No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

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

On DATE , at TIME , CARDINAL men wearing balaclava masks , some of whom were armed with firearms , entered the bungalow of the PERSON family and , seizing the keys to their white ORG Cavalier car , drove off in it . TIME , at TIME , the white ORG Cavalier stopped in front of CARDINAL cars parked side by side on FAC , GPE , and began shooting at the occupants . The drivers of both vehicles were killed , and a third person , in the passenger seat of CARDINAL vehicle , was wounded .

At TIME the police found a white ORG Cavalier which had been set on fire . They discovered in the car CARDINAL black and a dark blue balaclava masks , a pair of black gloves and CARDINAL cartridge cases .

At TIME , at an army checkpoint on FAC , QUANTITY from the spot where the abandoned vehicle was found , a red ORG car was stopped . The car contained CARDINAL men : PERSON and PERSON and the applicant . TIME a number of police officers arrived under the command of PERSON . On being questioned by PERSON , the applicant stated that he had been helping the PERSON brothers with sheep since TIME , that he had washed at the GPE ' and had something for tea there . He stated that he was going for a drink in town . The applicant was arrested under section CARDINAL(CARDINAL)(b ) of ORG ( Temporary Provisions ) Act DATE and taken to PERSON , GPE . Access to a solicitor was deferred pursuant to section CARDINAL of GPE ( Emergency LAW Act DATE ( “ the DATE LAW ) for a period of TIME . Thereafter , and up until he was charged , the applicant was seen DATE by a solicitor .

Shortly after arrival at FAC , head hair combings were taken from the applicant and sent for forensic examination along with the clothes he was wearing at the time of his arrest .

The applicant was interviewed by police officers who cautioned him before each interview in terms of LAW ) Order DATE ( “ the DATE LAW ) . The applicant was told that :

“ You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court , your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you . If you wish to say anything , what you say may be given in evidence . ”

The applicant was asked if he understood the caution and made no reply . He made no reply to questions about his movements on DATE and about fibres from the balaclavas and gloves found on his hair and clothing . He maintained silence throughout the interview and throughout CARDINAL further interviews , which took place DATE . The applicant was denied access to legal advice during police interviews .

On DATE , during interview no . CARDINAL , a police constable cautioned the applicant pursuant to LAW , requesting him to account for his presence at FAC about the time the murder of the CARDINAL men in GPE was committed . The applicant was warned that if he failed or refused to do so , a court , judge or jury might draw such inference from his failure or refusal as appeared proper . The applicant made no response and refused to sign the written request . During the same interview , the applicant was cautioned , pursuant to LAW , in respect of adverse inferences which might be drawn from any failure to account for a number of fibres found on his person by means of a hair combing which linked him to the commission of an offence . During interview no . CARDINAL on DATE , a caution was administered under LAW fibres found on the applicant 's clothes which were forensically linked to material found in a ORG Cavalier allegedly used by the culprits . The applicant made no reply and refused to sign the written request .

On DATE the applicant was charged , inter alia , with the murder of ORG , and PERSON . , the attempted murder of ORG and with possession of CARDINAL loaded ORG assault rifles with intent . The applicant pleaded not guilty and was tried before Lord Chief Justice PERSON sitting without a jury .

The prosecution case linking the applicant to the hijacking of the car and the shooting incident was based on forensic evidence . The link was between a balaclava and the gloves found in the car and the applicant . According to the prosecution , the fibres found in the hair combings taken from the applicant and found on his clothing matched exactly the fibres of the CARDINAL black balaclavas and the fibres of the pair of gloves found in the car .

The forensic expert witness called by the prosecution testified that :

“ Considering the presence of fibres to match CARDINAL separate fibre sources from the car on [ the applicant ] and his clothing would strongly support the proposition that there had been direct and intimate contact with the black masks and gloves from the car . ”

At his trial the applicant gave evidence to the effect that at the relevant time he had been working with sheep at the GPE ' farm on TIME CARDINAL DATE and had then stayed at the farm for a meal until TIME He further stated that on DATE , DATE , when he was at work , he had worn black gloves and a rolled up balaclava as protective clothing .

The applicant called several witnesses to support his alibi , including the PERSON brothers .

On DATE the applicant was convicted of CARDINAL counts of murder , CARDINAL count of attempted murder , CARDINAL count of possession of CARDINAL rifles and a handgun together with a quantity of ammunition with intent , contrary to LAW ) Order DATE , CARDINAL count of assaulting and falsely imprisoning PERSON , and CARDINAL count of hijacking a Vauxhall Cavalier motor car , contrary to section CARDINAL ) of LAW DATE .

In his judgment the judge found the applicant guilty , having regard to circumstantial evidence of a forensic nature linking the applicant with the ORG car allegedly used by the gunmen and the applicant 's presence in the vicinity of the shooting ( QUANTITY from its location ) . The forensic evidence consisted of the following :

( a ) CARDINAL fibres were found in the head hair of the applicant matching exactly the fibres from one of the balaclava masks and CARDINAL fibres were found in the head hair of the applicant matching exactly the fibres from the pair of black gloves ;

( b ) CARDINAL fibre matching exactly the fibres from CARDINAL of the black balaclava masks was found on the jacket of the applicant and CARDINAL fibres matching exactly the fibres from the pair of black gloves were found on the jacket of the applicant ;

( c ) CARDINAL fibres matching the fibres from the pair of black gloves were found on the outside of the jeans of the applicant and large numbers of fibres matching exactly the fibres of the pair of black gloves were found in both side pockets of the jeans of the applicant ;

( d ) CARDINAL fibre exactly matching the fibres of CARDINAL of the black balaclava masks was found in each of the side pockets of the jeans of the applicant .

The judge accepted the evidence of the prosecution forensic expert witness that the presence of fibres to match the CARDINAL separate fibre sources from the car , namely the black balaclava masks and the pair of black gloves on the head hair and on and in the clothing of the applicant strongly supported the proposition that there had been direct and intimate contact between him and CARDINAL or both of those black balaclava masks and the pair of black gloves .

NORP Moreover , the judge relied on the “ very strong adverse inference ” which he drew against the applicant under LAW and CARDINAL of the DATE Order . The judge stated :

“ Yet the [ applicant ] made no reply to the questions repeatedly put to him throughout the interviews and gave no information whatsoever about his movements on DATE and no account of wearing a balaclava and gloves at his work on DATE , but gave detailed evidence in respect of these matters for the first time at his trial . I therefore draw a very strong adverse inference against him under LAW . ... it would have been a simple and easy thing for him to have told these matters to the interviewing police officers .

PERSON [ counsel for the applicant ] submitted that the court should not draw an adverse inference under LAW by reason of the fact that when the [ applicant ] was stopped at the vehicle check - point on TIME DATE he told PERSON TIME , when asked how he came to be in the company of the other CARDINAL men , that he had been giving them a hand with sheep all afternoon since TIME , and that he later told PERSON TIME , that he had been at the GPE ' TIME working with sheep since TIME , that he had a fry at the GPE ' , and that he had got washed in that house . PERSON submitted that the purpose of LAW was to stop an accused at his trial putting forward an ambush defence . As the [ applicant ] had told the police who stopped him at the vehicle check - point that he had been at the GPE ' working with sheep all afternoon , the purpose of LAW had been achieved , and that it would therefore be wrong to draw an adverse inference against the [ applicant ] under LAW because he refused in interviews to repeat to the police his defence or to answer questions about it . I reject that submission . ... Notwithstanding that the [ applicant ] told PERSON in brief terms that he had been working at the GPE ' farm since TIME , common sense clearly indicates that if the defence which he advanced in the witness box was true , he would have told the police of it after he was cautioned in PERSON under LAW and was questioned at length about his movements on DATE and was asked if he had an explanation for the fibres found on his hair and clothing . In addition I draw a very strong adverse inference against the [ applicant ] under LAW . The [ applicant ] failed to account for these fibres after each caution was read ... although he gave an explanation at the trial that he had been wearing gloves and a balaclava at his work on DATE , which explanation was clearly designed and intended to show that the fibres found on his hair and on his clothing came from gloves and a balaclava which he was wearing ... on DATE . This was an explanation which he could easily have given to the constable who served the Article CARDINAL caution on him , and by reason of this failure to do so I draw a very strong adverse inference against him that the evidence which he gave at the trial about wearing a balaclava and gloves at work on DATE was false . PERSON submitted that I should not draw that inference because the cautions lacked clarity and detail ... and ... did not give the [ applicant ] sufficient information to enable him to understand that he was being requested to account for the presence of fibres from a pair of gloves and from a balaclava ... on his hair and clothing . ... I do not accept that submission . It follows from the very strong inferences which I have drawn against the [ applicant ] under LAW Article CARDINAL that I reject the evidence of the witnesses who sought to give the [ applicant ] an alibi by stating in the witness box that he was in the GPE ' farm at FAC during the period when the gunmen were going to the GPE ' bungalow , imprisoning PERSON and hijacking his car , murdering PERSON and J.A.W.Mc . ... For the same reason I reject the evidence of PERSON that the accused wore a balaclava and gloves at work on DATE . ”

The judge continued with reference to LAW :

“ Having regard to the matters clearly put and explained to the [ applicant ] ... I think it is clear that the accused knew perfectly well that the LAW cautions referred to the fibres from the balaclava masks and pair of gloves found in the gunmen 's cars , but he failed to give the explanation which he later put forward at trial and this failure gives rise to the very strong adverse inference which I draw against him . ”

The judge did not draw any inference under LAW .

The judge also held :

“ It follows from the very strong adverse inferences which I have drawn against the [ applicant ] under LAW Article CARDINAL that I reject the evidence of the witnesses who sought to give the [ applicant ] an alibi by stating in the witness box that he was in the GPE ' farm ... during the period when the gunmen were ... murdering ... and escaping from the place where the car was set on fire . The [ applicant ] had ample time to get to the GPE ' farm before TIME from the place where the car had been set on fire . ...

In addition , and apart from the very strong adverse inferences which I draw under LAW and DATE , having seen them in the witness box I regarded the [ applicant ] and PERSON as dishonest and unreliable witnesses whose evidence I did not believe . ”

The applicant appealed on the grounds , inter alia , that the trial judge had erred in drawing an adverse inference under LAW when the accused was questioned about his movements on DATE since he had already given an account of his movements to PERSON when he was stopped on TIME ; that the inference drawn from his failure to give an explanation of the forensic findings concerning the fibres found on him by mentioning to the police that he had been wearing a balaclava and gloves on DATE before the killing should not have been CARDINAL of significant weight ; that the police did not give him sufficient information to enable him to understand the nature of the forensic evidence for which he was requested to account ; and , finally , that it was not open to the trial judge to reject the applicant 's explanation that he had kept silent because it was simply his policy not to speak to the police .

In its judgment of DATE ORG ( Lord Justice PERSON ) of GPE agreed with the trial judge in the following terms :

“ ... [ T]he drawing of an inference under LAW is not automatic . ... Before an inference may be drawn against an accused , the tribunal of fact must be of the view that it is proper to do so . This will allow for consideration of the adequacy of a single statement of a relevant defence and whether any explanation for a failure to repeat it is acceptable . Moreover , the court which invokes LAW can weigh the strength of the inference to be drawn against the accused . ”

Lord Justice PERSON continued :

“ As we have already held , the mere recital on a single occasion of the gist of a defence on which an accused subsequently relies on trial will not usually prevent the invocation of LAW . Whether such a statement will prompt the court not to draw an inference against the accused will depend on an evaluation by the tribunal of fact of all the relevant circumstances including the accused 's explanation for his failure to repeat the statement of his defence on interview . ... Where ... allegations are put to a suspect in interview which , if unchallenged , are clearly indicative of his guilt and where he fails , until trial , to put forward his answers to these or an explanation of them consistent with his innocence , this will justify the drawing of a strong inference against him . In this case the significance of the forensic evidence could scarcely be more obvious and important . It called for the production of the appellant 's explanation at the earliest moment . The failure to produce that explanation on a point of such obvious and immediate importance justified the drawing of a strong adverse inference against the appellant . When that failure went unexplained ( save by reference to a policy which was neither justified nor elaborated upon by the [ applicant ] ) the drawing of a strong adverse inference against him was virtually inevitable . PERSON [ counsel for the applicant ] submitted that the manner in which the forensic evidence was described by the [ police ] must have confused the appellant as to the nature of the forensic evidence which existed against him . Like the learned trial judge we do not accept this proposition . PERSON submitted that it was not open to the learned trial judge to conclude that such a policy [ by the applicant not to speak to the police ] did not exist . We reject this argument . ... A person may have and apply such a policy but he must realise that the tribunal of fact may then draw an adverse inference from his silence . This [ applicant ] was seen DATE by his solicitor after an initial CARDINAL-hour deferral and if he chose to remain silent it was his free choice . This does not avoid the possibility of Articles CARDINAL or CARDINAL being used to his disadvantage , however . To accept that a suspect may successfully rely on a ' policy ' of silence to avoid the adverse effect of the ORG would ' drive a coach and CARDINAL through the statute ' . ”

In conclusion , Lord Justice PERSON stated :

“ We are entirely satisfied that the learned trial judge approached his task in a careful and critical manner , he adverted to all the evidence and he was satisfied of the guilt of the [ applicant ] having not only heard the evidence but observed the witnesses . In our judgment these convictions were in no way unsafe or unsatisfactory . ”

ORG dismissed the applicant 's appeal .

The applicant escaped from prison shortly before DATE . He remains unlawfully at large .

The relevant parts of LAW ) Order DATE provide :

“ Circumstances in which inferences may be drawn from the accused 's failure to mention particular facts when questioned , charged , etc .

( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused -

( a ) at any time before he was charged with the offence , on being questioned by a constable trying to discover whether or by whom the offence has been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact , being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , paragraph ( CARDINAL ) applies .

( CARDINAL ) Where this paragraph applies :

( c ) the court ... in determining whether the accused is guilty of the offence charged ,

may -

( i ) draw such inferences from the failure as appear proper ;

( ii ) on the basis of such inferences treat the failure as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure is material .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention . ”

“ ( CARDINAL ) Where -

( a ) a person is arrested by a constable , and there is -

( i ) on his person ; or

( ii ) in or on his clothing or footwear ; or

( iii ) otherwise in his possession ; or

( iv ) in any place in which he is at the time of his arrest ,

any object , substance or mark , or there is any mark on any such object ; and

( b ) the constable reasonably believes that the presence of the object , substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable ; and

( c ) the constable informs the person arrested that he so believes , and requests him to account for the presence of the object , substance or mark ; and

( d ) the person fails or refuses to do so ,

then if , in any proceedings against the person for the offence so specified , evidence of those matters is given , paragraph ( CARDINAL ) applies .

( CARDINAL ) Where this paragraph applies -

( a ) the court , in determining whether to commit the accused for trial or whether there is a case to answer ; and

( b ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may -

( i ) draw such inferences from the failure or refusal as appear proper ;

( ii ) on the basis of such inferences , treat the failure or refusal as , or as capable of amounting to , corroboration of any evidence given against the accused in relation to which the failure or refusal is material .

( CARDINAL ) Paragraphs CARDINAL and CARDINAL do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph ( CARDINAL ) what the effect of this LAW would be if he failed or refused to comply with the request . ”

The relevant parts of section CARDINAL of GPE ( Emergency LAW Act DATE provide :

“ ( CARDINAL ) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled , if he so requests , to consult a solicitor privately .

( CARDINAL ) A person shall be informed of the right conferred on him by subsection ( CARDINAL ) above as soon as practicable after he has become a person to whom that subsection applies .

( CARDINAL ) If a person makes such a request , he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section .

( CARDINAL ) Any delay in complying with a request under subsection ( CARDINAL ) above is only permitted if -

( a ) it is authorised by an officer of at least the rank of superintendent ; and

( b ) it does not extend beyond the relevant time .

( CARDINAL ) In subsection ( CARDINAL ) above “ the relevant time ” means

( a ) where the request is the first request made by the detained person under subsection ( CARDINAL ) above , the end of the period referred to in CARDINAL ) above ; or

( b ) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor , the end of the period of TIME beginning with the time when that consultation began .

( CARDINAL) An officer may only authorise a delay in complying with a request under subsection ( CARDINAL ) above where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it :

( a ) will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person ; or

( b ) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it ; or

( c ) will hinder the recovery of any property obtained as a result of such an offence ; or

( d ) will lead to interference with the gathering of information about the commission , preparation or instigation of acts or terrorism ; or

( e ) by alerting any person , will make it more difficult -

( i ) to prevent an act of terrorism ; or

( ii ) to secure the apprehension , prosecution or conviction of any person in connection with the commission , preparation or instigation of an act of terrorism . ”

There is no right at common law to have a solicitor present during a police interview . Such a right has been conferred by paragraph MONEY , made pursuant to section CARDINAL of ORG “ PACE ” ) , on those who are not arrested or detained under section CARDINAL(CARDINAL ) of ORG ( Temporary Provisions ) Act DATE . However , by section CARDINAL(CARDINAL ) of PACE it was expressly provided that the Code affording that right does not apply to those arrested and detained for terrorist offences . In particular , having regard to the legislative context , ORG has recently declined to hold that such persons have any common - law right to have a solicitor present during interview ( NORP v. Chief Constable of the ORG , ex parte PERSON [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .

Following the judgment of ORG in the case of PERSON v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) , ORG issued ORG CARDINAL/CARDINAL to inform chief officers of the judgment 's implications and the consequent new arrangements for use by police officers and prosecutors of evidence obtained from a suspect during the course of an interview in which legal advice was sought but delayed by the police . Paragraph CARDINAL of the circular states :

“ I attach a copy of the guidance which has been issued by the Attorney General to advise Prosecutors reviewing a case , or presenting a case in court , in which the suspect 's access to legal advice was delayed in accordance with Annex B of Code C , that they will not be able to attach any weight to the accused 's failure to reply to questions in an interview conducted at FAC when access to legal advice has been delayed but that inferences may be drawn under sections CARDINAL , DATE and DATE of the DATE [ Criminal Justice and Public Order ] Act if the suspect remained silent when re - interviewed after legal advice was obtained . ”

The circular continues :

“ CARDINAL . ... The Prosecution should not seek to rely on inferences from silence before access to legal advice has been granted . In the event the court , or of its own volition , indicates an intention to draw any such inferences , its attention should be drawn to the judgment of ORG in PERSON v. the GPE .

NORP The question of drawing inferences from silence is most likely to arise under LAW of LAW ( which relate to failure to mention when questioned or charged facts subsequently relied upon by an accused in his own defence ) . The position to be adopted by Prosecutors is set out above . ... If access to a solicitor has been denied at FAC , the court should not be invited to draw the inferences which might otherwise be drawn in such circumstances ( irrespective of the line of defence put forward by the accused ) since it is a situation where , but for the denial of access to a solicitor , the accused would ordinarily have access to legal advice . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

All applicants were former employees of “ GPE u stečaju ( the debtor ) , which was , at the relevant time , a company predominantly comprised of socially - owned capital .

NORP Since the debtor failed to fulfil its contractual obligations towards employees , on unspecified date , the applicants instituted civil proceedings against it .

On DATE ORG in ORG ordered the debtor to pay them :

i. the salary arrears due DATE and DATE , plus interest ; and

ii . MONEY ( ORG ) for their costs and expenses .

On DATE this judgment became final .

In the period DATE and DATE each applicant filed separate requests for the enforcement of the above judgment .

ORG in ORG ultimately accepted the ORG requests and issued the enforcement orders respectively . The essential information as to the enforcement proceedings in respect of each application are indicated in the FAC .

On DATE ORG in ORG opened insolvency proceedings in respect of the debtor ( St. CARDINAL/CARDINAL ) .

The applicants duly submitted their respective claims .

On an unspecified date the ORG claims based on the judgment of DATE were recognised .

The insolvency proceedings against the debtor are still ongoing .

On DATE the debtor was privatised .

On DATE the contract for the sale of the debtor was annulled because the buyer in question had failed to fulfil his contractual obligations .

As of DATE the debtor has been comprised of predominantly ORG - owned capital .

On DATE , the applicants filed a constitutional appeal .

The case is still pending before ORG .

Article CARDINAL § § CARDINAL and CARDINAL provides that “ as of the day of institution of the insolvency proceedings ” the debtor can not simultaneously be subjected to a separate enforcement procedure . Any ongoing enforcement proceedings shall thus be stayed , while new enforcement proceedings can not be instituted for as long as the insolvency proceedings are pending .

The reminder of the relevant domestic law is set out in the cases of PERSON and ORG ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § DATE ) and the case of GPE DATE . ) , no . CARDINAL/CARDINAL , DATE .


MUSTAFA (ABU HAMZA) v. THE UNITED KINGDOM

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano

NORP The applicant is PERSON , known more commonly as PERSON . He was born in DATE . The applicant is currently detained at ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE .

ORG have requested his extradition to stand trial on charges related to international terrorism . The extradition request is the subject of a separate application to this Court ( see PERSON and others v. GPE DATE . ) nos . CARDINAL , CARDINAL and ORG , DATE ) . The present application concerns only his trial and conviction in GPE for separate offences .

CARDINAL .

The applicant has lived in GPE DATE . After initially working as a civil engineer , he started preaching ORG and teaching the GPE part - time . He began working full - time as a preacher in DATE and from DATE was PERSON at FAC , GPE . DATE he delivered a number of sermons and speeches which later formed the basis for charges of soliciting to murder , using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred , possessing a document or recording with the same intent . He was also charged with possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism ( possession of the FAC volume Encyclopaedia of Afghani Jihad ) . Those charges are set out in part CARDINAL below .

The applicant 's speeches , sermons and other activities brought him to the attention of ORG . CARDINAL meetings took place between the applicant and officials of ORG DATE and DATE . Notes of those meetings were disclosed to the applicant and are before the ORG in redacted form . At the first meeting , on DATE , in response to comments he made about terrorism in GPE , the applicant was told he was walking a “ dangerous and delicate tightrope ” and incitement to terrorism or other violence was “ fraught with peril ” . That warning was repeated at the second and third meetings on DATE and DATE . At the fourth meeting , on DATE , the applicant was again told that he had been walking a dangerous tightrope and had come close to being culpable for incitement to violence . He was also told that , if he overstepped the mark , he would undoubtedly come to the attention of the authorities . A similar warning was delivered at the sixth meeting on DATE . During the same period a series of meetings took place between the applicant and ORG . The applicant maintains that , at those meetings , it was never suggested that he would be prosecuted for any sermons he had given .

The applicant was arrested and interviewed CARDINAL March CARDINAL by ORG as part of an inquiry into the taking of CARDINAL hostages in GPE in DATE . He was released without charge . When he was arrested material , including videotapes of his sermons , cassette tapes and the Encyclopaedia of Afghani Jihad were seized and analysed . The materials were subsequently returned to him .

In DATE the applicant 's funds were frozen by ORG and he was also designated as a global terrorist by the President of GPE . ORG and GPE also suspended him from his post as GPE at FAC .

NORP In DATE , FAC was raided by police . The raid was widely reported in the GPE media . On DATE , the Secretary for ORG notified the applicant of his intention to remove his NORP citizenship on the grounds that he was satisfied that the applicant had provided support and advice to terrorist groups and individuals ; encouraged and supported the participation of individuals in jihad ; provided , through the mosque , a centre for extremism ; and promoted anti - Western sentiment and violence through his preaching . This too was extensively reported .

On DATE the ORG requested the applicant 's extradition inter alia in relation to his alleged role in the NORP kidnapping . The full details of the charges he faces are set out in the ORG 's decision in PERSON and others , cited above , § § CARDINAL–CARDINAL .

The extradition proceedings were adjourned when , on DATE , the applicant was charged by ORG with CARDINAL offences . These were :

( i ) CARDINAL counts of soliciting to murder , contrary to section CARDINAL of the Offences Against the Person Act DATE ;

( ii ) CARDINAL counts of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred contrary to section CARDINAL ) of LAW DATE ;

( iii ) CARDINAL count of possessing threatening , abusive or insulting recordings of sound with intent to stir up racial hatred contrary to section PERSON ) of LAW DATE ; and

( iv ) CARDINAL count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section CARDINAL of LAW ( the LAW ) .

The CARDINAL counts of soliciting to murder and the CARDINAL counts of stirring up racial hatred related to speeches and sermons given by the applicant at FAC and other locations DATE .

When the trial began in DATE , the defence applied for the prosecution to be stayed as an abuse of process . It was argued that , as a result of his dealings with ORG and ORG , the applicant had either been given assurances that he would not be prosecuted or left with the legitimate expectation that he would not be . This , he argued , was reinforced by the decision to revoke his citizenship and allow his extradition to GPE . The applicant further argued that , as a result of these actions of GPE and ORG , the publicity surrounding him had grown to such an extent that it would be impossible for him to receive a fair trial by jury . It was also argued that the delay made it impossible for him to defend himself .

NORP The trial judge , Mr Justice PERSON , refused the application on CARDINAL DATE . Having reviewed the notes of the discussions between the applicant and ORG , the trial judge held that it was quite clear that the discussions did not amount to an assurance , express or implied , nor did they give rise to a legitimate expectation that the applicant would not be prosecuted . The same was true for meetings between the applicant and ORG . The warnings about walking a tightrope did not arise in the context of any investigation into the applicant or from any consideration of possible prosecution ; they were not assurances that the applicant was committing no offence but non - legal warnings by a ORG officer whose concern had nothing to do with possible prosecution . There was also no evidence from the applicant that he regarded these conversations as having given him any kind of assurance that he was safe from prosecution , nor that he relied on them in deciding how to conduct himself .

The trial judge also found that the decisions to revoke the applicant 's citizenship and accede to his extradition did not make the decision to prosecute him an abuse of process : there was no reason why revocation of citizenship and prosecution could not be done simultaneously , nor was there anything unlawful in prosecuting someone who was subject to an extradition request .

The trial judge found that , by DATE , the police would have had almost all the evidence that the prosecution was now based upon and , in the absence of any explanation for the passage of time , some criticism could be made for the delay in bringing the prosecution . However , it was not an affront to justice to bring the prosecution : provided that the trial could be fair it was in the public interest that it should take place . Since the prosecution case consisted entirely of recordings of what the applicant had said in his speeches and sermons , and the applicant 's defence was that there was theological justification for what he had said , there was no danger that the applicant would be unable to mount his defence .

The trial judge also rejected the applicant 's submission that the adverse publicity to which he had been subjected would prejudice any jury . It was acknowledged that the media 's coverage of the applicant had amounted to a sustained campaign against the applicant and , before the prosecution had been brought , various public figures had made adverse statements about him . However , the trial judge was satisfied that , with a proper direction , a jury would be able to try the applicant impartially . He found :

“ Almost universally , [ juries ] approach their task and their oath with conspicuous conscientiousness .... Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety . Whilst the law of contempt operates to minimise it , it is not always avoidable , especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought . Jurors are in such cases capable of understanding that comment in the media might or might not be justified ... They are not surprised to be warned not to take at face value what appears in the media , nor are they DATE so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not . ”

NORP However , since the ruling was given just after the GPE bombings of DATE , and there had been recent references in the media to the applicant , the trial judge acceded to an application to defer the trial until DATE . He observed :

There will by then have been DATE since the most intense of the publicity .

“ It remains likely , as it seems to me , that any trial will have to be approached on the basis that the jurors will , or certainly may , remain generally aware that this is a defendant who was the object of intense publicity and of a campaign against him , although I doubt they will recall , as a lawyer interested in the case might recall , the detail of specific allegations such , for example , as those made at the time of the extradition request in DATE .

That will mean that the jury must be warned carefully about how they are to approach the case . What exactly needs to be said to them will fall to be considered after submissions by the parties and at the time and , particularly , in the light of any submissions made on behalf of the defendant , but I record now that I would expect it to go significantly beyond a formulaic injunction to put out of their minds anything they have read in the papers . It seems to me likely that it will need to involve a careful explanation of the difference between their task in the sifting and evaluation of the evidence , on the one hand , and indiscriminate hostile labelling of a suspect by public commentators , on the other hand . ”

The trial judge also gave a general warning that any further references to the applicant and terrorism by the media would risk a finding of contempt of court .

The trial in fact took place in DATE and DATE . On DATE , the eve of the trial , the trial judge rejected a renewed application for a stay . This was based on further media coverage of the GPE bombings that had included some references to the applicant as someone who was likely to have contributed to the willingness of some to make such attacks . Adopting the reasoning of his earlier ruling , the trial judge held that this publicity would not prevent the jury from objectively considering the allegations made against the applicant . A further warning was given to the media as to the risk of a finding of contempt of court . The trial judge also indicated that he would refer certain articles to the ORG for consideration as to whether any past contempt of court had or had not been committed .

At the conclusion of the trial the trial judge 's summing up , which lasted DATE , contained the following direction to the jury :

“ I warned you at the beginning [ of the trial ] to ignore anything that anyone has said about this defendant in the press before the trial or during it . You may be aware that over DATE there was a campaign in some sections of the press against [ the applicant ] . Whether it was fair or unfair comment about his opinions , whether it was informed or uninformed comment about him , is simply irrelevant . No one at that time was undertaking the task which you have been given , which is to sift the evidence , to look at the speeches , evaluate the evidence and say whether he has committed these offences or not . It may be quite easy , you may think , to attach a label to somebody in a newspaper article , but it is a different exercise from the task which you have of examining the evidence to see whether he has committed particular offences . The only thing that matters to any of us is whether the evidence demonstrates that he has or has not proved that he committed these offences . So be careful not to be affected , again even subconsciously , of intensive criticism of him . Concentrate on the evidence , try him on that , and make your own decision . ”

On DATE , after they had retired to consider their verdict , the jury were given a further direction by the trial judge in response to further adverse publicity . That publicity included a comment made by a participant on the ORG 's Newsnight programme that the applicant should be deported and other media references to a connection between PERSON ( who was at that point about to be tried in GPE for his role in the attacks of DATE ) and FAC . At that time there had also been extensive coverage of the international reaction to the publication of cartoons in GPE of the Prophet PERSON . This adverse publicity also prompted the defence to renew its application for the proceedings to be stayed . The trial judge refused that application , finding that there was no risk that the jury would be swayed from reaching its verdict on the basis of the evidence presented at trial . On the contrary , the indications at that stage were that the jury were working their way through the considerable volume of evidence that was before them .

DATE the jury found the applicant guilty of CARDINAL counts of soliciting to murder ; CARDINAL counts of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred ; CARDINAL count of possessing threatening , abusive or insulting recordings of sound with intent to stir up racial hatred ; and CARDINAL count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism . They acquitted the applicant of CARDINAL counts of soliciting to murder and CARDINAL count of using threatening , abusive or insulting words or behaviour with intent to stir up racial hatred .

NORP The applicant was sentenced to DATE imprisonment .

The applicant appealed against his conviction to ORG , which dismissed the appeal on DATE ( [ DATE ] PERSON ) .

ORG found that the trial judge had been correct to refuse the defence applications to have the proceedings stayed as an abuse of process . Nothing that had been done by the authorities could be treated as an assurance that he would not be prosecuted . There was also no basis for inferring that the Secretary of ORG , in deciding to deprive the applicant of his citizenship , had taken a personal policy decision that the applicant should not be prosecuted and it could not be taken as an assurance of nonprosecution . In respect of the police 's decision to return the applicant 's cassettes and encyclopaedia after his arrest in DATE ORG observed :

“ It would have been open to the police to initiate a prosecution in DATE in relation to the possession of the cassettes and the Encyclopaedia that were seized , albeit that the charge in the case of the latter would have had to have been brought under an earlier statute . The fact that they did not do so could not , however , be taken as an assurance , let alone an unequivocal assurance , that they would not do so in the future . It is significant in this context that these materials were seized , not in the course of some general investigation , but in an investigation aimed specifically at the possibility that the appellant was implicated in the events in the GPE . The appellant was aware of this .

It is not clear why , in DATE , the police did not attach the significance to the appellant 's speeches and possession of cassettes and the Encyclopaedia that they , and ORG , were to give them in DATE . The judge remarked that , in the absence of any explanation for the passage of time , the conduct of the prosecution was vulnerable to some criticism for the delay since DATE in bringing charges . We agree . But any shortcomings on the part of those responsible for the prosecution in this respect could not be treated as an assurance that the appellant was not in breach of the law nor that , if he was in breach of the law , this would not give rise to a prosecution .

There is no reason to conclude that the appellant placed any reliance on the reaction , or lack of reaction , of the police to the cassettes and the Encyclopaedia when deciding to retain them in his possession . He was simply continuing a course of conduct that had commenced before the police had intervened . ”

NORP The applicant also submitted that because of the delay in bringing the prosecution , events had occurred before his trial that prejudiced the holding of a fair trial . ORG considered that this submission was most appropriately considered in the context of the applicant 's further submission that his trial had been prejudiced by the adverse publicity he had received . In respect of that submission , ORG considered that the trial judge had been correct to rule that any adverse publicity could be cured by an appropriate direction to the jury . ORG found :

“ The risk that members of a jury may be affected by prejudice is one that can not wholly be eliminated . Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires . Our legal principles are designed to reduce such risks to the minimum , but they can not obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial . The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge . Prejudicial publicity renders more difficult the task of the court , that is of the judge and jury together , in trying the case fairly . Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial . The fact , however , that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that , with his assistance , it will be possible to have a fair trial . In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties .

In the present case , the judge rejected on CARDINAL occasions an application for a stay on the ground of abuse of process . The first application was in the process of being heard when the GPE bombings took place on DATE . It had been intended that the trial should proceed at once if the application failed . The judge held that a fair trial would be possible but that , because of the prejudice that might be caused by the bombings and attendant publicity , the trial should be adjourned until DATE . On DATE , on DATE of the trial the judge again rejected a stay application , holding that a fair trial was possible . The final application was made on DATE , because of further adverse publicity after the jury had retired . Once again the judge rejected the application . It remains to consider whether he was correct to conclude , on each occasion , that a fair trial was possible .

[ Counsel for the applicant ] does not rely simply on adverse media publicity when arguing that a fair trial was impossible . He relies upon changes in attitude and public perception in relation to terrorism that followed first the destruction of ORG on DATE and subsequently the GPE bombings on DATE . The critical issues before the jury were whether the appellant 's speeches constituted incitements to kill and whether he intended to incite to kill and to stir up racial hatred . [ Counsel for the applicant ] argues that after DATE and DATE it was impossible for the jury fairly to judge the appellant 's utterances in the context in which they were made . The adverse publicity compounded the jury 's difficulties , quite apart from the fact that it itself made a fair trial impossible .

We have no need to deal separately with the rulings given by the judge on the second and third occasion that he dealt with stay applications , for [ Counsel for the applicant ] has not contended that this appeal should succeed in respect of either of these rulings if it fails in respect of the first , and most substantial , ruling . The question remaining for this court is whether the judge was correct to conclude that , with his assistance , the jury would be able to try the issues fairly without being prejudiced or distracted by the events that had occurred since DATE and by the media coverage of those events .

The judge was correct to conclude that the adverse media publicity attendant upon the events that had occurred DATE and the bringing of charges against the appellant in DATE had put at risk the fairness of his trial . The challenge posed to the judge of taking appropriate steps to neutralise the effect of these matters by appropriate directions and guidance in the course of his summing up was considerable . The task was an exacting one . The judge was confident that he would be able to discharge it . We have concluded that his assessment of the position was correct . The circumstances did not require the judge to stay the prosecution on the ground that there could not be a fair trial .

We have read the judge 's summing up to the jury with admiration . As we have observed , [ Counsel for the applicant ] has made no criticism of it . The defence had been permitted to call an expert witness to provide the context in which the various speeches had been made . The judge reminded the jury of this evidence . He set the various speeches in their context and drew attention to the issues that the jury had to resolve with pellucid clarity . He gave a careful and skilful direction in relation to media coverage .

There is no reason to believe that the jury were not able to consider and resolve the relevant issues objectively and impartially . It is not without significance that they recorded verdicts of not guilty on [ CARDINAL of the counts in the indictment ] . [ Counsel for the applicant ] submits that the conviction on some counts but not on others reflected a determination on the part of the jury that the appellant should not escape wholly unpunished . We can see no basis for this submission . The jury 's verdicts appear to us to reflect a rational differentiation between the stronger and the weaker counts .

For the reasons that we have given , this appeal is dismissed . ”

The Court of Appeal certified CARDINAL points of law of general public importance for consideration by ORG but refused leave to appeal to ORG . The applicant then petitioned ORG for leave to appeal . This was refused by ORG on DATE .

English criminal courts have the power at common law to stay proceedings indefinitely if a prosecution amounts to an abuse of the process of the court . This was defined in PERSON R [ DATE ] CARDINAL AC CARDINAL , PC as “ something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceedings ” . This test will be met either : ( i ) where the court concludes that the defendant can not receive a fair trial ; or ( ii ) where the court concludes that it would be unfair for the defendant to be tried ( R v. PERSON [ DATE ] CARDINAL Cr App R CARDINAL ) . The second category was considered in R v. ORG , ex parte PERSON [ DATE ] CARDINAL AC DATE where the accused had been brought to GPE unlawfully by deliberate misconduct by investigators . In finding that to be an abuse of process , Lord PERSON stated :

“ If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law . ”

There will be circumstances in which a stay should be granted even though a fair trial could be conducted , for example where the court is faced with unlawful acts by police or prosecutors which are so great an affront to the integrity of the justice system , and therefore the rule of law , that the associated prosecution is rendered abusive and ought not to be countenanced by the court ( see R v. Grant [ DATE ] CARDINAL ORG R DATE ) . However , a stay will not be granted where the trial process is itself equipped to deal with the matters complained of such as through the regulation of the admissibility of evidence ( R ( PERSON ) v. ORG ; GPE v. ORG [ DATE ] CARDINAL ORG R DATE ) .

A stay may be granted when a defendant is prosecuted after he has been induced to believe that he will not be prosecuted . In R v. Croydon Justices , ex parte Dean [ DATE ] CARDINAL ORG R DATE it was found to be an abuse to prosecute a youth of CARDINAL for destroying evidence after a murder when he had been invited by the police to give evidence at the murder trial on the assurance that he would not himself be prosecuted .

In R v. GPE [ DATE ] CARDINAL Cr App R. CARDINAL prosecuting counsel had told the court that it would offer no evidence because it was accepted that the defendant had been the victim of a set - up . ORG later decided that it intended to continue the prosecution . ORG quashed the defendant 's conviction : whether or not there was prejudice to him , it would bring the administration of justice into disrepute if ORG were able to treat the court as if it were at its PERSON and call , free to tell it DATE that it was not going to prosecute and DATE that it was .

In R v. PERSON , ORG and GPE [ DATE ] CARDINAL Cr App R CARDINAL ORG approved inter alia the proposition that , where a defendant has been induced to believe he will not be prosecuted , this is capable of founding a stay for abuse . ORG considered , however , that breach of a promise not to prosecute did not necessarily and , ipso facto , give rise to abuse , but might do so if circumstances had changed .

A stay may also be granted on grounds of delay in bringing the prosecution . Guidance as to when a stay should be granted was given by ORG in NORP v. S [ DATE ] CARDINAL ORG R DATE . The court stated that the correct approach was for the trial judge to bear in mind the following principles : ( i ) even where delay was unjustifiable , a permanent stay should be the exception rather than the rule ; ( ii ) where there was no fault on the part of the complainant or the prosecution , it would be very rare for a stay to be granted ; ( iii ) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial could be held ; ( iv ) when assessing possible serious prejudice , the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay would be placed before the jury for their consideration in accordance with appropriate direction from the judge ; ( v ) if , having considered all these factors , a judge 's assessment was that a fair trial would be possible , a stay should not be granted .

In Attorney General 's Reference ( No . DATE ) [ DATE ] CARDINAL AC CARDINAL ORG was asked to consider whether LAW required a stay to be ordered when there had been excessive delay in criminal proceedings . ORG held that the appropriate remedy for a breach of the right to determination of a criminal charge within a reasonable time was not necessarily a stay on proceedings . It would be appropriate to stay or dismiss the proceedings only if either a fair hearing was no longer possible or it would be , for any compelling reason , unfair to try the defendant . The public interest in the final determination of criminal charges required that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances . The category of cases in which it might be unfair to try a defendant included cases of bad faith , unlawfulness and executive manipulation but was not confined to such cases . However , such cases would be exceptional , and a stay would never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant 's rights under LAW .

Finally , a stay may also be granted where there has been such publicity surrounding the case that a fair trial is not possible . For example , convictions were quashed in NORP v. PERSON [ DATE ] CARDINAL ORG R CARDINAL and R v. PERSON and PERSON [ DATE ] CARDINAL ORG R CARDINAL inter alia due to adverse publicity during the trial . ORG concerned a terrorism trial during which the Government had announced plans to change the law on the right to silence , a right of which the defendant had availed himself . In PERSON and PERSON , the press coverage was found by ORG to be “ unremitting , extensive , sensational , inaccurate and misleading ” and created a real risk of prejudice against the defendants . Later cases have considered that directions from the trial judge to the jury and the nature of the trial process would operate to prevent the jury being prejudiced by publicity . Thus in NORP v. West [ DATE ] CARDINAL ORG R CARDINAL , a case where the defendant was convicted of CARDINAL counts of murder , it was found that a fair trial could be held after intensive publicity adverse to the defendant . ORG observed that :

“ To hold otherwise would mean that if allegations of murder were sufficiently horrendous so as inevitably to shock the nation , the accused can not be tried . That would be absurd . Moreover , providing the judge effectively warns the jury to act only on the evidence given in court , there is no reason to suppose that they would do otherwise . ”

The fairness of trial after adverse publicity was considered by ORG of ORG , though not in the context of an application for stay on grounds of abuse of process but rather in a NORP appeal in GPE v. ORG ; PERSON v. ORG Advocate [ DATE ] CARDINAL AC CARDINAL . The appeal concerned the proposed prosecution of CARDINAL men for murder . Comments had been made by a trial judge in a related trial , in which he criticised the Crown for not charging the CARDINAL men with murder . Those comments received a great deal of publicity and subsequently the QUANTITY men were in fact charged with murder . The issue for ORG was whether the proposed trial of the CARDINAL men would be compatible with Article CARDINAL . Lord Hope giving the lead judgment found that it would be . He stated :

“ It needs to be emphasised , as was pointed out in Pullar v. GPE ( DATE ) CARDINAL ORG CARDINAL , that the rule of law lies at the heart of the Convention . It is not the purpose of article CARDINAL to make it impracticable to bring those who are accused of crime to justice . The approach which the GPE court has taken to the question whether there are sufficient safeguards recognises this fact . It does not require the issue of objective impartiality to be resolved with mathematical accuracy . It calls instead for “ sufficient ” guarantees or safeguards and for the exclusion of any “ legitimate doubt ” : Pullar v. GPE , pp . CARDINAL , CARDINAL paras . CARDINAL , DATE . Account is taken of the fact that certainty in these matters is not achievable .

I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether , despite that publicity , the jury can be expected to act impartially . Recent research conducted for ORG suggests that the impact of pre - trial publicity and of prejudicial media coverage during the trial , even in high profile cases , is minimal : PERSON , PERSON and PERSON , ORG ; Part CARDINAL , Chapter CARDINAL , para . CARDINAL ( ORG preliminary paper no . DATE ) . The lapse of time since the last exposure may increasingly be regarded , with DATE that passes , in itself as some kind of a safeguard . Nevertheless the risk that the widespread , prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury can not be regarded as negligible . The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge . On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence . The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media . This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds , in particular when he delivers his charge before they retire to consider their verdict .

[ T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence .

The NORP judges are not alone in proceeding upon this assumption . In ORG , in Reg . v. PERSON [ DATE ] CARDINAL S.C.R. CARDINAL , CARDINAL , PERSON said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law . In NORP v. PERSON DATE ) DATE ) CARDINAL , CARDINAL ORG , under reference to the PERSON case , said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider . In ORG of Australia , in The Queen v. PERSON ( DATE ) CARDINAL C.L.R. CARDINAL , CARDINAL PERSON and Toohey J. said that the law proceeds on the footing that the jury , acting in accordance with the instructions given to them by the trial judge , will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge . In ORG , in PERSON v. Director of Public Prosecutions [ DATE ] CARDINAL PERSON , CARDINAL PERSON , drawing upon his experience as counsel and as a judge , said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath , to follow the directions given by the trial judge and a true verdict give in accordance with the evidence . I consider that the judges in the court below were entitled to draw upon their experience , and I see no reason in the light of my own experience to disagree with their assessment . ”


The applicant , Mr PERSON , is an NORP national who was born in DATE . He currently lives in GPE . He was represented before the ORG by Mr H. Saeedi , who resides in the GPE . The Government did not appoint an agent to represent them .

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

On DATE , the applicant , followed by his wife and children on DATE , entered GPE illegally . According to the information provided by him , he was a political activist against the regime in GPE and a member of ORG . In this connection , he submitted an ORG order of DATE , concerning the confiscation of his property on account of his collaboration with the said party and for his illegal departure from GPE .

On DATE , the applicant filed an asylum request with the NORP authorities and the ORG High Commissioner for Refugees ( UNCHR ) .

On DATE his asylum request was dismissed by the ORG .

On DATE ORG rejected his asylum application .

On an unspecified date , he again applied to the ORG . His request was dismissed on DATE and his file was closed .

The applicant continued to send letters to the ORG and consequently his case was reopened .

On DATE he was arrested at FAC while trying to leave the country .

On DATE he lodged his application with the ORG and requested not to be deported to GPE .

On DATE he was given a residence permit in GPE which was valid until DATE , in order to facilitate his participation in the domestic proceedings in GPE .

On DATE he was recognised as a refugee by the ORG .

On DATE he was arrested by NORP police in GPE .

On DATE , his representative filed an urgent action with the ORG . He stated that the applicant had been recognised as a refugee by the ORG and had a residence permit in GPE until DATE . He requested the ORG to stop the applicant ’s deportation .

On DATE , the Acting President of the ORG to which the case has been allocated decided to indicate to the Government , under LAW , that the applicant should not be deported to GPE until further notice . On DATE , the Acting President also decided to apply Rule CARDINAL of ORG ( urgent notification of an application ) to the present case . Accordingly , the Government were requested to submit factual information by DATE .


CASE OF GAZETA UKRAINA-TSENTR v. UKRAINE

Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

NORP The applicant company is the editorial body of a limited liability company called ORG and is registered in the city of GPE , GPE .

NORP In DATE the mayoral elections were conducted in the city of GPE . On DATE , during the election campaign , CARDINAL press conferences relating to those elections were held at ORG ( “ the UNIAN ” ) . During CARDINAL of those press conferences , a local GPE journalist , PERSON accused one of the candidates , PERSON , of ordering him to be murdered for MONEY ( ORG ) . The wording of the accusation made by PERSON , as later established by the domestic courts , contained the following paragraph :

“ He ( Mr Y. ) went to his friend , the one locally known politician , whom I will not name yet , but if necessary we will provide [ his name ] , we have facts . Upon his request , the other took out MONEY of his money and handed it to his head of security service and said the following , that it is necessary to reserve for me a place in the morgue .

So , at present , they “ ordered ” me for MONEY . Who ordered ? I say : [ Mr ] Y. [ full name ] , I declare it officially . ”

This information among other news was disseminated by the UNIAN via e - mail and posted on its website . According to the applicant company , it received this information by electronic mail in the following form :

“ Furthermore , [ Mr ] PERSON accused the PERSON mayoral candidate and President of ORG , [ Mr ] PERSON , “ of ordering him to be murdered ” . The journalist reported that for safety reasons he had taken his family away from the region . According to him , all CARDINAL journalists participating in the press conference addressed ORG , ORG of GPE and ORG concerning the threats to them and claimed that they had proof of pressure being applied to them ” .

According to the applicant company , on DATE , the STB TV channel in its PERSON - Novyny news programme disseminated similar information , indicating that PERSON had also mentioned the sum of MONEY for “ ordering him to be murdered ” .

On DATE the applicant company published an article which was titled “ The metropolitan tour ” in which the above - mentioned press conferences of CARDINAL DATE were described . Among other things , the article contained the following paragraph :

“ [ Mr ] PERSON accused [ Mr ] Y. of ' ordering him to be murdered ' and even stated the amount paid for the ' order ' MONEY . The journalist stated that for safety reasons he had taken his family away from the region . According to him , all CARDINAL journalists participating in the press conference addressed ORG , ORG of GPE and ORG concerning the threats to them . He also claimed that they had proof of the pressure being applied to them . ”

In DATE Mr Y. lodged a civil claim in the GPE ORG ( ORG ) against the applicant company and Mr PERSON complaining that the phrase “ [ Mr ] PERSON accused [ Mr ] Y. ' of ordering him to be murdered ' and even stated the amount paid for the ' order ' – MONEY ” published by the applicant company was untrue and abased his human dignity . He maintained that that publication had affected his professional and private life and damaged his reputation as an individual , lawyer and politician . Taking the view that the publishing of a correction would not be sufficient , he asked the courts to pay him non - pecuniary damages . Later , Mr Y. supplemented his claim by asking for the statement made by PERSON during the press conference ( see paragraph CARDINAL above ) to be found untrue and defamatory .

According to the applicant company , its co - defendant , PERSON , asked the court to adjourn the proceedings and on DATE asked ORG to transfer the case to another court . The applicant company supported those requests . In his request to ORG , PERSON noted in particular that the plaintiff was the President of ORG and therefore , to ensure the objective and unbiased examination of the case , he asked for the case to be transferred to one of the local courts in GPE , the city in which the press conference had taken place . By letter dated DATE , the Deputy President of ORG allowed the request in part and ordered the case to be transferred to ORG in the ORG region . However , by that time , ORG had already examined the case ( see the next paragraph ) , having rejected PERSON request for the case to be adjourned .

On DATE the ORG , in a single judge formation ( Judge PERSON ) found that the accusations made by PERSON and the applicant company that Mr Y. had ordered PERSON to be murdered were contrary to the principle of the presumption of innocence guaranteed by LAW . The defendants did not prove before the court that the disseminated information was true . The court found the following phrase from the applicant company 's article “ [ Mr ] PERSON accused [ Mr ] ORG of ordering him to be murdered ' and noted the amount paid for the ' order ' – MONEY ” untrue and defamatory . The court also found that Mr M. had accused Mr Y. of ' ordering ' him to be murdered for ORG during the press conference and that such accusation was also untrue and defamatory . The court noted that , in view of the fact that the CARDINAL bodies had not drawn up a formal contract between them , the applicant company could not prove that it had received the impugned information officially from the UNIAN . Furthermore , the information published by the applicant company did not correspond to the information disseminated by the UNIAN . For those reasons , the court concluded that the applicant company could not be protected against liability . The applicant company and Mr M. were ordered to pay NORP hryvnias CARDINAL ( ORG ) and UAH CARDINAL , respectively , in compensation . The court , however , found no liability against the UNIAN , which had been identified as a co - defendant by the court , because the plaintiff had lodged no claims against it and the UNIAN had published a correction .

NORP The applicant company appealed against the decision of the first - instance court . It complained , in particular , that Judge PERSON could not be impartial because Mr Y. was the chairman of the regional council of judges and the deputy chairman of the regional branch of ORG and , as a judge and a lawyer , Judge PERSON was dependent upon the plaintiff . The applicant company further noted that the court had disregarded the fact that the impugned information had been circulated by electronic mail , had also been freely accessible on the UNIAN website and that such information belonged in the public domain . It also submitted that the plaintiff had not asked it to correct the material and its proposal to publish a correction before the judicial proceedings and during the judicial proceedings had been refused by the plaintiff .

On DATE ORG upheld the decision of the first - instance court but decreased the compensation award . The applicant company was ordered to pay ORG MONEY in compensation .

NORP The applicant company appealed in cassation .

On DATE ORG upheld the decisions of the lower courts .

On DATE the applicant company paid the compensation awarded against it and UAH CARDINAL in enforcement fees .

Relevant provisions of the LAW read as follows :

Section CARDINAL

Disciplinary proceedings against judges

“ CARDINAL . Disciplinary proceedings shall be regarded as the procedure of consideration by the body , specified by the law , of a statement regarding the breaking of judicial status , official duties or the oath by a judge .

The right to initiate disciplinary proceedings against a judge shall belong to the following persons : ... the chairman of a relevant council of judges ...

It is forbidden to abuse the right specified in paragraph CARDINAL of this section . In particular , it is forbidden to initiate consideration of an issue concerning the legal liability of a judge without sound reasons or to use the said right to exert pressure upon a judge in connection with the administration of justice by such a judge ... ”

“ CARDINAL . Within the period between the conferences of judges the functions of a judicial self - government shall be performed by a relevant council of judges .

A council of judges shall elect from among its members the chairman , deputy chairman and secretary of a council of judges . Chairmen and deputy chairmen of the courts of appeal and higher courts , head of the military chamber of ORG of GPE and head of the military chamber of ORG of GPE shall not be elected to the post of chairman of a relevant council of judges .

Within the period between the conferences of judges a council of judges shall provide for execution of the decisions taken by a conference and control over their observance , also decide on convocation of the next conference . The powers and operation of a council of judges shall be specified by this LAW and the regulations of a council of judges approved by a conference of judges .

A council of judges shall :

CARDINAL ) exercise control over the operation of relevant courts and relevant departments of the ORG judicial administration , hear progress reports of chairmen of these courts and officials of the ORG judicial administration ;

CARDINAL ) consider the issues of legal and social protection of judges , provision of consumer and household services for judges and their families , and take the decisions to this effect ;

CARDINAL ) consider the issues concerning the appointment of judges to administrative posts in courts in the manner prescribed by this law ;

CARDINAL ) hear the reports of members of relevant judicial boards of experts concerning their work on these boards ;

CARDINAL ) submit the proposals on operation of relevant courts for consideration of the ORG bodies and local self - government authorities ;

CARDINAL ) hear , at least once DATE , the information of the ORG judicial administration of GPE on support of operation of the courts of general jurisdiction .

CARDINAL ) take other decisions falling within the limits of its power .

The decisions taken by a council of judges shall be binding for the judges holding the administrative posts in relevant courts . A decision of a council of judges may be cancelled only by a conference of judges and suspended by the decision of ORG . ”

Relevant extracts from the LAW read as follows :

“ ... Everyone is guaranteed judicial protection of the right to have corrected misinformation communicated about himself or herself or members of his or her family , and of the right to demand that any type of material be corrected , and also the right to compensation for pecuniary or non - pecuniary damage inflicted by the collection , storage , use and dissemination of such misinformation . ”

“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .

The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”

“ A person is presumed innocent and shall not be subjected to criminal conviction unless proved guilty through a legal process which establishes a guilty verdict .

No one is obliged to prove that he or she is innocent of committing a crime .

An accusation shall not be based on illegally obtained evidence or assumptions . All doubts in regard to the proof of guilt are interpreted in the accussed 's favour .

In the event that a court verdict is revoked , the ORG shall , as determined , provide pecuniary or non - pecuniary damage . ”

Relevant extracts from LAW read as follows :

“ A citizen or an organisation shall be entitled to demand in a court of law that material be corrected if it is not true or is set out untruthfully , degrades their honour and dignity or reputation , or causes damage to their interests , unless the person who disseminated the information proves that it is truthful .

... information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests , honour , dignity or reputation shall be subject to rectification , and pecuniary and non - pecuniary damage can be recovered . A limitation period of DATE shall apply to claims concerning rectification of such data and compensation . ”

Relevant extracts from the Printed Media ( Press ) Act provide :

“ ... A journalist is obliged to :

... CARDINAL ) provide objective and truthful information for publication ; ... ”

“ ORG , legal entities and ORG bodies and their legal representatives have the right to demand correction of material published about them or data that does not correspond to the truth or defames their honour and dignity .

If the editorial board does not have any evidence that the information published by it corresponds to the truth , it has to correct this material at the request of the plaintiff in the next issue of the printed media or to publish a correction on its own initiative . ... ”

“ The editorial board and journalists are not liable for the publication of information that is untrue , defames the honour and dignity of citizens and organisations , infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if :

CARDINAL ) NORP this information was received from the news agencies or from the media owner ( co - owners ) ;

CARDINAL ) NORP the information contains responses to a formal request for access to official documents or to a request for written or oral information , provided in accordance with LAW ;

CARDINAL ) the information is a verbatim reproduction of any official address of the officials of ORG bodies , organisations and the citizens ' unions ;

CARDINAL ) the information is a verbatim reproduction of materials published by other printed media which refer to that information ;

CARDINAL ) the information contains secrets that are specifically protected by law , but the journalist received this information lawfully . ”

The relevant extract of the LAW provides as follows :

Section CARDINAL

Relationships between news agencies and distributors / owners ( users ) of a means of communication

“ The basis of a relationship between a news agency and distributor / owner ( user ) of a means of communication shall be in the form of a contract .

A distributor / owner ( user ) of a means of communication enters into a contract with the news agency if the latter has a ORG registration certificate . ”

The relevant extract from Resolution No . CARDINAL reads as follows :

“ ... CARDINAL . In accordance with LAW , the defendant [ in a defamation case ] has to prove that the information disseminated by him corresponds to the truth . The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him . The plaintiff also has a right to provide evidence of the untruthfulness of such information . ”

The applicant company submitted extracts from reports published in GPE by the ORG , ORG ” . The reports titled “ ORG in GPE ( DATE ) ” and “ Monitoring of Judicial Independence in GPE . ( DATE ) ” provided , inter alia , that among the forms of pressure [ being put ] on judges were threats to ' complicate a career ' and to ' initiate dismissal or disciplinary proceedings ' . According to the same reports , councils of judges had been rated the third most influential body on judges because they could affect the professional career of a judge .