CASE OF DZHAKSYBERGENOV (AKA JAXYBERGENOV) v. UKRAINE

Violation de P4-2;No violation of Art. 3 (in case of extradition to Kazakhstan);No violation of Art. 6 (in case of extradition to Kazakhstan);Remainder inadmissible

Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

DATE the applicant worked with PERSON , who was working in opposition to ORG .

After DATE he worked in companies belonging to Mr PERSON and PERSON , who had been associates of PERSON .

In DATE the applicant left GPE but continued working for PERSON PERSON and PERSON . His business activities included cooperation with ORG ( “ the ORG ” ) which had been headed by PERSON , who had been involved in politics at DATE and was CARDINAL of cofounders of ORG party . In DATE Mr PERSON was tried for corruption . Many international and domestic observers considered his trial to be politically motivated . Following his release in DATE , Mr PERSON announced that he would devote his time to his businesses and refrain from active participation in politics ( see paragraph CARDINAL below ) . In DATE he chaired the biggest bank in GPE – ORG .

NORP In DATE ORG was nationalised due to its difficult financial situation . On DATE criminal proceedings were instituted against Mr PERSON and other persons for misappropriation of funds by an organised group . On DATE CARDINAL former staff members of the BTA bank were found guilty and sentenced to DATE imprisonment for stealing particularly large quantities of financial resources .

At the same time the NORP authorities started prosecuting those who had worked in cooperation with the BTA .

On DATE ORG ( “ the ORG ” ) of GPE instituted criminal proceedings against the applicant for participating with the management of the ORG in misappropriation of financial resources by organised group in particularly large amounts ( under LAW part CARDINAL paragraphs “ a ” and “ b ” of LAW of GPE , which provides for a maximum penalty of DATE imprisonment ) . On DATE , the Medeuskiy District Court of Almaty ordered the applicant to be arrested . The applicant was placed on a list of nationally and internationally wanted persons .

NORP By letter dated DATE , the ORG of GPE asked its NORP counterpart to extradite the applicant .

On DATE the ORG of GPE requested the ORG of GPE for additional guarantees , asking whether , in the event of the extradition of the applicant , the provisions of LAW would be respected and whether the applicant would be given a fair trial and , if necessary , appropriate medical treatment .

NORP By letter dated DATE , the ORG of GPE sent assurances that the applicant would not be ill - treated and that his rights guaranteed by LAW and by ORG , DATE , DATE , DATE , DATE , CARDINAL and CARDINAL of the Convention would be respected .

On DATE the ORG of GPE passed a resolution on the temporal restriction of the applicant 's right to leave the territory of GPE following its examination of a request for the applicant to be extradited on the basis of ORG and CARDINAL of the Code of Criminal Procedure , section CARDINAL of ORG and sections CARDINAL of ORG of Ukraine Act . The decision contained no time - limit .

On DATE the applicant received a letter from the ORG of GPE notifying him about the decision of DATE .

On DATE a copy of the resolution of CARDINAL DATE was served on the applicant 's lawyer .

On DATE the ORG of GPE informed the ORG of GPE about the interim measure indicated by the ORG and asked for additional assurances , namely , the possibility of NORP diplomatic representatives to visit the applicant in detention , to be present during the judicial proceedings and to be informed about the course and the outcome of the criminal proceedings .

On DATE the ORG of GPE gave assurances that the officials of the NORP diplomatic mission would be allowed to visit the extradited person , the extradited person would have access to such officials at any time and their meetings would be free from supervision . Furthermore , the officials would be able to follow the progress of the proceedings and to be present at the trial on the merits , and would be informed of the final decision in the respective criminal case .

The relevant provision of the LAW read as follows :

“ Human and citizens ' rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies exercising ORG power , local self - government bodies , officials and officers ...

... After exhausting all domestic legal remedies , everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant ... ”

DATE of the Code defines that the law - enforcement and judicial authorities shall cooperate with their foreign counterparts under the procedure established by NORP law and by international treaties .

“ If a criminal case is instituted against a certain person , the prosecutor ( the judge ) shall be entitled to decide whether a person shall be prohibited from leaving the territory of GPE before the end of the pre - trial investigation or trial . He or she shall render a reasoned decision ( ruling ) to this effect . ”

On DATE LAW introduced a new chapter to the LAW regulating proceedings for extradition to and from GPE . Relevant articles of this new chapter provide , among other things , as follows :

Article CARDINAL

Extradition detention

“ In the event of release of a person from custody by the court , the prosecutor shall ... issue a ruling on taking other necessary measures to prevent the escape of the person and ensuring his extradition afterwards .

Such measures must be sufficient to guarantee the possibility of implementation of the decision on the person 's extradition , and may foresee , in particular ... placing travel restrictions on a person ... the placing of travel restrictions on a person shall be governed by the procedure set out in Articles DATE , ... of this Code , taking into account the particularities of this LAW ... ”

Article CARDINAL . Refusal to extradite a person

“ A decision not to extradite a person to a foreign state may be taken if :

CARDINAL NORP the person 's extradition is incompatible with obligations of GPE under international treaties to which GPE is a party ... ”

Article CARDINAL . Decision on a request for extradition

“ ... If a decision to extradite a person is taken ... , the person shall be issued with a copy of the decision . If such decision has not been challenged before a court within DATE , the authorities shall organise the actual extradition of the person to the competent authorities of the foreign state . ”

Article CARDINAL . Procedure for appeal against a decision to extradite a person

“ A decision to extradite a person may be appealed against by the person concerned , his or her defence counsel or legal representative before a local court ...

An appeal shall be examined in a single - judge formation within DATE from the date of its receipt by the court . The hearing shall be held in the presence of the prosecutor , the person concerned , his or her defence counsel or legal representative if the latter participates in the proceedings .

Following the examination , the judge shall take a reasoned decision to :

CARDINAL reject the appeal ;

CARDINAL allow the appeal and quash the decision to extradite .

An appeal against the judge 's decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance , by the person concerned , his or her defence counsel or legal representative within DATE from the date of delivery of the impugned decision . The lodging of an appeal against the judge 's decision with the court shall suspend its entry into force and its execution . ”

The relevant provisions of the LAW read as follows :

Task of the administrative justice system

“ CARDINAL . The task of the administrative justice system is the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...

Any decisions , actions or inactivity of public authorities can be appealed against in administrative courts , except for cases in which the LAW and laws of GPE foresee a different procedure of judicial appeal against such decisions , actions or inactivity ... ”

Competence of the administrative courts in deciding administrative cases

“ CARDINAL . The competence of the administrative courts shall cover :

CARDINAL ) disputes between public authorities ...

CARDINAL ) disputes following an application by a public authority in the situations set forth by the law ...

The competence of the administrative courts shall not cover public law cases :

that shall be decided under the criminal justice procedure ... ”

NORP The relevant provisions of the LAW read as follows :

“ ... A foreigner or stateless person shall not be permitted to leave GPE if :

- there is an inquiry or preliminary investigation being undertaken in respect of them , or a criminal case against them is being examined by a court , until the proceedings have ended ;

- he or she has been convicted of a crime , until he or she has served his or her sentence or has been released ;

- his or her departure is contrary to the interests of GPE 's security – until the circumstances that prevent his or her departure cease to exist .

Foreigners and stateless persons may have their departure from GPE postponed until they have honoured their property obligations to individuals and legal entities in GPE . ”

The Country Reports on Human Rights Practices of the US ORG ( hereafter “ the Reports ” ) for DATE , released on DATE , noted with respect to GPE :

“ d. Arbitrary Arrest , Detention , or Exile

... In DATE , the Government tried and convicted CARDINAL founding members of ORG for GPE ( ORG ) movement , PERSON , former Minister of Energy , and PERSON , former PERSON ( Governor ) of GPE ( see Sections CARDINAL.e . and CARDINAL ) . Their arrests came DATE after the alleged crimes ( abuse of power and corruption ) were committed , but DATE after PERSON and GPE founded an opposition political movement . The Government maintained that their prosecutions were simply an effort to punish corrupt officials . However , on DATE , ORG found former Minister of Transport and Communications , PERSON , guilty of stealing MONEY ( MONEY ) of state funds . Although the monetary value of the alleged crime was far higher than in either LOC 's or PERSON 's case , PERSON received a DATE suspended sentence and DATE probation ...

e. Denial of Fair Public Trial

... Both domestic and international observers at DATE trials of political opponents PERSON and PERSON reported that both the judicial process and the judges themselves , particularly in the case of GPE , heavily favored the ORG 's case ( see Sections CARDINAL.d . and CARDINAL ) . The judges applied the force of subpoena during the trials only to prosecution witnesses , and many of the witnesses , primarily government officials , stated during testimony in court that they had been intimidated during the investigation by the threat of legal action . Many witnesses also contradicted in court their testimony during the investigations . The judges denied most motions filed by the defense .

At DATE , PERSON remained in a prison facility in GPE . He appealed for a presidential pardon in DATE ; however , the pardon committee announced in DATE that it had suspended consideration of his pardon pending the investigation of possible new corruption charges that the Government claimed had only just then surfaced . PERSON was released from prison on DATE after applying for a presidential pardon DATE . At a press conference DATE after his release , PERSON announced that he would devote his time to his businesses and refrain from active participation in politics . President PERSON had stated before the PERSON and PERSON trials that he would consider exercising his constitutional power of pardon should the courts find them guilty and should they ask him for it ...

The DATE Reports , released on DATE , noted with respect to GPE :

“ d. Arbitrary Arrest or Detention

... On DATE , former Governor and opposition party ORG of GPE ( ORG ) leader PERSON was transferred to a minimum security settlement colony , the first administrative step toward parole . In DATE , PERSON had been tried and convicted of alleged abuse of power and corruption along with PERSON , former Minister of Energy . The arrests DATE after the crimes were allegedly committed , but DATE after PERSON and GPE founded an opposition political movement . Authorities reportedly tried to convince PERSON to discontinue his political activities in exchange for release , and threatened to impose new criminal charges ... ”

“ c. Torture and Other Cruel , Inhuman , or Degrading Treatment or Punishment

The law prohibits such practices ; nevertheless , the police and prison officials at times beat and abused detainees , often to obtain confessions . Human rights activists asserted that the legal definition of torture was too broad and did not meet ORG standards , and that the penalties for the crime were too lenient . ORG ( ORG ) and the human rights ombudsman acknowledged that some law enforcement officers used torture and other illegal methods of investigation . Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant 's confession of guilt over collecting other types of evidence in building a criminal case against a defendant . Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress .

During his DATE visit to the country , PERSON , the ORG special rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , inspected several prisons and detention facilities . According to his initial assessment , torture was not widespread , although a culture of impunity allowed police to use extreme methods , such as heavy beating and asphyxiation , to obtain confessions . Police rarely investigated complaints of torture . PERSON noted that he visited CARDINAL detention facilities of ORG ) that human rights observers routinely cited as places where abuses were common . PERSON 's final report to ORG was pending at DATE ...

... ORG reported CARDINAL citizen complaints during DATE ...

... The government reported CARDINAL crimes related to military hazing and abuse of power during DATE , compared to CARDINAL in DATE ...

Prison and ORG

Prison conditions remained harsh and facilities did not meet international health standards . Scarcity of medical care continued to be a problem . NGOs reported that CARDINAL of the inmate population needed professional treatment , especially for HIV / AIDS , tuberculosis , and other infectious diseases . Abuse occurred in police cells , pretrial detention facilities , and prisons . The government took steps to address systemic patterns that encouraged prisoner abuse , including providing for the continued operation of and increased access for regional penitentiary oversight commissions , training of prison officials , and seminars for ORG police . By DATE authorities had prosecuted CARDINAL prison officials for abuses and opened CARDINAL investigations for corruption - related offenses , resulting in CARDINAL convictions .

NGOs and international observers reported that prison and detention center conditions did not improve during DATE . Observers cited poor treatment of inmates and detainees and lack of professional training for administrators . In DATE ORG invalidated legislative changes adopted in DATE that criminalized prisoner protests and self - mutilation .

During DATE the government reported CARDINAL detainee deaths and CARDINAL suicides , of which CARDINAL occurred in pretrial detention facilities , CARDINAL in prisons , and CARDINAL in police cells .

According to the latest statistics available from prison monitoring NGOs , there were CARDINAL prisoners and CARDINAL detainees in pretrial facilities . Of the prisoners , CARDINAL were men , CARDINAL were women , and CARDINAL were juveniles . Men , women , and juveniles were held separately . Detainees were held apart from prisoners . There were no reports that political prisoners were held separately from the rest of the prison population .

Incidents of inmates ' self - mutilation as a protest against harsh prison conditions and abuse continued , with CARDINAL cases involving CARDINAL inmates reported during DATE ; a significant number were group mutilation ...

... Civil society activists worked with the councils for public oversight of the ministries of justice and of internal ORG , as well as the human rights ombudsman 's countertorture working group , to monitor the situation in prisons and detention facilities . Many observers criticized the councils for lacking independence or any clearly defined authority or power ...

e. Denial of Fair Public Trial

The law does not provide for an independent judiciary . The executive branch limited judicial independence . Prosecutors enjoyed a quasijudicial role and had authority to suspend court decisions ...

Trial Procedures

All defendants enjoy a presumption of innocence and are protected from self - incrimination . Trials were public except in instances that could compromise state secrets or when necessary to protect the private life or personal family concerns of a citizen . Nevertheless , there were several reports of journalists and observers denied access to open court hearings .

Courts conducted jury trials for aggravated murder cases , pursuant to legislation enacted in DATE . Observers noted that the juror selection process was inconsistent and that judges , who deliberate with the jurors , tended to dominate the process . However , observers also noted an increase in acquittal rates . During DATE courts conducted CARDINAL jury trials involving CARDINAL defendants ; jurors convicted CARDINAL defendants and acquitted CARDINAL . CARDINAL cases involving CARDINAL defendants were under appeal at DATE .

Defendants in criminal cases have the right to counsel and to a government - provided attorney if they can not afford counsel . Under the criminal procedure code , a defendant must be represented by an attorney when the defendant is a minor , has mental or physical disabilities , does not speak the language of the court , or faces DATE of imprisonment . In practice defense attorneys reportedly participated in CARDINAL of all criminal cases , in part because the government did not have sufficient funds to pay them . The law also provides defendants the right to be present at their trials , to be heard in court , and to call witnesses for the defense . They have the right to appeal a decision to a higher court .

Human rights activists reported numerous problems in the judicial system , including lack of access to court proceedings , lack of access to government - held evidence , frequent procedural violations , lack of a presumption of innocence , poor explanation of rights to defendants , denial of defense counsel motions , and failure of judges to investigate allegations that confessions had been extracted through torture or duress . Lack of due process was a problem , particularly in politically motivated trials and in cases when improper political or financial influence was alleged ...

Political Prisoners and Detainees

... Local and international human rights NGOs asserted that the prison sentence imposed on PERSON amounted to political persecution to silence the government 's most vocal critic in advance of the country 's assumption of the chairmanship of ORG ) in DATE ...

Section CARDINAL Respect for Political Rights : The Right of Citizens to Change Their Government

... On DATE , the Almalinskiy district court in GPE found ORG chairman PERSON , ORG movement 's GPE , and oppositionist PERSON guilty of concealing the whereabouts of a suspect in a murder investigation . The court did not impose a sentence on the CARDINAL oppositionists , because the statute of limitations on the case had run out . The CARDINAL appealed the charges , claiming the allegations were politically motivated . On DATE , the Almaty ORG denied the appeal ...

Section CARDINAL Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights

A number of domestic and international human rights groups generally operated effectively , with relative freedom to investigate and publish their findings on human rights cases ; however , the government restricted certain activities of domestic and international human rights NGOs . International human rights groups reported that the government continued to monitor the activities of NGOs that worked on sensitive issues and noted government harassment , including police visits and surveillance of NGO offices and personnel .

ORG ) , ORG , ORG , GPE Penal Reform International , and PERSON were among the most active local human rights NGOs and occasionally faced difficulties in registration and acquiring office space and technical facilities . They also reported the government audited their records and imposed various legal constraints .

On DATE , unidentified persons assaulted PERSON , the head of the ORG public association , near his home . PERSON and PERSON party representatives claimed that the attack directly related to his work with trade unions and alleged that the authorities were involved with the attack . A police investigation was pending at DATE .

In general the government did not prevent international NGOs and multilateral institutions dealing with human rights from visiting the country and meeting with local human rights groups and government officials . The government cooperated with the ORG and its field mission . The ORG , ORG , and ORG also operated freely in the country .

National security laws prohibit foreigners , international organizations , NGOs , and other nonprofit organizations from engaging in political activities . The law stipulates that a noncommercial organization must provide information to tax authorities on its founders , activities , and foreign sources of funding , as well as income , property , expenses , and employee records . International organizations are prohibited from funding unregistered entities .

ORG is a consultative and advisory body that includes members from the public appointed by the president . The commission reviews and investigates complaints , issues recommendations , monitors fulfillment of international human rights conventions , and publishes DATE human rights reports . The commission does not have legal authority to remedy human rights violations or implement its recommendations . On DATE , the commission presented the National Action Plan on Human Rights for DATE . Leading human rights NGOs made a significant contribution to the draft plan . Civil society activists considered it an ambitious , well - prepared document , but expressed concern regarding its implementation .

The presidentially appointed human rights ombudsman investigated complaints by citizens of violations of their rights by state agencies , although the ombudsman was not authorized to investigate complaints concerning the president , heads of government agencies , the parliament , the cabinet , ORG , the prosecutor general , the ORG , or the courts . ORG has authority to appeal to the president , cabinet , or parliament to resolve citizens ' complaints , to cooperate with international human rights organizations and NGOs , to meet with government officials concerning human rights violations , to visit certain facilities such as military units and prisons , and to publicize results of investigations in the media . The ombudsman also published an DATE human rights report . During DATE the ombudsman occasionally briefed the media and issued reports discussing complaints it had investigated . The ombudsman received CARDINAL complaints during DATE and provided relief to CARDINAL citizens . Many of the complaints concerned court rulings in which the ombudsman had no jurisdiction .

Domestic human rights observers noted that , although government human rights investigators did some laudable work , particularly with less controversial social problems and issues involving lower - level elements of the bureaucracy , ORG and the human rights commission were limited in their ability to stop human rights abuses or punish perpetrators . Observers noted that the commission and the ombudsman avoided addressing underlying structural problems that led to human rights violations . ”

The summary of the report reads as follows :

“ The Special Rapporteur on torture and other cruel , inhuman or degrading treatment or punishment , PERSON , undertook a visit to GPE from CARDINAL to CARDINAL DATE .

The Special Rapporteur expresses his appreciation to the Government for the invitation which he interprets as a sign that the country is sincerely interested in an objective assessment of the situation . He notes that , since independence in DATE , GPE has acceded to numerous international human rights instruments , which illustrates its commitment to reforming the legal framework and policies . At the same time , he noticed that considerable efforts had been made to prepare the various detention facilities and the detainees for his inspections , which contradicts the very idea of independent fact - finding and unannounced visits . It also makes the task of assessing conditions of detention and torture objectively more difficult .

Whereas the physical conditions and food supply in the prison GPE seem to have been brought into line with international minimum standards in DATE , CARDINAL of the key requirements of international human rights law — that penitentiary systems put rehabilitation and reintegration rather than the punishment of the individual offender at their core — has not been achieved ; the restrictions on contact with the outside world provided by law contradict that very principle . Another major issue of concern is the fact that the hierarchy among prisoners appears to lead to discriminatory practices and , in some cases , to violence .

The same is true for pretrial detention and custody facilities . The pretrial facilities of ORG , ORG and ORG seem to have undergone improvements in terms of physical conditions and food supply ; however the almost total denial of contacts with the outside world , often for prolonged periods , clearly contradicts the principle of the presumption of innocence and puts disproportional psychological pressure on suspects .

On the basis of discussions with public officials , judges , lawyers and representatives of civil society , interviews with victims of violence and with persons deprived of their liberty , the Special Rapporteur concludes that the use of torture and ill - treatment certainly goes beyond isolated instances . He received many credible allegations of beatings with hands and fists , plastic bottles filled with sand , police truncheons , and of kicking , asphyxiation with plastic bags and gas masks used to obtain confessions from suspects . In several cases , these allegations were supported by forensic medical evidence .

With regard to the legal framework and safeguards , the Special Rapporteur welcomes the fact that torture has been criminalized , even if the current definition needs to be brought fully into line with LAW , and that safeguards are , by and large , provided for by the legislation and formally respected . In order for the safeguards to be effective , however , the various players in the criminal justice cycle must live up to their responsibilities , close the implementation gap and denounce cases of torture , which is currently not the case .

In the light of the above , the Special Rapporteur recommends that the Government of GPE implement fully its obligations under international human rights law . In particular , he urges the Government to create an independent and effective national preventive mechanism with the necessary human and other resources and to view it as an ally in the collective effort to discover what really happens in places where people are deprived of their liberty . He also recommends that the penitentiary system be conceived in a way that truly aims at the rehabilitation and reintegration of offenders . Complaints mechanisms need to be made accessible and credible ; a mechanism to investigate promptly and impartially allegations of torture and ill - treatment should be put in place and be independent of the alleged perpetrators ; the de facto time of apprehension should be recorded and terms of police custody reduced to international standards ; temporary detention isolators should be transferred from ORG to ORG ; and the burden of proof to show that a confession has not been extracted by torture should be transferred to the prosecutor . ”

On DATE of GPE 's chairmanship of the LOC , ORG released the above document , which reads , insofar as relevant as follows :

“ CARDINAL . Is GPE the right choice for the PERSON chair in DATE ?

GPE was a highly controversial choice because of its poor record of adherence to LOC human rights principles . For that reason , GPE was unsuccessful in its chairmanship bids in DATE and DATE . In DATE , in response to concerns by participating states about this record , GPE 's then - Foreign Minister PERSON pledged that the government would take several reform steps prior to assuming the chairmanship . These included amending GPE 's media law , reforming its elections law , and liberalizing registration requirements for political parties by DATE . GPE also agreed to incorporate recommendations by the ORG 's ORG ( ORG ) in election legislation . Finally , ORG promised that GPE 's chairmanship would preserve the ORG and its existing mandate and refrain from supporting any future efforts to weaken this institution .

The human rights situation in the country is still troubling DATE before GPE takes over the chairmanship from GPE . The government adopted several modest reforms in DATE in line with ORG pledges , but it did not implement more meaningful reforms and subsequently dealt a series of blows to human rights .

When GPE assumes the chairmanship on DATE , the LOC and the public will look to it to embody and project LOC values . So far , the government has created a difficult environment for human rights that is out of line with LOC standards and inconsistent with leadership of an organization grounded in human rights principles .

Is the human rights situation getting worse or better in GPE ?

In DATE the NORP government has taken a number of important and positive steps , but these have not amounted to meaningful reform to address the country 's human rights problems . It ratified LAW ( ORG ) in DATE and LAW to LAW in DATE , issued a declaration recognizing the competence of ORG to consider individual complaints , and invited the Special Rapporteur on torture to visit in DATE . It ratified LAW to the ORG , which allows individuals to file complaints to ORG . It also introduced some limited reforms to the criminal justice system , such as transferring the power to issue arrest warrants from the procuracy to judges . In DATE , GPE issued standing invitations to ORG special procedures .

But in practice , the government has shown no signs of fundamental change . Human rights groups , including ORG , have documented a continued deterioration of human rights conditions in the country . The NORP government has rejected efforts by human rights groups and the political opposition to press for expanded human rights and freedoms guaranteed by international agreements and GPE 's own constitution . For example , the government did not react to a draft law on freedom of assembly submitted to the president 's ORG by several NORP human rights groups in DATE . It has also ignored criticism or ideas submitted by civil society groups in various working groups discussing legal reforms . It has further tightened control over independent media and the internet , interfered with the political opposition ( among other things , by refusing to register a major opposition party ) , and brought politically motivated lawsuits against its critics . The government has not carried out meaningful reforms guaranteeing rights in key areas such as freedom of expression , freedom of assembly , freedom of religion , and access to legal counsel ...

Does the human rights situation in GPE compare favorably with conditions in other NORP countries ?

In discussions with ORG , policy makers and GPE 's government officials often draw comparisons among NORP governments ' human rights practices . The atmosphere of quiet and subtle repression in GPE does n't trigger as many headlines as more dramatic government crackdowns on human rights in some of the other countries in the region . But one could just as fairly ask why the government would want to use countries that have poor human rights records as a metric of comparison rather than countries that have good human rights records to which it might aspire .

GPE 's human rights record is not in competition with the records of other states in the region as it assumes the office of ORG chair , but with its own , voluntarily - assumed international obligations . Enforcing universal human rights principles is a core pillar of the LOC , and the chair - in - office of the organization has a particular obligation to respect them ... ”


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , ORG , is a private NORP broadcasting company ( “ the applicant company ” ) , that was set up in DATE and has its registered office in GPE . The applicant company was represented before the Court by PERSON and PERSON , lawyers practising in GPE .

CARDINAL .

DATE ORG ( “ the ORG ” ) , which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies , put out calls to tender for band CARDINAL , bands CARDINAL , DATE and DATE , bands CARDINAL and DATE , and band CARDINAL . The applicant company submitted bids for all of the above bands .

The ORG awarded all of the licences to other bidders .

NORP The applicant company instituted proceedings in ORG against the ORG , contesting the results of the tenders . All the claims were dismissed in the final instance by ORG on DATE and DATE respectively .

On DATE the applicant company and its chairman , Mr PERSON , lodged an application with the ORG ( application no . CARDINAL ) against GPE under LAW . The applicants alleged that the refusal of the state authorities to award a broadcasting licence amounted to a violation of their freedom of expression under LAW . In particular they submitted that the ORG was obliged by law to inform them of the reasons for denying the applicant company a licence . The mere presence of the applicant company ’s representative during the presentation of competitive bids and a points - based vote which , moreover , indicated only a total score , did not constitute proper provision of a reasoned decision . The ORG ’s letters announcing the outcome of the calls to tender could not be considered as notification of reasons either , since they simply announced the relevant decisions without stating the grounds for them . According to the applicants this rendered the licensing process arbitrary and not as prescribed by law .

The application was considered by the ORG , which gave judgment on DATE ( ORG and Movsesyan v. GPE , no . CARDINAL , DATE ) . The ORG first considered that the application , in so far as it concerned the second applicant , was incompatible ratione personae with the provisions of the LAW within the meaning of LAW , and therefore limited its examination of the complaints raised in the application to those which concerned the applicant company . In that respect , the Court held that there had been a breach of LAW as the interferences with the applicant company ’s freedom to impart information and ideas did not meet the Convention requirement of lawfulness . The ORG noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression ( ibid . , § DATE ) .

As to the application of LAW , the ORG awarded the applicant company LAW for non - pecuniary damages together with LAW in legal costs and expenses for the proceedings before ORG ( ibid . , § § CARDINAL - CARDINAL ) .

On DATE , on the basis of the ORG ’s judgment , the applicant company applied to ORG for the final CARDINAL judgments given at domestic level to be reviewed on the basis of a new circumstance .

In its CARDINAL decisions of CARDINAL DATE ORG dismissed the applications to reopen the proceedings . It held in particular that :

“ The complaint of the [ applicant ] Company to ORG was about the failure of the ORG to give reasons for not recognising the [ applicant ] Company as a winner in the competitions held by the ORG , and ORG merely considered and found that the lack of such reasoning was in conflict with the requirements of LAW . Whereas , in [ this ] appeal the applicant [ company ] requested that the decisions recognising other companies as winners be declared void and a new competition be opened . The [ applicant ] Company based the above - mentioned requests on the principle of “ restitutio in integrum ” .

The above principle implies restoration of the situation existing before the breach , that is , restoration of everything the person had prior to the violation of his right . However , the complaints raised in the [ applicant ] ORG requests , namely about declaring null and void the decisions on recognising other companies as winners in the competition , recognising [ the applicant company ] as a winner and granting it a licence can not be deemed a restoration of the situation existing before the violation , since the judgment of ORG solely provided that the ORG had failed to reason its decision on not recognising the [ applicant ] Company as a winner . The failure to reason the refusal does not automatically mean that the decision in respect of the winning company should be declared void and a new competition opened since the rights of the [ applicant ] Company ( LAW ) were violated as a result of the failure to provide reasons for not recognising it as the winner and not as a result of recognising the other company as the winner in the competition ...

... it is not always possible to repair the consequences of violations established by ORG by providing compensation , and the respondent state may be required to adopt individual or general measures in respect of the applicant . In particular , ORG may require a new examination of the case , as it did in the case of PERSON , PERSON and PERSON v. GPE of DATE .

Meanwhile ... it is necessary to mention that the application of such measures becomes binding only when ORG directly requires the application of such measures . The judgment of ORG in this case , besides the obligation to provide compensation , only mentioned that the unreasoned decisions of the Commission were unacceptable . ORG therefore finds that the claims of the applicant , such as annulment of the decision on recognising the other company as the winner and granting a licence are not in line with the logic of the judgment of ORG ... ”

On DATE the applicant company lodged an application with ORG seeking to annul LAW applied in its case by ORG .

By its decision of CARDINAL DATE no . DCC-CARDINAL ORG terminated the proceedings . In doing so it held in particular that LAW had already been recognised as unconstitutional in its decision no . ORG and no law had been adopted to bring it into conformity with the LAW .

Relying on the decision of ORG , the applicant company lodged CARDINAL appeals with ORG seeking the reopening of the cases on the ground of new circumstance , namely the decision of ORG of DATE ( see above § CARDINAL ) .

On DATE ORG adopted CARDINAL decisions dismissing the applicant ’s appeals . In doing so , ORG in particular stated :

“ ... relying on the decision no . PERSON of ORG ... ORG notes that its decision of DATE is to be reviewed .

At the same time ORG states that Article CARDINAL sets out the types of decisions to be taken by the court in the event of revision based on new circumstances , which means that the decision ... no . DCC-CARDINAL relates [ solely ] to the procedural norm applied by ORG in its decision of DATE and does not concern the reasons for dismissing the claims of the [ applicant ] Company from a legal point of view ... ”

The Court ’s judgment of DATE became final on CARDINAL DATE .

In a letter dated CARDINAL DATE the applicant company informed ORG ( “ ORG ” ) of ORG about the refusal of ORG to review the final judgments in its case .

In a letter dated DATE the applicant company informed ORG about application no . CARDINAL/CARDINAL lodged with the ORG , raising an issue of a continuing violation of LAW .

In a letter dated CARDINAL DATE the applicant company informed ORG about the second refusal of ORG to review its case . By the same letter ORG was informed that a new call to tender had taken place in DATE . The applicant company alleged that it had submitted a competitive bid but in the results of the ORG ’s point - based voting another company had been announced as the winner of the tender .

ORG concluded its examination of application no . CARDINAL on DATE by adopting Resolution CM / ResDH(CARDINAL)CARDINAL , the relevant parts of which read :

“ ... Having regard to the judgment transmitted by ORG once it had become final ;

Recalling that the violation of the ORG found by ORG in this case concerns the applicant company ’s right to freedom of expression on account of the refusal by ORG ( ORG ) , on CARDINAL occasions in DATE and DATE , to deliver to the applicant a broadcasting licence without giving reasons for its decisions ( violation of LAW ( see details in Appendix ) ; ...

Having examined the information provided by the government in accordance with ORG for the application of LAW , paragraph CARDINAL , of the Convention ;

Having satisfied itself that , within the time - limit set , the respondent state paid the applicant the just satisfaction provided in the judgment ( see details in Appendix ) ,

Recalling that a finding of violations by the ORG requires , over and above the payment of just satisfaction awarded by the ORG in its judgments , the adoption by the respondent state , where appropriate :

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations ;

Having taken note that the applicant company had participated in a tender in DATE , that it received a reasoned decision from the ORG and that it has the possibility to contest the results of the licensing tender in the courts of GPE ;

Having taken note of the authorities’ commitment that the ORG will fully and properly substantiate and reason its decisions , “ both in respect of winners of competitions as well as other participants ” ; ...

DECLARES , having examined the measures taken by the respondent state ( see Appendix ) , that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in this case and

DECIDES to close the examination of this case .

Appendix to ORG CM / ResDH(CARDINAL)CARDINAL : Information about the measures to comply with the judgment in the case of

ORG and PERSON against GPE

Introductory case summary

The case concerns a violation of the applicant company ’s freedom of expression on account of the refusal by ORG ( ORG ) , on CARDINAL occasions in DATE and DATE , to deliver to the applicant a broadcasting licence ( violation of LAW ) .

ORG concluded that there had been interference with the applicant company ’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under LAW . The ORG noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression .

I. Payment of just satisfaction and individual measures

a ) Details of just satisfaction

Non - pecuniary damage - CARDINAL EUR

Costs and expenses - CARDINAL ORG

Total - CARDINAL EUR

Paid on CARDINAL/CARDINAL/CARDINAL

b ) Individual measures

A call for new licensing tenders for digital broadcasting on CARDINAL national and local frequencies was announced on DATE . The applicant company took part in a tender for one frequency ( competition No . CARDINAL ) . The results of the licensing tender “ On winners in the CARDINALth competition ” are set out in Decree No . CARDINALA of ORG , dated DATE . The applicant company did not win the tender . Nothing prevents it from contesting the results of the licensing tender in the courts of GPE .

II . General measures

The Law on Amendments and Additions to the Television and Radio Broadcasting Act was adopted on DATE .

The provision of the TV and LAW concerning reasoning of decisions of the ORG , LAW ) , reads as follows “ ORG shall decide the winner of the competition on the basis of the results of the point - based vote . The decision of ORG shall be properly substantiated and reasoned ” .

In order to alleviate any misunderstanding of the obligation on the ORG to reason all types of decisions , ORG made the following official statement : “ LAW should be interpreted in accordance with LAW , and in the light of the ORG judgment , in a way that a single decision of the ORG provides a full and proper substantiation and reasoning of the results of the points - based vote , including both in respect of the winner of the competition , as well as of all of its other participants ” ...

It is therefore expected that any future decision of the ORG will be taken in conformity with LAW and the case - law of ORG .

III . Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the ORG found by ORG in this case , that these measures will prevent similar violations and that GPE has thus complied with its obligations under LAW , paragraph CARDINAL , of the LAW . ”

The relevant provisions of LAW , as in force at the material time , read as follows :

“ LAW The grounds of revision of judicial acts based on new circumstances

Judicial acts can be reviewed on the ground of the following :

CARDINAL ) a final decision or judgment of an international court ... which substantiates a violation of human rights provided by an international agreement of GPE ;

NORP Final judicial acts of first instance courts , ORG and ORG can be subject to appeal on the basis of new circumstances .

Article CARDINAL The power of the court in the event of revision

In the event of revision of the judicial act on the basis of new circumstances the court is empowered :

CARDINAL ) not to grant the appeal and leave the previous judicial act in force ;

CARDINAL ) NORP to change the judicial act fully or partially ;

CARDINAL ) NORP to terminate the proceedings fully or partially . ”


Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1

Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

The applicant was born in DATE and lives in ORG .

On DATE PERSON ’s body affected with injuries was found in his apartment . On DATE the Dzerzhinsky District Police of ORG instituted a criminal investigation into the incident .

On DATE reported to the police that he had witnessed the applicant beating B. on the head with a frying pan at a party in B. ’s apartment . He further confessed that after PERSON had fallen to the floor unconscious , he and the applicant had taken valuables and left .

On DATE the police drafted a bill of indictment charging the applicant with PERSON ’s murder . Unable to establish the applicant ’s whereabouts and question him , they subsequently put him on the “ wanted ” list .

On DATE the investigation obtained a decision to remand the applicant in custody from the GPE ORG of Kharkiv ( hereafter “ the ORG ” ) . In its decision , the court referred to the gravity of the charges against the applicant , his recent criminal record and his disappearance after the incident with B.

On DATE the investigating authorities added to the case file a letter of confession addressed by the applicant to the President of ORG and dated DATE . In this letter the applicant explained , in particular , that he had partied with NORP and PERSON in B. ’s apartment and a fight had started between NORP and PERSON , during which the applicant had escaped .

On DATE the applicant was arrested . On the same date he signed the arrest record ( протокол ) , stating that he had been detained pursuant to the decision of ORG of DATE , on suspicion of murder . According to the applicant , he was not apprised of the content of the decision of DATE . He presented no documents in evidence that he had lodged any relevant requests or complaints before the commencement of the trial .

On DATE the applicant was presented with a new bill of indictment drafted on DATE , according to which he was charged with murdering PERSON and theft from his apartment .

On DATE the case was transferred to ORG for trial .

On DATE the GPE District ORG of ORG modified the indictment , having substituted the murder charge with that of infliction of grievous bodily injuries resulting in death .

On DATE ORG held a preparatory hearing and scheduled the case for trial for DATE . According to the Government , at the preparatory hearing ORG upheld the decision to keep the applicant in custody , having found no grounds for his release . The copy of the decision taken by ORG on that date provided by the parties contains no reference to any ruling concerning the applicant ’s release or continuing detention .

DATE and DATE ORG scheduled some CARDINAL hearings ; however , none of them took place . On QUANTITY occasions the hearings were rescheduled on account of the judge ’s inability to hear the case ( sickness , vacations or being occupied in other proceedings ) . On other occasions the hearings were adjourned to accommodate procedural requests made by the parties or on other grounds .

On DATE and DATE ORG held the first hearings and adjourned the proceedings until DATE in order for the expert who had examined B. ’s corpse to be summoned .

DATE and DATE the court scheduled some QUANTITY hearings . CARDINAL of them were adjourned or rescheduled on various grounds , including failure of the prosecutor or the witnesses to appear ; failure of the detention - facility authorities to bring the defendants to the hearings ; granting of the parties’ motions for additional time to study the case - file ; and ordering further investigative activities and an expert assessment .

On DATE ORG remitted the case for additional investigation , referring to various procedural and substantive shortcomings in the pre - trial investigation . The court further ordered , without providing any reasoning , that the applicant remain in custody .

On DATE the ORG ( hereafter “ the ORG ” ) annulled this decision and remitted the case back to the trial court . The court further ordered that the applicant remain in custody , without expounding on the reasons for his detention .

On DATE ORG allowed the applicant ’s request for additional time to familiarise himself with the case - file materials and established a schedule for him to do so . It rejected the applicant ’s request to be provided with photocopies of the case - file materials .

On DATE the applicant requested that the case be transferred to another judicial panel , alleging numerous procedural irregularities in the conduct of the proceedings . In particular , he complained that the present panel had ignored the fact that his detention had been in breach of applicable law . Namely , the decision to place the applicant in custody had been taken in his absence and following his arrest he had not been brought before a judge to present his case , in contravention of the provisions of LAW ( hereafter “ the ORG ” ) . Further , contrary to the requirements of LAW ORG , he had not been provided with a copy of the decision to remand him in custody , and had not been afforded an opportunity to appeal against it . In addition , according to LAW ORG , the investigative authorities had to either present him with an indictment by DATE or release him on that date . However , the bill of indictment in the applicant ’s respect had only been drawn up on DATE . From DATE onwards the applicant had therefore been held in custody arbitrarily . The applicant also complained that ORG had refused to provide him with photocopies of various case - file materials at his request .

On DATE ORG rejected the applicant ’s request , having found that it had not been based on law . It further ruled , without providing reasoning in response to the applicant ’s arguments , that there had been no reasons to release him from custody . On DATE the court rejected a further analogous request from the applicant without expounding on his arguments concerning the lawfulness of his detention .

On DATE the applicant requested ORG to renew the time - limit for appealing against the decision of DATE to remand him in custody , alleging that he had not been apprised of this decision within the time - limit normally allowed for the appeal .

On DATE the applicant inquired with ORG about the status of the consideration of his request and on DATE re - lodged it anew .

NORP By letter of CARDINAL May PERSON , the Judge presiding over the applicant ’s case , notified him that his requests had been received and added to the case file and that they would be taken into account in adjudicating his case .

On DATE the applicant ’s advocate complained to ORG that the applicant had been detained in violation of LAW ORG and requested his release .

On DATE ORG ruled , without providing any reasoning , that there were no reasons for releasing the applicant .

DATE and DATE ORG held CARDINAL hearings in the case and on DATE convicted PERSON and the applicant of infliction of grievous bodily injuries on PERSON and theft from his apartment and sentenced the applicant to CARDINAL years’ imprisonment .

On DATE T. , the applicant ’s mother and his defence in the criminal proceedings , complained to ORG about the unlawfulness of the applicant ’s detention , the lack of a response to his relevant complaints by ORG and its refusal to provide her with photocopies of documents from the applicant ’s case file in order to submit a case to the ORG . On DATE she was informed that the ORG was not competent to consider her complaints .

On DATE ORG found that the applicant and his representatives had been protracting the consideration of the case on appeal by repeated requests to familiarise themselves with the case - file materials , and gave them DATE to finish .

On DATE the applicant ’s mother complained to the President of ORG about the refusals to provide her with photocopies of documents to be submitted to the ORG . She specified the particular pages of the case - file to be copied ( CARDINAL pages in total ) and expressed her willingness to pay for the copies made using the court ’s equipment . As an alternative , she requested permission to take the case file off the court LOC , if need be , in presence of a court employee , to order copies from a commercial copier .

On DATE the President of ORG informed the applicant ’s mother that the applicable law did not entitle the parties’ representatives to obtain photocopies of case - file documents .

On DATE PERSON , the Judge presiding over the applicant ’s case , advised him in a letter that he had been granted CARDINAL more days to study the case file , following which the case would be transferred to ORG . She noted that , according to the case - file materials , the applicant and his representatives had already had CARDINAL rounds of familiarising themselves with the case - file .

On DATE ORG quashed the judgment of DATE and remitted the case for a fresh consideration , referring primarily to procedural omissions in announcing the modified charges to the defendants .

DATE and DATE the applicant and PERSON familiarised themselves with the case - file materials . On DATE they signed affidavits specifying that they had familiarised themselves with the case - file in full .

On DATE the applicant ’s mother requested ORG for permission to use portable equipment to photocopy material from the case - file .

On DATE ORG noted in a letter that a similar request had already been granted to her and that T. had already used the copying equipment as she had wished . It further confirmed that she could continue using the copying equipment to copy material from the case file as needed .

On DATE ORG rejected the applicant ’s request to be released from custody pending trial lodged on DATE . The court found that this request had been premature , as the case had been at the preparatory stage following its remittal from ORG , and that the applicant had not been precluded from re - lodging his request during the trial .

On DATE ORG rejected a further request by the applicant to be released , having found that his detention had been in compliance with LAW ORG . It further noted , referring to the same grounds as mentioned in its decision of DATE ( the gravity of the charges , the applicant ’s prior criminal record and his absconding at the beginning of the proceedings ) , that there had been no reasons for releasing the applicant .

On DATE ORG convicted the applicant and A. of having inflicted grievous bodily injuries on B. and theft from his apartment , sentenced the applicant to DATE and CARDINAL ORG imprisonment and immediately released him from custody , as he had already served the term to which he had been sentenced .

The text of the relevant provisions of LAW of DATE ( LAW ) and LAW of DATE ( the ORG ) can be found in the judgment in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Non-pecuniary damage - award

The applicant was born in DATE and lives in GPE . She is the widow of PERSON .

On DATE , loyalist gunmen arrived at ORG , ORG , in GPE and fired a machine gun at persons outside the bar . CARDINAL men entered the bar . One sprayed the room with automatic gunfire and the other threw a bomb into the LOC . PERSON , PERSON and PERSON ( aged DATE ) were killed and CARDINAL other people received serious injuries . The applicant was at the time in hospital following the birth of her daughter and was informed of her husband ’s death by the hospital chaplain and her doctor .

The emergency services and the police were alerted to the incident within a short time . While the dead and injured were being removed from the scene , soldiers of ORG were stoned upon their arrival and had to withdraw . As a consequence of the hostile reception , police decided not to investigate the scene until first light .

On DATE , detectives and scene of crime officers attended the scene . Items were taken for forensic examination , including PERSON spent cartridge cases . A number of persons who had been in the bar on TIME were spoken to and later statements were taken from a substantial number of the customers who had been there during the incident . The Government believed that all had been spoken to but that some would only give detectives an oral account .

The bodies of the deceased were identified and post mortems held .

A claim of responsibility for the incident was subsequently made by ORG , an illegal loyalist paramilitary organisation .

The Government stated that despite the efforts of the police it was not possible to identify any particular suspect . No one had witnessed the arrival of the gunmen on TIME of the attack . While a ORG Cortina car had been seen moving away from the location after the attack no one was able to identify this vehicle as belonging to the gunmen or as being used by them as a getaway vehicle . Although conversations with customers in the bar had led to a photofit picture being compiled this did not lead to anyone being connected with the incident . The view of the investigating officer at the time was that extreme loyalist elements from the GPE area were likely to be responsible . It was believed that some persons in this category were arrested and interviewed but without any positive outcome . A report was prepared for ORG who , in the absence of any evidence linking individuals to the incident , did not direct any prosecution to be brought .

On DATE an inquest was held into the deaths of the CARDINAL deceased persons .

The applicant was first contacted by the police DATE after the murder . The investigating officer of ORG ( “ ORG ” ) who returned her husband ’s personal effects told the applicant that the police knew who was responsible for the attack but that they all had alibis that they were playing pool in LOC at the time of the murder . There was no further contact by the ORG with the applicant concerning the case at this time .

The investigation into the attack on ORG did not close and became active again in DATE , when a NORP priest Father PERSON was abducted by loyalist paramilitaries intending to use him as a hostage vis - à - vis the IRA . The police arrested a reserve police constable PERSON , who , in the course of questioning , revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents . A number of other arrests followed , including that of a police officer PERSON who was named as having been involved in the murder of a shopkeeper called PERSON in PERSON in DATE : he was convicted for that murder in DATE . The ORG stated that both PERSON and PERSON refused to name the CARDINAL loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution . The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with PERSON and PERSON . While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries , each again refused to do so unless there was something in it for themselves . The ORG stated that during the period in which PERSON was detained he was interviewed on a large number of occasions . At no time did he implicate himself or others in any offence other than the PERSON murder .

McCaughey , however , did name a ORG reserve officer PERSON as being involved in a range of incidents including the attack on ORG .

PERSON was arrested along with a woman called PERSON or PERSON . After questioning , both admitted to driving QUANTITY persons , PERSON , who was a member of ORG and CARDINAL other unknown persons on TIME of the incident . While admitting to knowing that the CARDINAL persons must have been engaged in illegal activity they claimed that they did not know the details and only after the event were able to relate the picking up of these persons to the incident at ORG . PERSON and PERSON were charged with offences under section CARDINAL of LAW ( GPE ) DATE – failure to disclose information relating to an offence . PERSON had by this date been murdered by the IRA and it was not possible to identify the other QUANTITY persons in the car . In DATE the ORG made a decision not to pursue the charges against PERSON and PERSON . This decision was based on the receipt of an opinion of senior prosecuting counsel and was based on a series of factors : the delay in bringing the case to trial , the disposal of charges against others accused of offences arising from the investigation into PERSON ’s revelations , the absence of a prospect of a custodial sentence and the impact of a judgment of PERSON cited in another case ( R v Donnelly [ DATE ] NI CARDINAL ) which was viewed as eliminating any reasonable prospect of conviction as a legal defence was available to the accused on a charge of withholding information .

In or DATE PERSON , who had been released from prison on licence in DATE , made a statement to a journalist alleging ORG and ORG ( “ GPE ” ) collusion with loyalist paramilitaries from the GPE area in DATE . This statement was published in the DATE ORG newspaper in DATE . It was obtained by ORG , a human rights non - governmental organisation in GPE ( hereinafter “ the Centre ” ) . A copy was provided by ORG , PERSON son .

PERSON statement made detailed allegations about security force collusion with loyalist paramilitaries , including the allegation that he had been told by ORG , a former reserve constable in the ORG , that PERSON ’s farmhouse owned by another ORG officer was used as a base from which to carry out loyalist attacks , including the attack on ORG in ORG . PERSON also alleged that PERSON , PERSON , PERSON [ suspect T ] and PERSON ( a part - time ORG member ) were responsible for the attack and that the getaway car was provided by PERSON and PERSON . He alleged that after the attack the group re - assembled at ORG ’s farmhouse .

NORP The statement also made links between the attack on ORG and other attacks allegedly carried out by members of the security forces , both ORG and GPE , and loyalist paramilitaries . This group used the farmhouse in GPE owned by PERSON , a ORG reservist , as a base from which to carry out attacks on NORP and nationalists . Other attacks allegedly included the murder of PERSON and PERSON at a bogus vehicle checkpoint in DATE ( see application no . CARDINAL ) : the murder of PERSON and PERSON and wounding of PERSON in their home on DATE ( see application no . CARDINAL ) ; the murder of PERSON , PERSON and PERSON and wounding of PERSON in the latter ’s home in DATE ( see application no . CARDINAL ) ; and the attack on FAC in which PERSON was seriously injured ( see application no . CARDINAL/CARDINAL ) . PERSON also linked these attacks to the GPE and GPE bombings in which CARDINAL people were killed in GPE .

On or DATE , ORG , an NORP television channel , broadcast a television programme that contained allegations of security force involvement in a number of deaths , including that of PERSON . PERSON made allegations on that programme that members of the ORG and GPE were directly involved in the attack on ORG . A ORG programme produced a similar documentary dealing with these allegations .

These allegations attracted considerable attention on both sides of the NORP border and became the subject of police investigation in both jurisdictions . The Government stated that the police investigation in GPE was focussed on determining whether PERSON ’s allegations should be assessed as sufficiently credible to require a full investigation . They obtained from the journalist an edited transcript of the interview with PERSON . While his whereabouts were unknown to the ORG , PERSON met with senior NORP police officers at FAC on DATE . A copy of his statement was provided by the PERSON to the ORG , along with a further statement made by ORG to another journalist dated DATE . The police analysed the available materials and sought to identify the personalities to be interviewed . It became apparent that some had died and that others , living abroad , could not be traced . A series of CARDINAL interviews were conducted , under cautions , DATE , of those individuals central to ORG ’s account who could be traced . No charges were preferred . The interviews followed the format of ORG ’s allegations being put to the interviewee for his or her response . The predominant response was denial of any involvement and claims that ORG had been untruthful . No admissions were made by any interviewee . Interviews were also conducted with less central personalities and with police officers involved in interviewing PERSON in DATE . The latter stated that PERSON had not mentioned the matters now being alleged .

Meetings were held regularly with ORG counterparts in GPE . The ORG co - operated also with the judicial inquiry established in GPE into the GPE and GPE bombings ( see further below ) . Amongst matters about which the ORG team provided information to the inquiry was ballistics information which linked some of the weapons used to CARDINAL incident . In DATE a substantial report was compiled by the ORG for the GPE dealing with PERSON ’s allegations . It profiled PERSON and dealt inter alia with a description of the DATE investigation into ORG and others . It concluded that the investigation would continue but that his credibility was in doubt . According to ORG , despite inquiries being conducted , PERSON ’s whereabouts could not be traced . This report was not disclosed as the investigation was continuing . An internal ORG report dated DATE concluded that it would be necessary to interview ORG before any view could be finalised in respect of the credibility of his allegations : such interview was not possible as his whereabouts were not known . The report noted the absence of any previous mention of the allegations before DATE and that much of what he said was hearsay and speculation . Inquiries made of ORG ( where he had a known address ) and the criminal intelligence service and others failed to locate PERSON . Contact was made with the PERSON and the secretariat of the Inquiry into the GPE and GPE bombings without positive result .

NORP In DATE , a further report was written for the Assistant Chief Constable ORG ) in respect of PERSON ’s allegations . This also could not be disclosed due to the ongoing investigation but the Government have stated that this focussed directly on the attack on ORG , noting that PERSON had mentioned the names of CARDINAL persons , CARDINAL of whom were known to have played a role in the attack . It noted that it was difficult to advance inquiries without interviewing PERSON and recommended that there should be an overall review of the file on the attack and that the case be examined by ORG ( “ ORG ” ) so that it could be determined whether the investigation should be reopened . This recommendation was accepted . The ORG was established in DATE , with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities . It carried out a preliminary case review culminating in a report dated DATE by Detective Inspector PERSON of ORG ( “ PSNI ” ) . His view was that the investigation if looked at alone could not be progressed but that in the context of linked cases might be worth further exploration . He suggested a referral of the case for further assessment . ORG ( “ HET ” ) director of Investigations , Detective Chief Superintendent PERSON ORG , took over personal supervision of the investigation which progressed through the first CARDINAL of CARDINAL stages of the HET process ( collection of all relevant material ; assessment of the investigations to date ; review of evidence , with intelligence and open and non - police sources , together with a meeting with the families of the victims of the attack ) . As a number of investigative opportunities were identified and to be followed up , the case was to continue to be processed by HET , which had been put in touch with PERSON by ORG The Government submitted that if any evidence of police involvement in the murders was found , ORG for GPE would then become involved . For the latest information from the Government concerning the investigation , see their most recent observations , paragraph CARDINAL below .

Meanwhile , in DATE , PERSON , owner of the bar and father of CARDINAL of the people killed in the attack , informed the applicant ’s family that he had received a summons to appear in court DATE . After contact with the authorities by the applicant ’s lawyers and the Centre , it appeared that in or about DATE PERSON , a ORG reservist and PERSON , housekeeper at ORG ’s farm , had been charged with withholding information in relation to the murders . PERSON had been the person identified by PERSON as the main source of his information about security force collusion . The applicant and her family had never been informed about these proceedings .

By letters dated DATE and DATE , ORG informed the ORG that the allegations made by ORG and shown on the ORG programme were under investigation by the ORG .

On DATE , the ORG was informed by Chief PERSON , on behalf of the Chief Constable , that charges against CARDINAL persons connected with the attack had been dropped . This followed a meeting on DATE , when relatives of PERSON and others killed at ORG met with Chief PERSON of the ORG , who had been the investigating officer in that incident and also for the murders of the Reavey family . He advised the relatives and a member of the ORG that as a result of his investigations he believed that there had been collusion between the loyalist paramilitaries and members of the security forces ( ORG and GPE ) and that the gang that had carried out the attack included security force personnel . While he was sure of the identities of the gang members , CARDINAL of whom he named as PERSON , a well - known loyalist extremist , he considered however that there had been insufficient evidence available to convict ; he dismissed suggestions of any conspiracy or any policy to block from above and gave his view that the charges against PERSON and PERSON had been thrown out for lack of evidence . He commented that some of those involved were now dead and one was very old , in DATE .

By letter dated DATE , ORG informed the ORG that the police were not investigating the attacks on the bar and that the current police inquiry centred on establishing the veracity of the disclosures made by PERSON and whether or not any further investigation was justified . The family would be informed if a further investigation was found to be warranted .

On DATE , members of the Centre met with PERSON in GPE . He made links between the attack on ORG and the other incidents above . He named PERSON , PERSON , PERSON and PERSON ( a part - time ORG member , allegedly working with the army and ORG ) as carrying out the attack on the bar and considered that the security forces would have known about it . He mentioned that PERSON had been shot dead in a later incident .

During this period the LOC was in contact with the police ( which had changed name from the ORG to ORG “ GPE ” ) seeking to have questions answered about the original investigations into the various incidents . On DATE , a meeting was held between members of the ORG and Detective Inspector PERSON . Questions were put by and on behalf of the families concerning the investigations into the incidents . A request was made by the PERSON family to have access to the investigation file .

The applicant ’s representatives made further requests for access to the police investigation file , on CARDINAL DATE to the ORG and the Secretary of ORG and on DATE to the ORG .

On DATE , the ORG wrote to the applicant ’s solicitors :

“ ( i ) The investigation into the allegations made by PERSON has been advanced as far as possible at this stage DATE this investigation focussed on establishing the veracity of allegations made by PERSON and whether or not there is any justification for further investigation .

( ii ) There are a number of discrepancies contained within the allegations made by PERSON and he has not made himself available to ORG detectives for further interview in an effort to clarify these discrepancies . He is presently living outside the jurisdiction .

( iii ) As a consequence of an investigation in DATE , former GPE Constable PERSON and civilian PERSON ( PERSON ) PERSON were interviewed and admitted that they had conveyed CARDINAL other persons , including PERSON ( now deceased ) from the area ... QUANTITY from ORG Licensed Premises to PERSON ’s farm . Neither person was able to identify the other CARDINAL persons collected . The allegations made by PERSON in relation to this incident are similar to the facts disclosed by ORG and PERSON during interview and would have been in the public domain at the time of the court case . The names of PERSON , PERSON and PERSON have been given by PERSON as also involved DATE these personalities would have been known to PERSON .

( iv ) Much of what PERSON alleged is based on hearsay allegedly having been told to him by other police officers , including the former ORG and PERSON . Those persons have been re - interviewed and deny all PERSON ’s allegations , other than what they admitted during the DATE investigation . As previously stated , there are a number of allegations made by PERSON which detectives would like to clarify with him but because he is outside the jurisdiction , this has not been possible to date . ”

On DATE , a further meeting was held with Detective Chief Inspector PERSON attended by members of the ORG and the PERSON family as well as relatives of victims of other incidents , in which questions were asked about the investigation and prosecution inter alia in the PERSON case .

On DATE , the applicant ’s solicitors requested the Secretary of ORG for GPE to conduct an LAW investigation into the allegations made by PERSON , in particular submitting that it was not compatible with LAW that it was the ORG that had conducted the investigation into the allegations implicating ORG officers . They also submitted that an investigation was required to be prompt , public and accessible , that the relatives be kept fully informed of the course of the investigation and involved to the fullest extent and that they should receive full disclosure of the documents relating to the investigation .

On DATE , the ORG requested on behalf of the families involved , ballistics information about the guns used in the various attacks . On DATE , the ORG replied that such information was not given out as it could prejudice the trial of any person charged in the future but that if an individual family could show how they might be prejudiced by non - disclosure the Chief Constable would give the matter full consideration .

On DATE , the applicant ’s solicitors wrote to the ORG requesting inter alia copies of the admissions made by PERSON and PERSON and an explanation as to why no prosecution had been brought . On DATE , the ORG stated that the fact that a custodial sentence was not likely was not the only factor in the decision not to prosecute , while on CARDINAL DATE , the ORG referred them to the ORG regarding the statements and on CARDINAL DATE refused to provide them .

In DATE and DATE , the ORG had meetings with the Chief Constable of the ORG , aimed at persuading him to recommence investigations in these cases and to discuss a way forward . No commitment was made , although the Chief Constable expressed the view that if an investigation was carried out it would be conducted from within the ORG .

Repeated requests for information concerning the investigation and for access to the file met with the response that the matter was under consideration by the ORG ( letters of DATE and CARDINAL DATE ) .

On or DATE , the PERSON family applied for permission to apply for judicial review inter alia for a declaration that there had been no adequate investigation into the death of the applicant ’s husband as required by LAW and requiring that the Secretary of ORG provide for an LAW investigation . Leave was granted by ORG on DATE . The proceedings were adjourned pending the outcome of another case

On DATE , ORG held in the case of ORG v. the Secretary of ORG for GPE that a complainant alleging a procedural breach of LAW could not bring a complaint under LAW DATE unless the death in question occurred on or after DATE , when that LAW came into force . This overturned the decision of ORG on DATE to the effect that the obligation to provide an effective investigation was a continuing one .

On DATE , following an application by the Secretary of ORG to set aside the grant of leave in the applicant ’s case , the PERSON family withdrew their application for judicial review .

Meanwhile in DATE the Report of ORG into the GPE and GPE bombings ( known as ORG ) was given to the Taoiseach of GPE . The report was made public on DATE . ORG had taken into account interviews by the NORP police with PERSON in DATE ( concerning allegations of offences in GPE ) , a memorandum of a meeting between an organisation known as the Justice for the Forgotten and PERSON in DATE , a transcript of audiotapes sent by ORG to ORG for the Forgotten in DATE and the inquiry ’s own interview with PERSON on DATE and DATE . The ORG listed sectarian attacks alleged to have a link with the “ GPE group ” of known paramilitaries and members of the ORG and GPE , including the murder of the applicant ’s husband . It noted :

“ PERSON allegations have been subject of inquiries by both the ORG and [ the NORP police ] . These inquiries have relied on shared information , for the most part obtained by the ORG . Despite this , the ORG and [ the NORP police ] have arrived at markedly different conclusions regarding his credibility as a witness . ”

The ORG referred to a report sent by the ORG on DATE to the NORP team investigating PERSON ’s allegations ( see also page CARDINAL ) . The ORG report concluded that as PERSON was a convicted murderer his credibility had to be in doubt and that the results of research did not encourage any belief that he was now being genuine . ORG did not find the ORG ’s reasons sufficient to dismiss ORG ’s claims and it also noted a number of errors and discrepancies : for example , the ORG claimed that PERSON was dead whereas PERSON enquiries revealed that she was still alive and the information given did not take into account Special Branch extracts , which indicated that PERSON knew CARDINAL named loyalists who came to the farm , of whom CARDINAL appeared in PERSON ’s allegations . Nor had the ORG paid sufficient attention to the evidence which supported ORG ’s allegations . The PERSON officers , in contrast to the view formed by the ORG , found PERSON “ came across as an intelligent and discerning man who is a very convincing witness ” and that he was “ highly credible and had very comprehensive details about the crimes he purports to have knowledge of . ” The ORG concluded that :

“ ... in relation to the attacks on ORG ( ORG ) .... PERSON and PERSON , the Reavey family and the ORG family , information was given by CARDINAL or more of the interviewees which confirmed PERSON ’s account of who was responsible in each case . ”

The ORG mentioned that the PERSON had , with the assistance of the ORG , interviewed PERSON , PERSON , PERSON , PERSON and others mentioned by PERSON ; they denied his allegations . While the PERSON had doubts as to their credibility , no further evidence was forthcoming to implicate them in the incidents , beyond any statements already made in other proceedings . The ORG also set out ballistics evidence provided by the ORG , indicating that there was a chain in gun use between the attacks on ORG , the shooting of the Reavey family , the murder of PERSON and PERSON and the attack on FAC .

The ORG stated that :

“ All this information leads strongly to the conclusion that there were CARDINAL or more groups operating in GPE involving not only loyalist paramilitaries but also members of the ORG and of the GPE , and using weapons obtained from the central quartermaster to whom the guns were returned after use . ... ”

ORG was also commissioned to investigate the bombing of PERSON ’s NORP in GPE in GPE which was bombed on DATE , the same date as the gun and bomb attack on ORG , ORG , in which PERSON was killed and which ORG had found to be linked .

In DATE the Commission issued an interim report . It found a number of factors suggested that the CARDINAL incidents were linked . Both attacks were claimed by the Red Hand Commandos . The evidence before it was not conclusive but suggested that the GPE bombing was carried out by a group of loyalist subversives associated with ORG ( “ ORG ” ) with the assistance of ORG members from the FAC area of GPE . As regarded the ORG investigation , it noted that CARDINAL persons contacted by the ORG stated that they had not given statements to the ORG and that it seemed that no house - to - house inquiries had been made . According to the owner of the bar , however , the investigating officer did keep in touch with him as the investigation proceeded and he was satisfied that the officer was genuinely trying to identify and arrest those responsible . It was also noted that on DATE the ORG made a public appeal for anyone with information about the ORG attack to come forward , with particular reference to CARDINAL cars that had been seen in the area at the time . The information about the cars had been forwarded to the NORP police .

The report considered the further inquiries which followed in DATE and quoted parts of the statements given by PERSON admitting involvement in an attack on LOC and concerning a possible role in the ORG attack , when together with PERSON , he drove PERSON O’Connell and CARDINAL other men on that night . Part of the statement of PERSON was also quoted . The report also quoted extracts from police Daily Record Sheets which indicated that PERSON incriminated PERSON and [ Suspect T ] in the ORG attack while PERSON stated that O’Connell and some ‘ GPE boys’ , one of whom was named , as a guess , as PERSON , were involved . Noting the lack of information about what had happened on DATE when the ORG had said that the charges against ORG and PERSON were marked “ no prosecution ” and about the judgment of PERSON that was relied on ( see page CARDINAL above ) , it stated that “ a perception persisted that the case against PERSON and PERSON was managed or dropped in order to reduce the culpability of the latter when he came to be sentenced for his role in the GPE attack ” . It also referred to a letter sent by ORG , assessing ORG ’s admissions as going beyond failure to provide information to giving actual assistance to the perpetrators . It did not consider that correspondence from ORG , which set out reasons for not pursuing more serious charges against the CARDINAL accused and clarified that the ORG had been aware at the time of ORG judgment , could be taken as a complete answer to the allegations of managing the matter to lessen ORG ’s perceived culpability in the GPE attack .

It was stated that before his trial for involvement in the attack on ORG , on DATE , ORG had been sentenced to CARDINAL years’ imprisonment , suspended for DATE , for his involvement in the attack on GPE ( possession of an explosive substance and firearms and ammunition with intent to endanger life ) .

On DATE , the applicant commenced proceedings against the ORG , challenging various aspects of his decision - making in connection with the decision not to proceed with the case against PERSON and PERSON , in particular seeking orders to quash any decisions not to prosecute , offer evidence or enter a nolle prosequi and to quash his refusal to provide full and comprehensive reasons for not continuing the prosecution and his refusal to make available copies of their admissions The applicant also challenged the failure of the ORG to exercise his statutory power under LAW ) of ORG ( GPE ) Order DATE to conduct further investigations into the death of PERSON .

In an affidavit from a senior officer of ORG dated DATE , it was stated that due to the considerable vintage of the prosecutions in question the full facts relating to the mechanism whereby the prosecutions were actually terminated could not be established . It was known that the opinion of senior prosecuting counsel was considered before a discontinuance direction of DATE was made . The effective decision maker had been the then ORG Sir PERSON who had retired DATE before . The senior Assistant Director involved in the decision , and author of the discontinuance direction , had since died .

By decision dated DATE , ORG judge rejected the applicant ’s application . He found that correspondence with the Attorney General in DATE established that the Attorney General had not issued a nolle prosequi . It appeared that a decision was taken by the ORG not to offer evidence against the accused at trial , which practice at the time was called , misleadingly , a nolle prosequi . Noting that the offence occurred in DATE and the charges dropped in DATE and that it had been clear throughout DATE when the family and the ORG had been in contact with the police that no further action on this matter would be taken , he commented that the passage of time until bringing the judicial review application in DATE was very considerable . However , if he was wrong on the question of delay , the application still failed on the merits . The application for disclosure of files failed on the procedural ground that it was brought against the ORG , not the Chief Constable who had control of the said files . The decision of the ORG not to use his statutory power to direct a police investigation was a matter of discretion and the decision could not be said to be irrational or unlawful in the circumstances . As regarded reasons , the ORG had departed from his practice and reasons had been given by his officer in affidavit . In any event , the extent of the reasoning was a matter for the ORG and the court could not make an order to require the decision maker to give sufficient reasons to justify the decision not to prosecute . In relation to the discontinuance of the prosecution , the judge noted that the reasons included delay in bringing the case to trial , the perceived unlikelihood of a custodial sentence and " crucially the impact of a judgment in another case which was judged to eliminate any reasonable prospect of a conviction " which was a reference to the decision of ORG discussed in R v Donnelly [ DATE ] NI CARDINAL . He considered that it was evident that the decision was taken at the highest level and not lightly . At this long remove , with the death and retirement of the principal actors , it was not possible to establish that the decision , which had a rational basis was ORG irrational or unlawful . He emphasised that a legal challenge of this kind directly affected third parties , namely the CARDINAL defendants against whom the prosecution was dropped , and that it would be intrinsically unfair to reach a decision adverse to their position without giving them an opportunity to be heard - neither had been given notice of the application DATE and such a decision might also , potentially , be in breach of their rights or of the presumption of innocence . He noted that the purported entry of a nolle prosequi by the prosecution was admitted to be wrong in principle and law , as only the Attorney General could do such . The court record and documentation tended to suggest that the court was told that there was a nolle prosequi . While it would have been open to the prosecution merely to tender no evidence , this could have led to the direction of an acquittal ; it was less clear whether an acquittal should have followed as a matter of law . He declined to give declaratory relief as to the invalid nature of the purported nolle prosequi due to the universal acceptance that this had been inappropriate , the fact that this practice had ceased , the applicant ’s delay and the absence of the accused as parties to the application .