Preliminary objection dismissed (ratione materiae);Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - award

Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger

The applicants were crew members on a merchant ship named the Winner , registered in GPE . The ship had attracted the attention of the NORP , NORP and NORP anti - drug services when ORG ( l’Office NORP du Trafic Illicite des Stupéfiants – “ the OCRTIS ” ) , a ministerial body attached to ORG of ORG , requested authorisation to intercept it . The ORG suspected the ship of carrying large quantities of drugs , with the intention of transferring them to speedboats off LOC for subsequent delivery to the coasts of LOC .

In a diplomatic note dated DATE , in response to a request from the NORP embassy in GPE , the NORP Minister for ORG and ORG gave his government ’s agreement for the NORP authorities to take action , in the following terms :

“ ORG and ORG presents its compliments to the NORP embassy in GPE and , referring to its note no . PERSON dated DATE , has the honour formally to confirm that the royal government of GPE authorises the NORP authorities to intercept , inspect and take legal action against the ship Winner , flying the NORP flag XUDJCARDINAL , belonging to ‘ LOC in GPE .

ORG takes this opportunity to renew its assurance of its high esteem . ”

In a diplomatic telegram dated DATE , the NORP embassy in GPE passed on the information to ORG in GPE .

NORP The commander of the NORP frigate ORG , which lay at anchor in GPE harbour and had been assigned a mission off the coast of LOC , was instructed by the NORP naval authorities to locate and intercept the Winner . The frigate left LOC harbour DATE to search for and intercept the Winner , with the NORP navy commando unit PERSON , a special forces team specialised in boarding vessels at sea , on board for the duration of the mission . On DATE , during a technical stopover in GPE , CARDINAL experts from the ORG also boarded the frigate .

On DATE , at TIME , the NORP frigate spotted a merchant ship travelling at slow speed through the waters off LOC , QUANTITY from GPE . It was not flying a flag , but was identified as the Winner . The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat . While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact , its crew jettisoned a number of packages into the sea ; one of the packages , containing QUANTITY of cocaine , was recovered by the NORP seamen . After several warnings and warning shots fired under orders from GPE ’s maritime prefect for the LOC went unheeded , the NORP frigate fired a shot directly at the Winner . The merchant ship then answered by radio and agreed to stop . When they boarded the Winner , the NORP commando team used their weapons to open certain locked doors . When a crew member of the Winner refused to obey their commands , a “ warning shot ” was fired at the ground , but the bullet ricocheted and the crew member was wounded . He was immediately evacuated onto the NORP frigate , then transferred to GPE hospital , where he died DATE .

NORP Under orders from the maritime prefect and at the request of the public prosecutor in GPE , a tug with a military doctor on board was sent from ORG to tow the Winner back to GPE harbour , escorted by the frigate FAC . Because of its poor state of repair and the weather conditions , the ship was incapable of speeds faster than QUANTITY .

The crew of the Winner were confined to DATE under military guard . The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the NORP forces . According to the applicants , the coercive measures were maintained throughout the voyage , until they arrived in GPE .

On DATE , at TIME , the ORG public prosecutor referred the case to ORG for examination under the flagrante delicto procedure . It emerged that the NORP coastguard had had the Winner under observation in connection with international drug trafficking involving NORP nationals .

On DATE the ORG public prosecutor ’s office opened an investigation into charges , against persons unknown , of leading a group with the aim of producing , making , importing , exporting , transporting , holding , supplying , selling , acquiring or illegally using drugs and conspiring to import and export drugs illegally . CARDINAL investigating judges were appointed .

On DATE , at TIME , the Winner entered GPE harbour under escort . The crew were handed over to the police , acting under instructions dated DATE from CARDINAL of the investigating judges , who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights .

On DATE , the applicants were presented to an investigating judge at the police station in GPE , to determine whether or not their police custody should be extended . The reports submitted to ORG by the Government show that certain applicants met CARDINAL of the investigating judges ( PERSON ) at TIME ( Mr PERSON ) , TIME ( Mr PERSON ) , TIME ( Mr PERSON ) , TIME ( Mr PERSON ) , TIME ( PERSON ) and TIME ( Mr Dodica ) , and the other applicants ( Mr PERSON , PERSON PERSON and PERSON ) were heard by the second investigating judge ( PERSON ) at an unspecified time . The applicants were presented to the same investigating judges again the following day , DATE ( Mr PERSON at TIME , Mr PERSON at CARDINAL p.m. , Mr PERSON at TIME , Mr PERSON at CARDINAL p.m. , Mr Dodica at TIME and PERSON at TIME ; the times for the other CARDINAL applicants are not known ) .

On DATE and DATE the applicants were charged and remanded in custody pending trial ( PERSON , PERSON , PERSON and PERSON PERSON on DATE , and PERSON , PERSON , PERSON , Mr PERSON , Mr PERSON and CARDINAL other crew members – Mr PERSON and PERSON on DATE ) .

The applicants applied to ORG of ORG to have the evidence disallowed , submitting that the NORP authorities had acted ultra vires in boarding the Winner , as the ship had been under NORP jurisdiction and GPE was not party to ORG in Narcotic Drugs and Psychotropic Substances signed in GPE on DATE , and also that they had not been brought “ promptly ” before a judge , as required under LAW , when the Winner was intercepted .

In a judgment of DATE , the court dismissed their appeal and held that there were no grounds for disallowing the evidence . After retracing the details of the operations , including the fact that “ on DATE at CARDINAL a.m. the NORP frigate spotted a merchant ship – first on its radar , then visually – travelling at slow speed and flying no flag , and identified it as the Winner ” , it pronounced judgment in the following terms :

“ Considering that the international effort to combat drug trafficking is governed by CARDINAL conventions : ORG DATE , ORG on the Law of the Sea , signed at LOC on [ CARDINAL ] DATE , and ORG in Narcotic Drugs and Psychotropic Substances , signed in GPE on DATE ; while GPE has signed and ratified all CARDINAL conventions , GPE has not signed LAW , LAW of which provides for derogations from the traditional principle of the ‘ law of the flag ORG .

Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in LAW , the authority of a ORG on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the ORG ’s own law are respected as LAW , on ‘ Illicit traffic in narcotic drugs or psychotropic substances’ , stipulates :

All GPE shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions .

Considering that , based on that text and ‘ with GPE to the earlier LAW of DATE against international drug trafficking , the NORP authorities were within their rights to request GPE ’s cooperation with a view to obtaining that country ’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved ; that as the provisions of LAW do not apply to GPE , it was for that ORG to ask the NORP authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion ; that the diplomatic telegram sent by the NORP embassy on DATE , which actually mentions the reasoned request submitted by the ORG , suffices to establish the existence of an agreement given without restrictions or reservations by the government of GPE for the planned interception and all its consequences , and is authoritative until proven otherwise ; that on this point the applicants can not contend that the document does not meet the formal requirements of LAW of LAW concerning bilateral agreements between parties , when they are also arguing that LAW is not applicable to GPE because it has not signed it ; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the NORP government ’s agreement to the NORP embassy .

Considering , on the other hand , that in proceeding to intercept the Winner it was the duty of the NORP authorities to comply with the procedures provided for both in LAW signed by GPE – in particular to ‘ take due account of the need not to endanger the safety of life at sea , the security of the vessel and its DATE and in the Law of DATE , as amended by the PERSON of DATE adapting NORP law to LAW , Articles CARDINAL et seq . of which define the sphere of competence of commanders of naval vessels and the procedures for the search , reporting , prosecution and judgment in the NORP courts of drug trafficking offences committed at sea .

Considering that the reports drawn up by the commander of the Lieutenant de vaisseau ORG , duly authorised by the maritime prefect for the LOC , which are authoritative until proven otherwise , state that when the frigate drew within sight of the Winner , off the LOC islands , the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship , in breach of the rules of international law , and to stop his ship , but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the NORP frigate and the lives of the sailors on board the speedboat ; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard , CARDINAL of which was recovered and found to contain a large quantity of cocaine ; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape ; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship , the commander of the frigate acted in strict compliance with :

– the provisions of LAW of LAW under which , if evidence of involvement in illicit traffic is found after a ship has been boarded and searched , appropriate action may be taken with respect to the vessel and the persons and cargo on board ,

– the provisions of the PERSON of DATE as supplemented by the LAW DATE , which , in its general provisions ( ORG CARDINAL to CARDINAL ) regulates recourse to coercive measures comprising , if necessary , the use of force in the event of refusal by a ship to submit to control and also , in the particular case of the fight against drug trafficking ( ORG CARDINAL to CARDINAL ) , makes provision for the implementation of the control and coercion measures provided for under international law .

Considering that , regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the NORP naval authorities , and to the attitude of the crew members , who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard , the members of the commando unit who boarded the ship found themselves in the presence of large - scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission ; that they were obliged to use their weapons in response to the resistance put up by one of the ship ’s crew ; that it can not be claimed that LAW of DATE as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘ the inspection and coercion measures provided for in international law’ , and LAW ( c ) of LAW in Narcotic Drugs [ and Psychotropic Substances ] expressly mentions taking ‘ appropriate action with respect to the persons on board’ ; that although the nature of these measures is not specified , the text at least provides for the possibility for the competent naval authorities to limit , if necessary , the freedom of the boarded ship ’s crew to come and go , otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised ; that it can not be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force ; that consequently , confining the members of the crew of the Winner – all but the wounded man , who was transferred to the frigate – to their cabins under the guard of the commando unit , so that the ship could be safely taken over and rerouted , fell within the appropriate measures provided for in LAW ( c ) of LAW .

Considering that the Law of DATE necessarily requires some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas , in keeping with the rules of international law , and for the fact that it is impossible in practice , bearing in mind the time needed to sail to the new port of destination , to apply the ordinary rules governing detention and the right to be brought promptly before a judge ; and , that being so , that the restrictions placed on the movements of the boarded ship ’s crew , as authorised in such cases by ORG signed in GPE on DATE , were not at variance with LAW of LAW and did not amount to unlawful detention ; and that it should be noted that as soon as the Winner docked in GPE , its crew were handed over to the police , immediately informed of their rights and placed in custody , then brought before the investigating judge .

Considering also that the NORP courts have jurisdiction under LAW of DATE as amended .

... the grounds of nullity must accordingly be rejected [ and ] there is no reason to disallow any other documents from the proceedings , which are lawful . ”

In a judgment of DATE , ORG dismissed an appeal lodged by the applicants in the following terms :

“ ... in so far as GPE , the flag ORG , expressly and without restriction authorised the NORP authorities to stop the Winner and , in keeping with LAW , only appropriate action was taken against the persons on board , who were lawfully taken into police custody as soon as they landed on NORP soil , ORG has justified its decision . ”

On DATE , the Ille - et - Vilaine Special Assize Court found CARDINAL applicants PERSON , Mr PERSON and Mr PERSON – and CARDINAL other crew member , ORG , guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to DATE , DATE , DATE and DATE imprisonment . However , PERSON and ORG were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking . ORG acquitted the other CARDINAL applicants and ORG , another crew member , of the charges against them .

In a judgment of DATE , ORG , examining an appeal lodged by PERSON , Mr Sage GPE and GPE , upheld the conviction and sentenced them respectively to CARDINAL , CARDINAL and seventeen years’ imprisonment . On DATE ORG dismissed an appeal on points of law lodged by PERSON .

In a note of DATE , in reply to a request submitted by the NORP embassy in GPE on DATE , ORG and ORG confirmed that its diplomatic note of DATE had “ indeed authorised the NORP authorities to intercept and carry out all necessary operations for the inspection , seizure and legal proceedings against the ship Winner , flying the NORP flag , but also against all the members of its crew ” .

The relevant provisions of ORG of DATE , to which GPE is a party , read as follows :

“ Having due regard to their constitutional , legal and administrative systems , the Parties shall :

( a ) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic ; to this end they may usefully designate an appropriate agency responsible for such coordination ;

( b ) ORG each other in the campaign against the illicit traffic in narcotic drugs ;

( c ) ORG closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic ;

( d ) Ensure that international cooperation between the appropriate agencies be conducted in an expeditious manner ; and

( e ) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution , the transmittal be effected in an expeditious manner to the bodies designated by the Parties ; this requirement shall be without prejudice to the right of a ORG to require that legal papers be sent to it through the diplomatic channel ;

( f ) PERSON , if they deem it appropriate , to ORG through the Secretary - General , in addition to information required by DATE , information relating to illicit drug activity within their borders , including information on illicit cultivation , production , manufacture and use of , and on illicit trafficking in , drugs ; and

( g ) Furnish the information referred to in the preceding paragraph as far as possible in such manner , and by such dates as the ORG may request ; if requested by a ORG , the ORG may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that ORG . ”

The relevant provisions of LAW on GPE ( “ FAC ” ) ( to which GPE is not a party ) read as follows :

“ CARDINAL . All GPE shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions .

Any ORG which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other GPE to suppress such traffic . ”

“ CARDINAL . Except where acts of interference derive from powers conferred by treaty , a warship which encounters on the high seas a foreign ship , other than a ship entitled to complete immunity in accordance with Articles CARDINAL and CARDINAL , is not justified in boarding it unless there is reasonable ground for suspecting that :

( a ) the ship is engaged in piracy ;

( b ) the ship is engaged in the slave trade ;

( c ) the ship is engaged in unauthorised broadcasting and the flag ORG of the warship has jurisdiction under LAW ;

( d ) the ship is without nationality ; or

( e ) though flying a foreign flag or refusing to show its flag , the ship is , in reality , of the same nationality as the warship .

NORP In the cases provided for in paragraph CARDINAL , the warship may proceed to verify the ship ’s right to fly its flag . To this end , it may send a boat under the command of an officer to the suspected ship . If suspicion remains after the documents have been checked , it may proceed to a further examination on board the ship , which must be carried out with all possible consideration .

NORP If the suspicions prove to be unfounded , and provided that the ship boarded has not committed any act justifying them , it shall be compensated for any loss or damage that may have been sustained .

These provisions apply mutatis mutandis to military aircraft .

These provisions also apply to any other duly authorised ships or aircraft clearly marked and identifiable as being on government service . ”

The relevant provisions of LAW in ORG ( “ the Vienna Convention ” ) ( to which GPE is a party but not GPE ) read as follows :

“ CARDINAL . The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea , in conformity with the international law of the sea .

A ORG which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose . The Parties so requested shall render such assistance within the means available to them .

A ORG which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law , and flying the flag or displaying marks of registry of another ORG is engaged in illicit traffic may so notify the flag ORG , request confirmation of registry and , if confirmed , request authorisation from the flag ORG to take appropriate measures in regard to that vessel .

NORP In accordance with paragraph CARDINAL or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties , the flag ORG may authorise the requesting ORG to , inter alia :

( a ) ORG the vessel ;

( b ) ORG the vessel ;

( c ) If evidence of involvement in illicit traffic is found , take appropriate action with respect to the vessel , persons and cargo on board .

Where action is taken pursuant to this LAW , the Parties concerned shall take due account of the need not to endanger the safety of life at sea , the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag ORG or any other interested ORG .

The flag ORG may , consistent with its obligations in paragraph CARDINAL of this Article , subject its authorisation to conditions to be mutually agreed between it and the requesting ORG , including conditions relating to responsibility .

For the purposes of DATE , a ORG shall respond expeditiously to a request from another ORG to determine whether a vessel that is flying its flag is entitled to do so , and to requests for authorisation made pursuant to paragraph CARDINAL . At the time of becoming a ORG to this LAW , each ORG shall designate an authority or , when necessary , authorities to receive and respond to such requests . Such designation shall be notified through the Secretary - General to all other Parties within DATE of the designation .

A ORG which has taken any action in accordance with this Article shall promptly inform the flag ORG concerned of the results of that action .

The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out , or to enhance the effectiveness of , the provisions of this Article .

Action pursuant to paragraph CARDINAL of this Article shall be carried out only by warships or military aircraft , or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect .

Any action taken in accordance with this Article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal GPE in accordance with the international law of the sea . ”

The relevant provisions of this agreement , signed by CARDINAL member ORG ( but not by GPE ) and ratified by CARDINAL , read as follows :

“ The member ORG , having expressed their consent to be bound by LAW in Narcotic Drugs and Psychotropic Substances , done at GPE on DATE , hereinafter referred to as ‘ the GPE Convention’ ,

Considering that the aim of ORG is to bring about a closer union between its members ;

Convinced of the need to pursue a common criminal policy aimed at the protection of society ;

Considering that the fight against serious crime , which has become an increasingly international problem , calls for close cooperation on an international scale ;

Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea , in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation ;

Considering , therefore , that LAW should be supplemented by a regional agreement to carry out , and to enhance the effectiveness of the provisions of that Article ,

Have agreed as follows :

Section DATE Rules governing action

Having received the authorisation of the flag ORG , and subject to the conditions or limitations , if any , made under LAW , paragraph CARDINAL , the intervening ORG may take the following actions :

i.

a. stop and board the vessel ;

b. establish effective control of the vessel and over any person thereon ;

c. take any action provided for in sub - paragraph ii of this LAW which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof ;

d. require the vessel and any persons thereon to be taken into the territory of the intervening ORG and detain the vessel there for the purpose of carrying out further investigations ;

ii . and , having established effective control of the vessel :

a. search the vessel , anyone on it and anything in it , including its cargo ;

b. open or require the opening of any containers , and test or take samples of anything on the vessel ;

c. require any person on the vessel to give information concerning himself or anything on the vessel ;

d. require the production of documents , books or records relating to the vessel or any persons or objects on it , and make photographs or copies of anything the production of which the competent authorities have the power to require ;

e. seize , secure and protect any evidence or material discovered on the vessel .

Any action taken under paragraph CARDINAL of this Article shall be without prejudice to any right existing under the law of the intervening ORG of suspected persons not to incriminate themselves .

Where , as a result of action taken under LAW , the intervening ORG has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel , or both , it may so proceed .

Actions taken under ORG CARDINAL and CARDINAL shall be governed by the law of the intervening State ... ”

This agreement between continental and island GPE of the LOC area ( GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) in respect of LAW , lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for GPE to be able to consent in advance to intervention by the other GPE Parties on ships flying their flags .

It allows a ORG to take coercive action , even in the territorial waters of ORG , by delegation of the latter ORG . There are CARDINAL possibilities :

– systematic authorisation ;

– authorisation if no answer is received from the flag ORG within TIME of another ORG submitting a request for intervention ;

– express authorisation for the intervention , which corresponds to the current legal situation under LAW .

The draft law thus allows the GPE to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters .

The relevant provisions of Law no . CARDINAL of DATE on conditions governing the exercise by the ORG of its powers to carry out checks at sea , as amended by PERSON no . CARDINAL - CARDINAL of DATE on drug trafficking at sea and adapting NORP legislation to LAW signed in GPE on DATE , read as follows ( version applicable at the material time ) :

“ Part II : Special provisions adapting NORP legislation to LAW , signed in GPE on DATE .

The investigation and establishment of drug trafficking offences committed at sea , and prosecution and trial therefor shall be governed by the provisions of Part I of the present PERSON and by the following provisions . These provisions shall apply not only to ships flying the NORP flag , but also :

– to ships flying the flag of ORG to LAW of DATE other than GPE , or lawfully registered in such a ORG , at the request or with the agreement of the flag ORG ;

– to ships displaying no flag or having no nationality .

Where there exist reasonable grounds to suspect that CARDINAL of the vessels referred to in section CARDINAL and sailing outside territorial waters is engaged in illicit drug trafficking , commanders of ORG vessels and of aircraft responsible for surveillance at sea shall have the power DATE under the authority of the maritime prefect , who shall inform the public prosecutor ’s office – to carry out , or have carried out the inspection and coercion measures provided for under international law and under this PERSON . ”

In the version amended by PERSON no . DATE of DATE , which was not applicable at the material time , section CARDINAL also refers to ships flying the flag of a ORG which is not party to LAW :

“ The investigation and establishment of drug trafficking offences committed at sea , and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of LAW and by the provisions of the present Part of this PERSON . These provisions shall apply not only to the ships mentioned in LAW DATE of LAW , but also :

– to ships flying the flag of a ORG which has requested intervention by GPE or agreed to its request for intervention ;

– to ships displaying no flag or having no nationality . ”

In order to allow for the period of transit subsequent to a decision to reroute a vessel , Law no . DATE - CARDINAL of DATE amended LAW DATE of LAW , in the chapter on “ Exercise of the ORG ’s law enforcement powers at sea ” , by adding the following final sentence :

“ During transit subsequent to rerouting , the officers mentioned in LAW may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board . ”

In its report on the draft of this PERSON , ORG stated ( extract from Report no . CARDINAL ( CARDINAL ) , dated DATE ) :

“ B. THE DRAFT LAW

Secure the procedures

( a ) ORG the reference to LAW on drug trafficking

In the case involving the Winner , a ship flying the NORP flag that was stopped by the NORP navy off the coast of GPE , ORG did not deem it necessary to rely on LAW , to which GPE was not party , to find that the stopping of the ship with the consent of the flag ORG in the particular case of drug trafficking had been lawful . It found it sufficient to rely on LAW , which provides : ‘ Any ORG which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other GPE to suppress such traffic.’ On the other hand , when carrying out the interception , ORG to ORG which stops such a ship – in this case , GPE – must comply with the rules laid down therein and may thus rely on the provisions of LAW of LAW , concerning coercion measures . In this case the ORG found that the jurisdiction of the flag ORG was not exclusive when it assented to a request to intervene .

It appears preferable , however , to delete the reference to LAW , in so far as inspection and coercion measures may be carried out on the strength of other international instruments , including the regional cooperation agreements concluded on the basis of LAW , such as ORG of DATE when it enters into force .

( b ) ORG exactly what the coercion measures involve

The draft law also says that during transit subsequent to rerouting , the duly authorised officers of the ORG may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board . ”


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant worked in ORG ( “ ORG of the RA ” ) as a consultant . While she was on maternity leave her position was converted to that of assistant to the President of ORG . On her return the applicant was offered various posts , but not the newly created position of assistant to the President . She refused those offers and was dismissed .

On DATE the applicant lodged a court action against ORG with ORG of the Republic of Adygeya ( “ the ORG ” ) . She requested ORG to reinstate her to her previous position , recover unpaid salary and award compensation for non - pecuniary damage . In the course of the proceedings the applicant amended her claims .

On DATE the court fixed the first hearing for DATE . However , on that date the proceedings were postponed until DATE because the applicant and her child were sick .

On DATE the applicant requested ORG to postpone the examination of the case until her request to have the case referred to a different court had been examined by a higher court . She also objected to CARDINAL of the judges sitting in the case .

On DATE ORG dismissed her request and the objection to the judge and rejected her claims as unsubstantiated .

On DATE ORG upheld that judgment .

On DATE ORG of GPE ( “ the ORG ” ) , following a request for supervisory review by the Deputy Prosecutor General of GPE , found that the lower courts had erroneously interpreted the substantive law . On those grounds it quashed the judgment of DATE , as upheld on DATE , and remitted the case to ORG for a fresh examination .

On DATE ORG fixed the hearing for CARDINAL DATE . However , on that date the proceedings were postponed , at the applicant ’s request , until ORG had examined her request to have the case referred to a different court .

On DATE ORG replied to the applicant that there were no grounds to refer her case to a different court .

On DATE ORG , after a fresh examination , found that the applicant ’s dismissal had been unlawful , ordered ORG to reinstate the applicant to her position , pay her salary arrears and compensation for non - pecuniary damage . ORG of the ORG appealed against the judgment of DATE .

On DATE the applicant requested ORG to refer her case to a different appeal court on the ground that the judges of ORG of the ORG should not examine an appeal lodged by ORG . That would amount to a violation of her right to an independent and impartial tribunal . On DATE the applicant lodged an objection to all the judges of ORG and requested that the appeal not be examined until ORG had replied .

NORP However , on DATE ORG of the GPE heard the case on appeal and found , in particular , that ORG had not properly established the facts of the case . It quashed the judgment of CARDINAL DATE and remitted the case to ORG for a fresh examination .

On DATE ORG informed the applicant that her request that the appeal be heard by a different appeal court could not be examined as ORG of the ORG had already held an appeal hearing , on DATE .

On DATE ORG , after a fresh examination , dismissed the applicant ’s claims as unsubstantiated . The applicant appealed .

On DATE the applicant requested ORG of GPE to refer her appeal against the judgment of DATE to a different appeal court in order to have her case heard by an impartial and independent tribunal . She requested ORG to order ORG to postpone the appeal proceedings until its decision on her request .

On DATE ORG of the ORG upheld the judgment of DATE .

On DATE ORG informed the applicant that her request for her appeal to be referred to a different court could not be examined , as ORG of the ORG had already examined her appeal , on DATE . It further noted that it was open for her to contest the decisions adopted in her case by lodging an application for supervisory review of those decisions .

In DATE and DATE the applicant attempted to obtain the re - opening of the proceedings by way of supervisory review . However , ORG of the ORG and ORG of the Russian Federation either refused to refer the case to the supervisory review court for examination on the merits or refused to examine her applications on procedural grounds .

On DATE the applicant again applied for the re - opening of the proceedings . On DATE a judge of ORG of GPE referred the case to ORG of ORG of GPE for examination on the merits .

On DATE ORG of GPE , acting by way of supervisory review , found that there had been serious procedural breaches in the examination of the applicant ’s case . In particular , it found that ORG of the ORG , who was a defendant in the case , had been directly interested in the outcome of the proceedings and thus there were doubts as to its objectiveness and impartiality . ORG of the ORG was also a superior court to ORG and could therefore give instructions to ORG . In such circumstances , the case should have been referred to a different court . ORG pointed out that on numerous occasions the applicant had lodged objections to judges of ORG and of ORG and had requested to have her case referred to a different court . All her requests had been dismissed .

ORG concluded that the judgment of DATE , as upheld on DATE , was unlawful and had to be quashed . It further held that the case had to be examined anew by a court situated in a different region and referred the case to ORG of Krasnodar ( “ the ORG ” ) .

ORG fixed the first hearing on DATE . However , on that date the proceedings were adjourned because the defendant did not attend the hearing .

In DATE the defendant made several requests to the applicant ’s new employers concerning the periods of her employment with them and positions occupied .

On DATE ORG examined the applicant ’s claim and found that she had abused her rights when she had refused to accept the positions offered to her in ORG , and dismissed her claims .

On DATE ORG ( “ the Regional Court ” ) upheld that judgment .

On DATE the Presidium of ORG examined an application by ORG for supervisory review of the decisions adopted in the applicant ’s case . The ORG held that it was the applicant ’s right to refuse positions with a lower salary and that it could not be considered an abuse of rights . It also pointed out that the dismissal on an employer ’s initiative of women with children DATE was forbidden by LAW ( see “ Relevant Domestic Law ” below , § CARDINAL ) , unless the enterprise had been fully liquidated . Since ORG of the ORG had not been liquidated , the dismissal of the applicant , who had a small child , had been unlawful and unacceptable .

The ORG quashed the judgment of DATE , as upheld on CARDINAL April DATE , and remitted the case to ORG for a fresh examination .

On DATE , after a fresh examination , ORG dismissed the applicant ’s claim in the part concerning her reinstatement . It granted her claim in the part relating to compensation for pecuniary and non - pecuniary damage .

On DATE ORG examined appeals by the applicant and the prosecutor against the judgment of DATE , found that the judgment was unlawful and quashed it . The court held that since the applicant ’s claims for compensation for pecuniary and non - pecuniary damage were closely linked with her claim for reinstatement , the relevant circumstances could not be established by the appeal court and it was necessary to refer the case to ORG for a fresh examination .

On DATE ORG examined the case anew and found that the applicant ’s dismissal had been unlawful . It ordered that the applicant be reinstated to her position and recovered in her favour MONEY ( RUB ) in respect of unpaid salary . It dismissed her claims for compensation for non - pecuniary damage . The judgment acquired legal force on DATE .

By a decision of CARDINAL DATE ORG corrected an error in the judgment of DATE and held that the defendant had to pay the applicant RUB CARDINAL in salary arrears . That decision became final on CARDINAL DATE .

Russian Labour Code , which was in force until DATE , provided in Article CARDINAL that the dismissal on an employer ’s initiative of women with children DATE was forbidden , unless the enterprise had been fully liquidated .


Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the applicant started his compulsory military service .

On DATE CARDINAL conscripts , Mr PERSON and PERSON , informed their superiors and other soldiers that the applicant had made several improper comments to them .

Mr PERSON claimed that the applicant had shown him a map of GPE indicating how they were going to establish GPE and put up its flag and had also said that the ORG and soldiers were killing their people and innocent children . According to Mr PERSON , the applicant also stated that “ during target practice they can if they want shoot right on target but that they would not ” .

Mr PERSON alleged that the applicant had kept telling him that they were going to establish GPE and that he had a commando physique and they should take him to the camps .

On DATE the head of the military unit heard the applicant , Mr PERSON and PERSON , PERSON and PERSON .

The applicant maintained that he had never made such remarks and that it was nothing but lies and smears . He stated that he did not have any quarrel with the people who had accused him .

Subsequently , on DATE , the public prosecutor at ORG filed a bill of indictment with that court charging the applicant with the offence defined in section CARDINAL of LAW , namely , disseminating separatist propaganda .

On DATE ORG held a preparatory hearing at which it decided on procedural matters , namely issuing rogatory letters to various authorities in order to secure the applicant ’s and the ORG statements . The next hearing was fixed for DATE .

On DATE the applicant appeared before ORG . The indictment was read out to him . The applicant denied the accusations against him and claimed that Mr PERSON , with whom he had had an argument , was lying . He maintained that he had never uttered the words mentioned in the indictment . The record of the hearing noted that the applicant had requested to be exempted from the obligation to appear at the hearing ( duruşmadan vareste tutulma ) . The applicant was not represented by a lawyer .

On various dates the rogatory courts heard evidence from PERSON , PERSON , PERSON PERSON and Mr Dere . In their statements , PERSON and Mr Dere both affirmed , inter alia , that they had not heard the applicant making the impugned remarks but had been informed of them through Mr PERSON and Mr PERSON .

In his statement Mr PERSON claimed , inter alia , that the applicant had told him “ we have camps in the east . Let me take you to them . You have a commando physique ” . He stated that the applicant was smiling and it looked like a joke . However , he started to take his words seriously when he heard what the applicant had said to Mr PERSON and decided to complain about him to their hierarchical authorities .

In his statement Mr PERSON claimed , inter alia , that on various occasions the applicant had told him “ NORP soldiers are traitors , they kill our people . ORG have killed our people and blame it on us . Before military service I was receiving instruction at a camp . ” He further claimed that the applicant was pointing at the eastern part of GPE on the map and saying “ We are going to divide GPE and establish GPE ” .

On DATE , DATE , CARDINAL May and DATE the first - instance court held hearings , in the absence of the applicant , during which the statements of the applicant and CARDINAL of the witnesses taken by way of rogatory letters were read out .

During the trial the applicant was doing his military service in GPE .

In the hearing held on DATE the statements of the other CARDINAL witnesses , taken by way of rogatory letters , were read out . The prosecutor did not ask for an additional investigation and read out his observations on the merits of the case . On DATE the court , on the basis of witness testimonies , considered that the applicant had disseminated separatist propaganda and convicted him as charged . He was sentenced to DATE imprisonment and to a heavy fine . This decision was served on the applicant on DATE .

On DATE the applicant appealed .

On DATE the applicant hired a lawyer .

On DATE the applicant ’s lawyer filed an appeal .

On DATE the principal public prosecutor at ORG submitted his written opinion to that court . The prosecutor asked the court to dismiss the applicant ’s legal representative ’s appeal , in accordance with LAW , on the ground that it had been submitted out of time . This opinion was not communicated to the applicant .

On DATE ORG dismissed the applicant ’s objections and upheld the judgment of the first - instance court . In its judgment the court stated , inter alia , that , having regard to the evidence and the conviction and the assessment of the first - instance court in line with the conclusions of its investigation , the applicant ’s conviction had been in accordance with the procedure and the law .

On DATE the principal public prosecutor at ORG dismissed a request by the applicant ’s lawyer for rectification of ORG judgment .

On DATE the applicant started serving his prison sentence .

The applicant paid the fine , in CARDINAL instalments , on DATE , DATE and on CARDINAL DATE .

By an additional judgment , dated DATE , ORG , taking into account that section CARDINAL of Law no . ORG had been abolished pursuant to PERSON no . DATE , annulled the applicant ’s conviction and ordered his immediate release . On DATE the applicant was released .

Article CARDINAL of the Code of Criminal Procedure , in force at the material time , provided as follows :

“ CARDINAL . If the accused or his lawyer , who has a power of attorney in this respect , so requests , the court may exempt the accused from the obligation to be present during the hearing .

NORP ... the accused shall be questioned by a judge in another judicial district , acting on rogatory letters , about the principal facts of the case .

Even if the accused does not so request , if the accused has been remanded in custody or is serving a sentence for another crime , the trial court can decide that the accused shall be questioned by a judge in another judicial district , acting on rogatory letters .

The public prosecutor and the accused ’s lawyer shall be notified of the date set for questioning . There is no obligation for them to be present during the questioning .

The record of the questioning shall be read out at the hearing . ”


Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE , in TIME , an accident took place in ORG , a small village in the GPE . PERSON was struck by a car and suffered a slight injury to his arm . PERSON reported the incident to the police and identified the type and registration number of the car involved . He had , however , not been in a position to identify the driver of the car .

On TIME , officers of the local police station started investigations . They found the car , registered in the name of the applicant ’s mother , PERSON , parked in front of the house where the applicant was living with his family . The applicant ’s mother stated that she had not been driving . As regards the applicant , she stated that he was not home yet and showed the police officers the applicant ’s room in which his bed was untouched . Further , she stated that the car was regularly used by several family members . She was requested to send the applicant to the police station as soon as he came in . When asked DATE , the applicant ’s mother stated that he still had not come home . In its investigation report the police referred to the applicant as the suspect and stated that , according to the police ORG general observations , he was the main user of the car .

On DATE and on DATE ORG ( Bezirksgericht ) tried the applicant on charges of causing injury by negligence ( fahrlässige GPE ) . The applicant pleaded “ not guilty ” . He stated that he had not been driving the car at the relevant time and that he did not wish to make any further submissions . PERSON , heard as a witness , confirmed his statements to the police , in particular that he had not been able to identify the driver of the car , nor to state whether the driver had been male or female . The applicant ’s mother and his sister exercised their right not to testify . The minutes state that they were cautioned as to this right , but do not mention the ground on which the caution was based . Pursuant to section QUANTITY § CARDINAL of LAW ( Strafprozessordnung ) , so far as relevant in the present context , a witness may refuse to give evidence if the statement would expose him or her to the danger of criminal prosecution ; a witness may equally refuse to give evidence in proceedings against a close relative .

On DATE the ORG convicted the applicant of causing injury by negligence . It sentenced him to a fine of CARDINAL NORP schillings ( ORG ) , CARDINAL of which was suspended on probation , and ordered him to pay ORG CARDINAL as a partial amount for damages to the victim . In establishing the facts , the court relied on the investigation report of the police , the statement of PERSON and the applicant ’s defence . Its reasoning was as follows :

“ The accused stated in his evidence at trial that he had not been driving the vehicle at the time of the accident and denied every other point in the statement of facts . Both the accused ’s mother , who is the legal owner of the vehicle , and his sister , [ M.G. ] , whom the accused called as a witness , refused to give evidence at the trial . As the injured party , [ Mr K. ] , could not determine at the time of the accident who had been driving the vehicle , the only evidence which remained in connection with this point were the observations of the Obermieming police station , according to which it was common knowledge that the vehicle in question was mainly driven by the accused , ... On the basis of those observations the court is also satisfied that [ the applicant ] was driving the vehicle at the material time and caused the accident . The additional circumstance that , according to the observations of the Obermieming police station , the accused was not at home after the accident and had evidently still not returned by TIME that day and , moreover , that no one knew where he was , leads to the sole , unequivocal conclusion that only the accused could have committed the offence ; presumably he refused to make a statement because he was under the influence of alcohol , but there is no evidence for that finding . The remaining findings as to the circumstances of the accident or the subsequent course of events are based solely on the consistent and fully credible statements of the witness [ Mr K. ] . ”

On DATE ORG ( PERSON ) , after having supplemented the proceedings by inspecting a file concerning administrative criminal proceedings against the applicant ’s sister relating to a traffic offence , and having found that the car at issue was also used by the applicant ’s sister , dismissed the applicant ’s appeal and confirmed the first instance judgment . In particular , as regards ORG evaluation of evidence , ORG found as follows :

“ The impugned assessment of the evidence is consistent , complete and convincing , so that the appellate court can adopt it as well as the findings based thereon . It is the case that the person claiming damages in criminal proceedings was only able to identify the car and could not describe the occupant or occupants of the vehicle . From the evidence it is established , however , that the car , registered in the name of the accused ’s mother , is mainly used by the accused , even if it is also occasionally used by others , such as the accused ’s sister . It would have been open to the accused to give a contrary version of events which conflicted with the charges and to put in relevant evidence without thereby at the same time having to name another person as the driver . That was evidently impossible , however , because having spent TIME away from his GPE house and possibly consuming alcohol he had on DATE driven his mother ’s car through ORG . The court of first instance correctly referred to the observations of the police officers to the effect that immediately after the accident the car was indeed in front of the GPE house , yet the accused ’s bed had not been slept in and he could not be found . Nor could it be ascertained where the accused , who refused to make a written statement to the police , was staying . On the basis of the available evidence before it the court of first instance made a realistic assessment of the facts , especially as there was no evidence that anyone else , such as the accused ’s sister , had been driving the car at the time of the accident . ”


TWOMEY, CAMERON AND GUTHRIE v. THE UNITED KINGDOM

David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The first and second applicants , Mr PERSON and PERSON PERSON , are an NORP and a NORP national , who were born in DATE and DATE respectively . They were represented before the ORG by PERSON , a lawyer practising in GPE . The third applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the ORG by Mr J. Edwards of ORG and Mr PERSON of ORG , lawyers practising in GPE and GPE respectively .

On DATE an armed robbery occurred at a warehouse near FAC . In DATE the trial began before Judge R , sitting with a jury , of PERSON and CARDINAL other defendants charged with offences related to the robbery . In the course of the trial , an application by counsel for CARDINAL of the other defendants required the judge to investigate a substantial volume of material under public interest immunity conditions ; that is , in a closed hearing without disclosure of the contents of the documents to the defence . The judge decided that the material was inadmissible as evidence and indicated that some was highly prejudicial to the first applicant . Subsequently , the first applicant became ill and the jury was discharged from returning a verdict against him . At the end of the trial CARDINAL of the remaining defendants were acquitted altogether , but the jury was unable to agree on a verdict in relation to the other CARDINAL and a re - trial was ordered .

The first re - trial began against Mr PERSON and CARDINAL others in DATE , again before Judge R and a jury . This trial lasted DATE . By DATE summing up the jury had been reduced to CARDINAL members . After a retirement lasting DATE , the trial judge was notified by the jury that they had reached “ on all defendants on all counts , a very strong majority decision ” . The judge said that he would not accept a majority verdict at that stage . However he added that to assist the defence considering what submissions should be made about the timing of the majority direction , he would indicate that the verdicts were likely to be adverse to them . CARDINAL jurors returned to court after DATE , but the tenth juror refused to return to court and was discharged . The jury was unable to reach unanimous verdicts . With CARDINAL jurors , a majority verdict could not be taken . A second re - trial was ordered .

Meanwhile , PERSON was arrested and indicted to stand trial with PERSON and the other defendants . The second re - trial began on DATE , again before Judge R and a jury . On DATE , under closed conditions , the prosecution informed the judge that they were in possession of material which showed that improper approaches were being made to CARDINAL members of the jury . This material was not disclosed to the defence . On DATE the judge informed the parties that he was minded to discharge the jury because of alleged jury tampering . The amount of information which he could give about the allegations was , as he put it in his open judgment , “ necessarily limited ” . He considered representations from the defence , but concluded that no alternative to the discharge of the jury was available . Accordingly on DATE the jury was discharged .

Judge R then reflected whether he should make an order under section CARDINAL ) of LAW DATE ( “ the DATE LAW : see paragraph CARDINAL below ) , that the trial should continue before him sitting alone without a jury . He addressed a complaint made on behalf of the defendants that they were not being allowed to see the material on which his conclusion that jury tampering had taken place at the aborted trial was based , which prevented them from addressing the question whether a “ real and present ” danger of jury tampering existed . Judge R expressed sympathy with this submission , but said in express terms that “ the law does not permit me to disclose the detail of the information upon which I acted in discharging the jury ” . He repeated his entire satisfaction that a determined attempt had been made at jury tampering and added that even if the defence counsel had been allowed to see the material , there was no prospect that any consequent submissions could have altered his conclusion . Next , he reminded himself of the undisclosed material relating to the first applicant which he had seen in the course of the DATE trial . He concluded that his knowledge of that material would make it unfair for him to return a verdict on the first applicant , and that this would have a “ knock - on effect ” on the other defendants , whose cases were inextricably linked to his . He considered that a “ serious attempt at jury tampering ” had taken place during the trial , and that there was “ clearly a real and present danger ” of the same thing happening again . He decided that the question whether the next re - trial should be by judge and jury or by judge alone should be considered by the President of ORG , the High Court Judge C.

In a closed session , with the assistance of counsel for the ORG , Judge PERSON examined the undisclosed material concerning the allegations of jury tampering which had originally been put before Judge PERSON invited submissions in open court from defence counsel . He also examined the open and closed court judgments and heard evidence from police officers about possible jury protection . Judge PERSON noted that the problems caused to the defence by the lack of disclosure . However , he concluded that the public interest demanded that it remain confidential . He indicated that cases in which this course might be appropriate would be likely to be cases where the danger of jury tampering was at its “ most extreme ” . He added that if he were to conclude that the defendants should be informed of the matters of which they were ignorant then , notwithstanding the public interest that demanded that the information should be withheld , the entire object of the provisions intended to address jury tampering would be defeated . Judge C agreed with Judge R that there was a real and present danger that a future jury would be tampered with , and that the danger would persist from the moment when any new trial before a jury started until its conclusion . Nonetheless he considered that sufficient police protection could be provided , thus making it possible to conduct the re - trial with a jury .

The prosecution appealed to ORG . On DATE , in accordance with the provisions of sections CARDINAL of the CARDINAL Act , ORG ordered that the third re - trial should be conducted by a judge alone without a jury ( NORP v. PERSON and Others [ DATE ] EWCA Crim CARDINAL ) . It confirmed the conclusions of Judges R and C that the evidence established to the criminal standard that there was a real and present danger to the integrity of a future jury trial and that the danger of jury tampering and subversion of the process of trial by jury was very significant . They considered that the protective measures envisaged by Judge C would be inadequate in the circumstances to obviate these risks and that , in any event , the consequent impact on individual jurors of such a package of security measures would be unfair .

Judge T was appointed to act as the trial judge and to conduct the trial on his own . None of the material relating to jury tampering was relied on by the prosecution , and Judge T made it clear that he would not examine it , although as trial judge he remained under a continuing obligation to review whether it was fair not to disclose any other public interest immunity material which related to the issues at trial , on the ground that it would assist the defence or undermine the case for the prosecution . On DATE he gave judgment convicting both applicants and CARDINAL others of robbery , possessing firearms and other linked offences . The first applicant was sentenced to DATE and CARDINAL months’ imprisonment and the second applicant was sentenced to DATE .

DATE the Court of Appeal heard the applicants’ appeal against conviction and sentence ( R v PERSON and others ( No CARDINAL ) [ DATE ] PERSON . The main issue canvassed in the appeal was the fairness of the process by which the decision was made to conduct the retrial without a jury , and in particular the use of undisclosed evidence in that process . In its judgment dated DATE , ORG dismissed the appeal . The Lord Chief Justice commenced the judgment with the following observations :

“ CARDINAL . This remains the only case in this jurisdiction where trial on indictment by judge alone has taken place to nullify the risk of ‘ jury tampering’ or jury nobbling . For the time being , although the statutory provisions relating to trial on indictment by judge alone have been in force for DATE , this case is unique , and we must hope that it will remain so . The proper operation of the criminal justice system requires that the verdicts returned by a jury , as with any other court , must be true verdicts in accordance with the evidence . Verdicts returned by a jury which has been nobbled can not represent true verdicts . If criminals choose to subvert or attempt to subvert the process of trial by jury they have no justified complaint if they are deprived of it . That is the consequence they face . The certain way of avoiding trials by judge alone where trial by jury would otherwise be available is for jury tampering to stop : it is as stark and simple as that .

Notwithstanding that trial by jury has been forfeited , the requirement that trial by judge alone should be fair is undiminished . All that has changed is the constitution of the tribunal . There is nothing in the common law , or in any of the provisions of LAW which suggests that trial by judge alone must , of itself , be deemed to be unfair , or that where an order for trial by judge alone is made , the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial . And it has not been suggested in argument that an order for trial by judge alone is or should be deemed to be an unfair trial . The fairness of any trial by judge alone is , of course , subject to review in this court , and if on examination it appears that the trial judge had acted unfairly , or in breach of the ordinary rules which govern judicial conduct , this court would have no hesitation in quashing any subsequent conviction . As it is , as we emphasise , no suggestion of unfairness has been directed at [ Judge T ’s ] conduct of this trial , and indeed the verdicts were returned after a trial which was conducted with conspicuous fairness . ”

The Lord Chief Justice commented as follows on the choices faced by a trial judge following a decision to discharge a jury mid - trial :

“ CARDINAL . ... The judge is then faced with CARDINAL alternatives , either to continue with the trial or to terminate it . As we have narrated , in this case [ the trial judge ] brought the trial to an end . We understand his reasons , and what follows is not intended to be seen as criticism of the decision . However , given that CARDINAL of the purposes of this legislation is to discourage jury tampering , and given also the huge inconvenience and expense for everyone involved in a re - trial , and simultaneously to reduce any possible disadvantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others , and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury , save in unusual circumstances , the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial . The fact that he has been invited to consider material covered by [ public interest immunity ] principles , whether during the trial , or in the course of considering the application , should not normally lead to self - qualification . ”

He continued by considering the impact of the judgment of ORG in Secretary of ORG for ORG v. ORG and others ( No . CARDINAL ) [ DATE ] ORG CARDINAL , which concerned non - derogating control orders under LAW DATE , involving significant restrictions on liberty . ORG decided that it was inconsistent with the right to a fair hearing under LAW to make a control order on the basis of material which was undisclosed to the subject and his advisers and which could not , therefore , effectively be challenged by them . In the present case , ORG rejected the ORG argument that it followed from the judgment in ORG ( No . CARDINAL ) that they were entitled to disclosure of the evidence which had formed the basis for the decision to proceed to retrial without a jury , for the following reasons :

“ DATE . Attractively advanced as it was , this submission failed to grapple with the reality that the question whether the trial of the defendants should proceed as a trial by judge and jury or trial by judge alone was concerned exclusively with the mode of trial . It was not itself a criminal proceeding in the sense that the exercise of the jurisdiction to order a trial on indictment by judge alone might create or have the potential to create adverse consequences of the kind involved in control orders . No restriction on any individual defendant ’s liberty , nor any other form of punishment , nor any sanction could follow from an order for trial by judge alone . Equally the order did not and could not constitute any form of interference with his property rights . The ‘ right’ engaged in the present appeal is confined to the mode of trial , not its fairness . ”

Once the decision of ORG was known , the first applicant asked ORG to certify the following question as “ points of law of general public importance ” , such as would have allowed the Applicants to apply to ORG for an appeal against ORG decision :

“ In a criminal trial is the use of Closed Material Procedure by a ORG for a particular purpose and/or in a particular circumstance lawful without there being in existence statutory provision granting the ORG jurisdiction to use Closed Material Procedure for such purpose and/or in such circumstance ? ”

On DATE ORG refused to certify a point of law , effectively ending the domestic avenues of appeal .

The applicant , together with her mother “ PERSON , sister “ CG ” , brother “ RG ” and another defendant , stood trial DATE on CARDINAL counts of conspiracy to defraud . The prosecution case was that , by adopting false identities , the defendants dishonestly involved themselves in fraudulent applications for housing benefit and council tax benefit in relation to various properties in different GPE boroughs , giving an estimated profit of GBP CARDINAL , which they used to purchase more property . PERSON and her co - accused denied the charges .

The jury were sworn in on DATE . On DATE CARDINAL of the jurors complained that DATE , when she was waiting for a pre - arranged lift outside the court house , a woman whom she had seen in the public gallery approached her and asked her a question about her telephone . At that point , PERSON and GPE walked past . The applicant walked on with the woman from the public gallery but CG stopped and asked the juror whether they had seen each other at a gay club and asked her for her telephone number . The juror panicked and gave her a false number . The following morning she told CARDINAL other jurors what had happened . When she informed court staff , they isolated these CARDINAL jurors until the trial judge had questioned each of them individually . The judge ascertained that each of the jurors felt able to continue with the case and to remain impartial . She then informed the parties what had happened . She revoked CG ’s bail . When questioned , CG maintained that she had thought she recognised the woman from somewhere but had not realised she was a juror in her case .

Subsequently , the applicant ’s brother , ORG , made an application for the jury to be discharged on the ground that they were likely to view CG ’s approach as an attempt improperly to influence them . The trial judge rejected this application , relying on the firm assertions of the CARDINAL jurors who knew about the incident .

The jury retired on DATE . On DATE they acquitted CARDINAL defendant . CARDINAL juror was then discharged , because of a longstanding holiday commitment .

On DATE , after the jury had been sent back out to continue their deliberations , the trial judge was informed by the prosecution ex parte in chambers that CARDINAL of the police officers involved in investigating the case had become aware of material that indicated that there had been possible interferences with the jury , intended to affect their deliberations . As a result , further inquiries were made but no disclosure was made to the defence on grounds of public interest immunity . It was decided to arrest ORG , a former female companion of CG , who was alleged to have been implicated in the jury tampering .

The following morning the jury were sent away for DATE . ORG attended court in TIME and was arrested . At that point , it was disclosed to the defence that an allegation had been made that ORG had been in contact with a member of the jury and that ORG and PERSON were aware of what had taken place . The CARDINAL defendant members of the PERSON family who were still at liberty were then remanded in custody .

On DATE an inter partes hearing took place in chambers , to determine whether or not the trial judge should discharge the jury under the provisions of section CARDINAL ) of MONEY DATE ( see below ) . PERSON , together with ORG , opposed the suggestion that the jury should be discharged and asked for the decision to be postponed until further inquiries could be made . However , the trial judge considered that any further delay would have an unsettling effect on the jury and that , since they had already retired , any further questioning would impinge upon the confidentiality of the jury room . She concluded that material had been placed before her in a cogent and compelling format which indicated that jury tampering had taken place , and that there was a “ high degree of need ” for the jury to be discharged .

On DATE the gist statement already disclosed to the defence was amended and extended to provide as follows :

“ ( i ) An allegation has been made that a third party [ ORG ] has been in contact with a female member of the jury in an attempt to ensure that the juror returned a not guilty verdict ; and was contacting the juror about how deliberations were going . ( ii ) The jury member allegedly discussed jury voting and deliberations in the course of this contact . ( iii ) This contact is alleged to have taken place following the remand of [ CG ] on the CARDINALth DATE up to and including the time when the jury were in retirement to consider their verdict . ( iv ) NORP The contact between [ ORG ] and the juror is alleged to have taken place ‘ face to face’ , with CARDINAL of those meetings said to have taken place after the court had risen for DATE and in close proximity to the court building and/or its grounds . This meeting may have been witnessed by another member of the jury . However [ ORG ] is also alleged to have had the mobile telephone number of the juror . Contact is alleged to have taken place between [ ORG ] and the juror on CARDINAL occasions . ( v ) It is understood that [ CG ] , [ the applicant ] and the third party [ ORG ] have been in communication since contact was made with the juror . ( vi ) [ CJW ] has also been involved . ( vii ) There is presently no direct evidence of the contact between [ ORG ] and the juror . ( viii ) [ SL ] was arrested and interviewed in relation to this allegation . ”

A transcript of the interview with ORG was also provided to the defence .

On DATE the trial judge heard submissions from the prosecution and the representatives of the defendants on the issue whether the trial should continue without a jury , in accordance with section CARDINAL ) of MONEY DATE ( see paragraph CARDINAL below ) . With reference in particular to ORG judgment in PERSON ( see paragraph CARDINAL above ) , the judge held that the right to trial by jury was not absolute under domestic law and was not required by LAW . The judge next considered the question whether there would be a risk of bias if she were to continue with the trial , having already examined undisclosed material relating to the allegation of jury tampering , and having made rulings adverse to the defence on the basis of this material , including remanding the defendants in custody . She concluded that there was no real danger of a perception of bias , since the undisclosed material she had examined was not related to the criminal charges against the defendants , but only to the allegation of jury tampering . It was not unusual in a trial of such length for a judge to have made a number of rulings adverse to the defence and if the fact of having made such rulings disqualified her from proceeding with the trial under LAW ) of the CARDINAL LAW , it would be possible so to proceed only in very rare cases . Furthermore , of the CARDINAL or so rulings she had made so far , CARDINAL had been favourable to the defence . She held that , having undertaken a rigorous and thorough examination of the evidence , she was satisfied that jury tampering had taken place requiring the jury to be discharged , but that it would not be unfair to any of the defendants to continue with the trial without the jury .

The trial judge also gave leave for an interlocutory appeal on this issue , which took place on DATE . ORG , having examined the undisclosed material which had been seen by the trial judge , gave its judgement on DATE , upholding the trial judge ’s ruling . It observed that nothing considered by the trial judge under public interest immunity principles should have been disclosed to the defence ; the gist statement provided to the defence accurately summarised the effect of that material ; there was nothing in the material to suggest that the trial judge should have disqualified herself from continuing with the trial . The legislation did not suggest that the trial judge who examined evidence and made findings relating to the discharge of the jury should then recuse himself and it would be “ strange if it were possible for a criminal or group of criminals to take extreme steps to undermine the process of trial by jury , and then to argue that the judge who had made the necessary findings would then have to disqualify himself ” .

Subsequently , on DATE , the trial judge convicted all CARDINAL remaining defendants of all the charges against them .

On DATE ORG refused leave to appeal against the interlocutory judgment of ORG .

Section CARDINAL of LAW DATE provides as follows :

“ ( CARDINAL ) This section applies where –

( a ) a judge is minded during a trial on indictment to discharge the jury , and

( b ) he is so minded because tampering appears to have taken place .

( CARDINAL ) NORP Before taking any steps to discharge the jury , the judge must –

( a ) inform the parties that he is minded to discharge the jury ,

( b ) inform the parties of the grounds on which he is so minded , and

( c ) allow the parties an opportunity to make representations .

( CARDINAL ) Where the judge , after considering any such representations , discharges the jury , he may make an order that the trial is to continue without a jury if , but only if , he is satisfied –

( a ) that jury tampering has taken place , and

( b ) that to continue the trial without a jury would be fair to the defendant or defendants ;

But this is subject to subsection ( CARDINAL ) .

( CARDINAL ) If the judge considers that it is necessary in the interests of justice for the trial to be terminated , he must terminate the trial .

( CARDINAL ) Where the judge terminates the trial under subsection ( CARDINAL ) , he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in DATE are likely to be fulfilled .

( CARDINAL ) Subsection ( CARDINAL ) is without prejudice to any other power that the judge may have on terminating the trial .

( CARDINAL ) Subject to subsection ( CARDINAL ) , nothing in this section affects the application of section CARDINAL or CARDINAL in relation to any new trial which takes place following the termination of the trial . ”


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

NORP The applicant , a former lieutenant , was born in DATE and lives in GPE .

After being expelled from the armed forces for disciplinary and ethical reasons , mainly on account of his excessive indebtedness and his failure to discharge his debts , the applicant brought an action before ORG against ORG for the annulment of the expulsion order .

An action for fraud was subsequently filed against the applicant before the criminal courts .

ORG submitted certain documents and information to ORG regarding the applicant ’s expulsion , which were classified as “ secret documents ” under LAW no . DATE on ORG . These documents were not disclosed to the applicant .

On DATE ORG held a hearing , which the applicant attended , and on DATE it rejected the applicant ’s case . The court refused to hear the applicant ’s witnesses , holding that the witness statements would not make any difference to the applicant ’s position in the circumstances of the present case and that the examination could be sufficiently conducted on the basis of the documents in the case file .

On DATE ORG dismissed the applicant ’s rectification request .

A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .


CASE OF GHIMP AND OTHERS v. THE REPUBLIC OF MOLDOVA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE and PERSON .

The present case concerns the circumstances surrounding the death of PERSON , who was the first applicant ’s husband , the second and the third applicants’ sibling and the fourth applicant ’s brother - in - law .

PERSON , who was DATE at the time of the events in question and the father of CARDINAL children DATE , worked as a truck driver . On DATE at TIME he went to work in order to load his truck and prepare it for DATE . According to witnesses , he finished work at TIME After that and before going home , he spent time enjoying drinks with his co - workers , first at their workplace and later in CARDINAL bars . At TIME he left the bar and took a taxi . He subsequently had a dispute with the taxi driver because the driver had allegedly not taken him to the agreed destination . Because he refused to pay the fare , the taxi driver drove him to GPE police station . According to witnesses from the police station , the taxi driver left after a short time and after being paid by PERSON . The report of the latter ’s arrest , however , stated that he had been found drunk and sleeping at a bus station . There was no mention of the incident with the taxi driver in the report .

According to the applicants , at the police station , PERSON was beaten up by QUANTITY police officers : GPE , GPE and ORG , and was left lying in the corridor on a dirty concrete floor . He was released TIME at TIME

According to the accused police officers , PERSON was not beaten up at the police station and was told that he was free to go shortly after being brought in . However , being severely intoxicated he refused to leave and preferred to sleep on the floor until TIME .

After being released at TIME DATE , PERSON went home . According to his wife and a person who had seen him walking home , he was pale and walking very slowly . He told his wife that he had stomach ache and spent DATE in bed . Only later during the evening , after the pain had intensified , did he tell his wife about the beating at the police station . He told her that the pain had started after a blow to his stomach which had caused him to feel a sharp pain and lose his breath . Later during the night PERSON started vomiting and his wife called an ambulance , which took him to a hospital . On DATE at CARDINAL a.m. PERSON died in hospital .

On an unspecified date the first applicant informed ORG of PERSON ’s account of his beating at PERSON police station . On DATE criminal proceedings were initiated by ORG .

An autopsy report dated DATE stated that his death had resulted from diffuse purulent peritonitis after a perforated ulcer of the small intestine . The perforated ulcer had developed after a blow with a blunt object with a small impact area , possibly on TIME DATE .

In another forensic report dated DATE , a panel of forensic doctors composed of doctors GPE , GPE and GPE , after examining the victim ’s medical documents and his exhumed corpse , came to a similar conclusion , namely that he had died as a result of a rupture of the small intestine resulting in intestinal contents flowing into the abdominal cavity and causing bacterial contamination of the abdominal cavity – in other words , purulent inflammation of the peritoneum . According to the doctors , the injury causing his death had resulted from a blow from a blunt object with a small surface area to PERSON stomach , possibly on TIME DATE . The doctors did not find any traces of alcohol in his blood and concluded that he had been sober at the time of his death . They also concluded that there was a chance that his life could have been saved had he gone to a hospital within TIME after being injured .

During the criminal investigation , the prosecutor in charge of the case questioned numerous witnesses , including police officers from LOC police station . The QUANTITY police officers suspected of ill - treating PERSON denied that he had been treated violently and unanimously maintained that he had been found drunk and sleeping at a bus stop and brought to the police station . They also stated that after questioning him , PERSON had refused to go home because it was late and he had no money and preferred to sleep on the floor of the police station . All the police officers submitted that PERSON had been intoxicated but that he had not presented any signs of violence or injuries .

CARDINAL other police officers from GPE police station , who were not suspects , submitted that the victim had come to the police station together with a taxi driver , whom he had been refusing to pay for a fare . After TIME the taxi driver had been paid by PERSON and had left the premises of the police station . The police officers also denied having witnessed acts of violence against PERSON and also stated that he had preferred to sleep on the floor in the corridor of the police station rather than go home .

A witness , ORG , who had been brought to the police station on TIME ( DATE ) , stated that she had had an argument with her family and had been taken to LOC police station from her home . At the police station she had been in the same room as a man who had had an argument with a taxi driver . She had understood that from the discussion which that man had had with QUANTITY police officers . Because he had continued to refuse to pay the taxi driver , the police officers had beaten him up in front of her . She had seen the police officers punching the man until he had collapsed to the floor . Then CARDINAL of the police officers had grabbed the man by his coat , dragged him into the corridor and left him lying on the concrete floor . She had later been released after being forced to sign a document stating that she was being fined for appearing drunk in public . As in PERSON case , the report of her arrest stated that she had been arrested on the street .

The prosecutor also questioned the people with whom PERSON had spent DATE on DATE . All of them stated that he had appeared to be in good health and had not shown any signs of illness throughout DATE . The prosecutor ’s attempt to find the taxi driver who had brought PERSON to the police station was not successful .

On DATE one of the accused police officers , ORG , changed his initial statement . He admitted to having lied in his previous statement and admitted that PERSON had been brought to the police station by a taxi driver . He submitted that another co - accused , police officer GPE , had punched the victim several times in the stomach area . Then GPE had taken money from the pocket of PERSON trousers and had paid the taxi driver . After that , he had punched PERSON several more times . ORG also stated that the beating had taken place in his presence and that of CARDINAL other people , a police officer and a person who had been brought to the police station that TIME and had been in the same room . ORG stated that he had decided to change his initial statement because he had felt remorseful and sorry for PERSON children and wife . His statement was given in the presence of a lawyer TIME and TIME and was videotaped . At the time of his questioning he was not detained in custody .

During further questioning of the other QUANTITY police officers suspected of ill - treating PERSON , they also admitted that he had been brought by a taxi driver to the police station – not found sleeping at a bus stop as had been mentioned in the report of his arrest and as initially stated by them . They continued , however , to deny having ill - treated him .

NORP The prosecutor also examined the room where questioning usually took place in the LOC police station and in which the victim had allegedly been beaten up , and discovered numerous blood stains on the walls and furniture .

During the subsequent court proceedings , suspect ORG changed his statement again and submitted that nobody had ill - treated PERSON on TIME of DATE . When asked why he had admitted on DATE to CARDINAL of the co - accused having ill - treated PERSON in his presence , he replied that he could not remember having made such a statement because he had been very tired and hungry on DATE , as he had been on duty the previous night and had worked around the clock . He remembered , however , that the prosecutor had threatened him and had used a swear word in doing so and that he had not been assisted by a lawyer of his choice . He also argued that at the time of questioning he had not realised the questioning was being filmed .

On DATE ORG found police officers GPE , GPE and GPE guilty of acts of violence against PERSON causing his death . They were also found guilty of making false statements in the report of PERSON arrest and in the report of witness ORG ’s arrest and were each sentenced to CARDINAL years’ imprisonment . The court also ordered them to pay compensation to the first applicant in respect of non - pecuniary damage in the amount of CARDINAL lei ( ORG ) and ruled that the rest of the claims made by her be examined in separate civil proceedings .

NORP The police officers appealed against conviction . During the appeal proceedings , one of the officers , GPE , presented a new version of events , namely that PERSON had fallen down in the police station and that a table had fallen on top of him . On DATE ORG partially allowed the ORG appeals and reduced GPE ’s sentence to DATE imprisonment and that of GPE and GPE to DATE each .

On DATE ORG allowed an appeal on points of law brought by the officers and , after concluding that the case had not been thoroughly examined , quashed the judgment of ORG and ordered a re - examination of the proceedings by the same court .

On DATE ORG acquitted the police officers of all charges . ORG statement of DATE was excluded on the grounds that it had been obtained in breach of the provisions of LAW , namely that it had been obtained late in TIME when PERSON had been very tired and in the absence of a lawyer of his choice . In excluding ORG statement the court relied on the statement of a psychologist , who submitted that in cases of extreme tiredness a person may be prone to making false self - incriminating statements . As to the statement of ORG , the court considered it unreliable because she had reason to resent the police officers who had arrested her on DATE . Moreover , some of the assertions she had made in her statement were considered to be contradictory . As to the findings of the panel of forensic doctors , the court held that they were refuted by the statements of CARDINAL of the experts who had signed the report dated DATE , NORP That expert had been invited to testify by CARDINAL of the accused police officers . He had changed his opinion and had stated that PERSON injuries could have been caused TIME on DATE and TIME on DATE that is prior to his detention . In accepting ORG ’s new opinion , the court did not explain why it preferred it over the conclusion of the panel of forensic doctors or what had made ORG change his opinion after DATE had passed . In so far as the charges of making false statements in the arrest reports were concerned , the court found that the accused had indeed made false statements ; however , as there was no personal gain involved , they were acquitted .

On DATE a panel of ORG dismissed an appeal on points of law lodged by ORG and by the first applicant . ORG challenged this judgment with an extraordinary appeal .

On DATE ORG accepted the extraordinary appeal and quashed both the judgment of ORG and that of ORG of DATE . ORG found , inter alia , that the findings of the first panel of forensic doctors could not be rebutted by the opinion of a single doctor and that only the opinion of another panel of doctors could be acceptable . A fresh re - examination of the appeal against the judgment of DATE was ordered .

During the proceedings , ORG ordered a repeated forensic examination in respect of the circumstances of PERSON death by a panel of doctors from ORG . In the meantime , GPE , the expert who had testified during the previous proceedings before ORG ( see paragraph CARDINAL above ) , had become the chief doctor of ORG .

In an expert report dated DATE , a panel of doctors reached , on the basis of medical documents , a conclusion identical to that expressed by ORG during the previous proceedings before ORG ( see paragraph CARDINAL above ) , namely that the victim ’s injury had been caused CARDINAL TIME on DATE and TIME on DATE . According to the report , the rupture of his intestine had initially been incomplete and only on DATE had it become complete , causing PERSON death .

On DATE ORG upheld the appeals lodged by the officers , reversed the judgment of ORG of DATE and acquitted the officers of all the charges against them . In so doing , ORG attributed substantial weight to the new forensic report of DATE .

On CARDINAL DATE ORG dismissed an appeal on points of law lodged by ORG .

LAW of DATE states :

“ Police officers are only entitled to use force and special fighting techniques for the purpose of ending criminal activities and for neutralising resistance to lawful demands in cases in which non - violent methods are not sufficient to discharge their obligations . ”