Violation of Art. 2;No violation of Art. 6-1;No violation of Art. 14;No violation of Art. 13;Failure to comply with obligations under Art. 34

Matti Pellonpää;Nicolas Bratza;Simon Brown

NORP In DATE , there were disturbances throughout GPE . On DATE , ORG ( ORG ) had announced that they would not allow a march by the loyalist ORG from ORG to ORG in GPE to pass through the mainly NORP residential area of FAC . Members of ORG gathered in the area , and demonstrations occurred in GPE ( GPE ) and GPE . On DATE , the ORG reversed its decision and at TIME the march proceeded through FAC .

The following day , DATE , another controversial march was allowed through the mainly nationalist area of FAC in GPE . TIME , there was a major disturbance in GPE , characterised by the use of petrol bombs and the substantial use of “ baton rounds ” , or plastic bullets , by the ORG and ORG .

PERSON , the husband of the applicant , had been with friends in a bar close to GPE city centre during TIME . According to a friend who was with him , they left the bar at TIME Close to the junction of Little James Street and FAC , a large crowd of people had gathered and were throwing missiles at the police . Military reinforcements were called . Police were firing large numbers of plastic baton rounds at the crowd . A commercial skip and a large piece of hoarding were being used by persons in the crowd to shield them from plastic baton rounds as they moved towards the police . An ORG inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed . According to his statement , he instructed the driver of a NORP armoured personnel carrier ( “ the ORG ” ) , PERSON , to advance towards the obstruction .

PERSON fell underneath the hoarding over which the ORG advanced . The circumstances in which the ORG struck the hoarding , its speed , and the length of time which it remained on the hoarding are subject to dispute .

NORP RUC officers reached PERSON and arranged for his transfer by ambulance to hospital where he died a short time later . According to the pathologist who carried out the post mortem examination , his injuries were consistent with having been run over by the wheels of a vehicle while lying underneath a sheet of hoarding . He also had injuries on the thigh , consistent with being struck by a plastic baton round . No traces of petrol , paraffin or any type of fire accelerant were found which might suggest that PERSON had been in contact with petrol bombs .

At TIME on DATE , Detective Constable PERSON attended the scene at which PERSON had been hit . He removed the hoarding and a bloodstained bandage for inspection . Shortly afterwards , the scene was secured . The Government submitted that the delay in crime scene procedures was due to crowd violence .

At TIME , ORG GPE was directed to undertake the investigation into the death . He appointed Detective Chief Inspector PERSON as Deputy Senior Investigating Officer .

At TIME , photographs were taken of the scene . PERSON attended , making arrangements inter alia for the mapping of the scene .

In TIME of DATE , statements were collected by the police from CARDINAL members of the army , regarding the events . This included a statement from Private P. , the driver of the ORG which hit PERSON . ORG informed the driver that he would interview him once he had undertaken other inquiries . The interview commenced at TIME and terminated at TIME After being cautioned , the driver replied that he had nothing to say at that stage . The driver had provided a pre - prepared written statement and was accompanied by his legal adviser . The statement said inter alia ;

“ I charged a sheet of corrugated iron in the centre of the street which was my target . While approaching the barricade I saw CARDINAL persons round it , most ran away on sighting me approaching but [ I ] was unsure that I did or did not cause injury to any person . ”

On DATE , the ORG began interviewing other witnesses . On DATE , the ORG issued a press release appealing for witnesses to the events to come forward . They collected statements from CARDINAL persons , including CARDINAL who had witnessed the relevant events . Of these , CARDINAL persons were civilian witnesses and the remainder were ORG and army personnel . Of the CARDINAL statements , CARDINAL were taken in DATE following the incident and a further CARDINAL in DATE .

On DATE , the driver of the ORG was interviewed again . In his statement , he stated that on TIME in question he had been the driver of the control centre vehicle , which held the spare ammunition , shields and supplies . He was in position on FAC at the junction with Little James Street . He saw missiles being thrown , including petrol bombs and CARDINAL rioters in conflict with the ORG . He had been instructed by an ORG inspector to remove the barricade , which was being used by rioters for cover . As he neared the barricade , he had revved the engine to give the rioters time to get away from the barricade . The vehicle hit the barricade which fell backwards . The vehicle mounted it and drove over . At that time , the driver was alone in the ORG , without a person looking out and giving directions . His vision was through a slit , about letter box size QUANTITY above the road . He could see only the top of the barricade , not behind or under it . He had not been aware that anyone was injured . When he stopped and people had climbed on the vehicle , saying that someone was injured , he had thought that this was a “ come on ” . When shown a video of the incident , he stated that he could see the vehicle brake lights illuminated , indicating that the vehicle stopped prior to striking the hoarding . He confirmed that it was customary for the driver of such a vehicle to be accompanied by a commander who looked out and gave directions from the top hatch , and who was in constant communication by radio with the driver . He was however alone in the vehicle on this occasion .

Expert evidence was gathered , including post mortem examinations of the deceased and various forensic analyses , inter alia of PERSON blood , hair and clothing , the hoarding which he had used as a shield and the ORG which had hit him . According to the applicant , the ORG was not examined until DATE after the incident and the report on the examination was not provided to her until much later . Other evidence collected included a transcript of the army and ORG communications at the time and a video of the incident recorded by ORG .

On DATE , the ORG sent the file of relevant material to the ORG . Further inquiries were made by the police , leading to a final report to the ORG on DATE .

On DATE , the ORG directed that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder , manslaughter or dangerous driving contrary to LAW ) Order DATE . The applicant was formally notified of the decision not to bring criminal proceedings by letter dated DATE .

On DATE , the applicant lodged an application for judicial review of the decision not to prosecute in relation to the death of her husband . At a leave hearing on DATE , it transpired that the applicant had never formally requested the reasons for the decision . The hearing was adjourned pending that request .

NORP By letter dated DATE , the ORG stated :

“ As you are aware , the death of PERSON occurred at TIME on DATE at FAC , GPE in circumstances of very serious and sustained rioting . Disorder was concentrated in FAC , FAC , ORG , ORG and FAC areas of the city . The ferocity of the rioting was such that the police required military assistance .

A skip and hoarding were used by the rioters at the time in question in Little James Street as a shield / barricade from behind which missiles , including petrol bombs , were launched at police and military positioned at the junction of ORG and ORG . A decision was taken that baton rounds , which had been discharged to contain an advancing group of rioters shielded by the skip and hoarding , were ineffective [ and ] the barricade should be removed . A military vehicle driven by a Private was deployed for this purpose , advanced and struck the hoarding knocking it to the ground . The deceased was behind and in very close proximity to the barricade as it was being removed . The Private stated , inter alia , during interview under caution that he could not see anyone behind it . The deceased sustained multiple injuries consistent with a crushing mechanism , which proved fatal .

The police investigation contains , inter alia , some CARDINAL witness statements from persons who provided differing accounts of the removal of the hoarding , CARDINAL of whom were civilians . The remainder were by police and military personnel . In addition , the incident was captured on film by a ORG crew . The Private in question was interviewed by the police . He provided a witness statement on DATE . He was interviewed after caution on DATE . On DATE , he provided oral answers and made a written statement after caution in regard to his conduct . The Private stated , inter alia , that as he approached the ' barricade ' he ' began to brake and revved up the engine to scare the rioters and clear the barricade ' and was ' crawling forward ' when he hit the barricade .

On DATE a further interim Direction was issued to the Chief Constable . The Director wished to obtain evidence from ORG of GPE , inter alia , in respect of the speed the vehicle in question was travelling at or prior to the moment of impact , and the speed which the vehicle in question was capable of reaching in the time available . A forensic report was received in this office on DATE . This indicated , inter alia , that the vehicle in question could reach a theoretical maximum speed of QUANTITY from a standing start at the junction of FAC to the position of the barrier . It was noted that the vehicle was shown on the video to be braking over an unknown distance prior to impact with the barrier and that it was ' axiomatic ' that the speed of the vehicle at the point of impact was substantially QUANTITY .

All available evidence was then the subject of further careful consideration . The conclusion reached was that there was insufficient evidence to provide a reasonable prospect of conviction for the offence of murder . Further , there was insufficient evidence to provide a reasonable prospect of establishing the requisite degree of negligence for the offence of manslaughter . In addition , consideration was given to whether the evidence was sufficient to provide a reasonable prospect of conviction of causing death by dangerous driving , contrary to LAW ) Order DATE . It was concluded that there was no reasonable prospect of establishing that the Private 's driving fell far below what would be expected of a competent and careful driver having regard to all the circumstances . ... ”

On DATE , the applicant withdrew her application for judicial review .

NORP In DATE , ORG ( ORG ) published a booket entitled “ The Misrule of Law ” criticising the handling of events during DATE . Appendix III included extracts from certain anonymous witness statements .

On DATE , the police wrote to the ORG requesting that information relating to the names and addresses of witnesses be made available to the police enquiry . The applicant states that the ORG contacted the witnesses to confirm whether they wished their names to be made available to the police . As they did not , the ORG informed the police accordingly .

In the application submitted to the Commission on DATE , the applicant included a number of extracts from CARDINAL statements taken from anonymous witnesses by the applicant 's solicitor .

They described the events of the evening in the following terms .

( i ) Witness No . CARDINAL described how he was in the area at TIME He stated that there was a skip in LOC , behind which CARDINAL people were hiding . Next to the skip were CARDINAL or CARDINAL people hiding behind a large wooden board , QUANTITY by QUANTITY , throwing petrol bombs , CARDINAL in an hour . At the other end of the street were approximately CARDINAL police officers of the ORG in riot equipment firing plastic bullets .

( ii ) Witness No . DATE was in the area taking photographs , behind the ORG and ORG lines . He stated that in Little James Street there was a barricade of a burning car and a skip , which had been there from TIME . A number of army vehicles , including NORP APCs , formed a cordon across the road , and there were CARDINAL soldiers and approximately the same number of ORG officers behind them . There was an intensive barrage of missiles being thrown towards the cordon , and plastic bullets were being fired back continuously . He stated that there was considerable confusion . The cordon of vehicles then moved forward at walking speed with continuous firing of plastic bullets and some missiles incoming from the crowd . He stated that he observed ORG officers recover the body of PERSON and attempt to administer first aid . There were CARDINAL other photographers and a TV crew present , who were taking pictures until stopped from doing so by the ORG . This witness stated that in TIME period he observed that the ORG used CARDINAL ammunition boxes , containing a total of CARDINAL rounds of plastic bullets , and that the ORG were firing a similar amount .

( iii ) Witness No . CARDINAL was one of the people behind the hoarding , which he stated they were pushing towards the police , who were firing plastic bullets . The police made an advance towards the hoarding in their vehicles , and the witness dropped the hoarding . He saw it fall on PERSON . He stated that he tried to indicate that there was someone under the hoarding , but CARDINAL of the vehicles drove over it . At this point a group of police and soldiers came towards him with batons . He made a statement to the police .

( iv ) Witness No . CARDINAL was observing the events from his apartment . He saw the vehicle ram into the hoarding at a speed of QUANTITY . The ORG moved in with batons .

( v ) Witness No . CARDINAL observed the vehicle come forwards onto the hoarding , and in his opinion it must have been obvious that someone was holding the board up . He stated that he shouted that there was someone under the board , but that the vehicle remained on top of it for TIME .

( vi ) DATE Witness No . CARDINAL stated that when the vehicle was on top of the board , he shouted to the driver that there was a man underneath , but it stayed on top for TIME . He attempted to pull PERSON out .

The Government obtained the ORG 's permission to submit copies of these extracts to the ORG , which occurred on DATE , and an adjournment in the ORG 's proceedings was granted to enable the ORG to consider whether any action was appropriate . The ORG enquired whether he was able to furnish copies of the statements to the police and whether the makers of the statements could be identified .

The applicant informed ORG DATE that the witnesses had given their statements on condition that their identity would not be disclosed to the police . They feared that they would become victims of harassment if their identities became known .

In the light of these constraints , the ORG concluded that there were no further steps which he could properly take under LAW ) of the Prosecution of Offences ( GPE ) Order to obtain further relevant information . Accordingly , his direction of DATE still stood .

The investigation file was forwarded to ORG on CARDINAL DATE to prepare an inquest file . He briefed the Coroner as to the progress of the file on DATE . The inquest file was forwarded to ORG for examination on DATE . After examination , it was delivered to the ORG 's office on DATE .

The Coroner listed the inquest for CARDINAL and DATE as the first suitable dates . A number of documents were provided to the applicant by the ORG acting under ORG CARDINAL/CARDINAL on or CARDINAL November CARDINAL . On DATE , the applicant requested an adjournment from the Coroner while she sought disclosure of further documents from the ORG and ORG . The applicant considered that documents were missing from those disclosed , including the statement of the ORG driver taken by the ORG . The Coroner acceded to her request .

NORP By letter dated DATE to the ORG , the applicant made reference to previous correspondence about disclosure of documents and requested copies of radio transmission transcripts , occurrence book entries , notebooks , diaries and journals of ORG officers involved in the matter and forensic reports concerning the examination at the scene of the incident and the relevant vehicle .

By letter dated DATE , the ORG responded that in addition to the documents already made available arrangements had been made for all remaining written information obtained by the ORG concerning the death of PERSON to be furnished . This included the report on the vehicle and the typed transcripts of ORG communication logs . It was stated that none of the entries in ORG notebooks were at variance with the statements already provided , though sight of these notebooks would be provided for the purpose of the inquest if requested .

By letter dated DATE , the Coroner informed the applicant that he had been told that full disclosure had been made by the ORG and , expressing his desire to proceed with the Inquest as soon as possible , asked to be informed specifically of any matters that might still be outstanding . By letter dated DATE , the Coroner requested a response to his earlier letter . By letter of DATE , the Coroner again requested confirmation from the applicant 's representatives that they had received all necessary disclosure .

By letter dated DATE , the applicant 's representatives stated that they had been informed that they were in possession of all material to which they were entitled under ORG . As they had only received witness statements and radio transmission transcripts , they requested confirmation from the Coroner as to whether he had received any other documents , including the police investigation report , and proposed that the Coroner should request the ORG to provide all material relevant to the death of PERSON . The Coroner did not answer the letter until he had an opportunity to consider the ORG 's judgments in the PERSON v. the GPE series of cases ( cited at paragraph CARDINAL below ) . On DATE , ORG , which covered the Coroner 's Branch , informed the applicant that the Coroner for LOC was consulting the Lord Chancellor concerning the ORG 's response to those judgments and suggested that the preliminary hearing on the future conduct of the inquest concerning PERSON should await the meeting held by all the coroners concerning the procedures to be adopted in future .

By letter dated DATE , the Coroner informed ORG that he was still awaiting confirmation from the applicant that full disclosure had been made and that it had been suggested that matters wait until after developments in inquests to take place in GPE in DATE and which related to possible consequences of the ORG 's judgments . He confirmed that the delay in the case until the present had been at the request of the next - of - kin .

NORP In DATE , it came to light that CARDINAL statements taken at a late stage in the inquiry had not been disclosed and copies were provided to the applicant .

By writ issued on DATE , the applicant commenced proceedings against ORG , the Chief Constable of the ORG and the Secretary of ORG for GPE , claiming damages in her own right and for the estate of PERSON , arising out of the alleged negligence of the defendants and alleged breach of statutory duty . The grounds of negligence included the speed and manner in which the NORP ORG was driven , the failure to listen to the warnings given that a body was trapped under the hoarding , the failure to instruct the driver of the ORG in appropriate tactics , the employment of a method of riot control which they knew or ought to have known would cause death or serious injury and the failure to carry out a proper strategic assessment of the security situation before ordering the ORG to charge civilians .

The defendants served a defence dated DATE , in which they claimed , inter alia , that the action was statute - barred as the claim had not been lodged within DATE of the death . They also served a notice for further and better particulars .

On DATE statements obtained during the police investigation were disclosed by the ORG to PERSON , the applicant 's solicitor in the inquest , under cover of an undertaking by her to maintain the documents as confidential and not to use the documents for any other purpose than the inquest or to disclose the documents or information to any other third party save her clients .

The ORG became concerned that PERSON had breached her undertaking as ORG , who represent the applicant before the ORG , had used extracts from some of the statements in their submissions to the ORG . By letter dated DATE , the ORG ( ORG ) wrote to PERSON , asking her to confirm that she had not released the documents to any third person or for any purpose other than the inquest . By letter dated DATE , PERSON replied that she believed that she had not in any way breached the undertaking .

By letter dated DATE , the RUC Legal Adviser wrote to ORG under the heading “ Apparent breach of undertaking ” , stating that the written submissions by the ORG to ORG had contained direct quotes from a number of statements which had been supplied to PERSON pursuent to an undertaking of confidentiality . These statements had not been provided to the ORG by the ORG and neither the ORG nor PERSON had sought permission to use the statements for this purpose . As the only other firm of solicitors with copies of the statements had confirmed that they had not released the documents to any third person , the ORG considered that PERSON was responsible either directly or indirectly for supplying the statements to the ORG in apparent breach of her undertaking . As the undertaking was given between solicitors , this breach was regarded as a serious issue and the ORG was asked to treat the letter as a formal complaint .

By letter dated CARDINAL DATE , ORG replied that they did not feel that there was sufficient evidence to show a prima facie case of unprofessional conduct against PERSON She had assured ORG that she had not breached her undertaking and ORG was entitled to rely on her assurance as an officer of the court unless contrary evidence was produced . As PERSON was not the only legal recipient of the documents , there was every possibility that she could have acted correctly but others did not . The matter would not be pursued further .

Section CARDINAL of LAW ( GPE ) DATE provides inter alia :

“ CARDINAL . A person may use such force as is reasonable in the circumstances in the prevention of crime , or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large . ”

Self - defence or the defence of others is contained within the concept of prevention of crime ( see e.g. Smith and Hogan on Criminal Law ) .

The conduct of inquests in GPE is governed by LAW ( GPE ) DATE and ORG and Procedure ) Rules ( GPE ) DATE . These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner , who then has the power to hold an inquest , with or without a jury , for the purpose of ascertaining , with the assistance as appropriate of the evidence of witnesses and reports , inter alia , of post mortem and forensic examinations , who the deceased was and how , when and where he died .

Pursuant to LAW , every medical practitioner , registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner ( section CARDINAL ) . Every medical practitioner who performs a post- mortem examination has to notify the Coroner of the result in writing ( section CARDINAL ) . Whenever a dead body is found , or an unexplained death or death in suspicious circumstances occurs , the police of that district are required to give notice to the Coroner ( section CARDINAL) .

Rules CARDINAL of the Coroners Rules give power to the coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased .

Where the coroner decides to hold an inquest with a jury , persons are called from the Jury List , compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials .

The matters in issue at an inquest are governed by LAW and QUANTITY of LAW :

“ CARDINAL . The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters , namely:-

( a ) who the deceased was ;

( b ) how , when and where the deceased came by his death ;

( c ) the particulars for the time being required by ORG ) Order DATE to be registered concerning his death .

Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in DATE foregoing Rule . ”

The forms of verdict used in GPE accord with this recommendation , recording the name and other particulars of the deceased , a statement of the cause of death ( e.g. bullet wounds ) and findings as to when and where the deceased met his death . In GPE and GPE , the form of verdict appended to the English Coroners Rules contains a section marked “ conclusions of the jury / coroner as to the death ” in which conclusions such as “ lawfully killed ” or “ killed unlawfully ” are inserted . These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act , but no finding is made that any identified person was criminally liable .

NORP However , in GPE , the coroner is under a duty ( section CARDINAL(CARDINAL ) of the Prosecution of Offences Order ( GPE ) DATE ) to furnish a written report to the ORG where the circumstances of any death appear to disclose that a criminal offence may have been committed .

Until recently , legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges . Legislation which would have provided for legal aid at the hearing of inquests ( ORG , Advice and Assistance ( Northern Ireland ) Order DATE , Schedule CARDINAL paragraph CARDINAL ) has not been brought into force . However , on DATE , the Lord Chancellor announced the establishment of an Extra - Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in GPE . In DATE , he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding . This included inter alia consideration of financial eligibility , whether an effective investigation by the ORG was needed and whether the inquest was the only way to conduct it , whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased .

The coroner enjoys the power to summon witnesses who he thinks should attend the inquest ( section CARDINAL of the Act ) and he may allow any interested person to examine a witness ( Rule CARDINAL ) . In both GPE and GPE and GPE , a witness is entitled to rely on the privilege against self - incrimination . In GPE , this privilege is reinforced by Rule CARDINAL(CARDINAL ) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest .

In relation to both documentary evidence and the oral evidence of witnesses , inquests , like criminal trials , are subject to the law of public interest immunity , which recognises and gives effect to the public interest , such as national security , in the non - disclosure of certain information or certain documents or classes of document . A claim of public interest immunity must be supported by a certificate .

Rules DATE and DATE ( see above ) follow from the recommendation of ORG :

“ ... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires , without deducing from those facts any determination of blame ... In many cases , perhaps the majority , the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death ; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and CARDINAL which appears to judge the issue itself . ”

Domestic courts have made , inter alia , the following comments :

“ ... It is noteworthy that the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but ' how ... the deceased came by his death ' , a far more limited question directed to the means by which the deceased came by his death .

... [ Previous judgments ] make it clear that when ORG stated that one of the purposes of an inquest is ' To allay rumours or suspicions ' this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death . ” ( Sir PERSON , ORG , NORP v the Coroner for GPE and GPE ex parte PERSON , DATE , unreported )

“ The cases establish that although the word ' how ' is to be widely interpreted , it means ' by what means ' rather than in what broad circumstances ... In short , the inquiry must focus on matters directly causative of death and must , indeed , be confined to those matters alone ... ” ( PERSON , ORG , NORP v. Coroner for LOC of GPE , ex parte PERSON and others , ( DATE ) CARDINAL JP CARDINAL )

“ ... it should not be forgotten that an inquest is a fact - finding exercise and not a method of apportioning guilt . The procedure and rules of evidence which are suitable for CARDINAL are unsuitable for the other . In an inquest it should never be forgotten that there are no parties , no indictment , there is no prosecution , there is no defence , there is no trial , simply an attempt to establish the facts . It is an inquisitorial process , a process of investigation quite unlike a trial ...

It is well recognised that a purpose of an inquest is that rumour may be allayed . But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention . It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation . He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him . ” ( Lord Lane , ORG , NORP v. GPE ex parte PERSON ( DATE ) CARDINAL SJ CARDINAL )

There was no requirement prior to DATE for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest . Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings , as the relevant witness came forward to give evidence .

Following the recommendation of ORG No . CARDINAL ( concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty ) advised Chief Constables of police forces in GPE and GPE to make arrangements in such cases for the pre - inquest disclosure of documentary evidence to interested parties . This was to “ help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted , and that they and their legal representatives will not be disadvantaged at the inquest ” . Such disclosure was recommended to take place DATE before the inquest .

Paragraph CARDINAL of the ORG stated :

“ The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation . The Coroner has no power to order the pre - inquest disclosure of such material ... Disclosure will therefore be on a voluntary basis . ”

Paragraph CARDINAL listed some kinds of material which require particular consideration before being disclosed , for example :

– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings ( criminal , civil or disciplinary ) ;

– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family ; and

– personal information about third parties not material to the inquest .

Paragraph CARDINAL envisaged that there would be non - disclosure of the investigating officer 's report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate .

When documents were supplied by the ORG to the legal representatives of the family of the deceased at an inquest , it was common practice to require an undertaking that the documents would be used only for the purpose of the inquest and would not be disclosed to any third party , besides the clients for whom the lawyer was acting . Consent could be sought for relaxation of the undertaking if the documents became relevant for other purposes . If consent was denied , the courts could direct that the materials could be used ( ORG v. ORG [ DATE ] ORG ) .

In a case brought challenging the requirement by the ORG for such an undertaking on disclosure , In the Matter of an Application by PERSON for ORG , ORG on DATE found that LAW did not confer on the relatives any absolute right of access to documents and that it had not been demonstrated that the requirement to give an undertaking would involve any compromise of the effectiveness of the investigation . It was noted that , as the only purpose identified by the applicant 's solicitors to which the documents might be put other than the inquest was the case pending in ORG , the Chief Constable of the ORG had stated that he was prepared to modify the standard undertaking to permit use of the documents before that ORG .

The police complaints procedure was governed at the relevant time by the Police ( GPE ) Order DATE ( the DATE Order ) . This replaced ORG , which had been set up in DATE , by ORG ( the ORG ) . The ORG has been replaced from DATE by ORG for GPE appointed under LAW Act DATE .

The ORG was an independent body , consisting of a chairman , CARDINAL deputy chairmen and CARDINAL other members . Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of ORG considered that a criminal offence might have been committed by a police officer , the case was referred to the ORG .

DATE . The ORG was required under LAW to supervise the investigation of any complaint alleging that the conduct of a ORG officer had resulted in death or serious injury . Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced ( LAW . A report by the investigating officer was submitted to the ORG concerning supervised investigations at the same time as to the Chief Constable . Pursuant to LAW , the ORG issued a statement as to whether the investigation had been conducted to its satisfaction and , if not , specifying any respect in which it had not been so conducted .

The Chief Constable was required under LAW to determine whether the report indicated that a criminal offence had been committed by a member of the police force . If he so decided and considered that the officer ought to be charged , he was required to send a copy of the report to the ORG . If the ORG decided not to prefer criminal charges , the Chief Constable was required to send a memorandum to the ORG indicating whether he intended to bring disciplinary proceedings against the officer ( Article CARDINAL ) ) save where disciplinary proceedings had been brought and the police officer had admitted the charges ( Article CARDINAL ) ) . Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged , or where he considered that no criminal offence had been committed , he was required to send a memorandum indicating whether he intended to bring disciplinary charges and , if not , his reasons for not proposing to do so ( Article CARDINAL ) and ( CARDINAL ) ) .

If the ORG considered that a police officer subject to investigation ought to be charged with a criminal offence , it could direct the Chief Constable to send the ORG a copy of the report on that investigation ( LAW ) . It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ORG specified ( LAW ) ) .

NORP The Director of Public Prosecutions ( the ORG ) , appointed pursuant to ORG ( GPE ) DATE ( the DATE Order ) is an independent officer with DATE experience of the practice of law in GPE who is appointed by the Attorney General and who holds office until retirement , subject only to dismissal for misconduct . His duties under LAW DATE Order are inter alia :

“ ( a ) to consider , or cause to be considered , with a view to his initiating or continuing in GPE any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in GPE , any facts or information brought to his notice , whether by the Chief Constable acting in pursuance of Article PERSON ) of this Order or by the Attorney General or by any other authority or person ;

( b ) to examine or cause to be examined all documents that are required LAW CARDINAL of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated ;

( c ) where he thinks proper to initiate , undertake and carry on , on behalf of the ORG , proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him . ”

DATE LAW inter alia Coroners and the Chief Constable of the ORG to provide information to the ORG as follows :

“ ( CARDINAL ) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [ ORG ] a written report of those circumstances .

( CARDINAL ) It shall be the duty of the Chief Constable , from time to time , to furnish to the [ ORG ] facts and information with respect to -

( a ) indictable offences [ such as murder ] alleged to have been committed against the law of GPE ; ...

and at the request of the [ ORG ] , to ascertain and furnish to the [ ORG ] information regarding any matter which may appear to the [ ORG ] to require investigation on the ground that it may involve an offence against the law of GPE or information which may appear to the [ ORG ] to be necessary for the discharge of his functions under this Order . ”

According to the ORG 's observations in previous cases ( see PERSON v. GPE , no . CARDINAL , [ Sect.CARDINAL ] , judgment of CARDINAL DATE , § § DATE ) , it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms . This practice was based upon the consideration that

( CARDINAL ) NORP if reason were given in one or more cases , they would be required to be given in all . Otherwise , erroneous conclusions might be drawn in relation to those cases where reasons were refused , involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice ;

( CARDINAL ) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case ( e.g. sudden death or flight of a witness or intimidation ) . To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation ;

( CARDINAL ) the publication of the reasons might cause pain or damage to persons other than the suspect ( e.g. the assessment of the credibility or mental condition of the victim or other witnesses ) ;

( CARDINAL ) in a substantial category of cases decisions not to prosecute were based on the ORG 's assessment of the public interest . Where the sole reason not to prosecute was the age , mental or physical health of the suspect , publication would not be appropriate and could lead to unjust implications ;

( CARDINAL ) there might be considerations of national security which affected the safety of individuals ( e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations , would impair the effectiveness of the counter - terrorist operations of the security forces or endanger the lives of such personnel and their families or informants ) .

Decisions of the ORG not to prosecute have been subject to applications for judicial review in ORG .

In NORP v. ORG ex parte C ( DATE ) CARDINAL CAR , p. CARDINAL , Lord Justice PERSON held , concerning a decision of the ORG not to prosecute in an alleged case of buggery :

“ From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through ORG arrived at the decision not to prosecute :

( CARDINAL ) because of some unlawful policy ( such as the hypothetical decision in GPE not to prosecute where the value of goods stolen was below £ CARDINAL ) ;

( CARDINAL ) NORP because ORG failed to act in accordance with his own settled policy as set out in the code ; or

( CARDINAL ) because the decision was perverse . It was a decision at which no reasonable prosecutor could have arrived . ”

DATE . In the case of NORP v. ORG and Others ex parte PERSON the ORG on DATE quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the ORG – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury DATE required further explanation .

R v. ORG ex parte PERSON and PERSON ( decision of ORG of CARDINAL DATE ) concerned the ORG 's decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner , although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous . The ORG reviewing the case still concluded that the ORG would be unable to establish manslaughter from gross negligence . The Lord Chief Justice noted :

“ ORG makes clear that a decision by the Director not to prosecute is susceptible to judicial review : see , for example , NORP v. Director of Public Prosecutions , ex parte C [ DATE ] CARDINAL Cr . App . PERSON . But , as the decided cases also make clear , the power of review is one to be sparingly exercised . The reasons for this are clear . The primary decision to prosecute or not to prosecute is entrusted by ORG to the Director as head of an independent , professional prosecuting service , answerable to the Attorney General in his role as guardian of the public interest , and to CARDINAL else . It makes no difference that in practice the decision will ordinarily be taken by a senior member of the ORG , as it was here , and not by the Director personally . In any borderline case the decision may be CARDINAL of acute difficulty , since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried , a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial . If , in a case such as the present , the Director 's provisional decision is not to prosecute , that decision will be subject to review by Senior ORG Counsel who will exercise an independent professional judgment . The Director and his officials ( and Senior ORG Counsel when consulted ) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match . In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant , if brought , would be likely to fare in the context of a criminal trial before ( in a serious case such as this ) a jury . This exercise of judgment involves an assessment of the strength , by the end of the trial , of the evidence against the defendant and of the likely defences . It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it . So the courts will not easily find that a decision not to prosecute is bad in law , on which basis alone the court is entitled to interfere . At the same time , the standard of review should not be set too high , since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied . ”

As regards whether the ORG had a duty to give reasons , the Lord Chief Justice said :

“ It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute . Even in the small and very narrowly defined cases which meet PERSON conditions set out above , we do not understand domestic law or the jurisprudence of ORG to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute . But the right to life is the most fundamental of all human rights . It is put at the forefront of the LAW . The power to derogate from it is very limited . The death of a person in the custody of the ORG must always arouse concern , as recognised by section CARDINAL(CARDINAL)(c ) , ( CARDINAL)(b ) and ( CARDINAL ) of the Coroner 's Act DATE , and if the death resulted from violence inflicted by agents of the ORG that concern must be profound . The holding of an inquest in public by an independent judicial official , the coroner , in which interested parties are able to participate must in our view be regarded as a full and effective inquiry ( see ORG v. GPE [ DATE ] CARDINAL EHRR CARDINAL , paragraphs CARDINAL to CARDINAL ) . Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who , although not named in the verdict , is clearly identified , who is living and whose whereabouts are known , the ordinary expectation would naturally be that a prosecution would follow . In the absence of compelling grounds for not giving reasons , we would expect the Director to give reasons in such a case : to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given , to vindicate the Director 's decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet ORG expectation that if a prosecution is not to follow a plausible explanation will be given . We would be very surprised if such a general practice were not welcome to Members of ORG whose constituents have died in such circumstances . We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves . We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision . But the number of cases which meet PERSON conditions is very small ( we were told that since DATE , including deaths in police custody , there have been CARDINAL such cases ) , and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review . In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require . ”

On this basis , the court reviewed whether the reasons given by the ORG in that case were in accordance with the Code for ORG Prosecutors and capable of supporting a decision not to prosecute . It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute . The decision was quashed and the ORG was required to reconsider his decision whether or not to prosecute .

In the Matter of an Application by PERSON for ORG , ORG in GPE on DATE considered the applicant 's claim that the ORG had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police . It noted that there was no statutory obligation on the ORG under the DATE Order to give reasons and considered that no duty to give reasons could be implied . The fact that the ORG in GPE and GPE had in a number of cases furnished detailed reasons , whether from increasing concern for transparency or in the interests of the victim 's families , was a matter for his discretion . It concluded on the basis of authorities that only in exceptional cases such as the PERSON case ( paragraph CARDINAL above ) would the ORG be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice PERSON ( paragraph CARDINAL above ) were infringed . Notwithstanding the findings in the civil case , they were not persuaded that the ORG had acted in such an aberrant , inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted .

The United Nations Basic Principles on ORG ( ORG ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .

Paragraph CARDINAL of ORG provides , inter alia , that the “ intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life ” .

Other relevant provisions read as follows :

Paragraph CARDINAL

“ ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . ”

Paragraph CARDINAL

“ ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . ”

Paragraph CARDINAL

“ Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . ”

Paragraph CARDINAL of ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG CARDINAL/CARDINAL , ( ORG Principles on ORG ) provides , inter alia , that :

“ There shall be a thorough , prompt and impartial investigation of all suspected cases of extra legal , arbitrary and summary executions , including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ... ”

Paragraphs CARDINAL of ORG on LAW contain a series of detailed requirements that should be observed by investigative procedures into such deaths .

Paragraph CARDINAL states , inter alia :

“ The investigative authority shall have the power to obtain all the information necessary to the inquiry . Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ... ”

Paragraph CARDINAL specifies :

“ In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles . ”

Paragraph CARDINAL provides , inter alia :

“ Families of the deceased and their legal representatives shall be informed of , and have access to , any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ... ”

“ A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... ”

The “ LAW ” ( LAW for a legal investigation of extra - legal , arbitrary and summary executions , contained in ORG on ORG - legal , Arbitrary and Summary Executions ) provides , inter alia , in section B on the “ Purposes of an inquiry ” :

“ As set out in paragraph CARDINAL of the Principles , the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim . To fulfil that purpose , those conducting the inquiry shall , at a minimum , seek :

( a ) to identify the victim ;

( b ) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible ;

( c ) to identify possible witnesses and obtain statements from them concerning the death ;

( d ) to determine the cause , manner , location and time of death , as well as any pattern or practice that may have brought about the death ;

( e ) to distinguish between natural death , accidental death , suicide and homicide ;

( f ) to identify and apprehend the person(s ) involved in the death ;

( g ) to bring the suspected perpetrator(s ) before a competent court established by law . ”

In section D , it is stated that “ In cases where government involvement is suspected , an objective and impartial investigation may not be possible unless a special commission of inquiry is established ... ” .

In the report on its visit to GPE and GPE from DATE , published on DATE , ORG for the Prevention of Torture ( the ORG ) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill - treating persons . It commented , inter alia , on the statistically few criminal prosecutions and disciplinary proceedings which were brought , and identified certain aspects of the procedures which cast doubt on their effectiveness .

In particular , it noted that chief officers appointed officers from the same force to conduct the investigations , save in exceptional cases where they appointed an officer from another force , and the majority of investigations were unsupervised by ORG .

It stated at paragraph CARDINAL :

“ As already indicated , the ORG itself entertains reservations about whether the ORG [ ORG ] , even equipped with the enhanced powers which have been proposed , will be capable of persuading public opinion that complaints against the police are vigorously investigated . In the view of the ORG , the creation of a fully - fledged independent investigating agency would be a most welcome development . Such a body should certainly , like the ORG , have the power to direct that disciplinary proceedings be instigated against police officers . Further , in the interests of bolstering public confidence , it might also be thought appropriate that such a body be invested with the power to remit a case directly to the ORG for consideration of whether or not criminal proceedings should be brought .

In any event , the ORG recommends that the role of the ' chief officer ' within the existing system be reviewed . To take the example of CARDINAL ORG officer to whom certain of the chief officer 's functions have been delegated ( the Director of the FAC [ Criminal Investigations Bureau ] ) , he is currently expected to : seek dispensations from the ORG ; appoint investigating police officers and assume managerial responsibility for their work ; determine whether an investigating officer 's report indicates that a criminal offence may have been committed ; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer 's report , and liase with the ORG on this question ; determine which disciplinary charges should be brought against an officer who is to face charges ; in civil cases , negotiate settlement strategies and authorise payments into court . It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way .

... Reference should also be made to the high degree of public interest in ORG [ ORG ] decisions regarding the prosecution of police officers ( especially in cases involving allegations of serious misconduct ) . Confidence about the manner in which such decisions are reached would certainly be strengthened were the ORG to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought . The ORG recommends that such a requirement be introduced . ”


The applicants , Mr PERSON and PERSON , are NORP nationals living in GPE ( GPE ) . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

On DATE the applicants filed an application for a building permit for a weekend cottage .

On DATE the Mayor of ORG - Turrach dismissed the applicants’ application for a building permit . The applicants appealed against this decision .

On DATE the Mayor granted the building permit . On CARDINAL DATE ORG declared the decision null and void as the building permit was contrary to the area zoning plan ( GPE ) .

On DATE the Mayor issued a demolition order . He found that the applicants had to stop the construction works and to demolish these parts of their cottage already built and to recultivate their plot of land within DATE .

On DATE the applicants appealed against this decision and stressed that the construction works had already been terminated in DATE and that the revocation of the building permit granted on DATE had occurred only after the construction of their cottage .

On DATE ORG ( PERSON ) modified the demolition order and found that the applicants had to demolish their cottage DATE .

On DATE ORG dismissed the applicants further appeal ( PERSON ) and found that the applicants’ cottage had been constructed contrary to the applicable law , and that the order to declare the building permit null and void had been issued DATE after the building permit was wrongly granted .

On DATE the applicants lodged a complaint with ORG .

On DATE the ORG declined to deal with the complaint for lack of prospects of success and transferred the case to ORG .

On DATE ORG ordered the applicants to amend their complaint . On DATE they complied with this order . On DATE the LAW - Turrach Municipality submitted its observations .

On DATE ORG dismissed the ORG complaint and found that no building permit existed for their cottage and that , therefore , the demolition order was lawful . This decision was served on the ORG counsel on DATE .

Section CARDINAL of ORG ) deals with the administrative authorities’ duty to decide . Its relevant part reads as follows :

“ ( CARDINAL ) Subject to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay , and at DATE after the application or appeal has been lodged .

( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party ’s written request ( PERSON ) . ... This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority .

( CARDINAL ) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of ORG . ORG ( “ the Government ” ) were represented by their Agents , Mr Y. Zaitsev and PERSON .

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

On DATE Mr T. , a businessman , was kidnapped by a group of persons when he was approaching his hotel after his morning jogging . Shortly afterwards , the police was informed about his disappearance . Mr ORG ’s business partners received a number of phone calls from the kidnappers , demanding a ransom and explaining the manner in which the money should be paid . Some of the telephone conversations were intercepted by the police . The police also recordered telephone conversations between the kidnappers . The interception was authorised by the President of ORG on DATE .

On DATE the applicant and CARDINAL other persons were apprehended on suspicion of forcible abduction of Mr T. On DATE they were charged with aggravated extortion .

On DATE the investigators ordered an expert examination of the audio recordings of the telephone conversations made in DATE . The investigators also took samples of the voices of the applicant and other accused and provided the expert with these samples .

On DATE the examination was completed . The expert concluded that CARDINAL of the voices on the recordings belonged to the applicant .

On DATE the applicant familiarised himself with the expert ’s conclusions .

In DATE the investigations were completed and the case was referred to ORG of Kyiv for trial . The investigators also submitted a list of persons , the accused and CARDINAL witnesses , to be summoned by the court . The applicant and his lawyer took part in the court proceedings .

In the course of these proceedings CARDINAL witnesses , including CARDINAL of the investigators , were heard in person . CARDINAL of those witnesses , Mr S. , stated that on DATE he had met the applicant and Mr B. , whom he had known before , at the hotel where Mr T. , the victim , had stayed . Mr B. had asked Mr S. if the latter knew the place where the hotel clients were jogging . Mr S. had given him relevant explanations . On DATE Mr S. , upon the victim ’s business ORG request , had met with the applicant and Mr B. in order to find out whether the latter knew about the victim ’s whereabouts . He had received an affirmative answer from Mr B. , the applicant having been present at that meeting but having not participated in the conversation . Thereafter , Mr S. had had several telephone conversations with Mr B. , discussing the conditions of the victim ’s release .

Another witness , PERSON , informed the court that since DATE the applicant had resided in her flat in GPE and that her mother , PERSON , had given the keys to her DATE house to CARDINAL of the applicant ’s co - defendants . As it was later established in the course of the investigations and trial , the victim had been held in that summer house .

While the investigator heard by the court as a witness submitted that the defendants had fully enjoyed their procedural rights and that they had had access to all the materials contained in the case - file , the remaining witnesses made statements relating to some of the applicant ’s co - defendants’ activities at the material time .

The court decided to admit and examine the written statements of CARDINAL other witnesses obtained at the stage of the pre - trial investigation , after having accepted the reasons for their non - appearance before the court . As far as can be determined from the contents of the court records , the police , who had been ordered to bring the witnesses before the court , informed the court that CARDINAL of those witnesses resided abroad and that CARDINAL other witnesses could not advance the money for travelling . The reasons for the non - appearance of other CARDINAL witnesses remained unclear .

The co - defendants’ lawyers objected to the admission of the written statements of some of those witnesses and insisted on their appearance at the court hearing . The applicant ’s lawyer seconded her colleagues’ objections .

In her written submissions , CARDINAL of the witnesses , PERSON , had informed the investigators that in DATE she had given the keys to her DATE house to the applicant , who had intended to use it for the storage of goods .

The other written statements examined by the court concerned the victim , his relations with business partners , and the activities of some of the applicant ’s co - defendants .

Although at the stage of pre - trial investigation some of the applicant ’s co - accused had confirmed that he had organised the abduction of Mr T. upon the request of PERSON M. and PERSON , they all withdrew their initial statements at the trial stage . Nonetheless , the court admitted their statements made at the pre - trial stage , as well as their later submissions .

The applicant denied his responsibility for the crime of which he had been accused . He also submitted that the statements of PERSON and his coaccused made at the pre - trial stage were untrue .

In the course of the trial the court also examined the transcripts of the recordings of the telephone conversations made in DATE and the expert ’s conclusion of DATE .

On DATE the applicant together with his co - defendants were found guilty of aggravated extortion . The applicant was sentenced to CARDINAL years’ imprisonment with confiscation of his property .

In its judgment , the court made the following findings concerning the applicant ’s guilt :

In addition ... the leading role of [ Mr ] PERSON in committing extortion ... is [ confirmed ] by the evidence collected in the course of ... the interception of telecommunications which had been carried out on the basis of the warrant issued by the President of ORG ... on DATE .

It was established in the court hearing that , given the audio recordings ... , [ Mr ] PERSON had had telephone conversations with [ PERSON and DATE , his co - defendants , and PERSON , a witness ] , and other persons with the aim of extorting individual property of the victim ... ”

The lawyers , representing the applicant and his co - defendants , appealed in cassation , alleging that the first instance court had wrongfully assessed evidence and applied law in the case . They argued , inter alia , that the court had failed to summon the witnesses , PERSON M. and PERSON , whose written statements had been admitted to the case - file and who had allegedly ordered the victim ’s abduction ; that the court had not allowed the defendants to familiarise themselves with the audio recordings of the telephone conversations made in DATE ; and that the court had failed to re - qualify the acts of the defendants who had allegedly abducted the victim in order to ensure his compliance with financial obligations in respect of a third party . On the whole , according to the defence lawyers , the conviction was not based on any reliable evidence .

The applicant ’s lawyer lodged an amendment to the above appeal , reiterating that neither he nor the applicant had been able to familiarise themselves with the audio recordings of the telephone conversations made in DATE . The lawyer also submitted that the court had failed to take into account the fact that there had been procedural irregularities in the course of the pre - trial investigation in that the applicant had not been provided with assistance by a lawyer at his first interrogation . Finally , the lawyer contested the trustworthiness of the statements of the witness PERSON K.

On DATE ORG upheld the judgment of the first instance court . The city court found that the judgment had been wellfounded and that there had been no procedural irregularities at the stage of the investigation or trial .

On DATE the applicant was conditionally released from serving his sentence .

Pursuant to LAW ) , as worded at the material time , the procedural rights of the defence lawyer included the rights to meet with the suspected or the accused ; to be present at their interrogation ; to be present during the investigative procedures in which the suspected or the accused took part or which were initiated by them ; to take part in other investigative procedures subject to the consent of the person conducting an inquiry or the investigator ; to familiarise himself with the case - file following the completion of the pre - trial investigations and to make notes ; to participate in the trial ; to collect evidence ; to get the expert ’s written conclusions concerning the issues the examination of which required special knowledge ; to submit evidence and to lodge motions .

The defence lawyer should be informed in advance about the date and place of the investigative procedures which he requested or in which the suspected or the accused took part .

During an investigative procedure the defence lawyer had the right to put questions to the persons who were interrogated and to submit written remarks concerning the accuracy of the notes taken by the investigator .

According to LAW , the procedural rights of the defendant included the right to challenge the persons participating in the trial ; to lodge motions and to express his opinion concerning the motions of other persons participating in the trial ; to request the court to include documents into the case - file , to summon witnesses , to order expert examination ; to testify or to refuse to give evidence or answer questions ; to put questions to other defendants , witnesses , expert , specialist , victim , and civil party ; to participate in the examination of material evidence etc .

Article CARDINAL entitles the defence lawyer to participate in the examination of evidence by the court ; to lodge motions concerning the admission of new evidence ; to express his opinion on the meaning of the evidence examined in the course of the proceedings etc .

According to LAW , the suspected , the accused or their lawyer could request the withdrawal of an expert . The expert should withdraw from the case if he was a victim , civil party or their relative , or a relative of the investigator , the person conducting an inquiry , the prosecutor or the defendant ; if he had already participated in the proceedings as a witness , defence lawyer , victim ’s or civil party ’s representative , person conducting an inquiry , investigator , prosecutor , or if he had already considered procedural complaints in the case as a judge ; if he was he was personally interested , directly or indirectly , in the outcome of the proceedings ; if there were other reasons for which his impartiality could be called into question .

LAW provided that at the time when an expert examination was ordered or was being carried out the accused enjoyed the following rights :

to challenge an expert ;

to request the appointment of an expert from a list of persons submitted by the accused ;

to request additional questions to be put to the expert ;

to give explanations to the expert ;

to submit additional documents ;

to familiarise himself with the expert ’s materials and conclusions after the completion of the expert examination ;

to request a new or additional expert examination .

The investigator was obliged to provide the accused with a possibility to familiarise himself with the order for an expert examination and to explain him the rights listed in this Article .

LAW stipulated that upon the completion of the examination the expert had to draw up a report containing the information concerning his name and professional qualification ; grounds for the examination ; questions put to him and answers to these questions ; materials used in the course of the examination ; studies carried out etc .

Under LAW , the investigator was obliged to provide the accused with a possibility to familiarise himself with the materials of the expert examination and to note the explanations , remarks and objections which the accused raised , as well as the latter ’s requests .

If a witness or an expert failed to appear before the court , LAW obliges it to consult the parties before deciding whether the proceedings could continue .

In exceptional cases the court could release a witness , who was subject to special measures of protection , from his obligation to appear before it , provided the witness had confirmed in writing his earlier statements .

Pursuant to Article CARDINAL , the court could , on its own initiative or upon the prosecutor ’s or other party ’s motion , read out the ORG statements obtained at the stage of inquiry , pre - trial investigation or trial , if

the statements made at the trial and in the course of the investigation or inquiry substantially contradicted each other ;

the witness’ presence at the hearing was , for some reason , impossible ;

the case was heard in the ORG absence pursuant to LAW .

Under LAW the court had powers to order a new or additional expert examination . In such a case the proceedings could be suspended .

Article CARDINAL stipulated that material evidence had to be observed by the court and the parties were to be given an opportunity to examine them . The pieces of evidence , which could not be brought into the court hearing , could be observed on spot .

According to LAW , the judgment had to be based on the evidence examined at the court hearing .