CASE OF VAN MECHELEN AND OTHERS v. THE NETHERLANDS

Violation of Art. 6-1+6-3-d;Just satisfaction reserved;Costs and expenses award - Convention proceedings

ORG The police received information to the effect that the applicants were the perpetrators of several robberies , and that they operated from CARDINAL residential caravan sites . It was decided to detail a police observation team ( observatieteam , " ORG " ) to keep these caravan sites under observation as from DATE .

ORG On DATE at around TIME CARDINAL motor cars , a ORG estate car , a ORG and a Lancia , were seen to leave CARDINAL of the CARDINAL caravan sites shortly after each other . Their registration numbers were noted .

ORG On DATE at TIME the post office of the town of ORG was robbed . The window of the post office was broken down by backing a ORG estate car equipped with a steel girder into it . CARDINAL of the robbers , wearing a black balaclava helmet and armed with a pistol , forced the staff to surrender MONEY . The robbers then set the Mercedes car alight and made off in a ORG .

Police cars alerted by radio followed the ORG . Police officers saw the ORG drive onto a sand track leading into a nearby forest . Later they saw a column of smoke coming out of the forest . The ORG was subsequently found there , burnt out .

CARDINAL police officers in a police car saw a red car ( later found to be a Lancia ) leave the forest via the same sand track used by the ORG and gave chase . In the course of the chase the boot of the car was opened from the inside and men squatting in the back opened fire at the pursuing police car with a pistol and a sub - machine gun . A car containing civilians was hit by a stray bullet but its occupants were not hurt .

The ORG made off at high speed and entered a side road . When the police car caught up with it the Lancia was stationary . A man standing in the road fired at the police car with a sub - machine gun . The police car was hit and its occupants injured , after which the gunman and the persons in the Lancia made their escape .

ORG All CARDINAL cars - the Mercedes , the ORG and the ORG - were later identified as the cars which had been seen leaving the caravan site ( see paragraph CARDINAL above ) .

ORG The applicants and CARDINAL other man , called PERSON ( not to be confused with the applicant PERSON ) , were charged with attempted murder - or , in the alternative , attempted manslaughter - and robbery with the threat of violence and summoned to appear for trial before the ‘ s - ORG ( arrondissementsrechtbank ) on DATE .

Evidence proffered by the prosecution included statements made to a named police officer by police officers identified only by a number .

ORG In interlocutory judgments of CARDINAL DATE ORG decided that it was necessary to establish whether the police officers identified only by numbers had investigative competence ( opsporingsbevoegdheid ) . To that end it referred the case to the investigating judge ( rechter - commissaris ) and adjourned the case until DATE .

The investigating judge established that the police officers in question did in fact have investigative competence .

Counsel for Mr PERSON argued , inter alia , that the police officers identified only by a number were anonymous witnesses , so that their statements did not constitute sufficient proof , in the absence of corroborating evidence , to support a conviction . ORG rejected this argument , holding that since the police officers in question had investigative competence , the evidential value of their statements was not affected by their anonymity .

ORG convicted the accused of attempted manslaughter and robbery with the threat of violence . The evidence identifying the applicants as perpetrators of these crimes was constituted by the statements made before the trial by the anonymous police officers , none of whom gave evidence before either ORG or the investigating judge .

All CARDINAL accused were sentenced to CARDINAL years’ imprisonment .

ORG The CARDINAL convicted men appealed to the ‘ s - Hertogenbosch Court of Appeal ( gerechtshof ) .

At the hearing before that court on DATE the ORG lawyers made requests for several named and anonymous witnesses to be heard . ORG thereupon referred the case to the investigating judge , firstly because it considered it necessary to find out what objections the police officers themselves had against the lifting of their anonymity and secondly because the number of persons to be heard was such that it could not conveniently be done in open court . The persons to be heard were CARDINAL named police officers , CARDINAL anonymous police officers ( identified to the defence and the court only by a number ) and CARDINAL civilians .

ORG The named and anonymous witnesses were questioned on CARDINAL and DATE DATE and on CARDINAL - CARDINAL and CARDINAL DATE .

All of the anonymous witnesses were - or had at the relevant time been - police officers invested with investigative competence .

The procedure followed for questioning them was that the investigating judge , the witness and a registrar were together in CARDINAL room , and the defendants , their lawyers and the advocate - general in another . The defendants , the lawyers and the advocate - general could hear all the questions asked to the witnesses and their replies through a sound link . The statements of the witnesses were repeated by the investigating judge to the registrar , who took them down .

ORG On DATE witness CARDINAL was interrogated . He was a member of an observation team . It was his wish and that of his superiors that he remain anonymous in the interests of the service ; in addition , his family had been threatened in the past . Witness CARDINAL confirmed a statement which he had made earlier , to the effect that when confronted with Mr PERSON through a CARDINAL - way mirror he had identified him as the man who had sat next to the driver of the Lancia .

Witness PERSON was interrogated DATE . His wish to remain anonymous was primarily inspired by the wish to ensure the safety of his family and friends ; he had been threatened in the past . At the time of the crimes in question he had been a member of an arresting team . He had been a passenger in the front seat of the police car used to pursue the ORG and had been badly wounded in the shooting .

Witness DATE was a member of an observation team . He wished to remain anonymous to ensure the safety of his family and friends and his colleagues ; he knew of cases in which a police officer ’s family had been threatened . He confirmed the correctness of a report which he had drawn up together with witness DATE .

Witness BRZCARDINAL had been a member of an arresting team at the relevant time . He wished to remain anonymous in the interests of the service but also for the safety of his family . He confirmed an earlier report to the effect that he had been a back - seat passenger in the police car which had pursued the ORG , and had been fired at .

ORG On DATE the investigating judge drew up an official report of his findings with regard to the first CARDINAL anonymous witnesses . He considered them all reliable , although they had shown great caution when asked questions which might affect their anonymity . He also considered their reasons for wishing to remain anonymous well - founded .

ORG Also on CARDINAL DATE the investigating judge interrogated , in addition to CARDINAL named police officers , the named witness Mr Engelen . Mr Engelen was a civilian bystander who stated that he had seen a man fire a gun . He had later identified Mr PERSON as that man when confronted with him through a CARDINAL - way mirror .

ORG On DATE ORG resumed the hearing . The lawyer defending Mr PERSON asked for CARDINAL anonymous police officer - ORG - to be heard in open court . ORG however decided not to continue its own examination of the case until all witnesses had been questioned by the investigating judge .

ORG On DATE the investigating judge resumed the interrogation of the witnesses .

Witness PERSON stated that he was a member of an arresting team . He had been the driver of the police car used in the attempt to pursue the ORG and force it to stop . He had recognised Mr PERSON as the driver of the Lancia .

Witness CARDINAL stated that he had been a member of an observation team at the relevant time . He wished to remain anonymous because he feared for the safety of his family . In addition , he was involved in the work of the criminal intelligence department ( Criminele Inlichtingen PERSON , " CID " ) . His superiors wanted him to remain anonymous for that reason . He too had recognised Mr PERSON as the driver of the Lancia .

Witness DATE was also a member of an observation team . He had been a passenger in a police car which had passed the Lancia and had recognised Mr PERSON as the driver .

ORG Witness CARDINAL had been a member of an observation team at the relevant time . He wished to remain anonymous in the interests of the service as well as for the safety of his family . He had been the driver of an unmarked police car and had seen the ORG and the Lancia drive past but had not recognised any of their occupants .

Witness DATE had been a member of an arresting unit . He wished to remain anonymous in the interests of the service as well as for the safety of his family . He had seen the ORG both before and after the robbery in ORG . The driver on both occasions had been the applicant PERSON , whom he had later recognised at a confrontation .

Witness PERSON had been a member of the same arresting unit . He was " PERCENT certain " that he had seen Mr PERSON enter the caravan site TIME before the CARDINAL cars left from there .

Witness BRZCARDINAL had left the police force but at the relevant time had been a member of an arresting team . He wished to remain anonymous for the safety of his family , CARDINAL of his colleagues having been threatened in the past . He had been the driver of the police car which had pursued the Lancia and had been fired at . He had sustained injuries , as had the other police officers in the car .

ORG The various named police officers provided background information relating to the investigation and the procedures followed but did not positively identify any of the applicants as the perpetrators . Some of them stated that they knew of colleagues who had been threatened in other cases but none of them had yet been threatened in this case .

ORG On DATE the investigating judge drew up a report of his findings concerning the questioning of the witnesses . This document reads as follows :

" REGIONAL COURT OF ‘ s - HERTOGENBOSCH

Investigating judge

with responsibility

for criminal cases

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

OFFICIAL RECORD OF FINDINGS

The cases against :

PERSON ,

PERSON ,

PERSON ,

PERSON , and

PERSON

were referred by ORG at ‘ s - Hertogenbosch to myself , PERSON , investigating judge with responsibility for criminal cases at ORG of ‘ s - Hertogenbosch . I , investigating judge , wish to place the following on record in connection with the investigation conducted by myself with the assistance of the registrar .

ORG referred the cases against the said accused persons to me in order for a total of CARDINAL witnesses to be heard . CARDINAL of them are designated only by a number in the documents .

I , investigating judge , questioned CARDINAL witnesses in the presence of the registrar . I also , together with the registrar , drew up a record of the hearing for each accused separately . The statements of the witnesses are however similar in all cases , since the hearings took place simultaneously in all CARDINAL cases .

Thus in the statements the names of fellow accused and their counsel appear as ‘ persons asking ORG .

The witnesses indicated were questioned on the dates given below :

DATE CARDINAL

BRZCARDINAL

CARDINAL

BRZCARDINAL

DATE F.P.W. Engelen

PERSON

G.J.M. PERSON

CARDINAL DATE BRZCARDINAL

CARDINAL

CARDINAL

DATE CARDINAL

CARDINAL

CARDINAL

CARDINAL DATE BRZCARDINAL

H.P.C. PERSON ( adjourned )

CARDINAL DATE W.P.A. Meijers

P.F.M. Aarts

H.P.C. PERSON ( resumed )

CARDINAL DATE PERSON

P.J.M. Swartjes

G.W.A.M. PERSON .

The accused , their counsel and the advocate - general were always invited to the hearings . Whenever they appeared they were also given an opportunity to ask questions . They did so extensively . The hearings took up a great deal of time . The shortest hearing of an unidentified witness lasted TIME ( CARDINAL ) ; the longest TIME ( BRZCARDINAL ) . The hearings of witnesses PERSON and PERSON each lasted TIME . This information may perhaps be of use in assessing the suggestion that was made on DATE to ORG , that all the witnesses should be heard by ORG in DATE .

Where a witness did not answer a question , this is also indicated in the text of his statement .

The statements were recorded in very great detail and in fact cover all the matters raised - also by the defence - , in a factual and where necessary even literal transcript . Once the text existed in draft form , those present were invariably given the opportunity to make comments , request clarification and put further questions . Where necessary the statement was then amended , clarified and expanded - always , of course , within the limits of what the witness really wanted to say . And even if ... there are drawbacks to the manner in which the hearings of the unidentified witnesses were carried out , it is my belief that the advocate - general and the defence had sufficient opportunity to question the witnesses thoroughly at the hearings . Those present really did have the opportunity for TIME on each occasion . If they so desired , those present had several chances to put questions to a witness . Unlike what normally happens at court hearings , everyone was able to follow the entire transcription of the statements and then still obtain clarifications and additions . Questions were barred only on substantive grounds ( see the records for details ) , not by reason of the time taken for the interrogations .

In the light of recent case - law in the matter of statements by unidentified witnesses , I think it is right for me to make known my findings regarding the statements of the unidentified witnesses heard in this case . I , the investigating judge , and the registrar , are the only persons who attended all the hearings from start to finish .

I stand by my official record of findings dated DATE where the witnesses referred to in it are concerned [ see paragraph CARDINAL above ] . I would now add the following :

All the ‘ numbered ORG made their identities known to me . It was clear to me that all CARDINAL were different persons .

Their statements indicated such a knowledge of the facts that I am entirely convinced that I was talking to the witnesses referred to by numbers in the documents . I have no reason to doubt their reliability . Nor at any time did I have the impression that I was being lied to . On the contrary , each and every CARDINAL of them was very much to the point . The persons facing me wore serious expressions . The unidentified witnesses were clearly quite aware of the serious nature of the oath or pledge they had given and of the very great interests at stake , especially for the accused persons involved . The calm , quiet manner in which , for example , ORG and BRZCARDINAL related their experiences in GPE ( in which connection I expressly leave it to ORG to decide whether these accused persons were the perpetrators ) was impressive and certainly gave no indication of malice towards the accused . All the witnesses manifested a certain degree of wariness , which , in view of their desire to remain anonymous and the sometimes rather forceful manner of questioning on the part of [ CARDINAL of the defence lawyers ] in particular , did not bother me .

If all the statements are laid side by side , some differences of detail can be observed . I do not think that these differences are such as to warrant the conclusion that the witnesses may be unreliable . Rather , in so far as I have observed any differences , I would describe them rather as the ‘ extraneous ORG which in my experience practically always affects statements by witnesses . Of course it is ultimately for ORG to decide on the value of the statements .

The reasons for the witnesses wishing to remain anonymous in the instant case are given in the records of the hearings . It seems to me that I am now affording the ORG an opportunity to reflect on the value of those arguments . I think that the text of the recent judgments of ORG of the GPE also compels me , as the judge conducting the questioning , to state my opinion on the reasons given by the witnesses for remaining anonymous . I am also concerned to inform ORG that I am aware that the ORG is called to take the final decision in these matters . I consider the reasons behind the desire to remain anonymous to be such as fully to justify anonymity . I have had regard in this connection to the nature of these cases and to the nature of the activities of the anonymous witnesses concerned .

I take the liberty of observing - while expressly leaving aside the question whether these accused persons are the perpetrators - that the instant case tellingly illustrates the fact that there are evidently people for whom human lives do not count when it comes to evading responsibility for exceptionally serious crimes which they may have committed .

I can understand that there are major objections to revealing the names and appearance of members of arresting teams , observation teams and arresting units to the public at large . By that I mean that the obvious interest of society in having very serious crimes solved should weigh in the balance . At the same time , I am of the opinion that the conduct of the unidentified witnesses ( who are no longer anonymous to myself ) who have appeared in this case is the subject of proper judicial supervision . It is not apparent to me as investigating judge that the ‘ numbered ORG acted carelessly . Rather , in my opinion , the opposite was true .

During the last hearing of the witness PERSON , [ CARDINAL of the defence lawyers ] asked me to record that , in their view , the witness answered not only the questions of the defence but also questions by the investigating judge in a ponderous , deliberate manner that was hard to follow . I have been asked to endorse that opinion . I decline to do so . The witness PERSON was wary in his answers , which I find understandable in view of the barrage of questions - which were not always formulated equally clearly . It must not be forgotten that a witness who is being questioned on oath about a multitude of events that occurred DATE previously should not be reproached for failing , in his answers to those questions , to keep up with the tempo of the rather forceful questioning to which [ the CARDINAL lawyers ] in particular subjected him on CARDINAL DATE , together and in tandem . Furthermore , I can imagine that a witness may be somewhat annoyed if he is repeatedly asked the same question , especially if he has already replied under oath on DATE . The witness PERSON kept a cool head , and in so doing demonstrated a certain quality . As far as I can judge at the present time , I regard him as a reliable witness . Nor do I think that he can be regarded as a reluctant witness , if only by reason of his extensive statements in the records of DATE and CARDINAL DATE .

The witness PERSON informed me on DATE that on CARDINAL DATE the persons numbered BRZCARDINAL and BRZCARDINAL were in the car with DATE . He gave me this information following a request by the defence .

I think I ought not to omit to mention , with regard to the witness Engelen , that throughout TIME of insistent questioning he certainly did not strike me as untruthful . In my judgment , PERSON is a simple , friendly and very obliging man . Perhaps I can illustrate the impression I had of him by recording that , after the interrogation had gone on for a considerable time , I thought it opportune to ask the unusual question whether the witness could read . I do not exclude the possibility that he is not entirely aware of the great importance of an exact and consistent account of what he saw .

In the second paragraph on the first page of the statement by the witness Engelen , I suggested to him that the confrontation had occurred on DATE . The date should be CARDINAL DATE . [ CARDINAL of the defence lawyers ] pointed this out to me later and I think he is right .

( signed ) PERSON

DATE "

ORG The hearing before ORG was resumed on CARDINAL , DATE and DATE .

On DATE a named witness , Mr Engelen , was heard in open court . He had stated to the police in DATE , and to the investigating judge in DATE , that he recognised the applicant PERSON as the man who had fired a sub - machine gun at a police car in the village of GPE . Before ORG he stated that on the latter occasion he had been allowed to re - read his earlier statement , but that he was no longer sure whether he could still recognise either the weapon or the man who had fired it . He also said that he had not been threatened in connection with the case .

On DATE the lawyer acting for the applicant PERSON brought forward CARDINAL persons chosen for their excellent eyesight ( both having participated in the Olympic games as members of the GPE rifle - shooting team ) , and who had participated in a reconstruction of the shooting in light and weather conditions similar to those obtaining at the time of the crime . These witnesses both stated that they had been unable to distinguish the features of the persons acting the parts of the perpetrators at the distances at which it had been alleged that the accused had been seen by PERSON . A video recording had been made of the reconstruction , in the presence of a notary who had kept the original videotape under seal .

The hearing was again resumed on DATE , and the video of the reconstruction was shown .

ORG convicted all CARDINAL applicants in CARDINAL separate but similar judgments on CARDINAL DATE .

All CARDINAL applicants were found guilty of attempted murder and robbery with the threat of violence and sentenced to CARDINAL years’ imprisonment . The fifth suspect , Mr PERSON , was acquitted .

ORG judgment in the case of the applicant PERSON contained the following :

" Considering with regard to the statements , used in evidence , of the persons who remained anonymous , that these statements were taken down by a judge , more particularly the investigating judge responsible for criminal cases within the jurisdiction of the ‘ s - ORG , who himself knows the identity of the witnesses , who has heard these witnesses on oath , who in his official record of his findings ... has given his reasoned opinion of the reliability of the witnesses and their reasons for wishing to remain anonymous , and who , moreover , has offered the accused and the defence the opportunity to question these witnesses , of which opportunity , as appears from the official records of the interrogations , extensive use has been made .

The objections of the witnesses heard by the investigating judge and identified only by a number to remain anonymous ( sic ) are sufficient reason for ORG to continue this anonymity . ORG refuses the request made by counsel at the hearing to have these witnesses heard in open court , even if this request should be understood to imply that the witnesses might be disguised , since the possibility that the witnesses may be recognised in open court can not be excluded .

Of the arguments for continuing the anonymity of the witnesses , ORG considers particularly persuasive the personal safety of these witnesses and their families , and it makes no difference that these witnesses have not yet been threatened . As already noted in ORG interlocutory decision of DATE , the present case concerns extremely serious crimes , the [ attempted murder ] having been committed so as to evade recognition and arrest by the police , the perpetrators having been prepared to sacrifice a number of human lives . In these circumstances , the risk run by the witnesses identified only by a number and their families if their anonymity is lifted or insufficiently guaranteed is decisive . In so far as anonymous witnesses have refused to answer questions this was done in order not to disclose methods of investigation or to maintain the anonymity of other investigating officers involved in the case . "

ORG considered the statements of the anonymous police officers to be corroborated by each other and by the evidence available from non - anonymous sources . This other evidence included a transcript of a telephone conversation between the wife of Mr PERSON and her mother intercepted DATE after the date of the crime , from which it appeared that Mr PERSON had not returned home in the meanwhile and his whereabouts were unknown , as well as forensic reports relating to the cars and the weapons used for the crime and the above - mentioned statements of the named civilians and police officers . However , ORG did not rely on the statements of Mr Engelen .

ORG The applicants filed appeals on points of law ( cassatie ) to ORG ( PERSON ) .

In accordance with the advisory opinion of the advocate - general , ORG dismissed the appeals in a series of judgments of DATE . It held that in the circumstances the evidence given by the unnamed police officers was admissible , since on the one hand their evidence was sufficiently corroborated by the evidence obtained from named sources and on the other the procedure followed provided sufficient compensation for the handicaps under which the defence had laboured .

ORG judgments concerning Mr PERSON and Mr PERSON were reported in PERSON ( GPE Law Reports , " GPE " ) DATE , ORG . CARDINAL and CARDINAL respectively .

ORG It has not been alleged that any named or anonymous witnesses were at any time threatened by or on behalf of the applicants .

ORG Except for the differences noted below ( see paragraphs CARDINAL and following ) , relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the ORG ’s PERSON v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL ) . Reference is therefore made to that judgment , especially pp . CARDINAL - CARDINAL , paras . CARDINAL - CARDINAL .

ORG The finding that an accused has committed the act with which he is charged must be based on " legal means of evidence " ( wettige bewijsmiddelen - LAW .

" Legal means of evidence " include inter alia statements of witnesses relating to facts or circumstances which they themselves have witnessed ( Articles CARDINAL para . CARDINAL ( CARDINAL ) and CARDINAL para . CARDINAL ORG ) and written documents ( LAW para . CARDINAL ( CARDINAL ) and CARDINAL para . CARDINAL ORG ) .

Such evidence must normally be corroborated by other evidence ( Articles CARDINAL para . CARDINAL , CARDINAL para . CARDINAL ( CARDINAL ) ORG ) . However , an official record made in the proper form by a police officer invested with investigative competence can be admitted without corroboration ( LAW CARDINAL ORG ) .

ORG The public prosecutor has the power to call witnesses and experts to the hearing ( LAW . In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution . If the accused wishes to call witnesses , he can - according to Article CARDINAL - submit a request to the public prosecutor no DATE before the court hearing to summon a witness before the court . As a rule , the public prosecutor should summon the witness , but - according to Article CARDINAL para . CARDINAL - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ( " GPE redelijkerwijs QUANTITY worden aangenomen , dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord " ) . He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article CARDINAL para . CARDINAL ( see paragraph CARDINAL below ) to renew the request to the trial court at the hearing .

ORG At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called , which is then read out by the registrar ( griffier ) ( Article CARDINAL para . CARDINAL ) .

ORG If the public prosecutor has failed to summon a witness at the request of the accused , or declined to do so , the defence may ask the court to have that witness summoned ( LAW para . CARDINAL ) . The court so orders , unless it finds that the non - appearance of this witness can not reasonably be considered prejudicial to the rights of the defence ( " De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen , tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad " - Article CARDINAL para . CARDINAL ) .

ORG A request by the defence to hear a witness who has not been placed on the list of witnesses , who has not been convened to attend the trial and whose summons the defence has not sought in accordance with LAW under LAW ORG ( see paragraph CARDINAL below ) . It appears from the judgment of DATE by ORG that the trial court needs only accede to a request of this nature if it finds it necessary to do so .

ORG Under LAW ORG the trial court has the power to order of its own accord the production of evidence , including the summoning of witnesses whom it has not yet heard .

ORG If it finds that there is occasion to do so , the trial court may order that a witness be brought to its hearing by the police ( Articles CARDINAL para . CARDINAL and CARDINAL ORG ) .

ORG If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge , it must suspend the hearing and refer the question to the investigating judge along with the case file . The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules ( LAW .

ORG Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case . Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again ; they may also produce new evidence and request the hearing of witnesses not heard at first instance ( LAW ) . The defence enjoys the same rights as it does at first instance ( LAW ) .

ORG In its judgment of CARDINAL DATE , GPE DATE , no . CARDINAL , ORG held that there was no general rule in GPE law to the effect that statements by anonymous police officers could only be admitted if the trial court had first established the existence of clear indications that the officers were under threat .

ORG In its judgment of DATE , GPE DATE , no . CARDINAL , ORG considered that it had to be assumed in light of ORG PERSON judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case - law until then . It defined these stricter requirements in the following rule : such a statement must have been taken down by a judge who ( a ) is aware of the identity of the witness , and ( b ) has expressed , in the official record of the hearing of such a witness , his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous , and ( c ) has provided the defence with some opportunity to put questions or have questions put to the witness . On the other hand , according to the same judgment , a written document containing the statement of an anonymous witness may be used in evidence if ( a ) the defence has not at any stage of the proceedings asked to be allowed to question the witness concerned , and ( b ) the conviction is based to a significant extent on other evidence not derived from anonymous sources , and ( c ) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection .

ORG LAW of DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL , has added to the ORG a number of detailed provisions relating to the " protection of witnesses " . It entered into force on DATE . The additions include the following .

Article ORG now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life , health , safety , family life or socio - economic existence and if the witness has made it clear that he does not wish to make any statement because of this . The decision is made by the investigating judge , who must first hear the prosecution , the defence and the witness himself .

An appeal against the decision of the investigating judge lies to the trial court ( Article CARDINALb ) .

The investigating judge may order that a threatened witness be heard in the absence of the accused , or of counsel , or of both , so as not to disclose the identity of the threatened witness ; in that event , the prosecuting authorities may not attend the questioning of the witness either . The investigating judge must then allow the defence to put questions of its own to the witness , either through the use of telecommunication or in writing ( Article CARDINALd ) .

Article CARDINAL now lays down that the prosecution may refuse to summon a threatened witness .

If the trial court has ordered that a witness be heard and that witness turns out to be under threat , he must be heard in camera by the investigating judge ( Article CARDINAL para . CARDINAL ) .

The statement of an anonymous witness taken in accordance with the above - mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted ( LAW para . CARDINAL ( b ) ) .

A new paragraph has been added to LAW effect that a written document containing a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned .

ORG The following passages are taken from the explanatory memorandum of the bill which became LAW of DATE :

" The PERSON is based on the assumption that only threatened witnesses should be in a position to claim complete anonymity . I realise that the usefulness of certain police officers ( e.g. undercover agents posing as drugs purchasers , members of an arresting team or an observation team ) will be reduced thereby . However , the public interest in investigating serious crime can not alone justify guaranteeing complete anonymity . This interest can in my opinion be sufficiently protected if the law creates the possibility to refrain from asking the police officer for certain identifying information and by granting the interrogating judge the power to take all measures which are reasonably required to prevent the disclosure of such identifying information , such as making the police officer unrecognisable by the use of make - up or disguise or preventing eye contact between the accused and the police officer . " ( Explanatory Memorandum , ORG of ORG DATE , DATE , no . CARDINAL , p. CARDINAL ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . They had no children from the marriage . On DATE the applicant applied for widows benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant made a request for reconsideration on CARDINAL DATE . On CARDINAL DATE he was informed that he was not entitled to benefits as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant is a NORP national , born in DATE and living in GPE . From DATE he was the Prime Minister of GPE .

NORP In DATE CARDINAL members of the Seimas ( ORG ) wrote letters to ORG , requesting him to institute criminal proceedings against the applicant in connection with allegations of financial impropriety amounting to abuse of office . On DATE proceedings were instituted .

On an unspecified date in DATE , the applicant ’s bank accounts were seized in the context of the proceedings . On DATE he resigned as Prime Minister in order to pursue business activities .

On DATE a prosecutor of ORG charged the applicant with CARDINAL counts of abuse of office . On DATE the preliminary investigation was concluded , and the applicant was given access to the case - file until DATE . On DATE the prosecutor re - formulated the charges against the applicant . From DATE the applicant again had access to the case - file . On DATE the bill of indictment was confirmed , and the case was transmitted to ORG .

On DATE ORG , after a directions hearing on DATE , found that the pre - trial investigation had been conducted improperly as the charges against the applicant had been vague and speculative , and his defence rights had been breached . ORG returned the case to the prosecution for further investigation .

NORP On DATE the prosecutor appealed . The appeal was dismissed on DATE . On DATE the prosecutor again charged the applicant , this time with CARDINAL counts of abuse of office , forgery and cheating . On DATE the prosecutor re - formulated the charges . From DATE to CARDINAL DATE the applicant had access to the case - file . On DATE the applicant requested the prosecution to discontinue the case in the absence of any offence . This was rejected on DATE . On DATE a new bill of indictment was confirmed and the case transmitted to ORG .

On DATE , DATE and DATE , ORG heard the case . On DATE the court found that the charges against the applicant had been vague and speculative , and that the collection of further material evidence was required . The court adjourned the case and applied to ORG , requesting it to rule on the compatibility with LAW of a number of provisions of LAW pertaining to the investigative nature of judicial functions . On DATE ORG adopted a decision on the request , returning the case - file to ORG on DATE .

On DATE a prosecutor of ORG charged the applicant for the fifth time , this time with CARDINAL counts of abuse of office , forgery and cheating . CARDINAL co - defendant was charged together with the applicant .

On DATE ORG adjourned the case because of the absence of the co - defendant . The court heard the case on DATE and DATE . On that latter date ORG found that the investigation had been conducted improperly as the charges against the applicant had been unclear . The court returned the case to the prosecution for further investigations to be carried out .

On DATE the prosecutor appealed . The hearing scheduled for DATE did not take place given the absence of the codefendant . On DATE ORG dismissed the appeal .

On DATE the Deputy Prosecutor General lodged a cassation appeal against the above decisions , complaining inter alia that the courts had returned the case for further investigation several times by reference to allegedly unclear charges , instead of evaluating the merits of those charges , leading to the applicant ’s conviction or acquittal . The prosecutor pleaded that the courts thereby unjustifiably protracted the proceedings and delayed the adoption of a final decision in the case .

On DATE ORG dismissed the appeal . It held that the main reason for returning the case for further investigation was the ambiguity of the charges against the applicant , which interfered with his defence rights and “ prevented the adoption of a lawful judgment ” on the merits .

On DATE ORG transmitted the case to a GPE regional prosecutor for further investigation . On DATE the regional prosecutor informed the applicant that the proceedings against him had been discontinued and the pre - trial investigation had been adjourned because of the absence of an offence with regard to CARDINAL of the charges against him ( LAW ) , and a lack of evidence of the applicant ’s guilt in respect of the remaining CARDINAL charges ( Article CARDINAL § CARDINAL of LAW ) . The seizure of his property was lifted on DATE .

The applicant ’s appeal against this decision was rejected by another GPE regional prosecutor on CARDINAL DATE . The applicant appealed to ORG , claiming that the proceedings had not been definitively discontinued . On DATE a prosecutor of ORG dismissed the appeal , holding that the case had been discontinued in accordance with the relevant domestic requirements . The applicant was also informed that he could apply to a court to challenge the decision of DATE .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that criminal proceedings must be discontinued in the absence of any offence . Article CARDINAL § CARDINAL of the LAW states that criminal proceedings can also be discontinued if there is a lack of evidence against the suspected person .

Pursuant to Article CARDINAL of the Code , a discontinued case may be renewed by a prosecutor if there are lawful grounds for further investigation .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


The applicant was born in DATE and was detained in the PERSON prison , in ORG at the time of the application .

On DATE following receipt of information that the applicant was in possession of narcotic substances , police officers from ORG arrested the applicant , his son and one of the applicant 's employees , GPE , in the applicant 's house . During the search of the applicant 's house and farm , a certain amount of cannabis was found .

On DATE the suspects were brought before ORG who ordered their detention on remand .

On DATE , ORG sent the case file to the public prosecutor 's office at ORG holding that the case concerned the prosecution of organised drug trafficking .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant and the CARDINAL other suspects . The public prosecutor charged them under LAW of LAW of being in possession of hashish with the aim of trafficking . PERSON was also charged with the consummation of hashish .

On CARDINAL DATE ORG convicted the applicant and PERSON The applicant was sentenced to DATE and DATE imprisonment .

On DATE ORG quashed the judgment of the first - instance court .

On DATE ORG once again convicted the applicant and his co - accused and sentenced them to DATE and DATE imprisonment .

On DATE ORG again quashed the firstinstance court 's judgment , holding that the applicant 's and his coaccused 's defence rights had not been respect as they had not been informed about the date of the hearing .

On DATE ORG convicted the applicant and his co - accused and sentenced them to DATE and DATE imprisonment . It also ordered their release from detention having regard to the time that they had spent in prison .

On DATE ORG upheld the judgment of the first - instance court .

The description of the relevant domestic law at the material time can be found in the judgments of GPE v. GPE ( no . PERSON , § § CARDINAL - CARDINAL , DATE ) and ORG and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

Judge PERSON , the judge elected in respect of GPE , withdrew from sitting in the case . On DATE the ORG appointed in her stead PERSON as an ad hoc judge ( LAW as in force at the time ) .

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

In DATE the applicant and his wife bought from the GPE municipality a CARDINAL - room apartment of QUANTITY , which had become State property by virtue of the nationalisations carried out by the communist regime in GPE after DATE .

In DATE the heirs of the former pre - nationalisation owners of the property brought proceedings under section CARDINAL of the PERSON on ORG of Nationalised Real Property of DATE ( the Restitution Law DATE ) , seeking the nullification of the title of the applicant and his wife on the ground that the contract whereby the latter had acquired the property at issue had been flawed .

The proceedings ended by final judgment of ORG . The domestic courts held that none of the flaws indicated by the plaintiffs existed .

In DATE , following a renewal of the time - limit to bring an action under section CARDINAL of the Restitution Law DATE , the heirs of the former owners of the apartment brought a new action against the applicant and his wife , invoking new grounds for nullity .

The applicant 's wife died on an unspecified date before DATE .

In a final judgment of ORG of DATE the claim was allowed and the title of the applicant and his late wife was found to have been null and void .

Following the communication of the present application , on DATE the Government informed the ORG that on DATE the applicant and his CARDINAL daughters , acting as their mother 's heirs , had sold the apartment at issue to a third party . In his letters and application form and the enclosed documents the applicant had not informed ORG fact .

It is not clear whether following the judgment of DATE the buyers sought to recover the price they had paid in DATE to the applicant and his daughters .

In his claims for just satisfaction , submitted on CARDINAL DATE , the applicant claimed again the full market price of the apartment .


CASE OF SAŠO GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The applicant worked as a waiter in a bar in GPE . At TIME on DATE , PERSON , a police reservist , fired a shot in the bar hitting the applicant in the chest . According to a medical certificate of DATE issued by ORG , the applicant was urgently admitted in a “ serious condition ” ( тешка општа состојба ) . The injuries sustained were described as follows : broken right clavicle and CARDINAL broken ribs , injury to the subclavian artery , internal haemorrhaging and seizure of the brachial plexus nerves . His right arm was paralysed . The conclusion was that the applicant had sustained serious bodily injury with life - threatening damage and lasting consequences ( витална загрозеност и трајни последици ) . He was operated on twice , the second time in DATE in ORG of GPE , GPE .

On DATE ORG ( “ the trial court ” ) convicted PERSON in absentia of “ serious crimes against public security ” ( тешки дела против општата сигурност ) . He was sentenced to CARDINAL years’ imprisonment . After the court had heard oral evidence from PERSON , the applicant and CARDINAL witnesses and examined other material evidence , it found that PERSON , while intoxicated , had unintentionally pulled the trigger of his service gun and shot the applicant , who had been at a distance of QUANTITY . The applicant was advised to pursue his compensation claim by means of a separate civil action . The decision became final on DATE .

PERSON started serving his sentence on DATE . On DATE the trial court reopened the proceedings , at ORG request . On DATE the trial court found PERSON guilty again and sentenced him to CARDINAL years’ imprisonment , suspended for DATE . No information was provided as to whether that decision was the subject of an appeal or became final .

On DATE the applicant , represented by PERSON , brought a civil action against ORG ( “ the Ministry ” ) seeking compensation for pecuniary and non - pecuniary loss related to the injury sustained as a result of PERSON ’s action . He claimed that the ORG should be held responsible , given that PERSON , instead of being on duty in a police station , had shot him in the bar . He had used his service gun and had been in uniform . He claimed CARDINAL NORP denars ( ORG ) in respect of non - pecuniary damage and MKD CARDINAL,CARDINAL for pecuniary damage ( expenses related to his medical treatment ) .

After CARDINAL adjournments , ORG Instance dismissed the applicant ’s claim on DATE , finding that the Ministry lacked the requisite capacity to be sued for the damage caused by PERSON , who , being a police reservist , was regarded a ORG official . The court established that TIME on DATE and TIME on DATE PERSON had been on duty in a police station in GPE . He had been assigned to stand guard ( службена задача DATE стража ) TIME and TIME on DATE . After TIME on DATE , instead of returning to the police station , PERSON had gone to the bar on his own initiative , without informing his superior or the latter ’s replacement . He had been in uniform and had been carrying his service gun . In the bar , in the presence of other customers and under the influence of alcohol , he had pulled the gun out and shot the applicant , who had been in front of him at a distance of QUANTITY . The court found that the applicant had suffered damage as a result of ORG ’s action . However , in order for ORG to be held responsible under section CARDINAL of LAW ( see paragraph CARDINAL below ) , the court said that

“ ... certain conditions need to be met : the damage must be caused by an official ( овластено службено лице ) , it must be sustained by a physical or legal person and , in particular , it has to be caused by an official in the performance of his or her duties . It also has to result from an unlawful action . The defendant ( the ORG ) will be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties . An action will be regarded as carried out in the performance of a duty if it is part of the duties ( функција ) of the official . It is a a harmful action taken within TIME , in the official capacity of the person concerned and as part of his official duties . Damage may be caused outside official duties , but there must be a causal link with the performance of the duty or the duty itself ... in the present case , PERSON was not in the bar in an official capacity ... so the damage was not caused in connection with the performance of the Ministry ’s duties , even though it was caused at a time when PERSON was supposed to be on duty . At the critical time and place PERSON was not acting in an official capacity but as a private person , despite the fact that it was within TIME ; he was in uniform and used his service gun . PERSON is responsible for the action taken and damage caused . There is no causal link between his action and his duty ...

The fact that [ PERSON ] was in uniform and used his service gun does not mean , in itself , that he was acting in an official capacity . PERSON did not use the gun in connection with the performance of his duties , but as a customer in the bar ...

At the time when the damage occurred , PERSON , as a police reservist , was an adult and trained in the use of the gun . The defendant , as the owner of the gun , is relieved , under section CARDINAL(CARDINAL ) of LAW , from responsibility , given that the damage occurred solely as a result of an unforeseeable action by its agent whose consequences could neither have been prevented nor removed . ”

The court concluded that the applicant remained entitled to claim compensation from ORG under LAW of LAW ( see paragraph CARDINAL below ) .

On DATE the applicant appealed , arguing that the ORG was to be held responsible for PERSON ’s actions , as he had acted while on duty , had been in uniform and had fired his service gun . In his submission , the ORG ’s responsibility derived from LAW ( see paragraph CARDINAL below ) under which ORG could claim reimbursement from PERSON , he submitted that he had suffered irreparable damage as a result of the incident , as his right arm had become permanently paralysed .

On DATE ORG dismissed the applicant ’s appeal , finding no grounds on which to depart from the lower court ’s finding that PERSON ’s actions in the bar were not related to his official duties as a police officer . It went on to find that when PERSON shot the applicant he had not been acting as a police officer and had not been performing official duties . There was accordingly no responsibility on the part of ORG . The court confirmed the applicant ’s entitlement to claim compensation from PERSON

On DATE the applicant lodged an appeal on points of law ( ревизија ) with ORG , arguing , inter alia , that ORG had not addressed his arguments regarding the ORG ’s responsibility under LAW .

On DATE ORG dismissed the applicant ’s appeal on points of law , reiterating the reasons given by the lower courts .

Section CARDINAL of LAW sets out the general principle governing civil compensation claims .

Section CARDINAL provides that the employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to these . The victim can claim compensation directly from the employee if the damage was caused intentionally . The employer can seek reimbursement of the compensation awarded to the victim from the employee if the latter caused the damage intentionally or negligently .

Under CARDINAL , the owner of a dangerous item ( опасен предмет ) is responsible for any damage caused by it .

Section CARDINAL(CARDINAL ) provides that the owner of a dangerous item can be relieved of responsibility if it can be shown that the damage was caused exclusively by an unforeseeable action on the part of the victim or a third person whose consequences could not have been prevented or removed .

NORP Under LAW of DATE , as in force at that time , an employer was responsible for any damage caused by an employee while performing his or her duties or in relation to them . The employer could seek reimbursement of the compensation from the employee if the latter had caused the damage intentionally or negligently .

Section CARDINAL of LAW , as in force at the time , specified which agents were regarded as ORG officials .

Under LAW , ORG officials were required to perform their duties at all times , regardless as to whether they were on or off duty .

In a state of war or emergency , the ORG could call up reservists in order to ensure public safety and prevent mass disorder ( section CARDINAL(CARDINAL ) of LAW ) . Reservists could be recruited for training or practice . During their period of service , reservists were regarded as ORG officials within the meaning of LAW ( section CARDINAL ) .

The Government provided a copy of a first - instance court decision concerning a compensation claim submitted against the ORG and a police officer who had negligently fired his service gun inside the NORP building , as a result of which the claimant sustained bodily injuries . The first - instance court found the police officer directly responsible and ordered him to pay the damages . It dismissed the claim against ORG on grounds of lack of capacity to be sued . No information was provided as to whether this decision became final ( П.бр.CARDINAL/CARDINAL of DATE ) . The police officer in this case was convicted of “ serious crimes against public security ” and sentenced to a suspended prison term ( К.бр.CARDINAL/CARDINAL of CARDINAL DATE ) .

LAW provides , inter alia , that :

“ Rules and regulations on the use of firearms by law enforcement officials should include guidelines that :

( a ) Specify the circumstances under which law enforcement officials are authorised to carry firearms ...

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ;

( d ) Regulate the control , storage and issuing of firearms , including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them . ”

Article CARDINAL of the LAW provides that “ the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective ” .

The commentary to LAW reads , inter alia , as follows :

“ ... The importance of recruitment of suitable personnel to the police , as well as their training can not be underestimated ... ”


The applicants PERSON and PERSON are NORP nationals , born in DATE and in DATE respectively and living in ORG ( ORG ) . They are represented before the ORG by PERSON Marzo , a lawyer practising in GPE . The respondent Government were represented by ORG , co - agent .

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

The applicants own CARDINAL plots of land in the municipality of Sannicola , recorded on the cadastral register as folio no . CARDINAL , parcel no . CARDINAL and no . CARDINAL . The former plot has been classified under LAW of DATE as a protected landscape ( “ vincolo paesistico monumentale ” ) and consequently can not be used for building . The second plot however has been classified as land that can be used for building tourist residences ( “ turistico residenziale ” ) .

On DATE , the applicants submitted a plan for the division of the plots ( “ piano di lottizzazione ” ) to ORG .

ORG did not reply .

On DATE the applicants sent ORG a warning letter ( “ diffida ” ) by which they asked for a reply .

On DATE the applicants applied to ORG ( “ T.A.R. ” ) , maintaining that ORG had the duty to reply to their request of DATE .

By judgment of DATE , ORG ordered ORG to reply to the applicants’ request .

In the meantime , ORG had adopted PERSON No . CARDINAL of CARDINAL DATE which regulated the use of lands .

On DATE ORG rejected the applicants’ plan for the division of the plots on the ground that it was not consistent with the town - planning legislation and , in particular , with ORG of DATE and with LAW . CARDINAL of CARDINAL DATE .

The applicants did not appeal .

On DATE the applicants applied to ORG for compensation for damages as a result of the inertia by ORG in replying to their request . In particular , they alleged that if ORG had replied before the entry into force of Law No . CARDINAL of CARDINAL DATE , their request would have been granted . Furthermore , they requested the court to state that the plan they had submitted to ORG was consistent with planning legislation in force at that time .

By judgment of CARDINAL DATE , ORG declared the applicants’ claim inadmissible . The court first observed that only the regional administrative courts were competent to state whether a plan concerning the division of land was consistent with the planning legislation ; furthermore , it refused compensation stating that the applicants had not the right but a simple expectation to have their plan approved .

On DATE , the applicants appealed against the judgment to ORG .

By a judgment of DATE , ORG rejected the appeal and upheld the impugned judgment .

The applicants appealed on points of law .

By judgment of DATE , filed with the registry on DATE , ORG rejected the appeal .


The applicant , PERSON , is a GPE national , who was born in DATE and is currently serving a prison sentence in the GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE a criminal investigation under the code name “ ORG ” was opened into several cocaine shipments , which resulted in the seizure of a large quantity of cocaine on DATE as well as in the arrest of PERSON and another suspect . In DATE and DATE , after Mr PERSON had indicated his interest in coming to an arrangement with the public prosecution service , the GPE public prosecutor Mr A. , who was responsible for the supervision of the activities of ORG ( Criminele Inlichtingen DATE " CID " ) , explored the possibilities of reaching an arrangement whereby Mr PERSON would give statements about others involved in cocaine trafficking in exchange for a reduced sentence . Although no such arrangement was reached in the end , PERSON did DATE in the course of the negotiations DATE give statements about , among others , the applicant who had not been a suspect in the ORG investigation . These statements were recorded on tape .

By judgment of CARDINAL DATE , ORG ( arrondissementsrechtbank ) convicted PERSON of involvement in the importation of CARDINAL and QUANTITY of cocaine and sentenced him to DATE imprisonment . He was acquitted in so far as the charges related to a shipment of QUANTITY of cocaine . PERSON , the GPE public prosecutor in charge of the prosecution of PERSON before ORG , filed an appeal . The appeal was however withdrawn on DATE .

In the framework of further negotiations , which started in DATE , between the public prosecutor PERSON of ORG Landelijk Parket ) and PERSON on a possible arrangement , PERSON gave statements on DATE , and on CARDINAL , DATE , DATE , DATE , DATE , and CARDINAL DATE about , among others , the applicant . In these statements , PERSON admitted that he had been involved in the shipment of QUANTITY of cocaine of which he had been acquitted .

After having obtained the advice of ORG ( ORG – “ ORG ) of the public prosecution service ( openbaar ministerie ) , as required by the Directive on arrangements with criminals ( PERSON afspraken met criminelen ) of DATE , ORG ( College van procureursgeneraal ) approved the arrangement with Mr Z. The arrangement was formally concluded and consigned to writing on DATE .

This arrangement stipulated inter alia that , in exchange for further truthful statements by PERSON on his own role and that of , among others , the applicant in drug trafficking , the public prosecution service would make a positive recommendation that PERSON request for a partial pardon ( gratie ) be granted . Furthermore , in the context of the proceeds of crime proceedings against PERSON , it would make a proposal for a settlement within the meaning of LAW ) to the effect that Mr Z. would pay LAW Netherlands guilders [ LAW ] ( “ NLG ” ) for illegally obtained gains .

On DATE , the applicant was taken into police custody ( inverzekeringstelling ) on suspicion of involvement in the importation of hashish via GPE . On the basis of statements given by PERSON in the context of the arrangement of DATE , additional suspicions arose in respect of the applicant concerning his involvement in the importation of large quantities of cocaine . The applicant was eventually summoned to appear before ORG to stand trial on charges of participation in and directing a criminal organisation involved in the importation of cocaine , participation in and directing a criminal organisation involved in the importation of hashish , importation via GPE of CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and/or QUANTITY of cocaine , and ( attempted ) importation via GPE of QUANTITY of hashish .

In its judgment of DATE , following adversarial proceedings in the course of which CARDINAL hearings were held DATE and CARDINAL DATE and in which it had assessed the reliability of the written and oral evidence of PERSON in light of the arrangement of DATE and had accepted the lawfulness of this arrangement , ORG convicted the applicant of participation in a criminal organisation involved in the importation via GPE of cocaine , participation in and directing a criminal organisation involved in the importation of hashish via GPE , importation of very large quantities of cocaine and QUANTITY of hashish , and sentenced him to DATE imprisonment and payment of a fine of NLG CARDINAL,CARDINAL [ PERSON euros ] . The applicant filed an appeal with ORG ( Gerechtshof ) .

DATE and DATE , DATE hearings were held before ORG . In the course of the proceedings the following relevant events occurred .

At the hearing held on DATE , ORG agreed to summon CARDINAL of the CARDINAL witnesses proposed by the applicant , including Mr Z. , various officials of the public prosecution service , cosuspects and other witnesses . It rejected the applicant 's request to add to his case file copies of the ORG investigation documents , including the prosecution 's closing speech and appeal submissions in the criminal proceedings against Mr PERSON as well as all documents relating to the proceeds of crime investigation against PERSON held that the defence could question the GPE public prosecutor PERSON , who had been summoned at the request of the defence to give evidence before ORG , on the criminal investigation and proceedings taken against Mr Z. As to the applicant 's request that all documents on the arrangement concluded with Mr PERSON be included in his case file , the ORG stated that it assumed that all these documents were already so included . ORG requested the advocate - general in charge of the applicant 's prosecution before ORG to verify whether this assumption was correct and whether , for reasons linked to the interests of the investigation and/or the safety of others , there remained objections to rendering legible passages in these documents that had been rendered illegible . It further rejected the applicant 's request that all correspondence between PERSON lawyer and the prosecution authorities be included in his case file as it had not been demonstrated by the applicant that PERSON and his lawyer had no objections to the disclosure of these privileged documents .

The GPE public prosecutor PERSON gave oral evidence before ORG on DATE and DATE . He denied that the applicant had been a suspect in the ORG investigation , which had concerned another suspect . He further stated that statements given by PERSON in the context of the first attempt to reach an arrangement – the ORG not having been involved in that attempt – had been recorded on tape . Although that tape should have been destroyed as no arrangement had been reached , it was still in existence . He further testified that he had not been involved in the further round of negotiations with PERSON on a possible arrangement . As to the reasons for the withdrawal of the prosecution 's appeal against the judgment of CARDINAL DATE in the case of PERSON Z. , Mr A. testified that this appeal had been filed because the prosecution had considered that there was sufficient evidence to convict PERSON also of the shipment of QUANTITY of cocaine and that the sentence imposed was too low . However , after the GPE advocate - general PERSON who at the material time had been unaware of the further negotiations with PERSON on a possible arrangement – had concluded that this appeal would stand no chance of success , it had been withdrawn . The withdrawal of the appeal as part of the arrangement with PERSON had never been a topic of discussion . He further denied ever having spoken with PERSON about whether an appeal in the case of PERSON was opportune or feasible .

The public prosecutor PERSON gave oral evidence before ORG on DATE and CARDINAL DATE , in particular on the arrangement concluded with PERSON and the procedural steps taken in this context . In reply to questions on a possible link between the withdrawal of the prosecution 's appeal against the judgment of CARDINAL DATE and this arrangement , PERSON stated that he had told the GPE public prosecutor PERSON that it would be convenient to file an appeal since this might induce PERSON to give a statement . He had never spoken with the advocate - general PERSON about the chances of success of such an appeal , nor with PERSON about the withdrawal of the appeal . He had informed the CTC of PERSON wishes in relation to a possible arrangement and DATE on the basis of information he had subsequently obtained and verified –the GPE public prosecution department was prepared to withdraw the appeal . However , the GPE chief public prosecutor PERSON , apparently having changed his opinion , had subsequently informed the ORG President that he opposed the withdrawal of the appeal . This had given rise to an exchange of correspondence on whether PERSON had misinformed the ORG . As PERSON had not submitted this correspondence , ORG – acting on a request by the defence – ordered him to submit the correspondence to the advocategeneral for inclusion in the applicant 's case file . This correspondence was subsequently added to the applicant 's case file . In so far as passages in the ORG documents had been rendered illegible , PERSON pointed out that , according to the covering ORG letter of the acting ORG President of CARDINAL DATE , this had been done for the protection of others and the needs of the investigation interests . Mr B. further stated that he had been involved in the determination of what passages should be rendered illegible and that he subscribed to the reasons given by the acting ORG President for rendering these passages illegible . PERSON refused to answer the question whether these passages concerned investigations DATE whether on - going or not yet opened DATE against other suspects .

In the course of PERSON hearing before ORG on DATE , ORG examined a request of the defence to order the full disclosure of all passages rendered illegible in the ORG documents submitted to ORG . The defence argued that these passages might contain unknown information intended to convince the ORG of the necessity to conclude an arrangement with PERSON After having deliberated , ORG rejected this request , holding :

“ The request of the defence is rejected and the witness [ Mr B. ] is not obliged to answer questions about the contents of the passages rendered illegible in the ORG documents . The court notes that it does not have the impression that on this point relevant information has been withheld by the witness , and that it must assess the arrangement on the basis of the available material in the case file , irrespective of the contents of the passages rendered illegible in the ORG documents . ”

At the hearing held on DATE , the financial police detective Mr F. was heard before ORG . He testified that he had carried out a proceeds of crime investigation into Mr Z. in the context of the ORG investigation and that the ORG investigation had not been directed against the applicant but against other suspects . He had not completed the proceeds of crime investigation into PERSON , as PERSON of ORG ( Landelijk Rechercheteam ) had informed him in DATE that this investigation could be brought to a halt . He was of the opinion that , on that occasion , Mr J. had told him that the public prosecutor PERSON would conclude an arrangement with Mr Z.

Mr PERSON gave extensive oral evidence before ORG on CARDINAL and DATE , CARDINAL , DATE and DATE , and CARDINAL DATE . He confirmed having given CARDINAL statements in DATE in the context of his arrangement with the prosecution authorities . He declared that he maintained these statements . Mr PERSON also confirmed that earlier statements given by him to Mr A. had been recorded on tape .

At the hearing held on DATE , the defence requested that the tape - recorded conversations between Mr Z. and PERSON be played to ORG . PERSON indicated that he objected to this . Having deliberated , ORG decided :

“ ... that , on the assumption that Mr PERSON will give his permission , the tapes must be submitted on the understanding that the court prefers to play these tapes in private . ”

At the hearing held on DATE , the defence reiterated its request to have the tapes played in public . The President of ORG indicated that the decision previously taken by ORG to play the tapes in private had also been influenced by PERSON view that DATE in conformity with his agreement with Mr DATE the contents of the taperecorded questionings would not be made public if no arrangement was reached as well as by the position adopted by PERSON on the matter . The latter indicated that he would withdraw his permission to allow the tapes to be played if they were to be played in public . The applicant 's lawyer then informed ORG that , in these circumstances and in the interests of the defence , he withdrew the request to have the tapes played in public . ORG then ordered that the tapes be played in private , expressly pointing out that it had decided to listen to these tapes for the purpose of assessing the reliability of Mr Z.

The tapes containing the statements given by PERSON on DATE and DATE were played to ORG , sitting in private and in the presence of the parties , during its hearings on CARDINAL , DATE and DATE and CARDINAL DATE . In his statements recorded on tape , PERSON mentioned a person he had called “ PERSON ” ( pastry man ) and , some time later , mentioned the applicant by name . In his oral evidence to ORG , PERSON explained that , at the material time , he had not known that the applicant was the person known as “ Taartman ” and that the detectives who questioned him had told him that the applicant was “ PERSON ” .

The GPE advocate - general PERSON gave oral evidence on DATE , in particular on her involvement in the appeal brought by the prosecution against the judgment of CARDINAL DATE in the case of PERSON stated that the GPE public prosecutor PERSON had sought her views , in her capacity as the contact advocate - general for the GPE regional public prosecution department , on the chances of the appeal succeeding . She had not known then that the GPE public prosecutor PERSON had been in charge of the prosecution of PERSON before ORG or that PERSON was involved in ORG activities . She recalled that , in her telephone conversation with PERSON , the word “ deal ” had been mentioned and that no deal had been concluded . She had not pursued this topic and had no knowledge about the contents of any deal with PERSON After having discussed the case with PERSON over the telephone , she had concluded that an appeal against the judgment of CARDINAL DATE would stand no chance of success as there was insufficient evidence to support the facts of which Mr PERSON had been acquitted . She had never seen an appeal memorial of the prosecution in that case and explained that such a memorial only became important once the decision had been taken to pursue an appeal . She did not know that the appeal had in fact been withdrawn and that , in the context of an arrangement , Mr PERSON had made CARDINAL statements . She further had not had any contacts with the ORG about Mr PERSON 's case .

When heard before ORG on DATE , the GPE public prosecutor PERSON declared that the applicant had never appeared as a suspect in the ORG case . She had dealt with that case until DATE when she had fallen ill for DATE . To her knowledge , the ORG public prosecutor PERSON had not had any involvement in the ORG case . At CARDINAL point she had heard from PERSON that he was having talks with PERSON about a possible arrangement . She and PERSON had then agreed that Mr A. would deal with the arrangement and that she would handle the criminal proceedings against PERSON , and that PERSON dealings as regards an arrangement would in no way influence her handling of the criminal proceedings . However , at the first court hearing in the criminal proceedings against Mr PERSON , his lawyer had made references to an arrangement which had caused some consternation . After this experience , she took the view that an arrangement was not desirable as it could jeopardise the criminal proceedings . She had filed an appeal against the judgment of CARDINAL DATE because she had felt that there was sufficient evidence , albeit difficult to assemble , of PERSON involvement in the shipment of QUANTITY of cocaine of which he had been acquitted and because she had found that the sentence imposed was too low . She had prepared an appeal memorial , which she could submit to ORG . After she had filed the appeal , she had been contacted by PERSON who had told her that negotiations were being held with Mr Z. about a possible arrangement . Until that point , she had been unaware of these further negotiations on an arrangement and , in her opinion , an appeal could only be withdrawn on legal grounds . PERSON had also asked her about the proceeds of crime investigation against Mr PERSON which , at that time , had not yet been completed . She had informed her superior , the GPE chief public prosecutor PERSON , about her conversation with PERSON , indicating to PERSON that she felt that this development was not the proper way to go . PERSON had agreed with her and had taken up the issue with someone else . She did not know the name of that person . She did not remember having been contacted by PERSON before she had filed the appeal and she had only filed the appeal because she disagreed with ORG judgment and definitely not on the basis of a conversation with Mr B. Considering the case to be a rather special one , PERSON had contacted the GPE advocate - general PERSON , who had told her that she considered an appeal pointless . After internal discussions and on the basis of PERSON opinion , the appeal had been withdrawn . PERSON explained that in such a situation , it was common for an appeal to be withdrawn . PERSON found highly surprising PERSON evidence that she had never seen an appeal memorial in the case of PERSON as , following PERSON request , she had sent her this document by fax .

A report dated DATE prepared by PERSON , accompanied by the formal record of the questioning of PERSON on DATE and DATE , and the appeal memorial prepared by PERSON in the case of PERSON were submitted to ORG and added to the applicant 's case file on DATE .

At the hearing held on DATE , the defence requested inter alia to have access to the ORG investigation case file in order to verify the documents from that file that might be of relevance for the applicant 's case . The defence stated that it filed this request in order to be able to assess the chances of success of an appeal in the case of PERSON in connection with the withdrawal of that appeal . Having deliberated , ORG rejected this request , holding :

“ the request is rejected as the court fails to see in what way granting it can contribute – further – to any decision that must be taken by the court in the present case since DATE whatever may be of the withdrawal of the appeal in the case of Mr Z. – it has not been established that this has taken place for the purposes of obtaining unreliable or incorrect statements from him . ”

In its judgment of DATE , ORG quashed ORG judgment of DATE , convicted the applicant of participation in a criminal organisation having as its aim the importation of cocaine , participation in a criminal organisation having as its aim the importation of hashish and directing that organisation , repeated participation in offences under LAW of LAW ( PERSON ) and participation in an attempted offence under LAW . The court sentenced the applicant to DATE imprisonment .

The ORG considered at length the arguments raised by the defence to the effect that the arrangement concluded between the public prosecution service and PERSON was unlawful under domestic law . ORG acknowledged the fact that the applicant 's case file contained no record of the conversations and negotiations between PERSON and the public prosecution service , nor of the correspondence between his lawyer and the public prosecution service on the arrangement made with PERSON However , it found that these conversations and negotiations had been sufficiently clarified in the course of the appeal proceedings . After having examined the circumstances in which the arrangement had been concluded as well as the terms thereof , it concluded that , despite certain shortcomings , the arrangement was in conformity with the DATE Directive on arrangements with criminals and was not contrary either to the principles governing the proper conduct of proceedings or the requirements of LAW .

ORG observed that there had been shortcomings , including : the failure to carry out any primary criminal investigation against the applicant ; the fact that the public prosecutor PERSON had unjustly given the ORG the impression that the statements of PERSON might shed further light on the “ IRT affaire ” [ See , for further details , PERSON v. the GPE , no . ORG decision of DATE ] ; the absence of a written record of the conversations and negotiations with PERSON on a possible arrangement ; the – failing an adequate recording DATE unclear course of events in relation to the filing and the withdrawal of the appeal in the criminal proceedings against Mr Z ; the fact that a passage in the letter of CARDINAL DATE from PERSON to the chief public prosecutor had been rendered illegible whereas , after its disclosure , this passage had appeared to be relevant to the procedure for the establishment of the arrangement and was significant for the contents of that arrangement and had not been rendered illegible for reasons linked to the interests of the investigation ; and the premature termination by the public prosecution service of the proceeds of crime investigation initiated against Mr Z.

However , ORG held that it could not be said that these shortcomings constituted such serious breaches of the principles governing the proper conduct of proceedings that the applicant 's right to a fair trial had been harmed as a result . It did , however , find that these shortcomings , taken together , constituted a defect which , in accordance with LAW , should be taken into account in the determination of the applicant 's sentence .

On this basis it decided not to impose a DATE prison sentence , which it considered to be appropriate in the circumstances , but to reduce the applicant 's sentence to DATE imprisonment .

ORG based the applicant 's conviction on statements given by PERSON , whose evidence was found to be reliable , credible and supported by other evidence , on statements given by co - suspects and other witnesses , on several official ( foreign and domestic ) police reports , on findings of ORG ( ORG ) , and on statements given by the applicant .

The applicant filed an appeal in cassation with ORG ( PERSON ) , submitting an extensive statement of grounds of appeal in cassation .

ORG gave judgment on DATE . It rejected the applicant 's grounds of appeal in their entirety . Acting of its own motion , no such complaint having been raised by the applicant , ORG held that – given the delay DATE , when the applicant had filed his appeal in cassation , and DATE , when it had commenced its examination of the appeal in cassation – the reasonable time requirement under LAW had not been complied with . On that account , it quashed the sentence imposed on the applicant by ORG and reduced it by DATE .

As to the applicant 's complaint that ORG had unjustly ordered that the tape - recorded statements given by PERSON be played in private , ORG accepted ORG ruling on this point as legally correct and understandable , having regard also to the stance taken by PERSON on the matter and to the circumstance that , in the interests of the defence , the applicant 's lawyer had withdrawn his request to have the recordings played in public .

In response to the applicant 's complaints in respect of the arrangement between the public prosecution service and PERSON , ORG rejected the applicant 's argument that the lawfulness of the arrangement should have been examined on the basis of the PERSON on undertakings given to witnesses in criminal proceedings . It held that , as the arrangement at issue had been made prior to the submission of that PERSON to ORG of ORG , ORG had correctly examined the lawfulness of the arrangement under LAW , the principles governing the proper conduct of proceedings and the DATE Directive on arrangements with criminals . ORG further accepted as correct the conclusion of ORG that the arrangement was lawful .

ORG rejected the remainder of the applicant 's grounds of appeal , including his complaints that he was not granted access to the ORG investigation case file , to the passages rendered illegible in the so - called “ CTC ” documents and to the correspondence between the public prosecution department and PERSON lawyer . It based itself on the following summary reasoning :

“ The remaining points of appeal do not provide grounds for overturning the judgment of ORG ( kunnen niet tot cassatie leiden ) . Having regard to LAW ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since these points of appeal do not give rise to a need for a determination of legal issues in the interest of legal unity and legal development . ”

The GPE public prosecution service ( openbaar ministerie ) functions under the responsibility of the Minister of ORG , but is not an agency of ORG . It forms a part of the judiciary and its organisation is regulated by ORG .

Pursuant to LAW , the prosecution service consists of ORG ( Parket - Generaal ) which is composed of ORG ( procureurs - generaal ) and their staff , ORG ( arrondissementsparketten ) , ORG at ORG ( ressortsparketten ) and ORG Landelijk Parket ) .

The public prosecution service is organised in a hierarchical manner and is headed by ORG ( College van procureursgeneraal ) which is composed of CARDINAL and CARDINAL Procurators - General . It determines the investigation and prosecution policy rules .

In criminal proceedings before ORG , the functions of the prosecution are exercised by a public prosecutor ( officier van justitie ) acting under the supervision of a chief public prosecutor ( hoofdofficier van justitie ) and , in criminal proceedings before ORG , by an advocategeneral ( advocaat generaal ) under the supervision of a chief advocate - general ( hoofdadvocaat - generaal ) .

On DATE ORG issued a circular in which guidelines were laid down on deals with criminals ( ORG deals met criminelen ) . Special agreements with criminals were only allowed in exceptional cases , in which the investigative interest or the ending or prevention of crimes outweighed the disadvantages of these kinds of agreements ( cases of life and death or cases of similar seriousness ) . Furthermore , these agreements should be a last resort and only to be used if it were likely that the aim pursued could not be reached by other means . The information to be obtained had to be essential to the realisation of the aim . The offer in return could only be granted in cases where the information provided has proved to be sound .

In DATE serious concerns arose over methods of criminal investigation used in cases concerning organised crime , including those used by ORG ( NORP Recherche Team – " IRT " ) . A parliamentary commission of inquiry ( parlementaire enquêtecommissie ) was instituted which presented its final report on DATE . In this report , inter alia , agreements concluded with suspects testifying against co - accused were criticised . The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution . The Minister of ORG subscribed to this opinion .

On DATE , the DATE Directive on deals with criminal was repealed and replaced by the Directive on arrangements with criminals ( ORG afspraken met criminelen ) of DATE . This Directive was published in ORG ) DATE , no . CARDINAL ) .

Pursuant to this Directive , a written record must be kept of every step taken in the procedure leading up to an arrangement between a criminal and the public prosecution service , and an arrangement can only be concluded after approval by ORG . Before giving its approval , ORG must consult ORG ( ORG – “ ORG ) , which is an internal advisory body of the GPE prosecution service . The ORG was established on DATE and is composed of members of the public prosecution service and the police . Its task is to advise ORG on intended deployment of special investigative powers and methods ( bijzondere opsporingsbevoegdheden en methodieken ) . The DATE Directive further stipulates that the final decision on the lawfulness of an arrangement is to be made by the court before which the evidence that has been obtained on the basis of an arrangement is to be submitted .

On DATE , a Bill on undertakings given to witnesses in criminal proceedings ( toezeggingen aan getuigen in strafzaken ) was submitted for approval to ORG of ORG . At the time of the introduction of the present application , this PERSON was still pending before ORG .

Article PERSON of ORG Act provides as follows :

“ If ORG considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law , it may , in giving reasons for its decision on the matter , limit itself to that finding . ”


The applicant is a citizen of GPE , born in DATE and currently resident in GPE . He is represented before the ORG by Mr. C. McGinley , a solicitor practising in GPE .

A.

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

The applicant arrived in GPE on or DATE . He was stopped by ORG and found to be travelling on a forged NORP passport . He was immediately detained under powers contained in paragraph CARDINAL of Schedule CARDINAL to LAW DATE . The applicant was detained in FAC , Gateside , GPE , GPE . The applicant immediately made an application for political asylum under the DATE United Nations Convention Relating to the Status of Refugees . This was refused on DATE . His appeal to an Adjudicator was dismissed on CARDINAL DATE and his detention continued . The applicant applied for legal aid to challenge the decision of ORG . This application was refused on DATE . He sought a review of that decision . In the meantime , he commenced judicial review proceedings challenging as unreasonable his continued detention . A motion for interim liberation in ORG was refused on DATE . Following the grant of legal aid on DATE , a further petition attacking the substantive decisions of ORG was presented and interim liberation was granted by ORG on DATE .

The applicant states that during DATE he was detained in prison , he was locked in his cell for TIME a day , with TIME of exercise . On CARDINAL occasions the prison officers forgot to let the applicant out of his cell for meals . He states that on a number of occasions he was assaulted by other inmates . Whilst eating he had to sit apart from the other prisoners in order to prevent them throwing food at him . The applicant states that he would suffer verbal racial abuse from other prisoners on a DATE basis . For the majority of the period the applicant was isolated , in that there were no LANGUAGE speakers in the prison , save for DATE when there was another LANGUAGE NORP speaker in detention . The applicant had significant communication problems . For example , he alleges that it was DATE before he realised that he had the right to TIME of free telephone calls DATE . Further , he was unable to read correspondence from the immigration authorities and he states that no interpreters were available to assist him . The applicant , who had a history of mental health problems , states that his health deteriorated in prison and he became depressed to the point of suicide . He states that after a suicide attempt he was put into a ground floor cell without blankets for DATE .

The Government dispute various aspects of the applicant ’s account . They submit that the applicant would not have been locked up for TIME a day . The ORG also note that there is no record of the applicant missing meals and that the officer in charge of prisoners awaiting deportation , PERSON , has CARDINAL recollection of food being thrown at the applicant . The Government also submit that if the applicant ate alone at mealtimes this was by choice and that save for DATE , when it is accepted there was no access to an interpreter , the applicant thereafter had access to an interpreter who visited him “ DATE ” on a DATE . They also contend that whilst in the ligature free “ suicide watch ” cell , he would have been provided with a sleeping bag , but not blankets .

PERSON made a statement concerning the applicant on DATE . In this statement he commented that he was concerned for the applicant , who was depressed and isolated in the prison . PERSON confirmed that there had been no translation facilities for DATE of the applicant ’s detention and that the prison authorities had been unable to explain to the applicant the correspondence he received concerning his judicial review proceedings .

ORG for GPE produced a report dated DATE on GPE prison . This report deals , inter alia , with the specific case of persons awaiting deportation ( PADs ) . The report comments as follows :

" ... despite the best efforts of staff , the PADs were nevertheless subject to verbal abuse and intimidation . The latter was of particular concern to the PADs when they had to leave their flat ( and therefore the comparative safety of the group ) to collect their meals in the dining room . At those times they tended to keep together and in our view presented a sad and dejected sight . "

The report describes how PADs were frequently not provided with the food appropriate to their religion and comments on the difficulties they experienced in communicating with the Medical Officer . The authors of the report also express their concern at the length of periods for which PADs were being detained .

The report goes on to conclude :

" In our view , PADs are inappropriately located in a complex Hall housing a difficult and disparate population within an already overcrowded local prison . ... these men , who are a generally conforming group , are subjected to a criminal subculture in which violence and drug abuse are common and from whom they can expect racial taunts and intimidation . "

B. Relevant domestic law and practice

Under paragraph CARDINAL of Schedule CARDINAL of LAW DATE , a person may be detained under the authority of an immigration officer pending a decision to give or refuse him leave to enter .

Persons awaiting deportation are accommodated in GPE within local prisons . ORG They are not housed in separate secure accommodation .