CASE OF I.J.L., G.M.R. AND A.K.P. v. THE UNITED KINGDOM

Violation of Art. 6-1 as regards the use made at the applicants' trial of transcripts of their interviews;No violation of Art. 6-1 as regards alleged improper collusion;No violation of Art. 6-1 as regards alleged non-disclosure by the prosecution;No violation of Art. 6-1 as regards the length of the proceedings;No separate issue under Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - reserved

NORP In early CARDINAL Guinness was competing with another public company , ORG ( “ GPE ) , to take over a third public company , ORG ( “ Distillers ” ) . The takeover battle resulted in victory for ORG . ORG 's offer to the ORG ' shareholders , like ORG , included a substantial share exchange element and , accordingly , the respective prices at which ORG and GPE shares were quoted on the stock exchange was a critical factor for both sides . During the course of the bid the ORG share price rose dramatically , but once the bid had been declared unconditional it fell significantly . According to the third applicant the share price rose in line with the range of the company 's market sector and DATE was a consequence of normal market forces .

There were allegations and rumours of misconduct during the bid to the effect that the substantial increase in the quoted ORG share price during the bid had been achieved as a result of an unlawful share - support operation . This involved certain persons ( “ supporters ” ) purchasing ORG shares in order to maintain or inflate its quoted share price . It was alleged that supporters were offered secret indemnities against any losses they might incur and , in some cases , also large success fees if the ORG 's bid was successful . Such inducements , if true , would have been unlawful ( CARDINAL ) because they were not disclosed to the market under LAW on ORG and ( CARDINAL ) because they were paid out of ORG ' own monies in breach of LAW DATE ( the “ DATE Act ” ) , which prohibits a company from giving financial assistance for the purpose of the acquisition of its own shares .

It was further alleged that supporters who had purchased shares under the unlawful share - support operation were indemnified and rewarded , and that some of those who had helped find supporters were rewarded by the payment of large fees which had also come from ORG funds . It was rumoured that in most cases payments were made using false invoices which concealed the fact that payment was being made in respect of the supporters ' or other recipients ' participation in the unlawful share - support operation .

These allegations and rumours led the Secretary of ORG on CARDINAL DATE to appoint inspectors pursuant to sections CARDINAL and CARDINAL of the DATE Act to inquire into the acquisition of ORG and to investigate the affairs of ORG .

NORP The investigation began on DATE . On DATE the inspectors began taking oral evidence . Mr GPE , a director of the merchant bank advisers to Guinness , was the first witness .

On DATE the inspectors requested the second applicant to provide documents relating to his company 's dealings in the shares of Guinness during the takeover bid . The second applicant 's solicitor provided the materials on DATE , which indicated that his company had been approached by the third applicant about supporting the Guinness takeover bid .

On DATE the inspectors informed ORG ( ORG ) of certain matters and , on CARDINAL DATE , a note from the ORG solicitor recorded that there was concrete evidence of criminal offences having been committed . On DATE the ORG contacted Mr PERSON of ORG office ( ORG ) . It was decided that the proper thing to do was to permit the inspectors to carry on with their inquiry and to pass the transcripts on to ORG ( ORG ) which had come into being in DATE . All the applicants maintain that they were unaware of these arrangements when they were interviewed by the inspectors .

On DATE the Chairman of ORG , PERSON , was dismissed from the company .

On DATE the Secretary of ORG required the inspectors to inform him of any matters coming to their knowledge as a result of their investigation pursuant to section CARDINAL(CARDINALA ) of the CARDINAL Act . Thereafter the inspectors passed on to the Secretary of ORG transcripts of their hearings and other documentary material which came into their possession . The applicants point to official documentation which in their view confirms the collusion which began to take shape .

On DATE a meeting was held attended by the inspectors , the solicitor and other officials of the ORG , Mr Wood and a representative from the ORG . Among other matters , potential accused were identified , possible charges were discussed and it was stated that a decision had to be made as to when to start a criminal investigation . All concerned agreed on the need to work closely together in preparing the way for bringing charges as soon as possible . The inspectors indicated their readiness to cooperate , although they reserved the right to conduct their investigations as they thought right . The applicants maintain that they were never notified of these arrangements during their respective interviews .

On DATE Mr Wood , who had been appointed head of legal services at the ORG , appointed a team of counsel to advise on the criminal aspects of the investigation . Transcripts and documents from the inspectors were passed on to the team after receipt and consideration by the ORG . The applicants state that it is a matter of fact that all the transcripts and documents which existed at that date were passed on to the team of prosecution counsel as well as all material arising after DATE .

The interviews conducted by the inspectors were surrounded by a constant wave of media publicity .

The first applicant was interviewed by the inspectors on CARDINAL occasions : on DATE , DATE , DATE , DATE and DATE . The interviews related to his involvement in advising ORG on the bid for ORG and in identifying investors prepared to support the bid by purchasing ORG shares .

The second applicant was interviewed by the inspectors on CARDINAL occasions : on DATE and DATE . The interviews focused on the way in which he was drawn into the support operation for the ORG bid and on the arrangements for the payment of the success fee to his company .

The third applicant was interviewed by the inspectors on DATE . He was accompanied by his solicitor throughout these interviews during which he was pressed to answer a number of specific questions . He maintains that he sought either in person or through his solicitor to decline to answer them but was advised throughout of the consequences of his failure to respond . He was further interviewed by the inspectors on CARDINAL DATE . On DATE the third applicant 's solicitors confirmed the transcripts of the evidence which he had given , subject to a small amendment .

Having informed the inspectors of the particulars of his travel plans and having confirmed his availability through his solicitors or in person should it be required , the third applicant left for GPE , where he arrived on DATE . He was immediately arrested and detained pursuant to an extradition request by GPE to GPE . He returned voluntarily to GPE on DATE .

During DATE of DATE the police were formally asked by the ORG 's office to carry out a criminal investigation . The transcripts and documents obtained as a result of the inspectors ' interviews were then passed on to the police .

On CARDINAL DATE Mr PERSON was charged with numerous offences relating to the illegal share - support operation . The applicants state that these were holding charges and did not relate to the illegal share - support operation . The charges against Mr PERSON related to the alleged destruction of records and documents belonging to ORG which were created during his time as chief executive of the company .

DATE the ORG instructed the police to carry out an investigation into the wider aspects of the ORG takeover . The applicants maintain that an informal police investigation against them was already under way as from CARDINAL DATE , having regard to the well - documented cooperation between the inspectors , the ORG and the Deputy ORG based on the transcripts of the interviews conducted by the inspectors .

On DATE the first applicant was charged with CARDINAL offences relating to invoices he had caused to be submitted for advice he had given during the bid . These invoices had been submitted after the successful outcome of the ORG bid .

On DATE the second applicant was charged with CARDINAL offences relating to invoices which CARDINAL companies , being wholly owned subsidiaries of the company of which the second applicant was director , had submitted for the loss on the sale of Guinness shares and for the success fee paid after the successful outcome of the Guinness bid .

After his return from GPE , the third applicant was charged with CARDINAL offences relating to CARDINAL invoices and the success fees which had been charged to ORG following its takeover of ORG .

NORP In total , CARDINAL persons were charged with offences in connection with the ORG takeover . All CARDINAL defendants together were arraigned before ORG on DATE .

In view of the large number of counsel and the number of defendants , CARDINAL separate trials were subsequently ordered by the trial judge in ORG on DATE . The applicants and PERSON were to be tried together in a first set of proceedings and the remaining CARDINAL codefendants in a separate set of proceedings . The third applicant 's application to be tried with the latter category of defendants was refused .

From DATE to CARDINAL DATE the court held a voir dire ( submissions on a point of law in the absence of the jury ) following the application of the third applicant to rule the ORG transcripts inadmissible . He argued , principally , that the statements obtained during CARDINAL interviews before the inspectors should be excluded

( i ) pursuant to section DATE of ORG PACE ) on the basis that they had been obtained by oppression or in circumstances which were likely to render them unreliable ;

( ii ) pursuant to section CARDINAL of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained .

In a ruling given on DATE , the trial judge ( Mr Justice PERSON ) held that the transcripts were admissible . He stated that it was common ground that the interviews were capable of being “ confessions ” as defined in section CARDINAL(CARDINAL ) of PACE . He found that , as a matter of construction of the DATE Act , inspectors could ask witnesses questions that tended to incriminate them , that the witnesses were under a duty to answer such questions and the answers were admissible in criminal proceedings . He rejected the third applicant 's assertion that the inspectors should have given a warning against self - incrimination . He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time .

From DATE the court held a further voir dire following the application of PERSON to rule inadmissible the ORG transcripts concerning the eighth and ninth interviews with him on the basis that they should be excluded either as unreliable under section DATE of PACE or pursuant to section CARDINAL of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained . ORG was placed on PERSON alleged ill - health at the time and on the fact that the CARDINAL interviews in question had taken place after he had been charged .

In his ruling of CARDINAL DATE Mr Justice PERSON rejected the defence argument as to Mr PERSON ' medical condition . He did , however , exercise his discretion pursuant to section DATE to exclude the evidence from the CARDINAL above - mentioned interviews which had taken place after Mr PERSON had been charged on the grounds that the latter 's attendance could not be said to have been voluntary . In his view , moreover , it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process .

The applicants were tried together with PERSON . The trial opened on DATE and involved DATE of evidence , DATE of speeches by counsel and a DATE summing - up to the jury by the trial judge .

In the course of the trial , PERSON was the only accused to give evidence . According to the applicants , the testimony of PERSON was irreconcilable with the evidence which each had given to the inspectors and prejudicial to their case that their involvement in the share - support operation had not been dishonest . The third applicant maintains that his participation in the operation was in line with City practice on takeovers , but that he was unable to obtain witnesses who would be prepared to testify to this for fear of repercussions engendered by the criminal proceedings . He claims that at the time of his trial the prosecution had in its possession extensive material arising out of other investigations into takeover bids which confirmed that share - support operations involving indemnities to the purchasers of shares were regarded as an acceptable practice in the City .

A large part of the evidence against the applicants consisted of evidence gathered by the ORG inspectors . In the course of the proceedings , evidence was further taken from the former finance director of ORG , PERSON , who had been granted immunity from prosecution . The prosecution also referred to the statements made by the applicants in the course of their interviews by the ORG inspectors . In the third applicant 's submission , the prosecution had acknowledged at the voir dire that this was in fact the only evidence against him .

The transcripts of the interviews were read out to the jury by the prosecution over a DATE period during the trial ( DATE to CARDINAL ) . They were used in order to establish the state of the applicants ' knowledge .

In his summing - up to the jury , the judge referred , inter alia , to the answers which the applicants had given to the ORG inspectors .

On DATE the first applicant was convicted of CARDINAL counts of conspiracy , CARDINAL counts of false accounting and CARDINAL count of theft . He was fined MONEY ( GBP ) , with a total of DATE imprisonment in default . He was also ordered to contribute GBP CARDINAL towards the prosecution 's costs .

The second applicant was convicted of CARDINAL count of conspiracy , CARDINAL counts of false accounting and CARDINAL count of theft . He received an overall prison sentence of DATE and was fined GBP CARDINAL , with a DATE consecutive prison sentence in default . He was also ordered to contribute GBP CARDINAL towards the prosecution 's costs .

The third applicant was convicted of CARDINAL counts of false accounting and CARDINAL counts of theft . He received an overall prison sentence of DATE . He was also ordered to contribute GBP CARDINAL towards the prosecution 's costs .

Mr PERSON was convicted of CARDINAL counts in respect of conspiracy , false accounting and theft . He received an overall prison sentence of DATE .

In the second set of proceedings concerning the other co - defendants , further challenge was made to the admissibility of the transcripts of the interviews on the ground , inter alia , that there was an abuse of process in that there was misconduct by the inspectors and/or the prosecuting authorities in the use of the inspectors ' statutory powers for the purpose of constructing a criminal case . In particular , it was alleged by CARDINAL of the co - defendants , Mr GPE , that there was a deliberate delay in charging the accused so that the inspectors could use their powers to obtain confessions .

In a ruling given on DATE , Mr Justice PERSON found that there was no prima facie case of abuse by either the inspectors or the prosecuting authorities . He had heard evidence from both the inspectors and the police officer in charge of the criminal investigation . In a ruling given on DATE , the judge rejected the application for a stay , finding that there had been no abuse of the criminal process in the questioning of the defendants or in the passing of Mr PERSON 's depositions to the inspectors to the prosecuting authorities or in their conduct of the prosecution . He saw nothing improper or sinister in the decision by Mr Wood not to involve the police until DATE . He concluded that proper use had been made of the statutory powers . The judge also refused an application to exclude the evidence of the interviews under section CARDINAL of PACE as constituting evidence which had such an adverse effect on the fairness of the proceedings that the court ought not to admit it .

On appeal , ORG in a judgment dated DATE ( NORP v. GPE ) upheld the trial judge 's ruling as to the admissibility of the interviews before the inspectors . On DATE leave to appeal was refused by ORG .

All CARDINAL applicants applied for leave to appeal against conviction and sentence . However , on DATE the first applicant withdrew his appeal on grounds of his precarious state of health . On DATE the first applicant 's knighthood was annulled .

The second and third applicants , like PERSON , were granted leave to appeal against conviction . Following a hearing , ORG gave its judgment on DATE . It held , inter alia , that while there were some blemishes and infelicities in the judge 's summing - up , it was in the main a masterly exposition . As regards the admissibility of the transcripts , it was held that the question had been decided , as far as it was concerned , by the decision given by another division of ORG in the case of NORP v. GPE , which had held that such statements were admissible .

Mr PERSON ' appeal was rejected on all but CARDINAL count . ORG found that the judge had erred in his direction on CARDINAL count and quashed that conviction . It reduced his sentence to DATE imprisonment .

The second applicant 's appeal resulted in a moderation of his sentence in that the period to be served in default of payment of his fine was reduced and the time within which he was to pay the fine was extended .

The third applicant 's appeal resulted in a reduction of his sentence to DATE imprisonment .

The orders for costs made against the second and third applicants were reduced to GBP CARDINAL each . A similar order was made by ORG in favour of the first applicant .

On DATE ORG ordered that the third applicant be expelled from ORG .

On DATE PERSON lodged an application ( no . CARDINAL ) with ORG .

On DATE the applicants became aware for the first time of the existence of part of the material obtained by and available to the prosecution prior to their trial and which had not been previously disclosed . This evidence had been disclosed by the prosecution to the defendants in the second ORG trial on DATE . They maintained that this material showed that share - support operations had been undertaken in relation to a number of other takeovers and had been considered to be an acceptable practice by the professional advisers involved in them . The material also included the outcome of an investigation undertaken on the initiative of the ORG and concluded on DATE by ORG ( a former disciplinary body ) . ORG had taken the view that share - support operations were an acceptable City practice .

The applicants sought disclosure of this material from the prosecuting authorities . In view of their failure to do so , they requested the Home Secretary to refer the case back to ORG pursuant to section CARDINAL(CARDINAL)(a ) of LAW DATE . On DATE the Home Secretary referred the whole of the applicants ' and PERSON case to ORG . ORG stayed consideration of the admissibility of PERSON application pending the outcome of the referral proceedings . After the case was referred , the prosecution disclosed the remainder of the material . The hearing before ORG took place DATE .

On DATE , ORG rejected the first applicant 's appeal on all but CARDINAL count , quashing his conviction on CARDINAL of the conspiracy counts . The appeals by the second and third applicants and PERSON were dismissed .

In its judgment of CARDINAL DATE , ORG rejected the argument that the use at trial of answers given to the ORG inspectors automatically rendered the criminal proceedings unfair . It pointed out that ORG had expressly and unambiguously provided in the DATE Act that answers given to ORG inspectors may be admitted in evidence in criminal proceedings even though such admittance might override the privilege against self - incrimination .

In its judgment the court noted that the interviews with each of the accused “ formed a significant part of the prosecution case ” .

With reference to the allegation that it was unfair that those interviewed by ORG inspectors should be treated less favourably than those interviewed by the police under PACE , the court noted as follows :

“ ... the unravelling of complex and devious transactions in those fields is particularly difficult and those who enjoy the immunities and privileges afforded by LAW and the Companies Acts must accept the need for a regime of stringent scrutiny especially where fraud is suspected ... ”

In relation to the argument that the difference between LAW and LAW regimes was anomalous , the prosecution contended that :

“ ... the explanation lies in the very different regime of interviews by ORG inspectors compared with that of interviews either by police or the ORG [ ORG ] . ORG inspectors are investigators ; unlike the police or ORG they are not prosecutors or potential prosecutors . Here , typically , the CARDINAL inspectors were a Queen 's Counsel and a senior accountant . They are bound to act fairly , and to give anyone they propose to condemn or criticise a fair opportunity to answer what is alleged against them . ... Usually , the interviewee will be represented by lawyers and he may be informed in advance of the points to be raised . ”

ORG held on this point :

“ Whether or not these matters constitute a sufficient explanation and whether or not the distinction is ' an anomaly ' , the fact remains that the distinction exists because ORG has created it . When enacting section CARDINAL(CARDINAL ) of LAW , it would have been open to ORG to have amended section PERSON ) of LAW and other similar provisions so as to bring them into line with section CARDINAL(CARDINAL ) . Their decision not to do so was no oversight . This is clear from the speech of PERSON during the passage of the DATE Bill ... He said the Government had deliberately not followed in that PERSON the precedent in the Companies legislation on this very issue ... ORG has made its intentions quite clear in section PERSON ) . It can not be right for a judge to exercise his discretion to exclude evidence of interviews simply on the ground that ORG ought not to have countenanced the possibility of self - incrimination ... However , ... a judge can , in our view , as part of the background setting , have in mind that under that [ statutory ] regime there is an obligation to answer the inspectors ' questions on pain of sanctions . ”

The court also rejected an allegation that there had been an abuse of process in that the ORG inspectors were used wrongly as “ evidence gatherers ” for the prosecution or that there had been improper or unfair “ collusion ” , as follows :

“ We have carefully considered the effect of the events of DATE in the light of all the documents . We conclude that to allow the inspectors to continue their inquiry and to bring in the police only in DATE was a proper course subject to CARDINAL essentials :

( CARDINAL ) That the inspectors were left to conduct their inquiries and interviews independently without instruction , briefing or prompting by the prosecuting authority . We are quite satisfied that the inspectors themselves made that clear and abided by it . Counsel also laid down those ground rules correctly and they were observed ...

( CARDINAL ) That the interviews were conducted fairly and unobjectionably . It was not suggested to the trial judge or before us that the inspectors could be criticised on this score . These were carefully structured sessions of proper length in suitable conditions . The appellants , experienced business men of high intelligence , were each represented either by counsel ( usually ORG ) or a senior solicitor . The questions were put scrupulously fairly and the Code laid down in the PERSON case ... was observed . ”

The court also rejected the allegation that non - disclosure prior to the trial of the material alleged to indicate abuse caused any unfairness to the applicants . It further rejected the second applicant 's complaint that there had been an improper delay in charging him . The court held :

“ ... it has been argued that the documents which we have seen , or at least some of them , should have been disclosed at the trial . The [ applicants ] claim that they , by counsel , raised an issue as to the delay in bringing in the police ; that being so , disclosure should have been made . Instead a ORG [ ORG ] certificate ... was put before the judge . Again complaint is made that the judge did not look behind the ORG certificate and examine the documents himself ...

... Upon a bare assertion that the police should have been brought in earlier , we do not consider that the [ applicants ] were entitled at trial to the cornucopia of privileged documents before us . The ORG certificate fairly and accurately summarised the principal documents to which it referred and we consider it was properly made . No party invited the judge to go behind it and examine the documents himself . At that time ORG had not laid down any guidelines requiring the judge to do so .

In any event , having seen all the documents , we have ... reached the conclusion that there was no abuse of process or improper collusion . ”

ORG rejected the applicants ' complaint on the non - disclosure of certain material by the prosecution . It concluded on this point :

“ In the case of all CARDINAL appellants , whilst we have held that the undisclosed material should have been disclosed , we are satisfied that the procedural irregularity which occurred as a result of non - disclosure in fact occasioned no prejudice to them . The verdicts of the jury would inevitably have been the same had disclosure been made . ”

ORG subsequently refused to certify that the case involved a point of public importance and denied leave to appeal to ORG . Following this decision no further avenue of appeal was open to the applicants .

By CARDINAL of LAW DATE ( the “ LAW ” ) the Secretary of ORG may appoint CARDINAL or more competent inspectors to investigate the affairs of a company and to report on them in such manner as he may direct . The Secretary of ORG may make such appointment if it appears that there are circumstances suggesting :

“ ( a ) that the ORG 's affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person , or otherwise for a fraudulent or unlawful purpose , or in a manner which is unfairly prejudicial to some part of its members , or

( b ) that any actual or proposed act or omission of the company ( including an act or omission on its behalf ) is or would be so prejudicial , or that the company was formed for any fraudulent or unlawful purpose , or

( c ) that persons concerned with the company 's formation or the management of its affairs have in connection therewith been guilty of fraud , misfeasance or other misconduct towards it or towards its members , or

( d ) that the company 's members have not been given all the information with respect to its affairs which they might reasonably expect . ” ( section CARDINAL(CARDINAL ) )

NORP The Secretary of ORG is also empowered to appoint inspectors to

“ ... investigate and report on the membership of any company , and otherwise with respect to the company , for the purpose of determining the true persons who are or have been financially interested in the success or failure ( real or apparent ) of the company or able to control or materially to influence its policy . ” ( section CARDINAL(CARDINAL ) )

NORP The function of inspectors is an inquisitorial and not a judicial function . It has been summarised in re ORG ( [ DATE ] Chancery Reports CARDINAL , per ORG , p. CARDINAL ) , as follows :

“ The inspectors ' function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action ; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates . ”

DATE . Section CARDINAL of the CARDINAL Act provides :

“ ( CARDINAL ) When inspectors are appointed under section CARDINAL or CARDINAL , it is the duty of all officers and agents of the company ...

( a ) to produce to the inspectors all books and documents of or relating to the company ... which are in their custody or power ,

( b ) to attend before the inspectors when required to do so , and

( c ) otherwise to give the inspectors all assistance in connection with the investigation which they are reasonably able to give ...

( CARDINAL ) An inspector may examine on oath the officers and agents of the company or other body corporate , and any such person as is mentioned in subsection ( CARDINAL ) , in relation to the affairs of the company or other body , and may administer an oath accordingly ...

( CARDINAL ) An answer given by a person to a question put to him in exercise of powers conferred by this section ( whether it has effect in relation to an investigation under any of sections CARDINAL to CARDINAL , or as applied by any other section in this Part ) may be used in evidence against him . ”

Section CARDINAL of the LAW provides :

“ ( CARDINAL ) When inspectors are appointed under section CARDINAL or CARDINAL to investigate the affairs of a company , the following applies in the case of –

( a ) any officer or agent of the company ,

( b ) any officer or agent of another body corporate whose affairs are investigated under section CARDINAL , and

( c ) any such person as is mentioned in section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) applies with regard to references in this subsection to an officer or agent .

( CARDINAL ) NORP If that person –

( a ) refuses to produce any book or document which it is his duty under section CARDINAL or CARDINAL to produce , or

( b ) refuses to attend before the inspectors when required to do so , or

( c ) refuses to answer any question put to him by the inspectors with respect to the affairs of the company or other body corporate ( as the case may be ) the inspectors may certify the refusal in writing to the court .

( CARDINAL ) The court may thereupon enquire into the case , and , after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence , the court may punish the offender in like manner as if he had been guilty of contempt of the court . ”

Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding DATE .

The relevant part of section CARDINAL of ORG PACE ) provides :

“ CARDINAL . In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section .

NORP If , in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained –

( a ) by oppression of the person who made it ; or

( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession which might be made by him in consequence thereof ,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession ( notwithstanding that it might be true ) was not obtained as aforesaid ... ”

Section CARDINAL(CARDINAL ) provides :

“ In any proceedings the court may refuse to allow the evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

Under section CARDINAL(CARDINAL ) of PACE a “ confession ” includes any statement wholly or partly adverse to the person who made it , whether made to a person in authority or not and whether made in words or otherwise .

The Criminal Justice Act DATE confers on the Director of ORG special powers to assist him in the investigation and prosecution of serious fraud . Section CARDINAL ) requires a person whose affairs are being investigated to answer questions even if by so doing he might incriminate himself . Failure to answer may give rise to criminal sanctions ( section DATE ) ) . Answers in this context can not be used in evidence against a suspect unless he is prosecuted for failure , without reasonable excuse , to answer questions or unless he makes a statement in evidence which is inconsistent with a previous answer ( section CARDINAL ) ) .


The applicant is a NORP national , born in DATE . He lives in GPE .

A.

On DATE the applicant was elected mayor of the city of GPE , an administrative centre of LOC of GPE .

The mandate of the previous ORG ( hereinafter referred to as the “ ORG ” ) expired in DATE . DATE elections to the ORG were fixed and postponed several times . The elections took place in DATE and DATE , but were found invalid because of certain informalities , including insufficient participation by the electorate and a disputed outcome .

In DATE and CARDINAL the ORG was not elected as the local executive and law enforcement authorities were involved in a number of court disputes as to the proper manner in which to hold the elections . During those proceedings a number of administrative decisions were taken , but subsequently quashed . In DATE and DATE the elections took place several times , but were found invalid because of various informalities including , once more , insufficient participation by the electorate and a disputed outcome .

On DATE the applicant ’s mandate as the mayor of GPE expired . On DATE ORG refused to register him as a candidate in the next mayoral elections . The elections took place on DATE , but were found invalid due to various informalities . Upon the applicant ’s appeal against the decision preventing his candidacy , on CARDINAL DATE ORG upheld that decision . The applicant appealed to ORG . The applicant contends that the appeal is currently pending .

By a decree of DATE the President of GPE authorised the Governor of ORG to appoint an acting mayor of GPE on the ground that the applicant ’s mandate had expired . On DATE the Governor appointed an acting mayor . The applicant applied to court , contesting the lawfulness of that appointment . He stated in particular that his term continued as long as his successor was not elected . On DATE ORG confirmed the lawfulness of the Governor ’s decision . On DATE ORG rejected at first instance the applicant ’s action whereby he had alleged that the presidential decree of DATE had been null and void . On DATE ORG upheld that decision . On DATE ORG dismissed the applicant ’s appeal against the judgment of DATE .

It appears that to date neither ORG nor the mayor has been elected .

PERSON Relevant domestic law

The LAW of GPE

Pursuant to LAW , the ORG consists of “ federal subjects ” ( PERSON федерации ) which can have their own constitutions , statutes and legislation .

Under LAW , “ ORG authority ” is exercised by the President of GPE , the ORG , the ORG and courts . Pursuant to LAW , ORG authority which is vested in the federal subjects is also exercised by the competent authorities of those entities .

Legislative power is exercised by ORG ) .

Under LAW , local authorities are not considered as having ORG authority ( i.e. legislative , executive or judicial powers ) within the meaning of the LAW .

Federal subjects enjoy a number of autonomous rights , including inter alia the right to exercise , jointly with the competent federal authorities , legislative power in various political , economic , social and legal fields ( Articles DATE and DATE ) . Articles DATE and CARDINAL of the LAW entitle the federal subjects to exercise legislative power in those areas which do not relate to the exclusive competence of the ORG or the joint competence of the LAW and “ federal subjects ” .

The Maritime Territory is a “ federal subject ” of GPE ( DATE ) .

Laws of the Maritime Territory

The status of the Maritime Territory is defined in LAW and the Statute of the Maritime Territory . The Statute was passed by PERSON ( hereinafter referred to as the “ ORG ” ) on DATE .

Under LAW , legislative power in LOC is exercised by the local residents by way of referendum , and by the ORG . The ORG is the only legislative organ in the territory , and consists of CARDINAL representatives elected for DATE ( LAW ) . The Governor is the head of the executive in the LOC territory ( LAW ) .

Under LAW , the local authorities do not exercise “ ORG authority ” ( i.e. legislative , executive or judicial powers ) .

The mandate , functions , powers and controls of the local authorities , including municipal councils and mayors , are defined in ORG ( hereinafter referred to as the “ Act ” ) , which was adopted by the ORG on DATE . Municipal councils and mayors are elected by local residents ( Articles CARDINAL and CARDINAL of the Act ) , and election procedures are specifically governed by special laws passed by the ORG . Pursuant to LAW , local authorities can adopt regulations and by - laws in the areas in which the LAW confers such competence upon them .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lived until his arrest in the town of ORG , in GPE .

On DATE criminal proceedings were instituted against the applicant on suspicion of attempted murder . The prosecution ’s case was that the applicant had shot Mr CARDINAL times in the course of a property dispute . DATE an investigator of ORG issued a wanted notice in respect of the applicant as he had allegedly left his place of permanent residence and gone on the run .

On DATE the applicant was arrested and was served with a bill of indictment . The charge of attempted murder was joined with another criminal charge against the applicant , of aggravated theft . On DATE a police investigator asked ORG GPE ) to remand him in custody . The investigator argued that the applicant had been charged with a particularly serious criminal offence , that he could reoffend or influence witnesses , and that he was likely to abscond , given that he had already gone on the run once and a wanted notice had been issued .

On DATE ORG granted the request , having adopted the investigator ’s reasoning . In CARDINAL lines ORG stated that the gravity of the charges and the likelihood that the applicant would abscond or reoffend , as well as interfere with witnesses , warranted his placement in custody . The applicant ’s arguments that he had not absconded from the investigation , that he had not received any summons or notifications from investigating authorities although he had not left his place of permanent residence , and that he was seriously ill , were dismissed as unsubstantiated .

The detention order was upheld on appeal by ORG of GPE on DATE . The appeal court did not see any reasons to doubt ORG conclusions .

On an unspecified date the prosecution authorities amended the charges , having additionally accused the applicant of several counts of aggravated theft and attempted theft and unlawful possession of firearms .

The applicant ’s detention was extended on a number of occasions . In particular , on DATE ORG , holding that the applicant was charged with grave criminal offences and was likely to abscond , extended his detention until DATE . On DATE , with identical reasoning , it extended the detention until CARDINAL DATE . Another extension followed on CARDINAL DATE , when ORG mentioned the gravity of the charges and the risk that the applicant would abscond and interfere with witnesses who had testified against him . The final detention order , identical to the CARDINAL previous ones , was issued on DATE .

On DATE the applicant was committed to stand trial before ORG . However , DATE ORG returned the case file to the investigating authorities for certain defects in the bill of indictment to be eliminated . ORG decision was quashed on appeal and the case was sent back to ORG for examination on the merits .

On DATE the ORG found the applicant guilty of unlawful possession of firearms and several counts of attempted theft , and dismissed the remaining charges . The applicant was sentenced to DATE and CARDINAL months’ imprisonment . That judgment was quashed on appeal by ORG of GPE on DATE and the case was sent for a fresh examination . At the same time ORG , without providing any reasons , remanded the applicant in custody until DATE .

On DATE the applicant asked ORG to release him on his own recognisance , arguing that his state of health , in particular the fact that he was suffering from ORG ’s disease and could not receive the medical treatment he needed in the detention facility , warranted his release .

On DATE ORG dismissed the application for release and extended the applicant ’s detention until DATE , confirming that his detention had been authorised correctly in view of the gravity of the charges against him , his personality and the fact that a search warrant had been issued during the pre - trial investigation . ORG also noted that , despite the fact that by virtue of the NORP law the applicant ’s illness could warrant his release after the conviction , the domestic law did not provide for a possibility to release a detainee on health grounds while the investigation or trial were still pending . By the same decision the court scheduled the first trial hearing for DATE .

On DATE ORG of GPE upheld the decision of DATE , endorsing ORG reasoning .

During the trial hearing on DATE the applicant , who had been carried to the court - house on a stretcher , complained to ORG that he was experiencing severe back pain and was unable to get off the stretcher and take part in the hearing . He asked the court to stay the proceedings and to authorise his release on his own recognisance , given his state of health . While the prosecutor supported the request for an adjournment , he asked ORG to extend the applicant ’s detention . ORG agreed that the applicant ’s health precluded him from appearing at the trial hearings , stayed the proceedings and extended the detention until DATE , citing the same reasons as in the previous detention orders .

The applicant appealed , complaining that there were no reasons justifying an extension of his detention . He argued that the risk of his absconding was negligible , as he was suffering from ORG ’s disease , which significantly impaired his movement and was accompanied by severe pain . This was confirmed by a medical panel comprising specialists from ORG which had examined him in a courtroom on DATE . Relying on medical reports , the applicant submitted that his illness was incurable and progressed rapidly . The facility where he was detained did not have means , medical specialists or medicines to provide him with the medical care he needed , which could have reduced the severity of his symptoms . Citing various internal regulations of ORG and ORG , the applicant further argued that the domestic law listed his illness among those which relieved a convict from serving a sentence of imprisonment . At the same time , the conditions of detention in remand facilities were far worse than those in correctional GPE . In the applicant ’s opinion , it was only logical to relieve him from being detained in worse conditions in a remand facility , taking into account the state of his health . He also noted that he had never attempted to abscond from the investigation , and the warrant for his arrest had been issued without any valid reasons .

On DATE ORG of GPE upheld the decision of DATE , noting that the grounds which had warranted the applicant ’s detention were still present .

The proceedings were resumed on DATE . On DATE ORG again extended the applicant ’s detention for DATE , until DATE . The reasoning employed by ORG was identical to that of the previous detention orders .

On DATE ORG of GPE , having examined the applicant ’s appeal , quashed the decision of CARDINAL DATE and authorised the applicant ’s release on bail of MONEY ( RUB ) . ORG reasoned as follows :

“ The presented materials indicate that [ the applicant ] is suffering from ORG ’s disease and , given the state of his health , he can not be detained in a temporary detention facility . He is unable to receive the necessary medical assistance in the prison hospital .

This is corroborated both by the decision of [ ORG ] by which the proceedings had been stayed until [ the applicant ’s ] recovery , and by medical documents enclosed with [ the applicant ’s ] statement of appeal .

By virtue of the criminal procedural law the gravity of the charges ... is to be taken into account when a detention is extended , however , the gravity of the charges by itself can not warrant detention for such a long period .

The case file materials indicate that [ the applicant ] has been detained since DATE .

Neither the investigator ’s requests [ for extension of the detention ] nor the court decisions cite any real circumstances and evidence ... on the basis of which the investigating authorities and the court concluded that , if released , [ the applicant ] could abscond from the investigation and trial and reoffend .

The presented materials indicate that [ the applicant ] has a permanent place of residence , has no previous convictions , has positive reports on his character , and is the caregiver for CARDINAL minor children .

In these circumstances , the court finds it possible to change [ the applicant ’s ] measure of restraint to bail . ”

On DATE the bail was posted and the applicant was released . DATE he was admitted to ORG for inpatient treatment .

On DATE the ORG found the applicant guilty of several counts of aggravated theft and attempted theft and unlawful possession of firearms , acquitted him of an attempted murder charge and sentenced him to DATE of imprisonment to be served in a correctional colony . The applicant was taken into custody in the courtroom .

On DATE ORG of GPE , acting on appeal , quashed the judgment in the part concerning the applicant ’s acquittal , sent the matter for reconsideration by the trial court and upheld the remaining part of the conviction .

By way of a supervisory - review procedure , the Presidium of ORG quashed the judgment of CARDINAL DATE and sent the case to the appeal court for a fresh examination .

On DATE the trial judgment of DATE became final , with ORG fully upholding the trial court ’s findings .

The applicant provided the ORG with a large number of medical reports and certificates , describing in detail his medical condition , medical history and the medical assistance rendered to him .

NORP In particular , the medical documents indicate that in DATE , during his service in the army , the applicant was diagnosed with reactive arthritis . From DATE he experienced increasing pain in the lower back . When he sought medical assistance he was diagnosed with ORG ’s disease . The applicant had treatment in various hospitals on a number of occasions . His condition is characterised by serious and constant pain in the spine , neck , chest , lower part of the back and hip joints , occasional pain in the knee and shoulder joints and hands , frequent shivering , and tightening of the chest , impairing breathing . The applicant has to constantly change position to relieve pain ; he also experiences severe pain , lasting up to TIME , while walking . The disease has intense clinical activity and is progressing rapidly .

The applicant also produced a number of medical certificates issued DATE by civilian doctors , noting that his treatment was impossible in a detention facility . The applicant ’s medical condition , given the rapid deterioration of his health , required treatment in a specialised hospital . The doctors also noted that a failure to respect that condition would be a threat to the applicant ’s life and would lead to his becoming disabled . On DATE a medical assessment panel declared that the applicant was suffering from a Category CARDINAL disability .

A medical certificate issued on CARDINAL DATE by a doctor at the IZ-CARDINAL/CARDINAL facility , where the applicant had been detained since DATE , indicates that the facility did not have the medicines which were prescribed for the applicant by a rheumatologist . A similar certificate was issued by the head of the medical unit of detention facility no . IZ-CARDINAL/CARDINAL on DATE . According to the applicant , in an attempt to replace the absent medicines required for treating him the facility medical personnel provided him with cheaper drugs , which led to an impairment of his hearing and eyesight , kidney and liver damage and loss of the ability to move . He provided the ORG with copies of CARDINAL payment receipts , as well as a number of letters to the head of the detention facility bearing handwritten notes by facility employees , showing that his relatives had regularly bought medicines and given them to the facility authorities , and that the authorities had handed the medicines over to the applicant .

Relying on a copy of the applicant ’s medical file , the ORG submitted that following the applicant ’s arrest he was examined by a medical assistant . Given that he was suffering from ORG ’s disease . he was prescribed diclofenac , an anti - inflammatory drug , and arava , a drug for the treatment of active rheumatoid arthritis .

As the applicant continued to complain of severe back pain , prison medical staff examined him on a number of occasions DATE and DATE , and added the following medicines to his regimen : aspirin , omez , tempalgin , duovit , movalis , an anti - rheumatic gel and PERSON ’s balsam . The record shows that the applicant ’s relatives provided the majority of those medicines . On DATE a doctor made an entry in the record stating that the applicant should be sent for a comprehensive medical examination to decide whether to release him on parole . On a number of occasions the attending prison doctors also noted that it was necessary to transfer him to a prison hospital , given the highly progressive nature of the illness .

DATE and DATE the applicant was mostly seen by a prison nurse or medical assistant . The prison doctor visited him twice , checking whether the applicant had received medicines from his relatives . Each time the medical personnel confirmed the diagnosis , heard the applicant ’s complaints , and decided that he should continue with the prescribed treatment .

On DATE the applicant was transferred to facility no . IZ-CARDINAL/CARDINAL . He complained of severe joint pain and asked for a transfer to a prison hospital . On CARDINAL and DATE a neurologist and traumatologist from a civilian hospital examined the applicant . They confirmed the diagnosis of ORG ’s disease with a long list of concomitant conditions , and prescribed treatment and therapeutic physical exercises . The ORG submitted that the applicant had refused the treatment . Further requests by the applicant for admission to a hospital for inpatient treatment were addressed by the introduction of another painkiller and a herbal sedative to his regimen .

The applicant was admitted to a correctional colony hospital on DATE , where he underwent a number of tests and continued receiving treatment . He was transferred back to the detention facility DATE , on DATE , with a recommendation that he undergo regular and frequent clinical testing and continue with the treatment . A long list of medicines and a schedule of clinical tests was included in the recommendations . The applicant ’s medical file does not contain any entries for the period between DATE and DATE , when he was seen by an oculist .

Following a forensic medical examination of the applicant , on CARDINAL DATE a medical panel declared that he was suffering from a Category CARDINAL disability . No further entries were made in his file until DATE , except entries detailing that the applicant persistently complained of pain in the back and joints , that he was demanding treatment and an enriched dietary regime , that he was continuing to be treated with medicines provided by his relatives , and that the facility did not have the medicines which had been prescribed by doctors on the applicant ’s release from the colony hospital in DATE . The applicant ’s medical file also shows that the facility ’s medical staff attempted to amend the applicant ’s treatment , given that the medicines prescribed for the applicant were too expensive , and therefore the facility did not have the resources to provide them .

On DATE the applicant was again transferred to the colony hospital , where he remained until DATE . The doctors then authorised his transfer back to the detention facility , considering that his condition was satisfactory .

Following his transfer back to the detention facility , the applicant continued complaining of severe pain . His condition was considered to be moderately serious . The records also indicate that the applicant could not be seen by medical specialists , and in particular that he could not be seen by a rheumatologist , as the detention facility did not employ CARDINAL . A medical certificate issued in DATE and submitted by the Government described the applicant ’s illness as progressing rapidly , and specified that he could only be properly treated in a specialised medical facility : this treatment could not be provided in the environment in which he was being detained .

In response to his complaints of increasingly severe pain , the applicant was again admitted to the colony hospital on DATE , and spent DATE there . He was released with a recommendation to continue taking medicines and to be seen regularly by a rheumatologist as a main requirement of basic therapy . In DATE a medical panel declared that the applicant ’s disability had progressed to LAW under the medical classification scheme .

After he was convicted , on DATE , the applicant was detained again and placed on a list of inmates in need of close medical supervision . His condition was considered “ relatively satisfactory ” . He continued complaining of lower back pain and joint stiffness . Without providing specific details on the content of the treatment , the Government submitted that the applicant has been receiving it following recommendations by a rheumatologist .

In DATE the applicant lodged a complaint with ORG , stating that he was not receiving the medical assistance he needed in detention and asking to be transferred to a prison hospital in GPE .

By a letter of CARDINAL DATE ORG returned the applicant ’s complaint , with the following remarks :

“ I return your request ... without an examination because under the criminal procedural law in force courts do not have the authority to authorise the transfer of detainees to prison hospitals .

You have to apply to the administration of the detention facility ... with a request for a transfer for medical treatment . ”

On DATE the applicant lodged another request with ORG , seeking a forensic medical examination to determine the current state of his health . In DATE the applicant received a copy of a letter addressed to the head of detention facility no . IZ-CARDINAL/CARDINAL , by which ORG declared its lack of authority to examine the merits of the request .

In response to the applicant ’s complaint that he was not receiving adequate medical assistance in detention , on DATE the office of the Ombudsman of ORG stated that the complaint had been accepted for examination . No further update on the results of the examination was given to the applicant .

Records provided by the Government show that the applicant lodged a large number of complaints about the quality of the medical care at the facilities where he was detained . The applicant argued that he had also sent complaints to various prosecution authorities about lack of medical assistance in detention , and also complained that his health was deteriorating rapidly . He provided the ORG with a copy of his complaint to ORG . The copy bears a stamp indicating that the copy was authentic . A handwritten note in the corner of the complaint appears to show that the complaint was received on DATE and attached to the applicant ’s file . No response followed .

The relevant provisions of domestic and international law governing the health care of detainees , including those suffering from HIV and tuberculosis , are set out in the following judgments : PERSON v. GPE , no . GPE , § § DATE , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , § § CARDINAL and DATE , DATE ; and PERSON GPE , no . CARDINAL/CARDINAL , § § DATE and CARDINAL , DATE .

The ORG may receive complaints concerning the actions by federal and municipal ORG bodies or employees , provided that the complainant has previously lodged a judicial or administrative appeal in this connection ( section CARDINAL § CARDINAL ) .

Having examined the complaint , the ORG may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a ORG official or petition the competent authorities for institution of disciplinary , administrative or criminal proceedings against the ORG official who has committed such a breach ( section CARDINAL § CARDINAL ) .

The ORG prepares a summary of individual complaints and he or she may submit to ORG and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers ( section CARDINAL ) .

LAW sets out the procedure for the judicial review of complaints about decisions , acts or omissions of the ORG and municipal authorities and officials . Pursuant to Ruling no . CARDINAL of DATE by ORG of GPE , complaints by suspects , defendants and convicts of inappropriate conditions of detention must be examined in accordance with the provisions of LAW ( point CARDINAL ) .

A citizen may lodge a complaint about an act or decision by any ORG authority which he believes has breached his rights or freedoms , either with a court of general jurisdiction or by sending it to the directly higher official or authority ( LAW . The complaint may concern any decision , act or omission which has violated rights or freedoms , has impeded the exercise of rights or freedoms , or has imposed a duty or liability on the citizen ( LAW ) .

The complaint must be lodged within DATE on which the citizen learnt of the breach of his rights . The time period may be extended for valid reasons ( Article CARDINAL ) . The complaint must be examined within DATE ; if necessary , in the absence of the respondent authority or official ( Article CARDINAL ) .

The burden of proof as to the lawfulness of the contested decision , act or omission lies with the authority or official concerned . If necessary , the court may obtain evidence on its own initiative ( point CARDINAL of Ruling no . CARDINAL ) .

If the court finds the complaint justified , it issues a decision requiring the authority or official to fully remedy the breach of the citizen ’s rights ( LAW ) . The court determines the time - limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full CARDINAL of Ruling no . CARDINAL ) .

The decision is dispatched to the head of the authority concerned , to the official concerned or to their superiors , within DATE of its entry into force . The court and the complainant must be notified of the enforcement of the decision DATE after its receipt ( Article CARDINAL § § CARDINAL and CARDINAL ) .

Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own ( Article CARDINAL § § CARDINAL , CARDINAL ) .

State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions ( Article CARDINAL ) . Irrespective of any fault by ORG officials , the ORG or regional treasury are liable for damage sustained by a citizen on account of : ( i ) unlawful criminal conviction or prosecution ; ( ii ) unlawful application of a preventive measure ; and ( iii ) unlawful administrative punishment ( Article ORG ) .

Compensation for non - pecuniary damage is effected in accordance with LAW and is unrelated to any award in respect of pecuniary damage ( LAW . Irrespective of the tortfeasor ’s fault , non - pecuniary damage shall be compensated if the damage was caused : ( i ) by a hazardous device ; ( ii ) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment : or ( iii ) through dissemination of information which was damaging to the victim ’s honour , dignity or reputation ( LAW ) .

The NORP legal regulations of detention are explained in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .