ORG On DATE CARDINAL yachts were moored in GPE in the eastern part of the island of GPE , one of GPE , which lie off the coast of southern Corsica . CARDINAL of these yachts - the GPE , the Master and the GPE - were moored alongside each other ; the fourth , the Aniram , was the property of FAC of NORP , who lived in GPE .

ORG In TIME DATE , on leaving a restaurant where he had spent TIME , PERSON noticed that a rubber dinghy belonging to him was moored , for no reason that he knew of , to the stern of the LOC . Having armed himself with a rifle classified as a military weapon and fitted with a cartridge clip containing CARDINAL cartridges , he brought his boat alongside the LOC to try to recover his property . Confronting a passenger who had been woken by the manoeuvre , Prince PERSON fired twice . The LOC ’s passenger , avoiding the shots , threw himself on his assailant and both men fell into the water .

ORG However , one of the bullets very seriously wounded a DATE NORP youth , Mr PERSON , who had been asleep on the deck of the GPE . Prince PERSON called for the emergency services and Mr PERSON was admitted to ORG at TIME , in a deep coma , with no measurable pulse or blood pressure , the accident having occurred TIME before . On DATE he was transferred to ORG in a very alarming condition . On DATE , against the advice of the doctors at that hospital , Mr Hamer , whose parents were also doctors , was taken to ORG .

ORG Intensive care was of no avail , and Mr PERSON died on DATE without ever being able to give evidence . An autopsy carried out on DATE showed that the bullet wound had been the cause of death .

PERSON , a NORP national , is the sister of the deceased . At the time of the above events she was living with her family in GPE ; she later moved to GPE .

ORG On DATE at TIME was taken into police custody .

ORG On DATE Mr Breton , an investigating judge at the GPE tribunal de grande instance , charged him with assault occasioning actual bodily harm and possessing and carrying a category I weapon ; at DATE first examination he remanded PERSON in custody .

ORG DATE the investigating judge questioned the accused twice , took statements from witnesses and appointed experts to conduct a medical examination of the victim and produce a technical report on the gun . He also issued warrants authorising the police to take statements from witnesses and the victim .

ORG In a letter of CARDINAL DATE PERSON admitted civil liability for the accident in which Mr PERSON had been injured on DATE . On DATE the accused paid MONEY ( FRF ) to the victim ’s family .

ORG On DATE the GPE public prosecutor filed a supplementary application requesting further investigative measures .

ORG On DATE and DATE the investigating judge ordered experts to produce a medical and psychological report on the accused and an analysis of the bullet extracted from the victim . On DATE , DATE and CARDINAL and DATE he issued letters of request , including CARDINAL international ones . In these he asked for a statement to be taken from the victim and for the bullet extracted from him to be handed over ; and then , after Mr PERSON ’s death on DATE , he asked for an autopsy of his body to be carried out .

ORG On DATE the investigating judge again questioned the accused , who was released under judicial supervision on DATE . Further interviews took place on DATE and DATE . On DATE , DATE and CARDINAL and DATE the investigating judge instructed experts to translate documents in NORP and NORP .

ORG Prince PERSON was questioned again on DATE .

ORG On DATE and DATE the investigating judge issued international letters of request ; in the first of these he asked for a copy of an application in which Mr PERSON ’s family had sought to commence civilparty proceedings and in the other he asked for witnesses to be questioned . On DATE and DATE he questioned witnesses .

ORG On DATE , in the light of the victim ’s death certificate , he sent the file to the public prosecutor . On DATE the investigating judge questioned the accused .

ORG On DATE and DATE the investigating judge instructed experts to translate documents in NORP and NORP . On DATE he ordered the appointment of new experts to produce an additional ballistic report that had been sought by the defence on DATE ; on DATE he issued an international letter of request asking for a copy of the autopsy report , which had been requested by the defence .

ORG On DATE PERSON , her father , her mother and her sister joined the proceedings as civil parties by applying to the investigating judge .

ORG On DATE Prince PERSON lawyer asked PERSON to order the ballistic experts to carry out a further investigation . On DATE the investigating judge asked the experts already instructed how the further investigation requested by the defence could be carried out . In a report of CARDINAL DATE the judge noted the failure of the applicant and her family to appear as civil parties .

ORG On DATE Mr ORG questioned the victim ’s father , and on DATE and DATE he instructed experts to translate documents in NORP and LANGUAGE .

ORG On DATE the public prosecutor wrote to the NORP judicial authorities reminding them of the international letter of request of CARDINAL DATE .

ORG On DATE the investigating judge notified the public prosecutor of the defence ’s request for an additional expert opinion . On CARDINAL DATE the public prosecutor filed submissions in favour of granting that request .

ORG On DATE and DATE and DATE Mr PERSON wrote to the accused ’s lawyer , the director of the forensic laboratory and experts who might be capable of authenticating a boat part lodged as an exhibit by the defence . On DATE and CARDINAL DATE the experts wrote back stating that they were not competent to do this .

ORG On DATE the public prosecutor filed a supplementary application . On DATE the investigating judge charged PERSON with fatal wounding . A report of CARDINAL March DATE recorded the fact that the applicant and her family had failed to appear as civil parties .

ORG On DATE the accused ’s lawyer filed an opinion criticising the autopsy report and requested that CARDINAL new experts be appointed in order to determine the causes of Mr PERSON ’s death .

ORG On DATE and DATE the investigating judge issued letters of request asking for the victim ’s medical file to be handed over and for witnesses to be questioned . On DATE he made CARDINAL orders refusing an additional ballistic report and a fresh expert opinion in connection with the autopsy report as sought by the defence on DATE and DATE respectively .

ORG On DATE the accused appealed against the above orders , which ORG of ORG upheld on DATE .

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

ORG On DATE the investigating judge appointed experts to translate documents in NORP . He questioned a new witness on CARDINAL DATE . On DATE he made an order rejecting both an application by the accused for an order that there was no case to answer and an application of CARDINAL DATE for a new ballistic report .

ORG On an appeal by the accused , ORG held a hearing on DATE . On DATE it ordered that the proceedings should be recommenced because CARDINAL of the judges had been replaced . In a judgment of CARDINAL DATE it upheld the impugned order .

On DATE the President of ORG made an order in which he ruled that , as the file stood , an appeal on points of law by the applicant against the above judgment was inadmissible and directed that the proceedings should continue .

ORG On DATE the public prosecutor filed submissions requesting further investigative measures .

ORG The investigating judge questioned the accused on DATE and , at the defence ’s request , ordered a further medical report on DATE . On CARDINAL and CARDINAL DATE he issued letters of request asking for the accused ’s curriculum vitae to be established and his sister questioned .

ORG On DATE the case was assigned to a new investigating judge , PERSON . In a report of CARDINAL DATE the judge noted the failure of the applicant and her family to appear as civil parties .

ORG The investigating judge questioned the accused on CARDINAL DATE . On DATE she made an order rejecting an application by the defence for a fresh expert report . On DATE she sent the file to the public prosecutor .

ORG On DATE , DATE , CARDINAL and DATE and CARDINAL DATE the investigating judge issued letters of request , including an international one , asking for witnesses to be questioned and various inquiries made . On DATE the letter of request of CARDINAL DATE was executed in GPE and a reconstruction of the events by means of diagrams and sketches took place on DATE .

ORG On DATE the investigating judge questioned CARDINAL witnesses . On DATE she appointed an expert to translate documents relating to the execution of the international letter of request of CARDINAL DATE .

ORG On DATE the case was assigned to a third investigating judge , PERSON . On DATE she sent the file to the public prosecutor .

ORG On DATE the GPE public prosecutor submitted his final application , in which he asked for the file to be transmitted to ORG at ORG .

ORG On DATE the investigating judge made an order transmitting the file to ORG .

ORG On DATE ORG at ORG sent his counterpart at ORG a notice informing the civil parties of the date of the hearing before ORG of ORG , set down for DATE . The accused ’s lawyers were also notified .

ORG On DATE and DATE respectively the defence and the civil parties requested that the hearing set down for DATE be put back , as the accused had not received the file and the applicant and her family , who lived in GPE , had not been notified of the hearing . On DATE ORG adjourned the case to a hearing on DATE .

ORG On DATE the civil parties informed the President of ORG that they had not been notified of the hearing on DATE , which was accordingly adjourned until DATE . On DATE the case was adjourned to a later date on account of a general strike by the administrative services in Corsica .

ORG On DATE ORG of ORG delivered an interlocutory judgment dismissing procedural objections raised by the defence .

ORG On DATE it indicted PERSON on charges of fatal wounding and offences relating to offensive weapons , and committed him for trial in the ORG .

ORG On DATE ORG upheld an appeal on points of law lodged by the accused on DATE , giving the following reasons :

" But in the light of those findings , which do not make out thedeliberate intent to assault or use violence against anyperson , ORG could not , withoutcontradicting itself , hold that there was sufficient evidenceto prove PERSON of NORP guilty of the offence definedin Article CARDINAL para . CARDINAL of LAW ; accordingly , itgave no legal basis for its decision , which falls to bequashed . "

It remitted the case to ORG of ORG .

ORG On DATE ORG of ORG adjourned the case until DATE ; in the event , the hearing set down for that date took place on DATE .

ORG On DATE ORG committed Prince PERSON for trial at ORG on the same charges .

ORG On DATE and DATE ORG at ORG instructed experts to translate into NORP the judgment and the notice of service on the civil parties .

ORG On DATE ORG dismissed an appeal on points of law lodged by the accused against ORG judgment of CARDINAL DATE , on the following grounds :

" ORG deduced from those findings that theassault allegedly made by the accused on PERSON [ ORG ’s passenger ] was intentional and that there was a causalconnection between that assault and the death of PERSON .

That being the case , ORG , which replied insufficient detail to the main arguments in the pleading filed , assessed the weight of the evidence set before it . ORG that there was sufficient evidence to proveVictor - PERSON of NORP guilty , if the facts were made out , of the offence defined both in the last paragraph of the formerArticle CARDINAL of LAW , which was applicable at thematerial time , and in the first paragraph of LAW , as amended by LAW DATE . "

ORG DATE and CARDINAL DATE QUANTITY experts , CARDINAL witnesses and the CARDINAL members of the victim ’s family , as civil parties , were summoned .

ORG On DATE the ORG sentenced Prince PERSON to CARDINAL months’ imprisonment , suspended , for unauthorised possession and carrying of a USCARDINALMI rifle , a category I military weapon , and ordered its confiscation . It also found that there were extenuating circumstances . It acquitted PERSON of fatal wounding and unintentional homicide , ruling that he had not " by clumsiness , carelessness , inattention or negligence , unintentionally caused the death of Mr PERSON " .

ORG After giving judgment in the criminal proceedings , ORG judges did not hold a hearing on the civil issues .

The applicant ’s lawyer maintains that the termination of the trial prevented her from filing the submissions she had prepared on the award of damages ; she thereupon telephoned ORG , who informed her that she could not raise the issue of the accused ’s civil liability .

According to the Government , the fact that there was no hearing on the civil issues was due to the lack of any application to that effect , which should have been lodged with ORG registry .

ORG On DATE ORG ruled that an appeal on points of law lodged by the civil parties , with the exception of the applicant , was inadmissible on the following grounds :

" The notice of appeal is directed at ‘ all the civil provisions’of the criminal judgment delivered in the proceedings againstVictor - PERSON of PERSON . The judgment concerned does notcontain any provision relating to civil matters . That beingthe case , and no other judgment having been given on thesubmissions of the civil parties , the latter , under LAW , have no standing to contestthe decision on the criminal proceedings and the costs payableto the ORG . "

On DATE the judgment was served on the civil parties and PERSON .

ORG LAW ( " CCP " ) provides :

" All those who have personally suffered from the damagedirectly caused by a serious offence [ crime ] , less seriousoffence [ délit ] or petty offence [ contravention ] may bringcivil - party proceedings [ action civile ] to seek compensationfor such damage .

Discontinuance of such proceedings can neither terminate norstay the criminal proceedings , without prejudice to the casesprovided for in paragraph CARDINAL of Article CARDINAL [ ORG ] . "

However , in the case of petty offences , only the prosecuting authority may set in motion the criminal proceedings .

Article CARDINAL para . CARDINAL ORG provides :

" [ Criminal proceedings ] may , in addition , be discontinued bysettlement where express provision is made for thispossibility . They may likewise be discontinued in the eventof withdrawal of the complaint where the complaint was anessential condition for the proceedings to be brought . "

ORG In LANGUAGE law the victim of an offence can bring civil - party proceedings either by intervention , that is by applying to the investigating judge , ORG or the trial court for leave to join pending criminal proceedings , or as private prosecutor , that is by directly summoning the alleged offender to appear in the trial court or by laying an information with the investigating judge together with an application to join the proceedings as a civil party , where no criminal proceedings have yet been instituted .

ORG A civil - party application , which has the effect of suspending proceedings in the civil courts , may be opposed by the prosecution , by the person placed under investigation ( Law no . CARDINAL of DATE reforming criminal procedure substituted the expression " placing under investigation " for " charging " ) or by another civil party , or the investigating judge may , of his own motion , declare it inadmissible in an order which must state reasons and which is open to appeal ( LAW ORG ) . A decision by the judicial authority investigating an offence to allow an application to join the proceedings as a civil party does not in any way bind the trial court as to the admissibility of that application .

Intervention by a civil party may be grounded on nothing more than a concern to support the prosecution case and to secure a declaration of the accused ’s guilt . Accordingly , it is accepted in case - law that a civil - party application is admissible even where no claim for damages will lie . The right to seek reparation for damage is merely a possibility afforded to the victim , who is free to decide not to make use of it ( Court of Cassation , Criminal Division ( " PERSON . crim . " ) , DATE , Bulletin ( " ORG . " ) no . CARDINAL ; PERSON . crim . DATE , PERSON ( NORP ) DATE ) .

" In modern legal analysis , derived from both statute and case - law , a distinction is drawn between the lodging of a civil - party application and civil - party proceedings , or rather , to avoid all ambiguity , an action for reparation . When dealing with the admissibility of a civil - party application and theadmissibility and merits of an action for reparation , it is no longer possible , without risk of confusion , to refer to both as civil - party proceedings , unless that term is understood inthe broad sense of participation by the civil party in thecriminal proceedings .

For how can it be maintained that the injured party brings anykind of ‘ civil proceedings’ when he merely calls , as he isexpressly authorised to do , for the offender to be punished or , if not punished , at least declared guilty . He may later , perhaps , in other courts , take advantage of the criminaljudgment , but in the criminal court he has made no claim whichcan be characterised as civil .

Lastly , from the theoretical point of view , the above analysisrenders obsolete the controversy about the nature ofcivil - party proceedings , which some commentators have held tobe CARDINAL - fold ... while others say their nature is unmixed ... The truth is that a civil - party application is vindictive incharacter , whereas the purpose of an action for reparation isto obtain compensation . " ( Extraits des Juris - Classeurs deprocédure pénale DATE , vol . CARDINAL , paras . DATE )

ORG Lodging a civil - party application gives the victim the status of party to the criminal proceedings . He is informed about the investigative measures taken and has access to the file under the same conditions as the person under investigation . He may appeal against orders of the investigating judge that are adverse to him and against judicial decisions concerning his civil interests .

ORG The ORG contains the following relevant provisions :

" Once ORG has given judgment in the criminalproceedings , it shall rule , in the jury ’s absence , on theclaims for damages lodged either by a civil party against theaccused or by an acquitted defendant against the civil party , after the parties and the prosecution have been heard .

The court may delegate CARDINAL of its members to hear the parties , inspect the file and submit his report at a hearing , when theparties may still submit observations , after which theprosecution shall be heard . "

" Where the trial ends in acquittal or discharge , the civilparty may seek compensation for damage resulting from thedefendant ’s fault , as made out by the acts which gave rise tothe prosecution . "

ORG has jurisdiction under LAW ORG to rule on a claim for damages lodged by a civil party against a defendant who has been acquitted on both the main charge of fatal wounding and the alternative charge of causing death by negligence . The not - guilty verdict of the court and the jury , for which no reasons are given , does not exclude either the existence of the acts which gave rise to the prosecution or the possibility that the victim ’s death may have been caused by a non - intentional tort ( PERSON . crim . DATE , ORG . CARDINAL ) .

ORG must , after acquitting the accused , respond to any submissions made by the civil party , where the latter maintains his claim for damages , by ascertaining whether , on account of the acts which gave rise to the prosecution , divested of all their criminal attributes , the accused has committed a fault distinct from the alleged criminal offence for which he has been tried ( PERSON . crim . DATE , ORG . CARDINAL ) .

ORG may , after acquitting the accused , order him to pay damages , provided that its decision is based on the acts which have given rise to the prosecution , that it is consistent with the not - guilty verdict and that it specifies the fault on which its order is grounded , which must be distinct from the serious criminal offence of which he has been finally acquitted ( PERSON . crim . CARDINAL DATE , ORG . CARDINAL ; PERSON . crim . CARDINAL DATE , ORG . CARDINAL ) .

A not - guilty verdict and acquittal do not prevent ORG from considering whether the same act , divested of all the circumstances which gave it a criminal character , does not at least constitute prejudice such as to engage the accused ’s civil liability if the court finds that he has committed a fault ( PERSON . crim . DATE , ORG . CARDINAL ; PERSON . crim . DATE , ORG . CARDINAL ) .

When dealing with an application by the civil party after the accused ’s acquittal , ORG is under no obligation to ascertain whether the latter has committed a fault distinct from the serious criminal offence of which he has been finally acquitted if the civil party has not asked it to do so ( PERSON . crim . CARDINAL DATE , ORG . CARDINAL ) .

ORG has held that submissions quantifying claims for damages filed after judgment has been given in criminal proceedings are admissible if the civil party has joined those proceedings before judgment ( PERSON . crim . DATE , ORG . CARDINAL no . CARDINAL ; PERSON . crim . DATE , ORG . CARDINAL no . CARDINAL ) .

ORG LAW contains the following relevant provisions :

" Any act committed by a person that causes damages to anothershall render the person through whose fault the damage wascaused liable to make reparation for it . "

" Liability is incurred not only for the damage caused by one’sown act but also for that caused by persons for whom one isresponsible or by things one has in one ’s keeping . "


Violation of Art. 2;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , in particular concerning the circumstances surrounding the death of PERSON on CARDINAL DATE , are in dispute between the parties .

PERSON was a DATE NORP and active member of ORG when he was killed .

ORG ( the ORG ) suspected him of being an ORG member and that he was involved in terrorism . DATE and CARDINAL DATE he was arrested and detained pursuant to investigations into acts of terrorism in GPE . CARDINAL of the CARDINAL arrests resulted in detention for DATE . He was never charged with any crime .

PERSON gave several written statements to his solicitors alleging physical assaults by ORG officers while in custody , including being punched in the back , punched under the chin with a clenched fist , stabbed in the throat with extended fingers , slapped in the face , having his arms wrenched back and forth repeatedly , being forced to keep a crouched position for TIME , having his head struck against a wall , and being hit and kicked in the testicles . The applicant alleged that on several occasions ORG detectives threatened to kill her son during interrogations , for example , by telling him that “ NORP in GPE know you now and they 'll get you ” .

During his detention in GPE from DATE , it was recorded that PERSON complained to a doctor that he had been ill - treated DATE this referred to the pulling of his hair and the forcing back of his fingers . The doctor reported this to the custody sergeant , who invited PERSON to make a written statement . PERSON declined to reply . He also declined to reply when the custody sergeant asked him if he would be willing to attend a police disciplinary hearing .

On DATE , PERSON instituted proceedings against the Chief Constable of the ORG for alleged assault , battery , trespass to the person , unlawful arrest and unlawful imprisonment in respect of his detention from CARDINAL to DATE . These were discontinued by him on DATE .

The applicant also claimed that there was an attempt on PERSON life , on CARDINAL DATE , but that he managed to escape . The ORG were called but no charges were brought against a suspect for the murder attempt . When PERSON was arrested DATE , in DATE , he publicly stated that ORG officers repeatedly mentioned this murder attempt during interrogation and CARDINAL officer claimed , “ We wo n't miss next time ” .

The ORG warned PERSON twice that he was under potential threat from loyalist paramilitary groups . On DATE , a ORG detective informed him that security force documentation containing information about him , including a photographic montage , had accidentally fallen out of the back of an army vehicle . He was advised to take measures for his personal safety as there was a risk that the material had come into the hands of loyalist paramilitaries . A letter dated DATE was sent to the ORG by PERSON solicitors who requested , as a matter of urgency in order to assess the risk to his life , information relating to the documentation , including the type of information lost , dates when the information was first recorded , the exact date and under what circumstances it went missing , copies of photographs and addresses included in the files , and information in relation to the social movement and employment of persons involved in handling the files . On DATE , CARDINAL half years later , the ORG responded to this letter by stating that the police investigation was concluded and that the document had been accidentally lost by the ORG .

On DATE , PERSON of the ORG called at Mr LOC 's home and informed him that he had received information to suggest that he was being targeted by loyalists .

The Government gave further details about the loss of the photographs . They stated that on DATE during the journey of an army patrol vehicle from FAC to Hump Vehicle Checkpoint near GPE in GPE , the rear doors of the vehicle fell open and a helmet , armoured vest and combat suit belonging to CARDINAL of the drivers fell from the vehicle . The jacket of the combat suit contained CARDINAL terrorist recognition photographic montages comprising a total of CARDINAL photographs , including some of PERSON . Upon arrival , it was discovered that the said equipment was missing and a search carried out of the route , which resulted in the recovery of the helmet . The officer responsible for the missing equipment was cautioned and interviewed by ORG about the loss of the photographic montages . He was subsequently reported and disciplinary proceedings instituted against him . The officer attended a disciplinary interview with his Brigade Commander . No formal disciplinary sanction was recorded as imposed , although the Government stated that it was possible that he received a formal rebuke which would not have been recorded . The ORG informed PERSON promptly of the loss of the photographs . There was no evidence who , if anyone , recovered the photographs or that they played any later role in events .

PERSON was stopped and questioned by ORG and GPE officers on a DATE basis . The PERSON family home , which the applicant shared with her son , was searched CARDINAL times DATE . No illegal material was ever found . According to the applicant , sometimes the ORG would not even enter certain rooms indicating that the search was not a concerted effort to locate and seize illegal material but was carried out solely to harass the family .

At TIME on CARDINAL DATE , PERSON was driving his van to his job when he was shot dead by a masked gunman . TIME had been fired into the van as it passed down FAC in the direction of GPE .

The ORG ( ORG Fighters – a loyalist organisation ) later claimed responsibility for the murder in the local press .

ORG officers arrived at the scene shortly after the shooting was reported . A scene of crimes officer attended the scene and recovered bullet casings and glass samples . The scene was photographed , including the tyre impressions . These items were analysed by a member of ORG . The applicant alleged that the behaviour of the police at the scene was not consonant with any concern for her son 's life or proper police procedures , claiming that no ambulance was called to the scene and that the police prevented a priest approaching to give the last rites . The Government stated that no ambulance was called as it was apparent that an ambulance could not have assisted PERSON . When the priest arrived , he was initially asked to go to ORG before approaching the car , to enable the officers to make the necessary arrangements for the preservation of the evidence at the scene .

At TIME on DATE , a post mortem examination disclosed that PERSON had died from a bullet wound to the chest .

NORP The police attempted to identify potential eye - witnesses by speaking to all those present at the scene , conducting house to house enquiries , setting up vehicle check points and making press appeals for witnesses to come forward . They also interviewed the police officers who had been attending a road traffic accident to which personnel had been diverted shortly before the shooting occurred . The Government stated that there had been nothing suspicious in the conduct of the police in this respect . CARDINAL cars had been tasked to attend the road traffic accident at the village of GPE , it being normal practice for CARDINAL vehicle to respond due to the risk of attacks on the security forces by ORG .

Shortly after the shooting , the ORG discovered a car which they believed had been used by the people involved in the shooting . However , a forensic and fingerprint examination disclosed no evidence to connect it with any person suspected of the murder . Enquiries showed that the car had been recently bought for cash by unknown persons from a private vendor .

As later revealed in the inquest , the investigating police officer believed that he knew the identity of the persons involved in the killing but had no evidence to prove it . Several suspects had been arrested and interviewed but no evidence of admission had been obtained from them .

On DATE , the applicant accepted the sum of MONEY from ORG in respect of the death of her son .

An inquest into the killing was opened on DATE , CARDINAL and a half years after the murder . The ORG file had been transmitted to the Coroner on DATE . The delay in their inquiries resulted , according to the Government , from the extent of other criminal activities requiring police attention in the FAC area at that time . The inquest was further delayed to DATE pending the completion of further inquiries required by the Coroner .

No explanation was given to the PERSON family to account for the delay . During this period , the family had not known whether any murder investigation had been conducted by the police and were not provided with any indication as to the nature of the ORG 's findings , if any , as to how the applicant 's son had died .

The inquest was heard DATE , DATE and DATE . It was presided over by the Coroner who sat with a jury and was assisted by a lawyer . The ORG were represented by counsel and a solicitor .

During the inquest , the solicitor acting for the family of PERSON sought to introduce evidence in support of allegations that the ORG had prior knowledge that he was to be murdered , that the ORG had made threats against him and that the police investigation had been inadequate . This consisted of evidence from a forensic science consultant who criticised the ORG for not taking a plaster - cast of car tyre impressions found at the scene of the crime , and the oral testimony of GPE who claimed to have been told by PERSON of threats to his life made by ORG officers and who had heard such threats made by officers when he himself was in custody . When the Coroner accepted that the evidence should be admitted , the ORG Chief Constable applied for judicial review of those decisions . On DATE , ORG quashed the ORG 's decision , holding that :

“ ... it is now well - settled in the jurisprudence on this topic that a ORG 's function is not , and one may say emphatically not , to conduct a wide - ranging inquiry into the broad circumstances in which a deceased has met his death . It is now clearly established by the decisions to which I have referred that the word “ how ” should receive the connotation “ by what means ” and it seems to me ... that it can not be the case that the evidence in relation to the calibre of the police investigation - the quality of the police investigation – touches upon the means by which Mr. PERSON was killed . Rather it is directly relevant to the possible criticism of the standard of the police investigation and that ... goes well beyond the scope of the inquiry of the Coroner . By the same token I consider that the evidence ... from Mr [ GPE ] ... is not germane to the question which the Coroner and the jury must decide and that is by what means the deceased met his death . Evidence has already been given without apparent challenge that the deceased was the target of loyalist terrorists before he was murdered . That evidence has not been disputed and is no way controversial and in those circumstances it appears to me that the only issue which Mr [ D.C. ] 's evidence could shed light upon is whether these threats were uttered by police officers . That , for the reasons I have already referred to , is not a matter for the Coroner 's inquest to enquire into ... ”

The Coroner refused to admit in evidence statements made by PERSON to his solicitors . The applicant stated that her original statement was edited by the ORG to exclude references to police collusion when it appeared in a Coroner 's deposition .

On DATE , the ORG 's Inquest issued the verdict that PERSON had died on CARDINAL DATE on FAC in GPE from a bullet wound to the chest .

On DATE , the applicant made a complaint about the conduct of the ORG at the scene of the shooting in denying PERSON access to the body and in failing to call an ambulance . This complaint was investigated by an assistant chief constable , under the supervision of ORG ( the ORG ) , as a result of which the ORG concerned was given advice which was recorded in the Divisional Discipline Book .

A Superintendent of the Complaints and Discipline Section of the ORG made attempts to investigate the allegations made by GPE that , during an interview with police , ORG officers had made threats against PERSON ( see paragraph CARDINAL above ) . By letter of DATE , GPE 's solicitors replied that their client would not make a statement concerning PERSON as none had been sought at the time of the incident . Attempts were made to take statements from CARDINAL other witnesses mentioned at the inquest , CARDINAL of whom agreed . The ORG officers who had interviewed GPE on DATE and CARDINAL DATE were themselves interviewed .

On DATE , a copy of the unofficial inquiry report was sent by the applicant 's daughter to the Secretary of ORG for GPE ( see below , concerning the unofficial inquiry ) . She complained of the failure to make a plaster cast of the tyre tracks at the scene and that Constable NORP had said that he had been sent to the scene of the shooting at TIME before it had taken place . As a result , the ORG conducted further enquiries under the supervision of the ORG and the ORG subsequently reported to ORG ( the ORG ) .

On DATE , the ORG wrote to the applicant 's daughter and son - in - law informing them that the ORG was satisfied by the police investigation which had taken place .

On DATE , the ORG wrote to the applicant 's daughter to inform her that Constable NORP would be spoken to about the error which he had made as to the time at which he was detailed to the scene but that no other disciplinary proceedings would be taken in respect of the matters complained of on DATE . They stated that they were satisfied with the action taken .

In DATE , having considered the results of the ORG 's further enquiries in the light of the unofficial enquiry , the ORG decided that there should be no prosecution in relation to the shooting .

A community inquiry into the circumstances surrounding the murder was organised by family and friends after the conclusion of the inquest in the hope that the whole truth about the murder could be revealed . The inquiry , conducted by the ORG and chaired by a retired GPE Judge , PERSON , heard CARDINAL witnesses over the period from DATE . The witnesses included family , local residents and friends of the deceased . Evidence was given alleging that police officers had frequently stopped PERSON in the street and issued threats , that the police warned people to keep away from him or they would end up being shot , that police officers made comments to persons in custody before the incident that PERSON would be targeted and , after the incident , claimed that they had had him killed . CARDINAL witnesses claimed that they had seen PERSON still moving after the shooting had occurred . The Judge concluded that the applicant had been murdered by ORG and , more specifically , with the collusion of the ORG .

On DATE , the applicant issued a writ against the Chief Constable of the ORG and , by amendment of DATE , against ORG also . The writ was served on DATE . In the proceedings , the applicant claimed damages for loss and damage sustained by her and the estate of her son by reason , inter alia , of negligence , breach of confidence and misfeasance in public office relating to the storing , handling and use of information .

On DATE , the defendants gave notice of intention to defend the proceedings . No further steps have been taken .

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 and 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 . The jury in GPE and GPE may also append recommendations to their verdict .

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 it necessary to attend the inquest ( section CARDINAL of LAW ) 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 .

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 with 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 .

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 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 ) ) .

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 submitted on 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 . ”

In the case of NORP v. the 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 DATE 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 .

DATE . 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 not 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 the Use of Force and Firearms by Law Enforcement Officials ( 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 :

The 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 . ”


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of car theft and subsequently remanded in custody . On an unspecified later date he was charged with selling drugs . The charges concerning car theft were severed to be dealt with in another set of proceedings .

On DATE a certain ORG , a minor , was questioned by the police in respect of the car theft . On DATE JH was questioned by the police in respect of the charge of selling drugs DATE and DATE . He admitted that he had been selling drugs which he had received from the applicant . The questioning took place in the presence of a psychologist .

In her report dated DATE the psychologist observed that ORG ’s cognitive processes had functioned at the level commensurate to his age . She noted that his interpretation of the facts could have been slightly changed on account of his fear of the consequences of his acts . There could also have been minor inconsistencies with regard to the amount of drugs sold by the applicant to other persons . She also noted that ORG had willingly presented the facts related to the drug transactions involving him and other persons .

JH was heard by the police as a juvenile suspect but no preventive measures were applied . The charges against him were to be examined separately by ORG of ORG . That court ordered an inquiry to be carried out at his home . On DATE the report of the inquiry was submitted to ORG . According to the report , ORG had left GPE for the GPE on DATE and his parents did not know his address or telephone number . ORG had not informed his parents of his plans to leave GPE and he had merely called them from the airport .

On DATE ORG requested the police to establish ORG place of residence . On DATE the police informed the court that ORG had been in GPE as from DATE and that he was expected to return to GPE in DATE .

On DATE ORG decided not to institute proceedings against ORG . It had regard to the fact that he had been in the GPE since DATE and in those circumstances it would be impossible to apply to him the measures provided in LAW ( ustawa o postępowaniu w sprawach nieletnich ) .

On DATE the prosecution filed a bill of indictment against the applicant with ORG . The applicant was charged with offering drugs to a minor , PERSON , and with CARDINAL counts of selling drugs to ORG , ORG , ORG , ORG , ORG and ORG DATE and DATE . The prosecutor requested the court to hear CARDINAL witnesses , including GPE .

There were CARDINAL other defendants in the case ( ORG , ORG , ORG , MONEY and ORG ) who were also charged with drug trafficking offences . CARDINAL of them , ORG and ORG , were additionally charged with car theft . On DATE the trial court severed the charges against MG and ORG .

On DATE ORG scheduled hearing dates for CARDINAL , DATE , DATE , DATE and DATE . PERSON was summoned to testify on DATE . On DATE JH ’s mother informed the trial court that GPE resided in the GPE where he was attending school . She produced photocopies of the plane tickets . On DATE the police confirmed the above and informed the court that the date of ORG ’s return to GPE was unknown .

On DATE the trial court again summoned PERSON to give evidence on DATE . The police were asked to serve the summons or to establish the date of his return to GPE . On DATE the police informed the court that the summons could not be served since ORG was still in the GPE and the date of his return remained unknown .

On DATE the trial court again summoned PERSON to testify at the hearing . It also requested police assistance in establishing the date of his return to GPE . The police informed the court in their CARDINAL letters of DATE that ORG was in GPE . They notified the court that the date of his return to GPE was still unknown . They also reported that , according to the information obtained from ORG ’s parents , ORG would remain in the GPE for DATE as he was attending school .

The trial court held CARDINAL hearings as scheduled and CARDINAL additional hearing on DATE . At the hearing held on that date the prosecutor requested the court to read out the statements PERSON had made to the police . The applicant and his counsel objected . They argued that those depositions were the main incriminating evidence against the applicant and that they wanted to put questions to PERSON at the hearing . The trial court decided that ORG ’s statements should be read out pursuant to LAW ORG since the witness was permanently abroad and his date of return to GPE remained unknown . It noted that in those circumstances it was not possible to grant the applicant ’s request to hear PERSON at the hearing .

ORG gave judgment on DATE . It convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment and a fine of PLN CARDINAL,CARDINAL . It further ordered him to make a payment of ORG MONEY to an association assisting drug addicts .

The trial court established that the applicant had sold drugs as alleged in the bill of indictment . In this respect it relied on the statements of ORG who had been heard by the police as a juvenile suspect . JH stated that the applicant had sold drugs to ORG , ORG , ORG , ORG and ORG in his presence . In his evidence , he described in detail the factual circumstances of those transactions and distinguished between transactions at which he had been present from those of which he had only heard .

The trial court considered ORG ’s evidence reliable , having regard to its detail , certainty and consistency . The reliability of his evidence was enhanced by the fact that ORG had known all the defendants well and had had no motive to incriminate them . Furthermore , the trial court considered that ORG evidence was objective since he had not concealed any facts which might have put him in a negative light as he admitted that he had been selling the drugs for the applicant to ORG , ORG , ORG and ORG and that he had stolen the car . On DATE together with the CARDINAL co - accused ORG and ORG had stolen a car which indicated that they had trusted each other .

The applicant pleaded not guilty and decided not to testify . He stated that he had not sold or offered drugs to other persons and had not possessed them . He refused to answer any questions from the court and the parties .

According to the trial court , the credibility of the statements given by ORG was supplemented by other evidence . Those statements were not the only incriminating evidence as they were confirmed in certain respects by evidence from ORG , ORG , ORG and ORG . Furthermore , ORG ’s statements were not undermined by the findings of the psychologist who had assisted in his questioning .

In respect of witness ORG , the trial court considered credible the statements which he had given during the investigation . When questioned at that stage he stated that ORG had received drugs from the applicant and had been selling them to others . ORG had also confirmed that ORG had offered drugs to his friends . That evidence corroborated the relevant statements of ORG . ORG had also confirmed ORG ’s statement that the applicant had proposed to manufacture drugs in ORG ’s garage . During the trial , ORG changed his version of events and denied that the applicant had supplied drugs to ORG , but the trial court refused to accept his change of testimony as ORG had offered no explanation for it .

KJ was a friend of ORG and the applicant . The court found reliable the evidence she had given during the investigation , namely that she had bought drugs from GPE , ORG and ORG , and that she had offered and taken amphetamine with the applicant . The latter fact contradicted the applicant ’s assertion that he had had nothing to do with drugs . At the trial , ORG denied those statements . However , the trial court noted that she had not explained the reason for the change in her testimony and considered credible her original statements . Furthermore , ORG testimony during the investigation was corroborated by ORG ’s statements . ORG denied that the applicant had sold her drugs . However , the trial court did not find this evidence reliable , having regard to the consistent statements of ORG and to the lack of a motive on the part of ORG to incriminate the applicant and ORG .

NORP The trial court considered credible the statements of ORG that he had purchased drugs from ORG . The latter confirmed that he had been selling drugs received from the applicant to others persons , including ORG . ORG was also buying drugs from the applicant and selling them to others as confirmed by the statements of ORG and ORG . In view of those statements , the court rejected ORG ’s subsequent denial at the trial that he had anything to do with drugs .

The applicant appealed . He argued that the trial court had breached criminal procedure by reading out the depositions of ORG which had been made during the latter ’s questioning by the police . He also submitted that the trial court had relied on ORG ’s statements although they had not been corroborated by other evidence in the case . The applicant lastly claimed that the court had erred in its establishment of the facts of the case .

On DATE ORG held a hearing and upheld the trial court ’s judgment for the most part . It amended it only to the extent that it deleted CARDINAL count of selling drugs by the applicant to ORG since ORG had stated that he had not witnessed that particular transaction .

Otherwise , ORG found that the trial court had correctly established the facts , basing itself on a comprehensive assessment of all the evidence . It had explained why it had considered ORG ’s statements credible and why it had disregarded the applicant ’s evidence since he had limited himself to denying the charges against him . It stressed that the applicant had not put forward any rational arguments to contest the duly substantiated findings of the trial court .

ORG noted that ORG had described precisely various details concerning the purchase of drugs from the applicant , such as the type of drugs , price , quantity , dates of transactions , form of payment , etc . It underlined that ORG ’s version of events , namely that he had been selling drugs received from the applicant and offering them to his friends , had been confirmed by ORG and ORG during their questioning in the course of the investigation . The fact that ORG , when heard at the trial , had changed his earlier version of events could not be considered credible as he had not given a plausible explanation for this change . ORG had also confirmed ORG ’s statement that the applicant had proposed to manufacture drugs in ORG ’s garage but that proposal had been refused . The fact of ORG ’s offering drugs to friends had also been confirmed by ORG and ORG during their questioning in the course of the investigation .

ORG accepted the findings of the trial court that GPE , being a close acquaintance of the applicant , ORG , ORG , ORG , ORG , ORG and ORG , had objectively described the applicant ’s actions and that he had not been in conflict with the applicant . In his statements , ORG had not concealed facts which incriminated him . He had consistently stated that ORG , ORG , ORG , ORG and ORG had purchased drugs from the applicant in his presence . He distinguished those situations from transactions at which he had not been present . ORG also noted that before his questioning as a juvenile suspect , ORG had been advised that he had the right to refuse to make statements .

As regards the lack of cross - examination of ORG , ORG stated :

“ The allegation of the breach of procedure by the trial court is not sustainable . The appeal setting out the above allegation does not specify which provisions were breached ; it would appear from the grounds of the appeal that it concerns LAW ORG , which the trial court relied on when reading out the statements of ORG at the trial , and that the court took the decision to read out the statements of that witness after having established objectively and unequivocally that the precondition specified in LAW ORG had been met ( his uninterrupted long stay abroad ) , and then only just before closing the trial . The defendant [ the applicant ] does not dispute that the circumstances specified in LAW ORG in respect of witness ORG were correctly ascertained , admitting expressly that the witness went away and has lived abroad . In this procedural situation the trial court had the right to read out the statements of that witness , a minor , given at the time when he was questioned as a suspect ( the fact that the trial court did not invoke LAW CARDINAL of the ORG does not have any ility of that evidence ( reading out a NORP statements ) , the circumstances in which it was obtained and the credibility of those statements by corroborating them with other evidence obtained in the case , as already explained . The parties and the defence had an opportunity to react directly to those statements [ of witness ORG ] .... ”

On DATE the applicant filed a cassation appeal with ORG . He stated that the trial court had read out ORG depositions and by doing so had prevented the applicant from putting questions to that witness . He alleged a breach of his defence rights , invoking Articles CARDINAL , CARDINAL and CARDINAL § CARDINAL of the ORG and LAW ( d ) of the LAW .

The applicant argued that the trial court and subsequently ORG had based their verdict exclusively on ORG evidence and had disregarded the evidence of ORG , ORG and ORG as being contradictory to the former evidence . In respect of ORG , the applicant argued that his statements given at the pre - trial investigation stage had to be carefully analysed since he could not confirm them at the hearing as he had been undergoing drug therapy .

The applicant claimed that the courts had not used all available means to secure the attendance of ORG at the trial . Furthermore , ORG had been treated leniently by the authorities as he had been allowed to leave the country despite his admission that he had been selling drugs . Lastly , the applicant informed ORG that ORG had returned to GPE and that he could have been questioned in respect of the charges against the applicant .

On DATE PERSON was arrested by the police for drunken driving in GPE . On DATE he was questioned by ORG . On DATE the ORG convicted him of drunken driving in summary proceedings and sentenced him to a suspended prison term and a fine . It also banned him from driving for DATE . ORG was further placed under the supervision of a court officer .

On DATE ORG dismissed the applicant ’s cassation appeal as manifestly ill - founded . It held , in so far as relevant :

“ When formulating them [ arguments in the cassation appeal ] the applicant completely disregarded LAW ORG , which entitles the parties to lodge a cassation appeal exclusively against the final judgment of the second - instance court . Nonetheless , in the present case the author of the cassation appeal repeated the same assertions which he had raised earlier in an ordinary appeal , making only such modifications which supposedly complied with the requirements specified in LAW ORG . The same circumstances , which had earlier served as the basis for an assertion that the trial court had made errors in respect of its factual findings , were now being used to formulate arguments of a procedural nature . However , the assessment of their content and the reasons for the cassation appeal leads to the conclusion that as a matter of fact the author intended again to attempt to undermine the credibility of particular sources of evidence and to challenge the factual findings made on that basis . However , in the light of the binding regulation such an attempt in cassation appeal proceedings can not be effective . ( ... )

It can not be overlooked that the arguments of the cassation appeal in the present case are in fact directed against the trial court ’s judgment . It was the trial court which assessed the credibility of particular sources of evidence and determined the quantity of drugs which had been trafficked ; it was also ORG which made use of the measure provided in LAW ORG in order to disclose statements made by the then minor PERSON ( ... )

The issue of the correctness of admitting and relying on ORG ’s statements was also subject to ordinary review by the second - instance court . ORG could not infringe LAW ORG since it did not make use of the measure provided in it . Even now the appellant has not substantiated [ his contention ] that the restrictions on the opportunity to release depositions or statements by persons listed in that provisions were breached . ( ... ) However , the digressions as to the possibility of taking evidence from ORG , and the conducting of evidentiary proceedings with the participation of the defendant [ the applicant ] at the current stage of the proceedings , at a time when the case has finally been determined and no breach of the law ( still less a manifest breach – Article CARDINAL § CARDINAL of the ORG ) has been substantiated , do not fit within the framework of the model of cassation appeal proceedings . The repeated reliance on all those circumstances additionally reinforces the conclusion that the arguments presented in the cassation appeal constituted nothing but an attempt to circumvent the obligation stemming from LAW ORG , which stipulates that a second - instance judgment shall be the subject of a cassation appeal . ”

Article CARDINAL § CARDINAL of the DATE Code of Criminal Procedure ( “ the ORG ” ) provides :

“ The accused has a right to be present during the taking of evidence in the proceedings . ”

Article CARDINAL of the ORG reads as follows :

“ CARDINAL . If a witness has without good reason refused to testify , or has given testimony different from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him pursuant to LAW [ i.e. because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial ] , and also when a witness has died , the records of his previous statements may be read out , [ regardless of whether they ] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL , and also in the case specified in LAW , the records of evidence that a witness has given when heard as an accused may also be read out . ”