no. 3 was transferred on 6 December 2013, applicant no. 4 was transferred on 11 February 2014, applicant no. 5 was transferred on 7 February 2014 and applicant no. 6 was transferred on 18 November 2013. The parties disputed the date on which applicant no. 1 was transferred: according to the Government’s submissions, he was transferred on 18 September 2013, whereas the applicant argued that he was transferred on 3 December 2013. According to the material in the Court’s possession, applicant no. 7 was still being detained in Menemeni police station on 24 May 2014.

The applicants alleged that Menemeni police station had been entirely inappropriate for long periods of detention, as in their cases. It had consisted of three cells on the first floor and two sanitary facilities situated outside the cells. Cells nos. 1 and 2 had measured 10 square metres and had accommodated four detainees each, while cell no. 3 had measured 6 square metres and had accommodated five detainees. The cells had been equipped with beds but had no blankets. The applicants further stressed that the cells had been filthy and that there had been inadequate access to natural light. Cell no. 1, in particular, had not had a window.

Detainees had been confined to their cells and had not been allowed to spend time outside, which had affected their psychological health. They had had to ask permission from the guards to use the restroom. Recreational activities had not been offered and cells had not been equipped with televisions.

Healthy detainees had been held together with drug users or sick detainees, resulting in their exposure to contagious diseases. The police station had not had the necessary means to transfer detainees to a hospital in case of emergency.

Instead of food, detainees had been offered 5.87 euros per day, which had not sufficed to cover their daily dietary needs, either in terms of quantity or quality.

On 19 November 2013 the applicants had lodged a complaint with the public prosecutor, complaining of the conditions of their detention but had not received a reply.

The Government submitted that Menemeni police station had been housed in a building constructed in 2008 on the basis of quality specifications necessary to ensure proper conditions of detention. It had consisted of three cells: cell no. 1 had measured 23 square metres and had three built-in beds, cell no. 2 had measured 23.3 square metres with four built-in beds and cell no. 3 had measured 26 square metres with five beds. The capacity of the police station had never been exceeded.

The Government affirmed that there had been two sanitary facilities with hot water outside the cells. They submitted two contracts with cleaning companies for the building for the periods in question: one from 10 June 2013 to 10 August 2013 and the other from 11 August 2013 to 11 October 2013. The contracts included cleaning the detention areas and the sanitary facilities every day and disinfecting the detention areas once a week.

When the number of detainees had allowed it, drug addicts had been detained separately from the rest of the detainees. In addition, the staff at Menemeni police station had made every possible effort to accommodate detainees’ needs by painting the facilities often, cleaning or replacing the bedding and by resolving any problem in general that might have risen.

Regarding recreational activities, the Government stressed that detainees had had unlimited access to telephone cards and that it had been standard practice for them to receive newspapers and magazines.

The Government confirmed that the applicants had not been provided with meals but had received 5.87 euros a day to order food from restaurants, given that police stations did not have any cooking facilities.

An on-call doctor had been available on a 24-hour basis in Thessaloniki Police Headquarters (Αστυνομικό Μέγαρο Θεσσαλονίκης). In urgent cases, inmates had been transferred to local hospitals. Additionally, police staff had been responsible for administering prescribed medications to detainees, as ordered by a doctor.

The Government pointed out that the applicants had not referred to or adduced any evidence that they had needed medical treatment which they had not received. On the contrary, according to the police station’s records, applicants nos. 4, 5 and 7 had been taken to local hospitals on various occasions.


Guido Raimondi;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant is a Latvian national, who was born in 1965 and lives in Riga. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). The applicant was granted permission by the President of the Section to represent himself in the proceedings before the Court.

At around 7 p.m. on 9 August 2012 the applicant took a trolleybus without purchasing a ticket; he attempted to purchase one only after ticket inspectors had entered the trolleybus. When they ordered him to pay a fine, he stamped on one of the ticket inspector’s feet and kicked her legs, before grabbing both inspectors by their necks. When the driver stopped the trolleybus and approached the applicant, the latter started hitting him with his umbrella. At that point the police arrived and took the applicant to the police station, where he arrived at 7.10 p.m.

At the police station the applicant continued behaving aggressively: he tried to attack police officers, uttered threats and said that he had robbed the President of Latvia. The police sought the assistance of the Emergency Medical Service, which took the applicant to Riga psychiatric hospital (VSIA“Rīgas psihiatrijas un narkoloģijas centrs”) at about 8 p.m.

At 8.25 p.m. the applicant was examined and Dr L.S. noted that he was in a state of psychomotor agitation and was “not accessible for productive contact”. He was administered appropriate medical treatment.

At 9 a.m. the following day, 10 August 2012, the applicant and his medical file were examined by a panel of three doctors in order to establish whether there were grounds to prescribe involuntary psychiatric treatment. None of the doctors had been involved in assessing the applicant’s state of health on 9 August 2012.

The applicant’s behaviour during the interview with the panel of doctors was reported as follows:

“No symptoms of unclear consciousness. Not accessible for productive contact. Answers questions with counter-questions. Behaves in an expressive, defiant way. Suspicious. Asks what drugs have been given, who has allowed [him] to be given drugs without his agreement. Does not explain his actions [in the police station and against the ticket inspectors]. Denies having said that he has robbed the president. Says that “everything will be alright”. Refuses to [give consent to being treated in the psychiatric hospital]. Thinking is confused, inconsistent. Gives an impression that [he] is listening to what is happening around him. Patient is entirely under the spell of his own psychotic experiences. Complete lack of criticism [sic] towards the necessity of being treated, concerning his illness and actions.”

The report went on to diagnose the applicant in the following manner:

“Diagnosis: F20.00 Paranoid schizophrenia – continuous course, acute phase. Hallucinatory-paranoia syndrome. ”

The report concluded that the applicant’s involuntary inpatient treatment in a psychiatric hospital should be continued under section 68(1) of the Medical Treatment Law. It stated that the applicant had expressed a wish to participate in the court hearing concerning his compulsory treatment.

The hearing took place before the Riga City Ziemeļu District Court on 13 August 2012. It was attended by the applicant, a sworn attorney, E.T., and a representative of the hospital. During the hearing the representative of the hospital maintained the proposal to order the applicant’s involuntary in-patient psychiatric treatment, referring to, among other things, the fact that the patient was “angry”, that he did not want to talk to doctors, had stated that he had killed the president, and was aggressive. She also referred to the applicant’s history of psychiatric treatment. In response to the applicant’s question as to why he had been taken to the hospital, the representative of the hospital explained to him that it was because he had “talked nonsense”. The applicant admitted that there had been a conflict in the trolleybus but denied having said that he had killed or robbed the president. He explained that he knew himself how and when he should get medical treatment, and that he had been receiving out-patient medical treatment.

The decision adopted by the court on 13 August 2012 referred to the applicant’s history of psychiatric treatment, noting that he had been regularly visiting a psychiatrist on an out-patient basis but had been taking the prescribed medication whenever he chose to. The decision then cited the report of the panel of doctors who had examined the applicant, summarised the oral submissions of the participants of the hearing, and decided to endorse the recommendation of the panel that the applicant should be hospitalised. In establishing that the applicant posed a danger to others, the court referred to the record of the applicant’s detention drawn up by the police on 9 August 2012. That record stated that the applicant had uttered threats, and claimed to have stolen from the President of Latvia and to have robbed several houses.

The court went on to note the following:

“An analysis of the application [for the applicant’s involuntary treatment] confirms that it has been found that [the applicant] is suffering from a psychiatric disorder, for which he has been repeatedly treated in [a psychiatric hospital]. The symptoms of the psychiatric disorder are characterised by aggressive and conflictual behaviour, which give the court no reasons to doubt the circumstances of the patient’s behaviour [and] the reasons for his placement in the [hospital], as described in the decision of the panel and the material appended to it.

Such behaviour on the part of the patient creates a real danger to the life and health of the patient himself as well as to that of other people”.

The court agreed with the medical panel’s conclusion that an improvement in the applicant’s health was only possible if he received in-patient treatment. In relation to the out-patient treatment, the court noted that as there was no evidence – apart from the applicant’s own statement – that he had been taking the prescribed medication, it was unable to conclude that he had a serious attitude towards the out-patient regime. The court further considered that the applicant had remained sceptical about the suggestion that he was suffering from a mental disorder and denied that he needed any treatment. In the light of those considerations, the court came to the conclusion that ordering involuntary treatment was in the best interests of the applicant. The court ordered that the applicant receive in-patient treatment for two months.

The applicant appealed and his appeal was examined in written proceedings by the president of the Ziemeļu District Court on 30 August 2012. In his appeal the applicant indicated that he disagreed with the interference by the psychiatric hospital in his personal life and that he did not understand in what context he had been detained. The president of the court considered that the applicant’s appeal did not contain any grounds that would put the legitimacy of the impugned decision in question.

The applicant was discharged from the hospital on 14 September 2012.

Section 67(1) of the Medical Treatment Law provides that psychiatric assistance should be provided on a voluntary basis. In-patient assistance is to be provided in a psychiatric establishment only where, owing to the state of health of the patient, such assistance cannot be provided on an out-patient basis or at the patient’s place of residence.

Section 68(1) provides an exhaustive list of situations in which involuntary psychiatric treatment may be administered. The first subparagraph authorises involuntary treatment in cases where

“[the patient] has threatened or is threatening, has attempted or is attempting to inflict bodily injuries on himself or on another person or has been or is violent towards other persons and if a medical specialist concludes that the patient has a mental health disorder, which might result in serious bodily injury to the patient himself or to another person”.

The second subparagraph of section 68(1) allows involuntary treatment in cases where the patient displays an inability to take care of himself and if a medical specialist concludes that the patient has a mental health disorder which might result in an irreversible and serious deterioration of his or her state of health.

Section 68(3) provides that in the event that the involuntary hospitalisation of a patient is considered necessary, a panel of psychiatrists should examine the patient within seventy-two hours and adopt a decision in that regard. Pursuant to section 68(5), such a decision must be sent to the competent District Court within twenty-four hours. The District Court will then examine the decision of the panel and decide whether to approve the patient’s involuntary hospitalisation for a period of up to two months. The application for involuntary admission to a psychiatric hospital must be examined within a period of seventy-two hours after receipt of the decision adopted by the panel of psychiatrists.

Section 69 of the Medical Treatment Law provides as follows:

“(1) If a person disrupts public order due to a mental disorder or a mental disease, that person shall be detained, transported to a psychiatrist and supervised there by the police in accordance with the Law on Police.

(2) The police shall submit to the psychiatrist a written report concerning the antisocial nature of the [patient’s] behaviour”.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

All the applicants were party to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the ground of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).


No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence)

András Sajó;Angelika Nußberger;Armen Harutyunyan;Dag Bugge Nordén;Erik Møse;Guido Raimondi;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković

The first applicant, Mr A, was born in 1960 and lives in Norway. The second applicant, Mr B, was born in 1965 and lives in Florida, United States of America.

The applicants and Mr E.K. owned a Gibraltar-registered company Estora Investment Ltd. (“Estora”). Mr T.F. and Mr G.A. owned the Samoa/Luxembourg-registered company Strategic Investment AS (“Strategic”). In June 2001 Estora acquired 24% of the shares in Wnet AS. Strategic acquired 46% of the shares in Wnet AS. In August 2001 all the shares in Wnet AS were sold to Software Innovation AS, at a substantially higher price. The first applicant’s share of the sale price was 3,259,341 Norwegian kroner (NOK) (approximately 360,000 euros (EUR)). He transferred this amount to the Gibraltar-registered company Banista Holding Ltd., in which he was the sole shareholder. The second applicant’s share of the sale price was NOK 4,651,881 (approximately EUR 500,000). He transferred this amount to Fardan Investment Ltd., in which he was the sole shareholder.

Mr E.K., Mr G.A. and Mr T.F. made gains on similar transactions, while Mr B.L., Mr K.B. and Mr G.N. were involved in other undeclared taxable transactions with Software Innovation AS.

The revenue from these transactions, amounting to approximately NOK 114.5 million (approximately EUR 12.6 million), was not declared to the Norwegian tax authorities, resulting in unpaid taxes totalling some NOK 32.5 million (approximately EUR 3.6 million).

In 2005 the tax authorities started a tax audit on Software Innovation AS and looked into the owners behind Wnet AS. On 25 October 2007 they filed a criminal complaint against T.F. with Økokrim (the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime) with regard to matters that later led to the indictment of the first applicant, along with the other persons mentioned above and the second applicant, for aggravated tax fraud.

The persons referred to in paragraph 12 above were subsequently prosecuted, convicted and sentenced to terms of imprisonment for tax fraud in criminal proceedings. It may also be noted that:

- the prison term to which Mr E.K. was sentenced at first instance was upheld at second instance, even though the second-instance court found it somewhat mild; in the meantime he had had a 30% tax penalty imposed on him;

- the length of Mr B.L.’s term of imprisonment was fixed in the light of his having previously had a 30% tax penalty imposed on him;

- Mr G.A. was neither sentenced to a fine nor had a tax penalty imposed on him;

- Mr T.F. was in addition sentenced to a fine corresponding to the level of a 30% tax penalty;

- Mr K.B. and Mr G.N. were each sentenced to a fine in accordance with the approach set out in the Supreme Court’s ruling in Rt. 2011 p. 1509, with reference to Rt. 2005 p. 129, summarised at paragraph 50 below.

A summary of the particular circumstances pertaining to the first and second applicants is given below.

The first applicant was interviewed first as a witness on 6 December 2007; on 14 December 2007 he was arrested and gave evidence as a person charged (“siktet”). He admitted the factual circumstances but did not accept criminal liability. He was released after four days.

On 14 October 2008 the first applicant was indicted for violations of sections 12-1(1)(a), cf. 12-2, of the Tax Assessment Act 1980 (ligningsloven) (see paragraph 43 below for the text of these provisions).

On 24 November 2008 the Tax Administration (skattekontoret) amended his tax assessment for the years 2002 to 2007, after issuing a warning to that effect on 26 August 2008, with reference inter alia to the tax audit, to the criminal investigation, to the evidence given by him, as mentioned in paragraph 13 above, and to documents seized by Økokrim in the investigation. For the year 2002 the amendment was made on the ground that the first applicant had omitted to declare a general income of NOK 3,259,341 (approximately EUR 360,000), having instead declared a loss of NOK 65,655. Moreover, with reference to sections 10-2(1) and 104(1) of the Tax Assessment Act (see paragraph 42 below for the text of these provisions), the Tax Administration ordered him to pay a tax penalty of 30%, to be calculated on the basis of the tax that he owed in respect of the undeclared amount. The decision had regard inter alia to evidence given by the first and second applicants during their interviews in the criminal investigation. The first applicant did not lodge an appeal against that decision and paid the outstanding tax due, with the penalty, before the expiry of the three-week time-limit for lodging an appeal.

On 2 March 2009 the Follo District Court (tingrett) convicted the first applicant on charges of aggravated tax fraud and sentenced him to one year’s imprisonment on account of his having failed to declare, in his tax return for 2002, the sum of NOK 3,259,341 in earnings obtained abroad. In determining the sentence the District Court had regard to the fact that the first applicant had already been significantly sanctioned by the imposition of the tax penalty.

The first applicant appealed, complaining that, in breach of Article 4 of Protocol No. 7 to the European Convention on Human Rights, he had been both prosecuted and punished twice: in respect of the same offence under section 12-1 he had been charged and indicted by the public prosecutor, had then had a tax penalty imposed on him by the tax authorities, which he had paid, and had thereafter been convicted and sentenced.

In a judgment of 12 April 2010 the Borgarting High Court (lagmannsrett) unanimously rejected his appeal; similar reasoning was subsequently given by the Supreme Court (Høyesterett) in a judgment of 27 September 2010 (summarised below).

In its judgment of 27 September 2010 the Supreme Court first considered whether the two sets of proceedings in question had concerned the same factual circumstances (samme forhold). In this connection it noted the developments in the Convention case-law expounded in the Grand Chamber judgment of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, §§ 52, 53, 8082, 84, ECHR 2009) and the attempt in that judgment to harmonise through the following conclusion:

“... Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same. ... The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and [are] inextricably linked together in time and space ...”.

In the present instance, the Supreme Court observed, there was no doubt that the factual circumstances underlying the decision to impose tax penalties and the criminal prosecution had sufficient common features to meet these criteria. In both instances, the factual basis was the omission to declare income on the tax return. The requirement that the proceedings relate to the same matter had accordingly been met.

The Supreme Court next examined whether both sets of proceedings concerned an “offence” within the meaning of Article 4 of Protocol No. 7. In this regard the Supreme Court reiterated its ruling as reported in Norsk Retstidende (“Rt.”) 2002 p. 509 (see paragraph 45 below) that tax penalties at the ordinary level (30%) were consistent with the notion of “criminal charge” in Article 6 § 1. That earlier assessment had relied on the three socalled “Engel criteria” (the legal classification of the offence under national law; the nature of the offence; and the degree of severity of the penalty that the person concerned risked incurring) as spelled out in the Court’s judgment in Engel and Others v. the Netherlands (8 June 1976, § 82, Series A no. 22). Of importance for the Supreme Court’s assessment was the general preventive purpose of the tax penalty and the fact that, because 30% was a high rate, considerable sums could be involved. The Supreme Court further had regard to its judgment as reported in Rt. 2004 p. 645, where it had held in the light of the Strasbourg case-law (to the effect that the notion of “penalty” should not have different meanings under different provisions of the Convention) that a 30% tax penalty was also a criminal matter for the purposes of Article 4 of Protocol No. 7 – a stance adopted without further discussion in Rt. 2006 p. 1409.

The Supreme Court also noted that both the Directorate of Taxation (Skattedirektoratet) and the Director of Public Prosecutions (Riksadvokaten) were of the view that it was unlikely that a tax penalty at the ordinary level would not be deemed criminal punishment for the purposes of Article 4 of Protocol No. 7.

The Supreme Court further had regard to the Court’s more recent case-law (Mjelde v. Norway (dec.), no. 11143/04, 1 February 2007; Storbråten v. Norway (dec.), no. 12277/04, 1 February 2007; Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007, with references to Malige v. France, 23 September 1998, § 35, Reports of Judgments and Decisions 1998VII; and Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005XIII) to the effect that a wider range of criteria than merely the Engel criteria applied to the assessment under Article 4 of Protocol No. 7. It found confirmation in Sergey Zolotukhin (cited above, §§ 52-57) – later followed in Ruotsalainen v. Finland (no. 13079/03, §§ 4147, 16 June 2009) – that the three Engel criteria for establishing the existence of a “criminal charge” for the purposes of Article 6 applied equally to the notion of criminal punishment in Article 4 of Protocol No. 7.

Against this background, the Supreme Court found no ground on which to depart from its above-mentioned rulings of 2004 and 2006, holding that tax penalties at the ordinary level were to be regarded as “criminal punishment” (straff) for the purposes of Article 4 of Protocol No. 7.

It went on to observe that a condition for protection under the abovementioned provision was that the decision which barred further prosecution – in this case the decision of 24 November 2008 to impose ordinary tax penalties – had to be final. That decision had not been appealed against to the highest administrative body within the three-week time-limit, which had expired on 15 December 2008, and was in this sense final. If, on the other hand, the expiry of the sixmonth time-limit for lodging a judicial appeal under section 11-1(4) of the Tax Assessment Act were to be material, the decision had not yet become final when the District Court delivered its judgment of 2 March 2009.

The words “finally acquitted or convicted” in Article 4 of Protocol No. 7 had been formulated with a view to situations where the barring decision was a judgment in a criminal case. The Court had established that a decision was final when it was res judicata, when no further ordinary remedies were available. In this regard, the time when a decision became res judicata according to the rules of national law would be decisive. Neither the wording of the provision, nor its drafting history, nor the case-law provided any guidance for situations where the barring decision was an administrative one. It was pointed out that, in Rt. 2002 p. 557, the Supreme Court had expressed an authoritative view to the effect that a tax assessment decision, including a decision on tax penalties, ought to be regarded as final when the taxpayer was precluded from challenging it (p. 570), without specifying, however, whether it was the time-limit for an administrative appeal, or rather for a judicial appeal, which was decisive. In the present case, the Supreme Court observed that the best solution would be to consider that the three-week time-limit for an administrative appeal was decisive in relation to Article 4 of Protocol No. 7. Otherwise, there would be clarity only after six months in cases where the taxpayer did not institute proceedings before the courts and, where he or she did so, only after a legally enforceable judgment – a period that would vary and could be lengthy. The decision of 24 November 2008 was therefore to be considered as final for the purposes of Article 4 of Protocol No. 7.

The Supreme Court noted that the first applicant had been charged on 14 December 2007 and that the warning about the amendment of his tax assessment had been sent on 26 August 2008. Thereafter the case concerning the tax penalties and the criminal case had been conducted in parallel until they had been decided respectively by a decision of 24 November 2008 and a judgment of 2 March 2009. A central question in this case was whether there had been successive prosecutions, which would be contrary to Article 4 of Protocol No. 7, or parallel treatment, which was permissible to some extent. In this connection the Supreme Court had regard to two inadmissibility decisions, R.T. v. Switzerland (dec.), no. 31982/96, 30 May 2000; and Nilsson v. Sweden, cited above, in particular the following passage from the latter:

“However, the Court is unable to agree with the applicant that the decision to withdraw his driving licence amounted to new criminal proceedings being brought against him. While the different sanctions were imposed by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, in substance and in time, to consider the withdrawal to be part of the sanctions under Swedish law for the offences of aggravated drunken driving and unlawful driving (see R.T. v. Switzerland, cited above, and, mutatis mutandis, Phillips v. the United Kingdom, no. 41087/98, § 34, ECHR 2001-VII). In other words, the withdrawal did not imply that the applicant was ‘tried or punished again ... for an offence for which he had already been finally ... convicted’, in breach of Article 4 § 1 of Protocol No. 7.”

In the present case, the Supreme Court held that there could be no doubt that there was a sufficient connection in substance and time. The two cases had their basis in the same factual circumstances – the lack of information on the tax return which had led to a deficient tax assessment. The criminal proceedings and the administrative proceedings had been conducted in parallel. After the first applicant had been charged on 14 December 2007, a warning had followed on 26 August 2008 about an amendment to his tax assessment, then an indictment on 14 October 2008, the tax authorities’ decision of 24 November 2008 to amend the assessment, and the District Court’s judgment of 2 March 2009. To a great extent the administrative-law and criminal-law processing had been interconnected.

The purpose behind Article 4 of Protocol No. 7, to provide protection against the burden of being subjected to a new procedure, had applied to a lesser degree here, in as much as the first applicant had had no legitimate expectation of being subjected to only one procedure. In such a situation the interest in ensuring effective prosecution was preponderant.

Following the tax audit in 2005 referred to in paragraph 13 above, during the autumn of 2007 the tax authorities reported to Økokrim that the second applicant had failed to declare on his tax return for the tax year 2002 income of NOK 4,561,881 (approximately EUR 500,000) earned from his sale of certain shares.

On 16 October 2008 the Tax Administration put the second applicant on notice that it was considering amending his tax assessment and imposing a tax penalty, referring inter alia to the tax audit, the criminal investigation and the evidence given by him, mentioned in paragraph 13 above, and to documents seized by Økokrim in the investigation. On 5 December 2008 the Tax Administration amended his tax assessment to the effect that he owed NOK 1,302,526 (approximately EUR 143,400) in tax in respect of the undeclared income. In addition, with reference to sections 10-2(1) and 104(1) of the Tax Assessment Act, it decided to impose a tax penalty of 30%. The decision had regard inter alia to evidence given by the first and second applicants during interviews in the criminal investigation. The second applicant paid the tax due, with the penalty, and did not appeal against the decision, which became final on 26 December 2008.

In the meantime, on 11 November 2008 the public prosecutor indicted the second applicant for a violation of section 12-1(1)(a), cf. section 12-2, of the Tax Assessment Act on the ground that for the tax year(s) 2001 and/or 2002 he had omitted to declare income of NOK 4,651,881 on his tax return, which represented a tax liability of NOK 1,302,526. The public prosecutor requested the Oslo City Court (tingrett) to pass a summary judgment based on his confession (tilståelsesdom). In addition, Mr E.K., Mr B.L. and Mr G.A. pleaded guilty and consented to summary trials on a guilty plea.

On 10 February 2009 the second applicant (unlike E.K., B.L. and G.A.) withdrew his confession, as a result of which the public prosecutor issued a revised indictment on 29 May 2009, including the same charges.

On 30 September 2009 the City Court, after holding an adversarial hearing, convicted the second applicant on the charges of aggravated tax fraud and sentenced him to one year’s imprisonment, account being taken of the fact that he had already had a tax penalty imposed on him.

The second applicant appealed against the City Court procedure to the Borgarting High Court, arguing in particular that by reason of the prohibition against double jeopardy in Article 4 of Protocol No. 7, the fact that he had had a tax penalty imposed on him constituted a bar against criminal conviction. Thus he requested that the City Court’s judgment be quashed (opphevet) and that the prosecution case be dismissed (avvist) from the courts.

In a judgment of 8 July 2010 the High Court rejected the second applicant’s appeal, relying essentially on its reasoning in the case of the first applicant, which was similar to that of the Supreme Court summarised above (see paragraphs 20 to 30 above). Thus, the High Court found that the tax authorities’ decision of 5 December 2008 ordering him to pay a tax penalty of 30% did constitute a criminal punishment (straff); that the decision had become “final” upon the expiry of the time-limit for lodging an appeal on 26 December 2008; and that the decision on the tax penalty and the subsequent criminal conviction concerned the same matter.

Moreover, as in the case of the first applicant, the High Court considered that parallel proceedings – both administrative and criminal – were to some extent permissible under Article 4 of Protocol No. 7, provided that the second proceedings had commenced before the first had become final. Where that minimum requirement had been fulfilled, an assessment had to be made of the state of progress of the second set and, not least, as to whether there was a sufficient connection in substance and in time between the first and second decisions.

As to the concrete assessment of the second applicant’s case, the High Court observed that the criminal proceedings and the tax proceedings had in fact been conducted in parallel since as far back as the tax authorities’ complaint to the police in the autumn of 2007 and until the decision to impose the tax penalty had been taken in December 2008. This state of affairs was similar to the case of the first applicant. The second applicant had been indicted and the case referred to the City Court with a request for a summary judgment on the basis of his confession on 11 November 2008, before the decision on the tax penalty. The criminal proceedings had thus reached a relatively advanced stage by the time the decision to impose the tax penalty had been taken. The nine-month period – from when the tax authorities’ decision of 5 December 2008 had become final until the second applicant’s conviction of 30 September 2009 by the City Court – had been somewhat longer than the two-and-a-half-month period in the case of the first applicant. However, this could be explained by the fact that the second applicant had withdrawn his confession in February 2009, with the consequence that he had had to be indicted anew on 29 May 2009 and an ordinary trial hearing had had to be scheduled. Against this background, the High Court (like the City Court) concluded that there was undoubtedly a sufficient connection in substance and time between the decision on the tax penalties and the subsequent criminal conviction.

On 29 October 2010 the Appeals Leave Committee of the Supreme Court refused the second applicant leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by any other reason.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention.


Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant was born in 1977 and lives in Luton.

The applicant was summoned to attend jury service at the Crown Court on 4 July 2011.

On the morning of the 4 July the jurors were shown a video in relation to their service and were given verbal instruction from the court’s jury officer that they were not permitted to research their cases on the Internet or to research the defendants or any of the individuals involved in the trial. Notices in the jury waiting room contained the following warning:

“You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court ...”

The notices made it clear that contempt of court was punishable by a fine or by imprisonment.

The applicant was selected to serve on a jury in a trial of a defendant charged with grievous bodily harm with intent. The trial commenced that afternoon. When the jury were sworn, the applicant took an oath or affirmation that she would faithfully try the defendant and give a true verdict according to the evidence.

Before the case was opened by the prosecution, the judge gave a number of directions to the jury. These underlined the importance of deciding the case only on the basis of what the jury saw and heard in the courtroom. Two consequences were identified by the judge. The first was that they should not speak about the case to anybody. He continued:

“The second consequence is a newer one: that you do not go on the internet. You have probably read in the last few weeks about a juror who did go on the internet; went on Facebook and severe problems followed for that juror. I am sure you will not want any of those. So, the rule is – and it is told to every jury – that not only do you not discuss it, but you do not go on the internet; you do not try and do any research of your own; you do not discuss it on Facebook; you do not tweet about it; or anything of that nature. So, simply, once you leave this room you do not talk about it or deal with it in any way with anybody.

We ask you to observe what goes on in this room. The evidence has been carefully considered. It is put before you in a carefully considered way. That is why you are not to discuss it with anybody else or do your own research, or discuss it on Facebook – because it is carefully controlled ...”

The trial continued on 5 and 6 July 2011. On 5 July the trial judge allowed a prosecution application to adduce evidence of the defendant’s bad character. The disclosure gave details of a previous sentence for assault occasioning actual bodily harm. It was not disclosed that the defendant had also been charged with rape in respect of the same offence but had been acquitted.

On 6 July 2011 the jury retired to consider their verdict. At the end of the court day the judge sent the jury home to return on 8 July 2011.

After the court had risen, one of the jurors in the case informed the court usher that a juror, whom she identified as the applicant, had been on the Internet and had found out about the previous conviction and that it involved rape. The trial judge was informed.

On 8 July 2011, after hearing from the juror in court, the judge summoned the jury foreman, who confirmed that there had been some reference to the matter to which the juror had referred. The judge then called the applicant into court. He informed her of what had been said and that she should not say anything at that stage. He gave her the opportunity, which she accepted, of speaking to a barrister in order to take advice on the question of contempt of court. After discussion with the applicant, the barrister informed the court that the applicant’s position was that her behaviour regarding the Internet was not deliberate. She therefore claimed to have a defence to the allegation of contempt of court. The judge explained to her that the matter would be referred to the Attorney General and that there would be a police investigation.

The judge subsequently discharged the jury and the trial was aborted.

The police obtained statements from the eleven other jurors at trial. The statements showed that during the jury deliberations the applicant stated that she had conducted Internet research and that her research had showed that the previous conviction also included an allegation of rape. Most of the other jurors had reacted to this by making it clear that the applicant had introduced extraneous and impermissible facts into their discussion, contrary to the instructions and directions that they had been given.

On 26 July 2011 the police interviewed the applicant under caution. During the interview, the applicant explained what had happened at the commencement of the trial and set out her recollection of what the trial judge had said as follows:

“The judge said ... that we should not look, we should not publish anything on Facebook, on Twitter, we should not tell anybody outside the court about the case ...”

She said that did not recall that the judge had instructed jurors not to do Internet research.

She explained that she had seen a newspaper article concerning the defendant on the Internet on the evening of 5 July 2011. When asked what she was doing on the Internet, she replied that, as she was Greek, she had wished to know the exact translation of the charge facing the defendant. She had therefore searched for “grievous bodily harm”. She had then wished to see how frequent such incidents were in Luton so added “Luton” to the search terms. The article concerning the defendant’s previous conviction had appeared in the list of results. She explained that her recollection was hazy but that she did not remember searching for the defendant by name. She admitted that she had informed the other members of the jury of the information she had found. She said that she was not aware that she had missed any element of the judge’s instructions and that she had had “absolutely no intention” of going against the instructions or directions of the judge.

The Attorney General subsequently applied to the Divisional Court for permission to make an application for an order of committal under Order 52 of the Rules of the Supreme Court (“SCR” – see paragraphs 45-46 below). The applicant was informed of the application by letter dated 3 November 2011.

On 29 November 2011 the Divisional Court granted permission to make a committal application.

On 2 December 2011 a claim form was issued by the Attorney General seeking an order of committal against the applicant for:

“contempt of court in conducting Internet research on the case she was trying as a juror in the Crown Court and thereafter in disclosing the extraneous information she had obtained to other members of the jury.”

The grounds on which the applicant’s committal was sought were that

“her acts created a substantial risk of seriously prejudicing and/or impeding the course of justice in the proceedings with which she was concerned.”

Reference was made to further details set out in a sworn affidavit by a legal adviser at the Attorney General’s office. In the affidavit, it was submitted that the evidence in the case demonstrated that the applicant:

“deliberately and in breach of instructions given by the jury officer, a warning contained in a written notice, her jury oath or affirmation and directions given by the trial judge, (a) conducted internet research on the case she was trying, and thereby obtained extraneous information about the case, and (b) imparted that extraneous information to other members of the jury whilst the jury were in deliberation.”

In her position statement dated 5 December 2011, the applicant accepted that she had searched on the Internet for the words “grievous” and “Luton” while the trial was underway and that she had discussed with other jurors a newspaper report concerning the defendant. She did not accept a specific intent to impede or to cause a real risk of prejudice to the due administration of justice.

In a note on behalf of the Attorney General dated 9 January 2012, the test for contempt was set out as follows:

“At common law, a contempt of court is an act or omission which creates a real risk of prejudice to the administration of justice, done with the intent of creating such a risk.”

The note went on to claim that the applicant’s Internet research and subsequent conduct in relation to it had created a real risk of prejudice to the administration of justice and had been done with the intent of creating such a risk.

In written submissions on behalf of the applicant dated 10 January 2012, it was submitted that the offence of contempt of court could be stated as follows:

“Where a person knowingly does an act which he specifically intends to impede, or create a real risk of prejudicing, the due administration of justice ...”

On 19 January 2012 the application for committal was heard. Counsel for the applicant submitted that the key element that the prosecution had to prove was “specific intent”, that is intent to impede or create a real risk of prejudicing the due administration of justice. He referred to the Attorney General’s position that intent could be inferred from foresight of the consequences and indicated that, while that might be appropriate in some cases, it did not sit so easily with the kind of intent required in the applicant’s case. An exchange then took place between the court and counsel for the applicant, as follows:

“[Court]: Can we get this down to the reality of the case. The Crown’s case is that your client deliberately disobeyed the order of the judge. Is that not the same as what you are saying? You disagree with it and you are going to submit to us why the Crown’s case is wrong, but if a juror deliberately disobeys the order if a judge, is that not contempt of court?

[Counsel]: Certainly, yes.

[Court]: The ‘deliberate’ is the point that matters.

[Counsel]: Yes. Yes.”

The Attorney General was subsequently asked whether he accepted that in the context of the case he had to satisfy the court, to the criminal standard, that the applicant had deliberately disobeyed the order of the judge. He confirmed that he did.

At the conclusion of the evidence and submissions, and after the court had already adjourned, the judges returned to seek further clarification of the correct test for contempt of court. The following test was put to counsel by the bench:

“It is a contempt in the context of jury misconduct within the jury room, for a juror deliberately to disobey the direction of the judge and create a risk of prejudice to the due administration of justice.”

The judge added:

“What that removes is a specific intent in relation to the creation of the risk. The intent is directed at the deliberate disobedience.”

The Attorney General expressed himself to be content with the test proposed. Counsel for the applicant requested that the word “thereby” be added following “disobey the direction of the judge and ...”, in order to create a link between the two elements. The Attorney General fully accepted the proposed modification. Counsel for the applicant was pressed on whether he was content with a definition whereby the intent was the deliberate act of disobeying the order, which then had a causative link in creating the risk. It was noted by the judge that this was a slightly different test from the one counsel had earlier proposed. He replied that he was content with the proposed test, and added:

“I am reacting as I stand. I hope I can venture to submit that actually, if this is the test, it is perhaps redefining an old law but it is new.”

On 23 January 2012 an order for committal was made. The Divisional Court summarised the applicant’s version of events as follow:

“36. On her account, effectively, she came across the newspaper reference to [the defendant’s] previous conviction in the local newspaper in Luton by following a route from the word ‘grievous’ through to ‘Luton’ and ‘crime’ and in effect, somehow she stumbled across the newspaper entry.”

However, the court rejected her account, explaining:

“37. We do not believe that the defendant did not seek information about [the defendant] on the internet. Her inability to remember this particular feature of the case, when she has a detailed recollection of so much else, was not credible. We do not believe that she could have just stumbled across the link to [the defendant’s] previous conviction in the way she described.”

The court concluded:

“38. We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.”

It found that the contempt had been proved to the criminal standard. On sentence, the court explained that misuse of the Internet by a juror was always “a most serious irregularity” and that an effective custodial sentence was virtually inevitable to ensure that the integrity of the process of trial by jury was sustained. A sentence of imprisonment for six months was imposed. The judge noted that pursuant to rules on early release, the applicant would serve three months in prison.

Following the handing down of the judgment, an exchange took place between the applicant’s counsel and the bench. The applicant’s counsel sought clarity on the test for contempt of court, explaining:

“I am concerned that the test that I was addressing – that we were addressing in preparation of this case – was a different test. We conducted the defence to a different test, and the reasons why it was a different test, I suggest, are threefold. First, the intention is different. Secondly, the risk has been diluted from ‘real risk’ – and, after all, ‘risk’ on the authorities simply means ‘a possibility of occurrence’ to ‘risk’. Thirdly, may I make this submission? This is the first occasion – I do this with some hesitation for I can find no authority – where there has been a contempt of court flowing from a judicial direction.

... It has always historically been the order which has attracted contempt, not the direction, and the idea that a judge gives directions to a jury in the summing-up which could attract contempt and imprisonment is, in my submission, a novel one.

I therefore submit this question rhetorically: whether this reformulation that this court has applied in this case is consistent with the common law of contempt.”

The court retired to consider the matter before confirming that the appropriate test was applied in paragraph 38 of its judgment (see paragraph 37 above), and that it had been understood that applicant’s counsel had agreed to that test. Leave to appeal was refused.

The applicant applied for permission to appeal to the Supreme Court. She argued, inter alia, that the test of contempt of court reformulated by the Divisional Court was not consistent with the common law of contempt of court; and that the reformulation of the offence, after evidence had been led and final submissions concluded, was not compatible with human rights principles and in particular with Articles 6 and 7 of the Convention.

On 26 January 2012 the applicant’s petition to appeal to the Supreme Court was refused because the application did not raise an arguable point of law. In particular, the Supreme Court concluded that a suggested distinction between a “direction” and an “order” was not tenable since the meaning of each depended on the context and both could mean the same; and that the deliberate disobedience of a specific order of the judge not to use the Internet in connection with the case unquestionably amounted to contempt of court at common law.

From 23 January 2012 to 20 April 2012 the applicant was detained at HMP Holloway.