Violation of Art. 3;Violation of Art. 5-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

In DATE a civil war erupted in NORP when ethnic groups under - represented in the ruling elite rose up against the national government of President PERSON . Politically , the discontented groups were represented by liberal democratic reformists and NORP , who fought together and later organised themselves under the banner of ORG ( “ UTO ” ) . By DATE CARDINAL people had been killed .

During the civil war in GPE , the applicant was one of the leaders of the ORG .

On DATE a peace agreement was signed by President PERSON and the ORG leader . The applicant was appointed as the head of ORG and Civic Defence of NORP . While in office , he was awarded the rank of ORG .

In DATE the President of NORP appointed the applicant as the director of the unitary enterprise GPE .

On DATE the applicant was elected chairman of ORG .

On DATE the applicant was appointed as the director of the unitary enterprise GPE .

At some point the applicant openly criticised the President of NORP .

On DATE the applicant moved to GPE .

On DATE ORG charged the applicant in his absence with terrorism , gangsterism , unlawful possession of firearms and embezzlement .

On DATE the NORP authorities chose placement in custody as a preventive measure to be imposed on the applicant .

On DATE the applicant was put on an international “ wanted ” list .

On DATE ORG received a request for the applicant 's extradition from ORG .

On DATE the NORP authorities arrested the applicant on the basis of the request for his extradition .

On an unspecified date the applicant was placed in remand prison no . GPE in GPE .

On DATE the ORG of GPE authorised the applicant 's detention pending extradition .

On DATE the applicant appealed against the firstinstance decision . On an unspecified date ORG dismissed the appeal .

On DATE and DATE the applicant requested ORG not to extradite him , arguing that the request for his extradition had been filed for purely political reasons .

In DATE the applicant requested ORG of ORG of the ORG to grant him political asylum .

On DATE ORG dismissed the extradition request by the NORP authorities for the reason that the applicant had filed an asylum application .

On DATE the prosecutor 's office of the Babushkinskiy District of GPE ordered the applicant 's release from custody .

Upon his release on DATE the applicant stayed at his friend 's flat in the town of ORG , in LOC , awaiting examination of his asylum application .

In TIME of DATE the applicant and his friend , PERSON , were walking a dog . At some point the applicant saw CARDINAL persons wearing uniforms of ORG ( « ГИБДД » , “ LOC ) . He assumed that those men intended to arrest him and told his friend to go home . Then the applicant noticed that the area had been surrounded by CARDINAL or QUANTITY men with NORP features wearing civilian clothes .

Without identifying themselves or giving any explanations , the CARDINAL men in LOC uniforms , assisted by several men in civilian clothes , handcuffed the applicant . CARDINAL of the men hit the applicant on the head and placed him in a car ; it drove off . After QUANTITY the car stopped ; the men in the ORG uniforms took the applicant out and placed him in a minivan .

They drove for a while . Eventually the minivan stopped and the applicant was taken outside . The surroundings were unknown to him . The applicant was escorted to a sauna and detained there . The guards beat the applicant . He asked for a lawyer , but in vain .

On DATE the applicant was taken to a forest . The men who had apprehended him met a group of people and conversed with them there . Having listened to them talking , the applicant assumed that the newly arrived people were servicemen of the NORP law - enforcement agencies .

At some point the servicemen put a mask on the applicant 's face . They did not identify themselves , nor did they give any explanations of their actions . They spoke unaccented NORP .

Later they took the applicant with them and escorted him to an airport . The applicant 's identity papers were not checked . While boarding the plane , the applicant heard the servicemen talking to a woman who apparently knew them . During the flight the applicant , still blindfolded , heard no instructions or other information usually conveyed in a civil aircraft .

On TIME CARDINAL DATE the aircraft landed at FAC and the applicant was handed over to the NORP law - enforcement agencies .

On DATE the applicant was placed in the remand prison of ORG . He was kept in a cell measuring CARDINAL x QUANTITY . There was an iron bed with dirty bedding .

For DATE of his detention the applicant was registered under a false last name , “ Sobirov ” . During that period officers of the remand prison regularly beat the applicant . He had no food except for CARDINAL pieces of bread per day and some water . He was allowed to use the lavatory only once a day . The applicant was not permitted to go for a walk or to wash himself .

On DATE of the applicant 's detention , officers of ORG told him that he would be killed unless he confessed . The applicant made a self - incriminating statement under pressure . He was given some pills , allegedly of a psychotropic nature .

On DATE the NORP Prosecutor General gave a press conference and announced that the applicant had been arrested in NORP on DATE .

On DATE the applicant was allowed to see his lawyers for the first time since his arrest . He explained them that for DATE he had been kept incommunicado and had lived on bread and water . The lawyers ' visits took place in the presence of the prison officials . Unsupervised visits were not permitted .

On DATE ORG convicted the applicant and sentenced him to DATE imprisonment .

On DATE ORG of ORG upheld the judgment of DATE .

NORP On DATE the Presidium of ORG requested the President of GPE , ORG and ORG to clarify the circumstances of the applicant 's unlawful extradition .

On DATE the applicant 's relatives requested ORG to explain how the applicant had been transferred to NORP . No reply was given .

On CARDINAL DATE the applicant 's lawyers enquired of ORG whether any measures had been taken in relation to the letter of CARDINAL DATE .

On DATE the applicant 's lawyers complained to ORG that the applicant 's abduction and extradition had been unlawful .

On DATE the applicant 's lawyers complained to ORG of GPE about the inaction of ORG . The court left the complaint unexamined .

On DATE the applicant 's lawyers complained to ORG about the allegedly ineffective investigation into the circumstances of the applicant 's unlawful extradition .

On DATE the ORG town prosecutor 's office refused to institute criminal proceedings in relation to the applicant 's kidnapping .

On DATE the ORG town prosecutor 's office quashed the decision of DATE and instituted an investigation under LAW of LAW Criminal Code ( aggravated kidnapping ) .

On DATE the applicant 's representatives lodged a second complaint with ORG of GPE . The complaint was dismissed on DATE .

DATE . On DATE the applicant 's lawyer requested the ORG town prosecutor 's office to demand the NORP authorities to transfer the applicant to GPE for questioning . On DATE the request was dismissed . The applicant 's lawyers challenged the prosecutor 's decision before the prosecutor 's office of LOC , but to no avail .

The applicant himself requested the ORG town prosecutor 's office to question him as a victim in NORP territory .

On DATE the ORG town prosecutor 's office dismissed the applicant 's request . The applicant 's lawyers challenged the refusal before a court .

On DATE the ORG dismissed the complaint on the ground that the applicant had not been permitted to join the proceedings as a victim . That decision was quashed . On DATE ORG dismissed the complaint at final instance on the ground that the applicant 's rights had not been breached .

On DATE ORG dismissed at final instance the complaint about ORG inaction .

On DATE the ORG of GPE dismissed at first instance the applicant 's complaint about ORG Office 's inaction . On DATE ORG upheld the decision .

On DATE the applicant 's lawyers challenged in court the investigators ' decision . On DATE their complaint was dismissed at final instance by ORG .

NORP In DATE CARDINAL NORP lawyers filed a complaint with the ORG High Commissioner for Human Rights ( UNHCHR ) concerning alleged violations of the applicant 's rights in the course of the criminal proceedings against him in NORP .

On DATE ORG UNHCHR put questions on the applicant 's detention to ORG .

On DATE ORG , in reply to the request by ORG , submitted a seventeenpage document in NORP describing the charges against the applicant and the proceedings against him . The document read , in so far as relevant , as follows :

“ ... [ i]n accordance with LAW , PERSON was arrested by the NORP law - enforcement agencies in GPE in DATE .

In reply to ORG requests , ORG produced the necessary documents concerning PERSON 's extradition to the NORP authorities within the time - limits laid down by LAW , as well as comprehensive proof of ORG 's guilt in respect of the crimes he had been charged with . After that , ORG informed the NORP authorities that a favourable solution would be found to the question of PERSON 's extradition .

It is noteworthy that on DATE the NORP law - enforcement agencies released PERSON from custody prior to deciding on his extradition but did not officially notify ORG of the grounds and reasons for the release under LAW .

PERSON was officially extradited to the NORP authorities by the NORP lawenforcement agencies and on DATE he was placed in the remand prison of ORG . ”

On DATE ORG forwarded the letter from ORG to the applicant 's NORP counsel and notified her that , in order to consider the applicant 's case during its CARDINALth session , its ORG expected to receive her comments on it .

It appears that the proceedings before the UNHCHR concerning the alleged violations of the applicant 's rights in NORP are still pending .

On DATE ORG received a petition for the applicant 's extradition from ORG .

On DATE the applicant was arrested in GPE .

On DATE ORG received an official request for the applicant 's extradition , citing the charges of terrorism , gangsterism , unlawful possession of arms , embezzlement and unlawful hiring of bodyguards .

On DATE ORG refused to extradite the applicant on the basis of LAW owing to the fact that he had applied for asylum .

On DATE the applicant was released from custody .

On DATE the ORG town prosecutor 's office instituted criminal proceedings in relation to the applicant 's abduction under LAW CARDINAL LAW of LAW ( “ aggravated kidnapping ” ) . The case was assigned number DATE .

The investigation established that at TIME on DATE the applicant had been walking along a street in the vicinity of the house at CARDINAL FAC , GPE , and had presumably been kidnapped by unidentified persons .

Later it became known that the applicant had been arrested in GPE by the NORP authorities .

The investigators questioned PERSON and his son and daughter , as well as police officers who had been on duty on TIME DATE in the vicinity of FAC and the applicant 's son .

On DATE Mr L. stated that the applicant , a friend of his daughter , had been staying in their home since DATE . On DATE Mr L. had gone outside to walk his dog ; the applicant had accompanied him to have a cigarette . PERSON , a non - smoker , had walked in the opposite direction to the applicant . At some point he had stumbled upon CARDINAL men wearing police uniforms and talked to them for TIME . Then he had returned home ; the applicant was not there . PERSON and his daughter , PERSON , had searched for the applicant and checked with police stations but in vain . After a while PERSON had read on the Internet that the applicant had been arrested in GPE .

PERSON and PERSON son made identical depositions .

The investigators checked whether the applicant had been taken away by plane from FAC . No proof of this hypothesis was found .

On DATE the ORG prosecutor 's office granted the applicant victim status in criminal case no . DATE .

On DATE the ORG prosecutor 's office , pursuant to ORG CARDINAL , CARDINAL , DATE and CARDINAL of the Minsk Convention , requested ORG to establish the applicant 's whereabouts and to question him about his abduction and transfer from GPE .

On DATE the NORP authorities requested ORG to question the applicant and to allow him to study the decision to grant him victim status . On DATE Mr Kh . , an investigator of ORG , replied that on several occasions he had visited the applicant in the remand prison of ORG in connection with criminal case no . DATE but that the applicant had refused to make any statements or to study the decision to grant him victim status .

DATE . The investigation did not establish that any officers of the NORP law - enforcement agencies had been involved in the applicant 's kidnapping .

On DATE the investigation was suspended for failure to identify those responsible .

Everyone has the right to liberty and security ( LAW ) . Arrest , placement in custody and custodial detention are permissible only on the basis of a court order . The term during which a person may be detained prior to obtaining such an order can not exceed TIME ( LAW ) .

Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court , ORG or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought . The preventive measure is to be applied in accordance with the established procedure ( LAW ) .

Recommendation No . R ( CARDINAL ) CARDINAL of ORG on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of LAW reads as follows :

Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request , as recommended , among others , in ORG No . R ( CARDINAL ) CARDINAL of ORG ...

An effective remedy before a national authority should be provided for any asylum seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .

NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when : ...

that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ; ...

NORP the execution of the expulsion order is suspended until a decision under CARDINAL is taken . ”

ORG for Human Rights issued a Recommendation ( CommDH(CARDINAL)CARDINAL ) on DATE concerning the rights of aliens wishing to enter a ORG Member ORG and the enforcement of expulsion orders , part of which reads as follows :

“ CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . ”

For other relevant documents , see the ORG 's judgment in the case of NORP [ PERSON ] v. GPE , no . CARDINAL/CARDINAL , § § DATE , ECHR CARDINALV.

When performing actions requested under LAW , to which GPE and GPE are parties , a requested official body applies its country 's domestic laws ( LAW ) .

Upon receipt of a request for extradition , the requested country should immediately take measures to search for and arrest the person whose extradition is sought , except in cases where no extradition is possible ( Article CARDINAL ) .

The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition . The petition must contain a reference to a detention order and indicate that a request for extradition will follow ( LAW ) . If the person is arrested or placed in detention before receipt of the extradition request , the requesting country must be informed immediately ( LAW ) .

A person detained pending extradition pursuant to LAW must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within DATE from the date of placement in custody ( Article CARDINAL § CARDINAL ) .

Amnesty International , in its document “ Tajikistan – Impunity ; Fear for Safety ” describing alleged ill - treatment of CARDINAL NORP residents and released on DATE , stated as follows :

“ ORG receives reports about torture and ill - treatment by police in NORP on a regular basis . Those targeted have included alleged NORP as well as suspects charged with ordinary crimes . Allegations persisted that in the large majority of cases no thorough and impartial investigations were conducted and the perpetrators enjoyed impunity . ”

ORG on Human Rights Practices : NORP , released on DATE , reads as follows :

“ The [ NORP ] Government 's human rights record remained poor ; although there were some improvements in a few areas , serious problems remained . ... Security forces tortured , beat , and abused detainees and other persons and were also responsible for threats , extortion , and abuse of civilians . Prison conditions remained harsh and life threatening . A few prisoners died of hunger .

Impunity and lengthy pre - trial detention remained problems . Authorities used torture to obtain confessions , which were routinely accepted as evidence in trials without qualification .

The law prohibits such practices ; however , there were reports that government security officials employed them .

Torture occurred during DATE , though to a lesser extent than in DATE . Security officials , particularly from ORG ( ORG ) , continued to use systematic beatings to extort confessions , torture , sexual abuse , and electric shock during interrogations .

Beatings and mistreatment were also common in pre - trial detention facilities , and the Government took minimal action against those responsible for the abuses

Prison conditions remained harsh and life threatening for CARDINAL incarcerated persons . Prisons were generally overcrowded , unsanitary , and disease - ridden . The spread of tuberculosis was a serious problem , and there were reports that a few prisoners died of hunger .

Arbitrary arrest and detention remained serious problems . The law , which is an amended holdover from the NORP era , allows for lengthy pre - trial detention , and there are few checks on the power of prosecutors and police to make arrests .

Impunity remained a serious problem , and officers who committed abuses were rarely prosecuted . The Government acknowledged that police and security forces were corrupt and that most citizens who were abused chose to remain silent rather than risk retaliation by authorities .

The LAW provides for an independent judiciary ; however , courts and judges were subject to political pressure from the executive branch and criminal networks , and corruption and inefficiency were problems .

There was little official information about criminal court procedures and the number of political prisoners ; however , credible international and local sources estimated that CARDINAL former opposition fighters of ORG remained in prison after the civil war despite CARDINAL general amnesties in DATE . Controversy over which crimes the amnesties covered delayed resolution of the cases . However , following a government review of the cases , most were determined to be appropriately jailed for grave crimes ; others were released .

In DATE , following a partially closed trial , a closed session of ORG of ORG sentenced PERSON , a deputy chair of the opposition IRP , to DATE in prison for organizing an armed group and illegally crossing the border . Both crimes were covered under the DATE post - war amnesties . While in pre - trial detention , he was allegedly abused and denied access to counsel ( see Section CARDINAL.c . ) . The ORG maintained that the trial and sentencing were politically motivated to discredit the party . ”

ORG DATE NORP , issued on DATE , reads as follows :

“ The human rights situation in NORP is fragile . Despite reforms on paper – including a new election law and a moratorium on capital punishment – the government continues to put pressure on political opposition , independent media , and independent religious groups . The political climate has deteriorated as President PERSON attempts to consolidate power in advance of DATE parliamentary and presidential elections . PERSON ( ORG of NORP ) , led by President PERSON , dominates political life . Under DATE 's power - sharing arrangement , opposition parties are guaranteed PERCENT of top government posts . In DATE , PERSON replaced senior government officials from other political parties with members of his own party , reducing the other parties ' share of top posts to PERCENT .

PERSON 's opponents are vulnerable to prosecution on politically - motivated charges . In DATE , ORG sentenced PERSON , deputy chairman of ORG ( ORG , ORG ) DATE which participates in the power - sharing government - to sixteen years in prison on charges of polygamy , organizing an armed criminal group during the civil war , and illegally crossing the border . CARDINAL other IRP members were given lengthy prison terms for alleged complicity in GPE 's armed group . GPE , who has maintained his innocence since his arrest in DATE , alleges he was beaten and tortured with electric shocks while awaiting trial . ”

The Ambassador of GPE to ORG of the ORG delivered on DATE a statement on the detention of PERSON in GPE , which reads as follows :

“ GPE wishes to express its concern regarding the case of PERSON , the Chairman of ORG , who was involuntarily returned to GPE from GPE on DATE , and who has been held in detention by GPE 's ORG since DATE .

We further note that Mr. PERSON has been denied regular and unobserved access to his legal counsel , and that his family has been unable to meet with him .

GPE calls on the NORP authorities to permit Mr. PERSON access to his legal counsel in accordance with NORP 's own laws and with international standards , and to pursue any court process in accordance with international law . Both local and international observers should be allowed to witness those proceedings .

Once again , [ GPE ] PERSON ] the Government of NORP to demonstrate its commitment to comply with OSCE principles and with international law . GPE stands ready to provide whatever assistance might be required in helping NORP to meet its obligations in that regard . ”

“ In DATE , NORP police arrested PERSON in GPE at the request of NORP authorities . The government had implicated PERSON a vociferous critic of President PERSON , presidential hopeful , and leader of ORG – in an attack on CARDINAL government offices in PERSON in DATE . NORP authorities released him on DATE , but he disappeared DATE and eventually turned up in custody in GPE . PERSON claimed that he had applied for refugee status after his initial release from NORP custody , but said that NORP police had kidnapped him off the street and transferred him to agents who flew him to NORP . On DATE , after a trial that lasted DATE , PERSON was found guilty on CARDINAL counts , including terrorism and illegal possession of weapons . He was sentenced to DATE in prison and fined QUANTITY ( approximately CARDINAL ) . ”

ORG on Human Rights Practices : NORP , released on DATE , reads as follows :

“ Beatings and mistreatment were also common in pre - trial detention facilities , and the government took minimal action against those responsible for the abuses ( see Section CARDINAL.d . ) . PERSON Shaykh ' and PERSON both stated police beat them and subjected them to electric shocks while they were in custody . ORG ( ICRC ) monitors were unable to investigate claims of torture against them and their associates and the government did not launch an official investigation .

PERSON , head of ORG and former chairman of GPE , was returned to the country in DATE after his DATE detention in GPE , under circumstances that appeared to be an extrajudicial rendition ; PERSON was charged with violating CARDINAL articles of the criminal code including : banditry , terrorism , illegal possession of weapons , having an unauthorized bodyguard , and embezzlement . At the request of ORG , NORP authorities had taken PERSON into custody on an international arrest warrant , but found insufficient evidence to extradite him . On DATE , the NORP general prosecutor turned down an extradition request and released PERSON . He was subsequently kidnapped by unknown forces and on DATE , the NORP prosecutor general announced PERSON was in pre - trial detention in GPE . PERSON was denied immediate access to his family and an attorney ( see section CARDINAL.e . ) . PERSON reported that he was tortured , injected with drugs , and electrocuted while in detention . He was sentenced to DATE in prison . He is appealing to ORG . No date was set for the appeal trial by DATE . ”

The Declaration by the Presidency of ORG on behalf of ORG on the case of PERSON in NORP , done in GPE on DATE ( CARDINAL ( Presse CARDINAL ) P CARDINAL ) , reads as follows :

“ The ORG has closely followed the legal proceedings against PERSON , leader of the opposition ORG , since his arrest in GPE in DATE .

The ORG has taken note of his conviction and sentence to DATE in prison on multiple charges by GPE 's ORG on DATE , and the rejection of his appeal by ORG on DATE .

The ORG is particularly concerned about the circumstances of PERSON transfer to and arrest in NORP in DATE , which remain unclear , and about the treatment PERSON received during his pre - trial detention . Concerns were also raised by PERSON defence team about some aspects of the court proceedings themselves , and about the fact that the recent appeal procedure was not open to the press . The ORG wishes to receive further information on these matters .

The ORG asks the NORP authorities to ensure regular access of PERSON family and lawyers in accordance with NORP law .

The unclear circumstances of PERSON arrest and some aspects of his detention and trial send a mixed message about democratic reform and the respect of Human Rights in NORP with respect to its LOC and other international commitments . ”

ORG Country Report on Human Rights Practices : NORP , released on DATE , reads as follows :

“ There was no official investigation into DATE beating and electric shocks police allegedly administered to GPE Shaykh ' and PERSON while they were in custody .

PERSON , head of ORG and former chairman of PERSON , the country 's state - run gas monopoly , remained in detention following his DATE kidnapping and return to the country from GPE by unknown forces . In DATE ORG sentenced PERSON to DATE in prison as well as other penalties , including restitution of $ MONEY ( CARDINAL somoni ) allegedly embezzled from PERSON . While most observers believed allegations of corruption and embezzlement were well - founded , local observers , human rights activists , and the political opposition charged that PERSON 's arrest , trial , and verdict were politically motivated to intimidate future political challengers . Although PERSON was convicted , he remained in a pre - trial detention facility at DATE . ”

Amnesty International , in a document entitled “ LOC : Summary of Human Rights Concerns , DATE ” , released on DATE , described the applicant 's situation as follows :

“ In DATE , the opposition ORG ( DPT ) expressed concern that its leader , PERSON , continued to be held in incommunicado detention in ORG . In DATE , PERSON was abducted from GPE , GPE , where he lived in exile , after the NORP authorities refused to extradite him to NORP . He was sentenced to DATE imprisonment by ORG in DATE on charges of terrorism and corruption , which he denied . He should have been moved to a prison camp shortly after the verdict but this did not happen . Supporters claimed that he was not allowed to receive parcels or newspapers and that visits of relatives and his lawyers had been obstructed . An appeal against his sentence had been turned down in a closed hearing in DATE . At DATE , PERSON was finally moved to a high security prison camp to serve the remainder of his sentence . ”

“ ... PERSON , head of ORG and former chairman of PERSON , the country 's state - run gas monopoly , remained in prison following his unlawful extradition from GPE and DATE conviction for corruption . ”


Violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6 - Right to a fair trial);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

On DATE the public prosecutor charged the applicant and the managing director of company X before ORG ( käräjäoikeus , tingsrätten ) with CARDINAL counts of aggravated tax fraud and CARDINAL counts of tax fraud , as they had allegedly produced false invoices to ORG ( lääninverovirasto , länsskatteverket ) . They were also charged with an accounting offence ( count CARDINAL ) , as they had allegedly entered false data in the accounts of X. The prosecutor claimed that the applicant was responsible for the offences together with the managing director as , even though he did not have an official status in the management of the company , he had in fact participated in its management .

In the indictment dated DATE , count CARDINAL , for example , read as follows :

On DATE [ the managing director ] and [ the applicant ] together , [ the former ] as the managing director of [ company X ] and chairman of the board of directors and [ the latter ] as a person who was de facto responsible for the management of the company , submitted the company 's application for a NORP refund in the amount of FIM CARDINAL,CARDINAL [ some ORG CARDINAL,CARDINAL ] as regards DATE to ORG of GPE . The application stated that [ company Y ] had sold electrical relays to [ company X ] for ORG CARDINAL,CARDINAL,CARDINAL [ some ORG CARDINAL,CARDINAL ] and the latter company had sold the said products further to an NORP company for ORG CARDINAL [ EUR CARDINAL ] . The invoice relating to the sales transaction between [ company X ] and [ company Y ] was fabricated . By submitting such false information which affected the amount of taxes to the authorities for the purposes of taxation , [ the managing director ] and [ the applicant ] have attempted to evade taxes .

Applicable law : LAW , section CARDINAL of the Penal Code ”

As a further example , count CARDINAL , which concerned the co - defendant H.A. , read as follows :

By preparing the invoice in the amount of FIM CARDINAL,CARDINAL,CARDINAL referred to in count CARDINAL , and by handing it over to [ the managing director ] and [ the applicant ] to be attached to the application for a tax refund , [ H.A. ] , on DATE , intentionally furthered the criminal act committed by [ the managing director ] and [ the applicant ] .

Applicable law : LAW , CARDINAL and LAW , section CARDINAL ( CARDINAL ) of the LAW ”

The applicant pleaded not guilty , arguing that he did not have such a status in company X and therefore could not be held responsible for the alleged offences . Furthermore , he argued that he had not been involved in compiling the documents and that the transactions concerned had not been forged .

On DATE ORG found that the business transactions referred to in the relevant invoices were not genuine , that the invoices were false and that the applicant had , together with the managing director , produced false information to ORG and entered false data in the accounts of ORG referred to the evidence given by the co - accused and the witnesses , finding it proved , inter alia , that the applicant had actually acted in the company in such a position that he was to be held responsible for the offences together with the managing director . Thus , ORG convicted them both as charged and sentenced them to a suspended term of DATE imprisonment . The co - defendant , PERSON , was also convicted as charged .

The applicant appealed to ORG ( hovioikeus , hovrätten ) against his conviction . He maintained that since he had not had any legal or de facto status in X , he had not produced any documents to ORG and he had not entered false data in GPE 's accounts . Furthermore , the invoices had not been fabricated . He also claimed that the witness evidence was contradictory and that ORG assessment of it was erroneous . At the end of his writ of appeal , he stated :

“ ... [ C]onsidering that the conduct of [ the applicant ] , on the whole , can not be considered aggravated , he could not be found guilty of more than aiding and abetting a tax fraud if he were , against all reason , to be found guilty of any offence ... ”

NORP The public prosecutor did not submit any written response to the applicant 's appeal . In its response to the applicant 's appeal ORG did not refer to a reclassification of the offences as aiding and abetting .

On DATE ORG held a hearing at which the parties and the witnesses were heard . It appears that there was no discussion as to whether the applicant 's alleged conduct could be classified as aiding and abetting the above offences .

In its judgment of CARDINAL DATE ORG convicted the applicant of CARDINAL counts of aiding and abetting an aggravated tax fraud and CARDINAL counts of aiding and abetting a tax fraud and an accounting offence and sentenced him to a term of DATE suspended imprisonment . ORG reasoned inter alia :

During the pre - trial investigation [ the managing director ] stated that [ the applicant ] had given instructions to [ H.A. ] as to the details to be included in the documents that were attached to the applications for a tax refund ... and had also otherwise taken care of matters and the business transactions of [ company X ] .

[ H.A. ] stated during the pre - trial investigation that he had prepared documents to be attached to applications for a tax refund ... in accordance with [ the applicant 's ] and [ the managing director 's ] instructions . According to [ H.A. ] , [ the applicant ] was in practice responsible for the operation of [ company X ] .

Witness [ V.M. ] stated in ORG that he had dealt with the invoice ... together with [ the managing director ] and [ the applicant ] .

In the light of the statements given by [ the managing director ] and [ H.A. ] during the pre - trial investigation , and of the witness statement of [ V.M. ] , which supports those statements , it has been established that [ the applicant ] participated in the planning of the offences referred to in the indictment and in the preparation of the documents needed for the commission of the offences .

... [ the applicant ] did not have such a position in [ company X ] as would have made it possible for him to commit , as a principal offender , the offences with which he was charged . When participating in the planning of the offences and in the preparation of the documents needed for the commission of the offences , however , he contributed to producing false information to ORG and [ on count CARDINAL ] to entering false data in the accounts . Thus he intentionally furthered the criminal acts of which [ the managing director ] has been found guilty . ”

The applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) , arguing that he had been convicted of offences differing from those with which he had been charged . He submitted that the public prosecutor had not even claimed that he had been involved in the planning of the offences and compiling the documents . During the proceedings the applicant had not been informed of the nature and cause of these accusations and was thus not given any opportunity to defend himself against them . Furthermore , the assessment of the evidence was unfair since ORG had found the evidence sufficient even though the oral statements were contradictory .

On DATE ORG refused leave to appeal .

LAW , section CARDINAL(CARDINAL ) of LAW , in force at the relevant time , provided that a person who , during or before the commission of an offence by someone else , intentionally furthers the act through advice , action or exhortation , shall be convicted of aiding and abetting the principal offence . The sentence imposed on the person who aids and abets shall be reduced to CARDINAL of the maximum penalty prescribed for the principal offence .

The present case was commenced and therefore also concluded under the then provisions on criminal procedure in LAW ( oikeudenkäymiskaari , rättegångsbalken ) . The rule according to which an accused might not be convicted of an offence other than the one with which he had been charged was not included in the legislation until the coming into force on DATE of LAW ( laki oikeudenkäynnistä rikosasioissa , lag om rättegång i brottmål ; Act no . CARDINAL ) . The rule was however established through case - law and it was codified upon the enactment of the new Act .

LAW , section CARDINAL , of LAW provides that the court may only pass a sentence for an act for which a punishment has been requested . The court is not bound by the heading or the reference to the applicable provision in the indictment . The court is however bound by the conduct described in the indictment . The prosecutor is under an obligation to define the alleged offence and the accused must be provided with an opportunity to defend himself or herself within the limits of the indictment .

According to the ORG , the court may e.g. convict an accused of aiding and abetting a tax fraud even if the prosecutor has charged him or her with the principal offence , as long as the conduct described in the indictment is not altered . This is based on the principle of jura novit curia , i.e. on the principle that the court itself is responsible for the legal assessment of the criminal act in question without being bound by the views of the prosecutor or of the accused . This was contested by the applicant .

LAW , section CARDINAL ( Act no . CARDINAL/CARDINAL ) , of LAW reads in relevant part :

“ Leave to appeal may be granted only if it is important to bring the case before ORG for a decision with regard to the application of the law in other , similar cases or because of the uniformity of legal practice ; if there is a special reason for this because of a procedural or other error that has been made in the case on the basis of which the judgment is to be reversed or annulled ; or if there is another important reason for granting leave to appeal . ”


The applicants , PERSON , PERSON , PERSON , PERSON PERSON , PERSON and GPE , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

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

Until DATE the applicants lived in GPE and ORG villages , in the districts of GPE and Hozat , in GPE , where they own property .

In DATE , security forces forcibly evacuated DATE , Şahverdi and ORG on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to GPE , GPE and LOC where they currently live .

On DATE the representatives of the applicants filed petitions , on behalf of the applicants , with the offices of the NORP Governor and the GPE LOC requesting permission to return to their villages and compensation for the damage they had suffered .

On DATE ORG of the Governor ’s office in GPE sent the following reply to the ORG representatives :

The Şahverdi , PERSON and ORG villages are being considered under the ‘ Return to GPE Project’ . Thus , the residents of those villages can reside in GPE , Arslandoğmuş , GPE , GPE , ORG , GPE , ORG , GPE , PERSON , Cevizlidere , ORG , GPE , PERSON , NORP and NORP villages in GPE district or GPE , ORG , Tavuklar , PERSON , ORG , ORG , ORG , FAC , PERSON and PERSON villages in GPE district .

Your petition containing requests of permission to return to village will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

On DATE the representative of the applicants lodged a petition with ORG office in GPE complaining about the dereliction of duty by the NORP Governor and the GPE and GPE ORG ( görevi ihmal ) .

On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG office at ORG .

On DATE ORG office at ORG decided not to start the proceedings into the allegation of dereliction of duty against the NORP Governor ( dilekçenin işleme konulmaması ) .

On DATE ORG decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and GPE ORG .

On DATE the representatives filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

On DATE ORG decided not to conduct investigation into the applicants’ allegations against the Hozat and GPE ORG .

On DATE the representative of the applicants filed an objection with ORG against the decision of ORG .

On DATE ORG rejected the objection .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


The applicant , PERSON , is a GPE national , born in DATE and living in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

In his statement of DATE , taken by the police , NORP had stated that a gold chain had been stolen from him by a person who he knew as PERSON . He described PERSON as “ CARDINAL ’’ he has got a flat top afro hair and is slim ” .

On DATE , the applicant was arrested and charged with robbing NORP of his gold chain . In an interview with the police DATE , he had admitted that he had been at the LOC known as “ ORG ” when the incident occurred on DATE . He alleged that another man called “ Blue ” had taken the chain and that he had talked to NORP , saying that he would try to get it back for him .

On DATE , the applicant was remanded in custody .

On DATE , the committal proceedings took place before ORG . The charges were read and explained to the applicant , who was represented . NORP gave evidence and described the person who robbed him as being black , pretty tall and having a flat - top hair cut . He however stated that , “ At the time I did n’t know the person who robbed me ; I ’d never seen him before at that time . ” Questions were put to NORP in cross - examination by the applicant ’s counsel . The applicant was asked whether he wished to say anything in answer to the charge , to which he made no reply . The applicant was also given an opportunity to give evidence and to call witnesses . He did not do so . The applicant was committed for trial and detained on remand by order of the magistrates .

On DATE at the trial at ORG , prosecuting counsel from ORG ( “ ORG ” ) offered no evidence in support of the prosecution . According to the statement of claim issued by the applicant in later civil proceedings , prosecuting counsel informed the court that he had only just received the papers and that there were problems with them , referring to the identification of the applicant . After a short adjournment he asked for time to take a further statement from the victim PERSON then returned to the court and offered no evidence against the applicant . The applicant was released from custody .

On DATE , the applicant issued proceedings against the ORG claiming damages for negligence . He alleged that the prosecution had failed to take reasonable care in assessing whether there was , at the committal proceedings on DATE , sufficient evidence against the applicant .

On DATE the ORG issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action .

On DATE a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action , following the ORG of PERSON case - law to the effect that there was no general duty of care owed by ORG in relation to its prosecutions ( GPE - daf v. the Commissioner of Police for the LOC [ DATE ] ORG , see below in Relevant Domestic Law and Practice ) . The judge was of the opinion that the applicant`s case involved " a point of law of general importance " and issued a certificate , pursuant to LAW ) of ORG DATE entitling the applicant to " leapfrog " , i.e. to petition ORG directly .

On DATE the applicant petitioned ORG for leave to appeal . Leave to appeal was refused on DATE .

In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .

Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing that :

– damage to the claimant was foreseeable ;

– the claimant was in an appropriate relationship of proximity to the defendant ; and

– it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

In the case of GPE - daf v. the Commissioner of Police for the LOC [ DATE ] ORG , ORG decided that no duty of care in negligence was owed by ORG ( “ ORG ” ) to defendants in fulfilling its statutory duty in prosecuting crime .

The case concerned CARDINAL plaintiffs , who had been arrested , charged and arrested in custody for serious offences and after periods of DATE respectively the ORG had discontinued the proceedings against them . They had instituted proceedings against the ORG claiming inter alia that the ORG had been negligent in failing to act with reasonable diligence in concluding that they were either innocent / or the prosecution bound to fail . The claims were struck out by the judge on the basis that they disclosed no reasonable cause of action . Their appeals to ORG were dismissed . In the leading judgment , Lord Justice PERSON referred to the CARDINAL criteria laid down in GPE ( cited above ) and had regard to the considerations as to whether the ORG should be treated differently in tort from private citizens and corporations . He noted that the ORG was a public law enforcement agency acting for the public as a whole and that , having regard to the torts of malicious prosecution and misfeasance in public office , a citizen aggrieved by a prosecutor ’s decision had potentially extensive private law remedies for a deliberate abuse of power .

“ That brings me to the policy factors which , in my view , argue against the recognition of a duty of care by the ORG to those it prosecutes . While it is always tempting to yield to an argument based on the protection of civil liberties , I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the ORG . In my view , such a duty of care would tend to have an inhibiting effect on the discharge by the ORG of its central function of prosecuting crime . It would in some cases lead to a defensive approach by prosecutors of their multifarious duties . It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence . The ORG would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the ORG . It would generate a great deal of paper to guard against the risks of law suits . The time and energy of ORG lawyers would be diverted from concentrating on their prime function of prosecuting offenders . That would be likely to happen not only during the prosecution process but also when the ORG is sued in negligence by aggrieved defendants . The ORG would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials . That is a spectre that would bode ill for the efficiency of the ORG and the quality of our criminal justice system . …

Recognising that individualised justice to private individuals or trading companies who are aggrieved by careless decisions of ORG lawyers militates in favour of the recognition of a duty of care , I concluded that there are compelling considerations , rooted in the welfare of the whole community , which outweigh the dictates of individualised justice . I would rule that there is no duty of care owed by the ORG to those it prosecutes . In so ruling I have considered whether a distinction between operational and discretionary lapses , with potential liability in the former but not the latter , should be made . Whatever the merit of such a distinction in other areas of the law , I would reject it in regard to the ORG as impractical and unworkable and not capable of avoiding the adverse consequences for the ORG on which I have rested my decision . Subject to CARDINAL qualification , my conclusion that there is no duty of care owed by the ORG to those it prosecutes is intended to be of general application . The qualification is that there may be cases of which NORP v. the Chief Constable for ORG [ DATE ] CARDINAL All E.R. CARDINAL was an example , where the ORG assumes by conduct a responsibility to a particular defendant … And it is trite law that such an assumption of responsibility may generate legal duties . … ”

At the relevant time , LAW rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .

In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant ’s pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .

The striking out procedure , now contained in the Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .

The ORG is a statutory public law enforcement agency set up by LAW DATE to prosecute criminal offences . It is an autonomous and independent body which reviews police decisions to prosecute and conducts prosecutions on behalf of the ORG . The ORG is headed by ORG ( “ the ORG ” ) and is answerable to ORG through the Attorney General .

The conduct of ORG Prosecutors is regulated by the Code for ORG , issued under LAW . Paragraph CARDINAL provides that review of the police decision to prosecute is a continuing process , so that ORG prosecutors are required to take into account any change in circumstances .

Before bringing a prosecution , a ORG prosecutor had , at the relevant time , to be satisfied that it fulfilled CARDINAL sets of criteria set out in the code , firstly concerning evidential sufficiency and , secondly , concerning the public interest . The first required that that a Crown Prosecutor be satisfied that there was enough evidence to provide a “ realistic prospect of conviction ” . This involved an assessment whether a jury or bench of magistrates , properly directed in accordance with law , would be more likely than not to convict the defendant of the charge alleged . ORG was required to draw on his experience of how the evidence was likely to “ stand up ” ( paragraph CARDINAL ) . Under the public interest criteria , ORG had , inter alia , to consider the very serious harm the stigma of a conviction could cause very young adults and take into account any change in the complainant / victim ’s attitude , e.g. the expression of a wish , after the initial complaint , that no action should be taken ( paragraphs CARDINAL(iii ) , QUANTITY ) and CARDINALff ) .


The applicant , PERSON GPE , is a GPE national , who was born in DATE and lives in GPE . The respondent Government are represented by Mr PERSON of ORG , GPE .

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

On DATE , a search warrant was issued against the applicant under LAW ) of LAW DATE in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material . A large number of items of property , including papers , were seized in the course of a search at the applicant 's home on CARDINAL DATE .

An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation . A renewed application was dismissed by ORG on DATE .

On DATE the applicant was charged with offences under LAW DATE , and on DATE he was committed to stand trial . The applicant was charged together with another man , PERSON

The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial . The stay was granted by ORG on DATE . After hearing the prosecution , the applicant and the medical evidence , the judge stated :

“ ... It is obvious that Mr PERSON is not fit to conduct his own defence as is his right .. And , indeed , it may well be the case that he is not fit to be tried even if counsel were able to represent him . I must say that , having seen Mr PERSON in court and having heard Mr GPE , he is able to put his case forcibly and eloquently , although that may be on the medical evidence before me only over very short periods of time . I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay . I intend to apply to this indictment a conditional stay . The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [ counsel ] on behalf of the Crown and PERSON PERSON and it is right to say Mr PERSON does not agree with them , but they are the conditions which I impose . Firstly , that the stay will continue to apply providing that , one , the defendant 's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried ; and , secondly , providing that the defendant does not engage in any activity , either political , social or personal , which demonstrates to the satisfaction of a court that he is in fact able to stand his trial , irrespective of his medical condition . ”

The formal order incorporating that ruling reads as follows :

“ The indictment be conditionally stayed against PERSON and the stay will continue to apply :

Providing the defendant 's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried .

Providing the defendant does not engage in any activities either political , social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition . ”

On DATE , after the ruling on a stay of the proceedings , ORG discussed the question of materials which were still retained . The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co - defendant , but that the applicant had stated that he wanted all of the material or none of it . The applicant did not accept the prosecution 's claim , and maintained that “ special procedure material ” should never have been seized under the warrant . At the end of the discussions , the judge stated that all the seized material which was not of assistance to the co - defendant or the prosecution in the case against the co - defendant would be returned to the applicant .

The applicant tried to challenge , by an application for judicial review , both ( i ) the conditions of the stay and ( ii ) the fact that his property had not been returned . Mr ORG refused leave on DATE , and in so doing made the following comments :

“ CARDINAL . Despite what is said by the ORG [ the Lord Chancellor 's Department ] and the ORG [ ORG ] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity .

But ( i ) most of this application for [ judicial review ] is plainly barred by [ LAW ] DATE LAW ( CARDINAL ) and I can see no even arguable basis for saying that LAW ( CARDINAL ) is not LAW compatible and ( ii ) that part which is not so barred is plainly without merit – the application in relation to the property is , at least in the first instance , a matter for ORG , not ORG . ”

A renewed application was refused on DATE .

On DATE , the applicant applied to ORG for return of “ special procedure material ” . He states that he has had no reply . He further wrote to the GPE police and ORG on DATE , asking for return of CARDINAL items of “ special procedure material ” to be sent to his home in GPE “ with a complete list of all items ” . He was informed that the return of property would be considered at the end of the trial against the co - defendant . The co - defendant was acquitted on DATE .

On DATE , ORG informed the applicant that the material seized on DATE could be returned to him with the following exceptions :

“ ( i ) The electronic stunning device , which is a prohibited weapon .

( ii ) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material . Only a single copy of these documents will be returned . [ There follows a list of the CARDINAL documents referred to . ]

[ iii ] Material distributed by you to others is no longer your property and will not be returned . ”

The letter continued : “ The material is being returned to you because [ H 's ] trial has been concluded . It is not accepted that any of the material is special procedure material . ”

A similar letter was sent to the applicant by ORG for the Chief Constable of GPE Police on DATE , and the applicant was informed that he could collect the items from FAC from DATE . The applicant replied on DATE that “ a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items , individually , so that they can be checked off on return . ”

The applicant repeated his demands in a letter of DATE , adding reference to a typewriter which he claimed had been damaged whilst in police custody , and again on CARDINAL and DATE .

On DATE , ORG refused an application made by the applicant in DATE for permission to apply for judicial review in respect of materials held . The judge noted “ The application covers substantially the same allegation[s ] of illegality ... as those made on previous occasions and rejected . Furthermore , the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed ” .

On DATE , ORG wrote to the applicant that the applicant 's property ( save for the excepted items ) would be delivered to his home in GPE , and the majority of items would be listed individually . Certain bulk items would not figure individually . The applicant was informed that it might not be possible to deliver his property to him before he left GPE for DATE , but that it was open to him to collect it from FAC .

On DATE the applicant refused to collect the property from any police station , and insisted on its return to GPE by DATE .

The property was not handed over or collected , and on DATE , ORG wrote to the applicant in the following terms :

“ I note , upon a review of my file in this matter , that the question of the return of your property remains outstanding . You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of DATE , a copy of which I enclose .

I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you . It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in GPE but if a trip to your property in GPE is necessary , that could also be arranged .

With that in mind , would you please be so kind as to contact the writer with a suggested time and date , or a number of such options , in order that arrangements can be made with my client for your property to be returned .

It would assist if you would kindly revert to me in the course of DATE and with that in mind we enclose a stamped addressed envelope for your early response . ”

The applicant replied on DATE :

“ My position remains as expressed during and to the end of that previous contact in the matter . I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then , and I am open now to such return on those terms , nothing other and nothing less than that .

Are you people therefore now to make return in full fulfilment of those terms ?

If you are not , then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention . ”

On DATE , after a further exchange of letters , the applicant sent a draft signed Agreement to ORG , in which he demanded return of all items ( save those which had been handed over already , the stunning device , and a single copy of each of CARDINAL documents ) , a list including each individual item , and an acknowledgment of damage to a typewriter . The agreement stated that the applicant was not able to check the property against the list for TIME per day , and ended “ No deletion or alteration or addition to the Agreement is acceptable to the property owner , the terms here set out being non - negotiable ” . In his covering letter , the applicant stated “ Unless I receive back , signed and dated by you , the here enclosed Agreement , nothing can be done in the matter apart from , for my part , moving towards legal action for the return of all my long withheld property ” . ORG declined to arrange for the Agreement to be signed , but confirmed that there was still no resistance in principle to the return of the applicant 's property on the lines already laid out .

Correspondence continued in the same tone , the final exchange running as follows :

The applicant 's letter of DATE to ORG :

“ ... the agreement is absolutely essential , now or at any future time , and that I will not accept now or at any time in the future what , in the absence of the agreement , amounts to a dumping disregardful of it . Sign and return the agreement , if you want the return to go ahead , otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons . As I will be returning to GPE in DATE time , the signed agreement needs to reach me straight away . Unless you are signing and returning the agreement and arranging the return of property on this basis , there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time - wasting , having given you my final and irrevocable answer . ”

ORG , letter to the applicant of CARDINAL DATE :

“ For the avoidance of doubt , my client 's position is as follows :

All property , save for that set out at numbered paragraphs ( i ) to ( iii ) of my correspondence dated DATE , to be listed in an inventory .

ORG to return the listed property on a date and time to be agreed .

Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory . ”

Section CARDINAL ( CARDINAL ) of LAW DATE provides :

“ A person who has in his possession written material which is threatening , abusive or insulting , or a recording of visual images or sounds which are threatening , abusive or insulting with a view to

( a ) in the case of written material , its being displayed , published , distributed or included in a programme service , whether by himself or another , or

( b ) in the case of a recording , its being distributed , shown , played or included in a programme service , whether by himself or another

is guilty of an offence if he intends racial hatred to be stirred up thereby or , having regard to all the circumstances , racial hatred is likely to be stirred up thereby . ”

“ If in GPE and GPE a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of LAW , the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated . ”

Certain categories of material can not be the subject of an application for a warrant before a magistrate , but must be the subject of an application to a circuit judge . This material is broadly speaking material such as personal records acquired or created in the course of any trade , profession or business . The material is known as “ excluded material ” and “ special procedure material ” . Excluded material is material , including journalistic material , held in confidence ( Section CARDINAL(CARDINAL ) Police and Criminal Evidence Act DATE “ PACE ” ) . Special procedure material includes journalistic material not held in confidence ( Section CARDINAL PACE ) .

Independently of common law powers to seize and retain material falling within the terms of a warrant , a constable who is lawfully on LOC may seize material on the LOC if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence , and that it is necessary to seize it to prevent it being concealed , lost , altered or destroyed ( Section CARDINAL(CARDINAL ) PACE ) .

The Notes for Guidance which accompany LAW relating to search and seizure ( “ Code of Practice for ORG and ORG found by ORG or Premises ” , applicable to warrants and searches after DATE ) state that “ Any person claiming property seized by the police may apply to a magistrates ' court under LAW DATE for its possession , and should , where appropriate , be advised of this procedure ” .

Section CARDINAL ( CARDINAL ) of LAW DATE provides that :

“ In relation to the jurisdiction of ORG , other than its jurisdiction in matters relating to trial on indictment , the High Court shall have all such jurisdiction to make orders of mandamus , prohibition or certiorari as ORG possesses in relation to the jurisdiction of an inferior court . ”

Criminal courts have wide common law powers to stay proceedings . A stay typically takes the form of an order that the charge should not be proceeded with . In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a , including the rights of the accused .