SELLICK AND SELLICK v. THE UNITED KINGDOM

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

The applicants , Mr PERSON and Mr PERSON , are brothers who were born in DATE and DATE respectively . They are NORP nationals and they are currently detained at FAC . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE with ORG , assisted by Mr PERSON FAC and Mr A. Dos Santos , counsel .

At TIME on DATE Mr PERSON was shot and killed in the car park of the Talisman public house in GPE .

NORP The present application concerns the applicants’ conviction for the murder of PERSON . They were tried together with a third man , PERSON , who was acquitted by the jury . Their main ground of complaint to this ORG is that , at the men ’s trial , the trial judge ( GPE J ) allowed the statements of CARDINAL people to be read to the jury because he was satisfied either that they had been kept away through fear or that they could not be found and reasonable steps had been taken to trace them .

The circumstances of Mr ORG murder , the trial and the ORG subsequent , unsuccessful appeal to ORG may be summarised as follows .

As stated above , ORG and PERSON are brothers . Their halfbrother , PERSON , was a friend of PERSON . PERSON girlfriend was PERSON . PERSON girlfriend , PERSON , was PERSON niece . PERSON , a friend of PERSON , had been in a relationship with PERSON , which ended before the shooting . It was the statements of PERSON , PERSON and PERSON ( together with that of a fourth person , PERSON ) which came to be read at trial in the circumstances described in paragraphs CARDINAL–CARDINAL below . PERSON gave live evidence , but as a hostile witness for the prosecution : see paragraph CARDINAL below .

It was the prosecution ’s case that PERSON was the gunman . His motive for shooting PERSON was that the deceased was a rival drug dealer and , just before the shooting , PERSON had found out that PERSON had slept with PERSON . The prosecution also alleged that PERSON was PERSON ’s partner in drug dealing , that he drove PERSON to the murder scene and that he provided the murder weapon . Mr GPE was alleged to have been present at the scene as part of the joint enterprise of murder . It was also the prosecution ’s case that , after the shooting , the CARDINAL men had met PERSON , PERSON and PERSON at a hotel where they discussed the shooting and how to ensure no one talked about it .

PERSON ’s defence was that he had been ill in bed at the time of the shooting . PERSON ’s defence was that he was not present at the shooting and had no knowledge that it would take place . Mr GPE ’s case was that he was present at the scene of the shooting but did not know it would take place and was not a party to it .

In the course of the investigations , the police obtained the following witness statements .

PERSON ’s statements were made to the police after he had been arrested for conspiracy to murder PERSON . He stated that he had been involved , with LAW and PERSON , in buying crack cocaine from Mr Chambers . In DATE before the shooting , the brothers had owed GBP CARDINAL PERSON , which PERSON wanted paying . He also stated that , DATE before the shooting , PERSON and PERSON had rowed because PERSON had told PERSON that she had slept with Mr Chambers . On DATE of the shooting he , PERSON , had spoken to Mr Chambers about the money owed and learned that he would be at the Talisman that evening . He had told Carlo this and later telephoned Carlo from the pub to say that PERSON was there . He had then left the pub for PERSON flat . He returned to the pub with PERSON when told about the shooting .

In the telephone calls after the shooting he had asked ORG what was going on ; ORG had told him to make sure no one saw anything . When PERSON asked how he could do that , PERSON told him to sort himself out or he would get the same . ORG had also asked him whether PERSON was dead or alive . The following day , PERSON called him to tell him to book them into a hotel . When PERSON , PERSON and Mr GPE arrived there , PERSON said “ it was not supposed to happen like that ” . ORG said ( referring to Mr GPE ) “ How do you think he feels ? He only came along for the ride ” .

In the course of his statements PERSON also told the police that he was scared , not only for himself , but for his family and for PERSON . Later he also said that he was frightened for his safety and for any revenge PERSON and PERSON might take against him , but he was willing to go to court .

PERSON in her statements also said that , before the shooting there had been a row at her flat between PERSON and PERSON in which PERSON had used considerable violence on PERSON . Her account of events at the hotel was similar to PERSON account . She agreed that , if asked by the police , she would limit her account to events in the car park after finding PERSON collapsed . She did so out of fear for herself , PERSON , PERSON and her children . PERSON also stated that she too was scared and that she “ had her children to think about ” .

In her statement PERSON stated that the CARDINAL brothers had dealt in drugs and that she understood that PERSON and PERSON obtained their supplies from PERSON . Her relationship with ORG ended before the shooting . After it she had seen PERSON with a black eye . There had been an occasion in DATE when ORG had asked her to hide a balaclava and gun for him .

PERSON , an ex - girlfriend of PERSON , provided a statement as to the types of car that he drove .

After making their statements , PERSON and PERSON were admitted to the witness protection scheme . On an unspecified date they left the scheme and returned to GPE , only to then disappear . When the matter came to trial at ORG , neither PERSON nor PERSON could be found , despite witness summonses being issued for their attendance . The prosecution took the view that there had been a concerted attempt to subvert the trial and that this had been done on behalf of the defendants by members of their extended family . Accordingly , it applied for the statements of PERSON and PERSON to be read to the jury pursuant to section CARDINAL of LAW DATE ( see paragraph CARDINAL below ) . Before determining that application , the trial judge heard evidence in chambers from PERSON mother , PERSON , and from CARDINAL police officers who had attempted to trace Mr GPE and PERSON . CARDINAL of the police officers gave evidence as to a conversation with PERSON in which she recounted an incident where family members of the applicants approached her outside her son ’s school and told her that “ she should not be a grass ” .

Having heard that evidence , the trial judge allowed the statements to be read . He ruled :

“ Having heard and seen the witnesses called in this application , I am satisfied so that I am sure of the following ORG

( CARDINAL ) Following the arrest of the defendants in DATE , both PERSON and PERSON were made subjects of a witness protection scheme ;

( CARDINAL ) Both PERSON and PERSON voluntarily withdrew from that scheme in DATE and returned to the LOC area where the murder had been committed . They were then living together and continued to live together until DATE ;

( CARDINAL ) PERSON and PERSON were informed in writing of the date of this trial in DATE and DATE and were notified on those occasions that they were required to attend as witnesses ;

( CARDINAL ) On DATE , PERSON attended Billeston Street Police Station where she spoke to ORG . In that conversation , she described an incident which had taken place outside her son ’s school when members of the PERSON family , associates of the defendants , told her she should not be a grass ;

( CARDINAL ) PERSON told ORG on DATE that she felt intimidated by the approach made to her by the PERSON family and that she anticipated that that intimidation would become more intensive as the trial date approached . ORG believed , from what PERSON said to him and her general demeanour , that the PERSON connection was capable of intimidating her and that she was fearful for her own safety and that of her family ;

( CARDINAL ) In DATE , PERSON and PERSON both knew of the trial date , the place of trial and that they were required to attend to give evidence at trial ;

( CARDINAL ) From DATE , police officers have made repeated attempts to find PERSON and PERSON . Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry . Despite all those efforts , neither witness has been found ;

( CARDINAL) The mother of PERSON , PERSON , has not seen her daughter for DATE . PERSON has left her home and her children , CARDINAL boys aged DATE , and effectively disappeared . The children are being cared for by PERSON . PERSON has no knowledge of her daughter ’s whereabouts and does not know how to get in touch with her . Since PERSON left , her younger child was admitted to hospital but even that event , of which PERSON learned through telephone contact with her grandmother , did not prompt her to reappear ;

( CARDINAL ) PERSON told ORG Pearson that PERSON was staying away from her children for DATE until the trial was over to avoid getting killed and putting her children in danger ;

( CARDINAL ) PERSON told ORG Pearson that PERSON was frightened and thought he would be killed whether he gave evidence or not . He had tried to commit suicide ;

( CARDINAL ) PERSON herself is a very frightened woman . She refused to make a written statement about the events surrounding the disappearance of her daughter . Her attendance at court had to be secured by a witness summons and a threat of arrest . The public gallery had to be cleared before she was prepared to give evidence .

I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both PERSON and PERSON but neither witness can be found . I reject the suggestion that the police should have done more to keep in contact with the witnesses in DATE leading up to the trial . I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them .

There is , in my judgment , clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police . There is further admissible evidence that PERSON was fearful about giving evidence in DATE . There is , however , no admissible evidence that PERSON was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was , I am not able , in his case , to exclude the reasonable possibility that other factors may have influenced his disappearance . It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I can not be sure of that conclusion . However , in the case of PERSON , I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has , abandoning her own children even when CARDINAL of them was admitted to hospital . I am further satisfied , in the case of both witnesses , that no adjournment will secure their attendance .

, in my judgment , wholly credible . The defendants are all in a position to controvert the contents of the statements if they dispute them . I accept , however , that there is a disadvantage to the defence if the statements are read and if they are admitted , the jury must receive clear directions emphasizing that disadvantage . Further , so far as PERSON is concerned , the defence point to a number of features which they submit undermine his credibility . However , LAW of schedule CARDINAL of the DATE Act [ see relevant domestic law and practice at paragraph CARDINAL below ] provides a wholly sufficient remedy for that concern .

Having taken into consideration all the submissions made and given full weight to the provisions of LAW , I am of the clear view that the statements made by PERSON and PERSON ought to be admitted in the interests of justice . I so rule . ”

After the trial had started , the prosecution applied for leave to have the statements of PERSON and PERSON read . They again relied on statements of police officers who had sought to trace the women . The trial judge allowed each woman ’s statement to be read . In the case of PERSON he found the evidence was “ quite overwhelming ” that she had been intimidated and that it was not possible to secure her attendance by any reasonable means . For PERSON , he was not satisfied that she was in fear , but was satisfied that all reasonable steps had been taken to find her . The statements were cogent , innately credible and , in each case , controvertible by evidence from the defendants and , indeed , by other possible means . It was in the interests of justice that the statements be admitted .

PERSON gave evidence as to the CARDINAL ORG drug dealing . She confirmed that she had slept with PERSON . PERSON had found out in the course of a row they had on DATE and he had hit her . The following night , they met in the Talisman . PERSON was angry and threatened to kill PERSON , and had said that this would be PERSON fault . She left the pub and had been in PERSON flat at the time of the shooting . At the hotel , PERSON said that no one would know who pulled the trigger except him and Carlo . If she told anyone she would get the same . Carlo also told her to keep her mouth shut . She had another conversation with PERSON on DATE in which he admitted to being the gunman . There had been a further conversation , when PERSON was in prison for other reasons , in which he said to her that the police had nothing on them . In crossexamination she accepted that her testimony was based on the account she had given to the police after she had been arrested for conspiracy to murder , but maintained that it was the truth .

CARDINAL witnesses gave evidence that they had seen a group of men in the car park , had heard shots and had then seen CARDINAL people running to a car and driving away . A third witness testified that he had seen the deceased , heard a raised voice and then a bang , and that the deceased had then fallen over . A fourth witness testified that he had seen CARDINAL men joined by a third and had heard some discussion which could have been about drug dealing . Moments later he heard CARDINAL loud bangs .

The jury also heard evidence from a Mr PERSON , who testified that he had gone to PERSON flat after the shooting because he knew the person who had been with the deceased at the pub had gone to the flat with PERSON TIME before . PERSON , PERSON and another woman returned to the car park with him .

Evidence of mobile telephone traffic was also led by the prosecution , which showed that there had been calls between PERSON and PERSON after the shooting , that someone used a payphone at the hospital to call Carlo , PERSON and Mr GPE , and that Carlo ’s telephone had been in use near the Talisman prior to the shooting .

For each brother , the prosecution relied on the fact that they had , on the advice of their solicitors , made no reply to any of the questions put to them during his police interview . For PERSON , the prosecution also relied on the fact that , even by DATE , PERSON had stated that he was still unable to recall where he had been at the time of the shooting and that it was only by DATE that he had been able to say that he was in bed sick on TIME in question . For Carlo , the prosecution submitted that it was implausible for him subsequently to explain that his silence in interview was because he had been unable to recall driving to GPE DATE , not least because , on ORG ’s own evidence , PERSON had phoned him TIME to tell him about Mr Chambers’ death .

Finally , the prosecution relied on covert recordings of conversations between the brothers while in their cells at the police station , which , the prosecution alleged , showed that they were plotting to subvert the evidence against them . The defence admitted the conversations but said that they were to wind the police up .

PERSON gave evidence in which he denied killing PERSON . He was not at the Talisman on TIME of the shooting ; he had been in bed sick , where he had found out about the shooting from the television news . His memory had been jogged by being shown his mobile phone records for DATE of the shooting .

He said it was PERSON who had been dealing in drugs . He was unaware that PERSON had been unfaithful to him and had not assaulted her before the shooting . They had only rowed because he had slept with PERSON . He denied the conversation with PERSON in the pub after the shooting and had only gone to the hotel to drop off cannabis for PERSON . At the hotel he had rowed again with PERSON over PERSON and she had told him she would get him back . The only discussion of PERSON had been over hearing about the shooting on the news .

In his evidence ORG denied buying or selling drugs to or from Mr Chambers , but had been a heavy drug user himself . He too maintained that it was PERSON who had been dealing with PERSON and that , prior to the shooting , he had spoken to PERSON because PERSON was trying to borrow money . TIME of the shooting he and Mr Marandola had been driving to GPE in GPE to take cannabis to his uncle . When PERSON summoned them to the hotel , they had collected PERSON on the way back from GPE . There was no conversation or suggestion that ORG had been responsible for Mr ORG death .

Mr GPE did not give evidence , although his police interviews were introduced . When first interviewed he said that he was at his girlfriend ’s at the time of the shooting but , in a subsequent interview , he said PERSON and PERSON had picked him up in a car and said they were going to meet someone . They told him to stay in the car . He did not and saw the brothers and a third man approach from the pub . He heard CARDINAL shots and then the brothers returned to the car , and the CARDINAL of them drove off .

The trial judge ’s summing up contained the following direction on the witness statements which had been read :

“ You will , I am sure , recall that I told you when the first of those statements was read how you should approach their evidence but it is important that I remind you again of what I told you . Their statements are emphatically not agreed . The defendants would have wished that all of them should be called to give evidence before you . However , there are circumstances where I , as the judge , may permit the prosecution to read the statements of a witness even where the defence wish those witnesses to be called . That is a matter for my decision and you are not , please , to speculate on why I have reached that decision .

You will , of course , immediately appreciate that the defence are disadvantaged by the course I have permitted to take place . You can not see the demeanour and appearance of the witness when assessing the extent , if at all , you are able to rely on the content of the statements . The defence can not cross - examine , can not test the accuracy and honesty of the evidence , can not suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement .

Thus , when you consider this evidence , bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and , if so , to what extent .

In this connection bear in mind the submissions of the defence on the accuracy and reliability of the statements of those witnesses . It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statement are , submit the defence ( my word not theirs ) simply weasel words designed to protect themselves , not from any of the defendants , but from the consequences of their own involvement in what occurred on TIME . You heard their submissions , you give them the weight you think right . ”

The trial judge also explained to the jury that PERSON statement had been given at the end of his interviews while he was under arrest for conspiracy to murder and that he had a substantial criminal record , including convictions for robbery . The trial judge instructed the jury that they could have regard to this background in assessing whether they could rely on his statements . When summarising PERSON evidence in respect of the gun Carlo had given her to look after , the trial judge also commented that , if the jury chose to accept that evidence , it went no further than showing that , DATE before the shooting , Carlo was in possession of a weapon of a broadly similar type as that used to shoot the deceased . The trial judge then asked the jury to bear in mind the criticisms that had been made of PERSON and her evidence by the defence .

Further directions were given in the usual terms as to the adverse inferences which could be drawn from ORG and PERSON ’s silence during their police interviews and that PERSON interviews were evidence only against him and not his co - accused .

On DATE the jury unanimously convicted PERSON and PERSON and acquitted Mr GPE . The brothers appealed against their conviction .

The appeal was dismissed on DATE . In considering the relevant case - law of this ORG , at paragraph CARDINAL of its judgment , ORG stated that what appeared from that case - law were the following propositions :

“ i ) The admissibility of evidence is primarily for the national law ;

ii ) Evidence must normally be produced at a public hearing and as a general rule Article CARDINAL ) and ( CARDINAL)(d ) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses ;

iii ) It is not necessarily incompatible with Article CARDINAL(CARDINAL ) and ( CARDINAL)(d ) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings . Article CARDINAL ) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held . The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue , whether , where statements have been read , the trial was fair .

iv ) The quality of the evidence and its inherent reliability , plus the degree of caution exercised in relation to reliance on it , will also be relevant to the question whether the trial was fair . ”

ORG then stated :

“ The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process , the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant . Certainly at first sight paragraph CARDINAL of PERSON seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of LAW , if the statements are the sole or decisive evidence . Furthermore there is some support for that position in the previous authorities . But neither PERSON nor any of the other authorities were concerned with a case where a witness , whose identity was well - known to a defendant , was being kept away by fear , although we must accept that the reference to ORG - type organisations and the trials thereof in paragraph CARDINAL shows that the court had extreme circumstances in mind .

The question we have posed to ourselves is as follows . If ORG were faced with the case of an identified witness , well - known to a defendant , who was the sole witness of a murder , where the national court could be sure that that witness had been kept away by the defendant , or by persons acting for him , is it conceivable that it would hold that there were no ‘ counterbalancing’ measures the court could take which would allow that statement to be read . If care had been taken to see that the quality of the evidence was compelling , if firm steps were taken to draw the jury ’s attention to aspects of that witnesses’ credibility and if a clear direction was given to the jury to exercise caution , we can not think that ORG would nevertheless hold that a defendant ’s LAW had been infringed . In such a case , as it seems to us , it is the defendant who has denied himself the opportunity of examining the witnesses , so that he could not complain of an infringement of LAW ) , and the precautions would ensure compliance and fairness in compliance with Article CARDINAL(CARDINAL ) . We for our part see no difficulty in such a clear case .

More difficulty arises in cases where it is not quite so clear cut , but the court believes , to a high degree of probability , that identified witnesses are being intimidated for and on behalf of the defence , and where the court is sure to the criminal standard of proof that witnesses can not be traced and brought before the court ( GPE J ’s state of mind on PERSON in the instant case ) . In our view , having regard to the rights of victims , their families , the safety of the public in general , it still can not be right for there to be some absolute rule that , where compelling evidence is the sole or decisive evidence , an admission in evidence of a statement must then automatically lead to a defendant ’s LAW being infringed . That would lead to a situation in which the more successful the intimidation of the witnesses , the stronger the argument becomes that the statements can not be read . If the decisive witnesses can be ‘ got at’ the case must collapse . The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them . Such an absolute rule can not have been intended by ORG in GPE . ”

ORG then gave the following guidance when dealing with applications for statements to be read under sections CARDINAL and CARDINAL of LAW DATE :

“ Our view is that certainly care must be taken to see that sections CARDINAL and CARDINAL , and indeed the new provisions in LAW DATE , are not abused . Where intimidation of witnesses is alleged the court must examine with care the circumstances . Are the witnesses truly being kept away by fear ? Has that fear been generated by the defendant , or by persons acting with the defendant ’s authority ? Have reasonable steps been taken to trace the witnesses and bring them into court ? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected ? It is obvious that the more ‘ ORG the evidence in the statements , the greater the care will be needed to be sure why it is that a witness can not come and give evidence . The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule CARDINAL . It will , as section CARDINAL states , be looking at the interests of justice , which includes justice to the defendant and justice to the victims . The judge will give warnings to the jury stressing the disadvantage that the defendant is in , not being able to examine a witness . ”

Finally , on the facts of the applicants’ case , ORG concluded :

“ This was a case in which the judge was sure that PERSON was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf . So far as PERSON was concerned , his view was that it was ‘ highly ORG but he could not exclude the reasonable possibility that other factors may have influenced his disappearance . What he was sure of was that PERSON could not reasonably be found , and it was legitimate to make part of his reasoning the high probability .

The judge was further sure that PERSON had been kept away through fear . He was simply sure so far as PERSON was concerned that she could not reasonably be found . So far as PERSON is concerned , her evidence was not of any great importance . Furthermore , so far as PERSON was concerned , she supported the fact that the appellants were involved in drug dealing and she provided some evidence that PERSON had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing . But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of PERSON and her evidence ( see page CARDINAL ( c ) to ( e ) of the summing up ) . Thus the evidence of PERSON could certainly not be described as decisive .

PERSON and PERSON certainly did give important evidence . It was however certainly not the sole evidence . PERSON , for example , gave evidence of a conversation with PERSON immediately after the shooting in which ORG told him ‘ to sort himself out , get control or he ’d get the ORG , which the judge described as ‘ very important evidence in the case of GPE . ( see page DATE of the summing up ) . Both PERSON and PERSON provided descriptions of the return of PERSON , PERSON and GPE to ORG .

However , there was a great deal of circumstantial evidence , including the tracking of the mobile phones of the appellants and GPE . But , in particular , there was the oral evidence of PERSON . True , PERSON was treated as a hostile witness . True , also , that PERSON ’s evidence was strongest against PERSON , but it was powerful against Carlo too .

We have no doubt that the judge properly exercised his discretion in this case . So far as PERSON and PERSON are concerned , they were witnesses kept away by fear , a fear for which the appellants were responsible . It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial . The statements originally taken from PERSON and PERSON contained statements to the effect that they were fearful of what might happen to them . PERSON , who gave evidence in chambers , was clearly a frightened woman . PERSON was clearly a frightened witness . This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them . Where the judge was sure of that it seems to us that the appellants can not complain that their LAW were being infringed simply by references to those witnesses not being at the trial .

So far as PERSON is concerned , the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear . In his case it can not be said that the defendants lose their right to complain of an infringement under LAW , but even in his case , where the evidence was ‘ LOC as against Carlo , even if that meant ‘ ORG , our view is that provided counter - balancing procedures were properly in place the judge was entitled to admit his statement .

Counter - balancing procedures clearly were in place in that the judge took account of LAW and Schedule CARDINAL [ of LAW DATE ] . PERSON was an identified witness and it was open to the appellants to attack the credibility of PERSON ; indeed they did so , suggesting that he was in fact himself responsible for the murder , that being the reason why he made the statement that he did . Furthermore , the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms . He gave them a strong direction at the time the statements were read .

If we had formed the view that there was a breach of LAW , that would have rendered the trial unfair and we could not have , in those circumstances , upheld the conviction as safe and a retrial would have had to have been ordered . We are quite clear that the appellants’ rights under LAW were in no way infringed in this case . We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed . ”

The applicants applied for permission to appeal to ORG . This was refused by ORG on DATE .

At the time of the ORG trial , the relevant statutory provisions were to be found in sections CARDINAL of LAW DATE . LAW provided for the admission of first hand documentary hearsay in a criminal trial :

“ CARDINAL.— NORP ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if—

( CARDINAL ) ....

( a ) ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness ;

[ or ]

( c ) ... all reasonable steps have been taken to find the person who made the statement , but that he can not be found ..

CARDINAL.—(CARDINAL ) NORP If , having regard to all the circumstances—

( a ) the ORG Court—

( i ) on a trial on indictment ;

( ii ) on an appeal from a GPE court ; or

( iii ) on the hearing of an application under section CARDINAL of the [ DATE c. CARDINAL . ] Criminal Justice Act DATE ( applications for dismissal of charges of fraud transferred from GPE court to ORG ) ; or

( b ) the criminal division of ORG ; or

( c ) NORP a GPE court on a trial of an information ,

is of the opinion that in the interests of justice a statement which is admissible by virtue of section CARDINAL or CARDINAL above nevertheless ought not to be admitted , it may direct that the statement shall not be admitted .

( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) above , it shall be the duty of the court to have regard—

( a ) to the nature and source of the document containing the statement and to whether or not , having regard to its nature and source and to any other circumstances that appear to the court to be relevant , it is likely that the document is authentic ;

( b ) to the extent to which the statement appears to supply evidence which would otherwise not be readily available ;

( c ) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings ; and

( d ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness to the accused or , if there is CARDINAL , to any of them .

CARDINAL Where a statement which is admissible in criminal proceedings by virtue of section CARDINAL or CARDINAL above appears to the court to have been prepared , ... , for the purposes-

( a ) of pending or contemplated criminal proceedings ; or

( b ) of a criminal investigation ,

the statement shall not be given in evidence in any criminal proceedings without the leave of the court , and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice ; and in considering whether its admission would be in the interests of justice , it shall be the duty of the court to have regard-

( i ) to the contents of the statement ;

( ii ) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness in the accused or , if there is more that one , to any of them ; and

( iii ) to any other circumstances that appear to the court to be relevant ... ”

Schedule CARDINAL to the LAW allowed for the admission of evidence relating to the credibility and consistency of the maker of the statement , where such evidence would have been admissible had he or she given evidence in person , or where the matter could have been put to him in cross - examination . The Schedule also provided that , in estimating the weight , if any , to be attached to such a statement regard had to be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy or otherwise .


The applicant [ Mr PERSON ] is an NORP national who was born in DATE and lives in GPE .

He was represented before the ORG by PERSON , a lawyer in GPE .

While he was a DATE law student at ORG , Mr PERSON applied to ORG for a bursary ( assegno di studio ) for DATE following a competition notice issued in conformity with PERSON no . CARDINAL/CARDINAL . He stated that he was a member of a family whose income did not exceed the ceiling of MONEY ( ORG ) above which the bursary , which amounted to ORG CARDINAL,CARDINAL , could not be granted .

In a decision of DATE , of which the applicant was notified on DATE , the governing body of ORG rejected Mr PERSON ’s application on the ground that his family ’s income exceeded the prescribed limit . The Director of ORG informed the applicant that he could challenge the decision in ORG .

On DATE the applicant served notice on the governing body of ORG that he was appealing to the President of the Republic .

On DATE he asked the governing body for information as to progress of the proceedings . On CARDINAL DATE ORG replied that they had none and advised him to address his enquiry to the President of the Republic .

On DATE , in reply to a letter from the applicant received on DATE , the office of the President of the Republic informed the applicant that the procedure in question was governed by Presidential Decree no . CARDINAL of DATE and that his letter had been forwarded to ORG , which would be dealing with it .

According to information provided by the applicant , the proceedings were still pending on DATE .

Special appeals to the President of the Republic ( ricorso straordinario PERSON della GPE ) are governed by Presidential Decree no . CARDINAL of CARDINAL DATE . They are non - contentious administrative appeals by which final decisions can be challenged . They are lodged by the appellant directly with the head of ORG and are limited to a review of the lawfulness of the decision being challenged .

A special appeal precludes bringing an action in the administrative courts . It follows that once an appellant challenges an administrative decision by way of a special appeal to the President of the Republic , he or she can no longer bring an action in the courts . Since an action in the courts offers better guarantees than a special appeal , the other party ( controinteressato ) can , within DATE of receiving notice of such an appeal , request that it be heard in the administrative courts .

A special appeal must be lodged within DATE of service , communication or knowledge of the decision being challenged . It must , within the same time period , be served on the authority which made the decision and be lodged with the relevant ministry ( or the authority which made the decision , which must then forward it to the relevant ministry ) .

The relevant ministry investigates the case and must complete its investigation within DATE of the expiry of the time allowed to the other party to submit their observations . When that time has expired , the appellant can ask the relevant ministry whether the appeal has been forwarded to the PERSON for an opinion , as is compulsory , and , if no reply or a negative reply is received , can himself file a copy of the appeal with the PERSON .

On a proposal by the appropriate minister , the President of the Republic makes a ruling by decree . An application can be made for review of that decree . An appeal could also be lodged with the administrative courts even if there is no express legal provision to that effect .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action against ORG ( PERSON bytové družstvo ) , of which she had formerly been a member , in LOC ORG ( at that time ORG , at present ORG súd ) . She challenged a decision of the defendant of DATE concerning her entitlement to a new flat and the procedure applied by the defendant in dealing with her appeal against it .

On DATE ORG held a hearing at which the applicant provided further particulars of her action in that she was seeking a ruling declaring that she had the right to the new flat .

On DATE ORG ruled that the applicant had a right to the new flat in question . The defendant challenged the judgment by an appeal ( odvolanie ) .

On DATE ORG ( at that time ORG , at present PERSON súd ) held a hearing of the appeal and invited the defendant to submit further evidence which the defendant did on DATE .

On DATE , following another hearing of the appeal held on DATE , ORG overturned the judgment of CARDINAL DATE and dismissed the action .

On DATE the applicant challenged the judgment of CARDINAL DATE by an appeal on points of law ( dovolanie ) .

On DATE the applicant ’s lawyer informed ORG that he was no longer representing her . As legal representation in appeals on points of law was mandatory , ORG invited the applicant to identify her new representative on DATE and , in the absence of a reply , again on DATE . The applicant finally replied on DATE . The appeal on points of law was then submitted to ORG ( Najvyšší súd ) for a determination .

On DATE ORG returned the casefile to ORG without a decision , on the ground that the power of attorney for the applicant ’s legal representation did not state expressly that it applied to proceedings on appeals on points of law as was required under the applicable procedural rules .

On DATE and repeatedly on DATE ORG requested that the applicant ’s lawyer correct the power of attorney , which he did on DATE .

On DATE ORG quashed the judgments of DATE and CARDINAL DATE , finding that the lower courts had determined the action in a manner in which it had never actually been formulated . As the action fell to be determined at first instance by ORG , it was remitted to it .

DATE and DATE ORG held CARDINAL hearings .

On DATE , following another hearing held on DATE , ORG dismissed the action . The applicant challenged the judgment by an appeal .

On DATE , following a hearing of the appeal held on DATE , ORG upheld the judgment of DATE .


The applicant , PERSON , is a GPE national , who was born in DATE . He was represented before the ORG by PERSON , a solicitor of ORG , an organisation based in GPE .

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

On DATE the applicant was arrested in a depot after he had unloaded a tanker lorry in which ecstasy tablets and amphetamine sulphate had been imported into GPE .

In DATE the applicant appeared before ORG to be tried on charges of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of drugs . The applicant accepted that he had unloaded the lorry . However , it was the applicant ’s case that he had no knowledge of the nature of the consignment and that he had been set up by someone called “ W.S. ” as a “ cut - out ” , i.e. a person put in place by someone in charge of an illegal operation to insulate himself from detection and arrest . As it transpired from the record of all the calls made from the applicant ’s mobile telephone , the applicant , while unloading the lorry and at other critical times , had repeatedly called PERSON ’s telephone number .

During the trial the prosecution made an ex parte application to the trial judge to withhold evidence . The judge looked at the material and endorsed the prosecution ’s view that the material was covered by public interest immunity . The defence were not told the category of the material which was the subject of the application and did not have the opportunity of making representations to the judge .

On DATE , the applicant ’s counsel made ex parte submissions to the judge concerning the relevance of material relating to PERSON to the defence ’s case . However , the judge did not accede to the defence ’s request for the disclosure of the material which had been withheld , nor to the disclosure of the category of the material , and further declined to make a ruling in open court as to why the applicant was not entitled to material relating to W.S. All the judge could tell the defence was that in cross - examination he would not allow them to ask questions relating to investigations concerning PERSON

On DATE the applicant was found guilty and given CARDINAL sentences of CARDINAL and CARDINAL years’ imprisonment to run concurrently . The applicant appealed relying , inter alia , on the non - disclosure of material concerning W.S. The applicant also submitted that the prosecution might have also withheld evidence concerning another witness , “ H ” .

A single judge gave the applicant leave to appeal against sentence and referred to ORG his application for leave to appeal against conviction .

DATE before examining the applicant ’s appeal , ORG examined ex parte all the material that was before the trial judge . It decided not to order any further disclosure .

ORG first judgment was delivered on DATE . It found that the applicant had been able to run his defence as he wished and had , in particular , been able to put before the jury the fact that PERSON had a criminal record and that the prosecution had suspicions about him . This , together with the applicant ’s own testimony , had enabled the jury to assess the extent , if any , of ORG involvement in the case . For these reasons , ORG rejected the applicant ’s ground of appeal concerning disclosure . The court did not find any merit in the applicant ’s other grounds of appeal and upheld his conviction . However , it reduced the first concurrent sentence from CARDINAL to CARDINAL years’ imprisonment .

On DATE ORG ( “ CCRC ” ) referred the applicant ’s case back to ORG on the ground that :

“ As a result of the [ ORG ’s ] enquires , the ORG has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the [ prosecution ] to the trial judge in the context of submissions made by the [ prosecution ] to the trial judge in the course of ex parte hearings . The [ CCRC ] considers that this failure was material to [ the applicant ’s ] defence and to his mitigation . ... ”

The precise nature of the failure of disclosure was expanded upon in a confidential annex to the ORG ’s report .

On DATE ORG quashed the applicant ’s conviction on both counts and quashed the order for prosecution costs . The court examined the confidential annex to the ORG ’s report in private . It held that :

“ ... the [ applicant ’s ] trial was materially unfair in the way the [ ORG ] describes . That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed . ”

ORG continued :

“ We have considered whether it is right that the ORG should elaborate on that conclusion by giving detailed reasons , by reference to the confidential material which has been put before the ORG , to explain why we have reached that conclusion . We are persuaded that the balance of competing public interest in this case falls on the side of not making the material public , and not making public the detailed reason ’s for the [ ORG ’s ] conclusion .

We have found that particular point a difficult one , and we have sought ... whether there is a halfway house in this case . We have , with some regret , reached the conclusion that there is not , and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public , and that exceptions to this should only occur in cases in which there is indeed an overriding public interest which so requires it . ”

As a result of ORG judgment , the applicant may now apply for compensation for his conviction and imprisonment under section CARDINAL of LAW DATE .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

On DATE the applicant 's husband filed a divorce petition with ORG ( PERSON ) .

On DATE the applicant filed a pleading . On DATE her husband requested the court to find that the applicant was responsible for the marital breakdown .

On DATE the court ordered the applicant 's husband to pay MONEY ( ORG ) in family maintenance pending trial .

The court held CARDINAL hearings on the following dates : CARDINAL DATE , CARDINAL DATE ; CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE ; CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE and CARDINAL DATE . It heard evidence from CARDINAL witnesses .

On DATE the court granted a divorce decree . It considered that both spouses had been at fault in respect of the breakdown of their marriage . The court further vested custody rights over their minor child with the applicant and obliged her husband to pay maintenance for the child .

On CARDINAL DATE the applicant filed an appeal against the above judgment . She claimed that her husband had been exclusively responsible for the failure of their marriage and that , therefore , divorce was inadmissible in law .

On DATE ORG ( FAC ) quashed the first - instance judgment and remitted the case to ORG .

On DATE the applicant filed a request for her maintenance claims to be secured . The court considered that further evidence regarding the financial situation of both parties should be obtained .

On DATE the court held a hearing . On DATE the court amended its decision of CARDINAL DATE concerning the family maintenance pending trial , increasing it to ORG . It dismissed the remainder of the applicant 's maintenance claims .

On DATE ORG ordered that evidence be obtained from experts in psychiatry , psychology and pedagogics . On DATE experts from ORG ( Rodzinny Ośrodek PERSON ) prepared their report .

Subsequently , the court held hearings on the following dates : CARDINAL DATE , CARDINAL DATE , CARDINAL DATE .

On DATE ORG pronounced divorce , finding that both spouses had been at fault in respect of the breakdown of their marriage .

On DATE the applicant filed an appeal with ORG . On CARDINAL DATE it upheld the contested judgment . On DATE the applicant applied to the court to grant her legal assistance and to exempt her from court fees in cassation proceedings . On DATE ORG dismissed her application .

On DATE the applicant filed a cassation appeal against the judgment of ORG of CARDINAL DATE . On DATE ORG ( Sąd Najwyższy ) held a hearing and on the same date it dismissed the applicant 's cassation appeal .


Preliminary objection rejected (out of time);Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

At the material time , the first applicant , Mr PERSON , was the responsible editor of the DATE review PERSON ! ( “ ORG ! ” ) , published in GPE . In the DATE issue of the review , an interview which the second applicant , Mr PERSON , had conducted with a NORP sociologist , PERSON , was published .

A translation of the relevant parts of the interview is as follows :

“ Q : How and to what extent will Demirel accept the ‘ NORP ORG ? Can his understanding of the ‘ ORG be deemed to represent ORG policy ?

A : NORP … The government is forced to accept certain facts now that there is armed resistance in GPE . ... Violence by the NORP forces could not stop the escalation and progress of the ORG [ Workers’ ORG ] ...

Q : ORG will the State shape its new official policy on GPE ? Which aspects of the official ideology will be changed and how will they be changed ? What effects can this have on the daily lives of the NORP people ?

A : … In GPE , the government and the ORG are CARDINAL very different things . The ORG functions through institutions and bodies , members of which are designated by appointment . These institutions and bodies represent the power of the ORG . The government , i.e. the political power , carries very little weight against the power of the ORG . That is why governments can be overthrown by the ORG authority so often . Official ideology can only be changed in the long term and the forces which are capable of changing it are non - governmental political and social forces and their struggle . The essence of the ideas and action of the ORG , for example , is such as can change the official ideology , reduce the influence of the appointed bodies of GPE ’s political scene , and increase the weight of parliaments elected by the people . In my opinion , de facto , the influence of the NORP and , in particular , that of the ORG , will grow further . The influence of the ORG in both the NORP and the NORP societies will spread and deepen . And , as that influence grows , more serious steps will be taken by governments in their policies towards recognising the ‘ NORP ORG . It is evident that the ORG will try to obstruct the government in that process and will try to distort certain ideas and policies . And it is also manifest that the government will be able to survive so long as it can resist the power of the ORG and control the appointed institutions and bodies , i.e. so long as it has real power .

These changes will be reflected in the DATE lives of the NORP . Investigations and research will develop in fields such as the NORP language , history and folklore . NORP culture will be revived . The specificity of a NORP society will be emphasised more amongst the NORP masses . National awareness and desire for liberation will become stronger and will spread further . The idea and feelings for independence will develop .

Q : It is now observed that NORP who , until now , would never have said ‘ I am NORP and I am engaging in politics for my present life and for my future’ are now clearly beginning ‘ to get into politics for their own interests’ throughout GPE and GPE . What sort of developments have brought about this situation ? Do NORP need a political subject in the legal sphere ? If so , what form should it take ?

A : Without any doubt , the most important cause of these developments has been the armed combat which the ORG has been waging for DATE . The guerrilla warfare has brought about major social and political changes in traditional NORP society . Traditional values are in turmoil . There has been very widespread support amongst the people for NORP guerrilla fighters ever since DATE . National awareness is now growing in NORP society and this process is spreading rapidly . And we see that , within this process , the political establishment has been used for NORP interests , for the move towards autonomy and independence . NORP , who have always been engaged in politics for others and in order to serve other nations , are now engaged in politics in order to serve the NORP people . Healthy national awareness is now developing in response to NORP racism and colonialism . It would no doubt be over - simplifying to say that all this began after the onset of NORP guerrilla warfare on DATE . This process has roots that go further back into the past but what has been decisive is the new process launched by the ORG . ... Who is illegal in GPE ? The guerrillas or the special team of the NORP armed forces ? ...

Q : What should be done to counteract the wave of chauvinist NORP nationalism encouraged by the right - wing press and the ORG [ NORP Workers’ Party ] ? Is there a possibility of a confrontation between the NORP and NORP peoples ? How could that be prevented ?

A : … NORP are dying for their nation . What are the NORP dying for ? What are they doing in GPE ?

Q : It has been under discussion for some time that the ORG hegemony in GPE has reached a stage where one can now talk of a ‘ double power’ . Öcalan has mentioned in his writings an orientation towards the ‘ formation of a Government - State’ in the LOC region . Are there any signs of what the future interventions of the ORG will be in GPE and in NORP politics ?

A : … ORG has already withdrawn its soldiers and evacuated police stations in some regions such as Botan . ... This could be perceived as the beginning of the formation of a State ... ”

In an indictment dated DATE the public prosecutor at ORG ( GPE PERSON ) charged the applicants with having disseminated propaganda against the indivisibility of the ORG by publishing the above interview . The charges were brought under section CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter “ the DATE LAW see paragraph DATE below ) .

In the proceedings before ORG , the applicants denied the charges . They pleaded that the incriminated interview was a mere transcript of Dr. PERSON ’s statements . They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in GPE .

NORP In a judgment dated CARDINAL DATE ORG found the applicants guilty of offences under LAW . The first applicant was sentenced under the second paragraph of CARDINAL months’ imprisonment and a fine of MONEY ( TRL ) . The second applicant was sentenced under the first paragraph of section DATE and CARDINAL months’ imprisonment and a fine of GPE CARDINAL .

In its reasoning , the court relied on certain extracts from the interviewee ’s statements as published . It held that the following phrases amounted to propaganda against the indivisibility of the ORG : “ ... the government is forced to accept certain facts now that there is armed resistance in GPE ... ” ; “ ... Violence by the NORP forces could not stop the escalation and progress of the NORP ... ” ; “ ... The essence of the ideas and action of the ORG ... can change the official ideology ... ” ; “ ... the influence of the NORP and , in particular , that of the ORG , will grow further . The influence of the ORG in both the NORP and the NORP societies will spread and deepen ... ” ; “ ... National awareness and desire for liberation will become stronger and will spread further . The idea and feelings for independence will develop ... ” ; “ ... the most important cause of these developments has been the armed combat which the ORG has been waging for DATE ... ” ; “ ... Who is illegal in GPE ? The guerrillas or the special team of the NORP armed forces ? ... ” ; “ ... NORP are dying for their nation . What are the NORP dying for ? What are they doing in GPE ? ... ” ; “ ... ORG has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ... ” ; “ ... This could be perceived as the beginning of the formation of a State ... ” .

The applicants appealed against their conviction . On DATE ORG dismissed the appeals . It upheld ORG assessment of the evidence and its reasons for rejecting the applicants’ defence . The judgment was served on the applicants on DATE .

Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraphs CARDINAL below ) , ORG ex officio re - examined the applicants’ cases .

On DATE the court sentenced the first applicant to CARDINAL months’ imprisonment and a fine of GPE CARDINAL,CARDINAL,CARDINAL and the second applicant to DATE , DATE and CARDINAL days’ imprisonment and a fine of GPE DATE . The court ordered that the execution of the sentences be suspended on probation .

The applicants appealed against these sentences . On DATE ORG quashed ORG judgment . Concerning PERSON , ORG pointed out that he had been prosecuted in his capacity as responsible editor and , therefore , the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful . Concerning PERSON , ORG found that his lawyer had not been properly notified about the date of the hearing before ORG .

On DATE ORG held a hearing . Having regard to the provisions of Law no . DATE which had entered into force on DATE , the court decided to defer the imposition of a final sentence on PERSON , pursuant to section CARDINAL of that PERSON . This decision remained subject to the conditions laid down under LAW ( see paragraph CARDINAL below ) . The court maintained Mr PERSON ’s conviction and the sentence imposed on him , the execution of which was , however , suspended in the light of his good conduct during the trial .

The relevant provisions of LAW DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

( before amendment by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ ] . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

( as amended by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL [ ] . ”

“ Persons convicted of the offences contemplated in the present PERSON who ... have been punished with a custodial sentence shall be granted automatic parole when they have served DATE of their sentence , provided they have been of good conduct .

The first and second paragraphs of LAW [ ] … of LAW ( Law no . CARDINAL ) shall not apply to the convicted persons mentioned above . ”

The following amendments were made to LAW DATE after the enactment of PERSON no . CARDINAL of DATE :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL [ ] and CARDINAL [ ] of PERSON no . CARDINAL of DATE . ”

The following provisions are relevant to sentences in respect of offences under LAW :

“ The execution of sentences passed on those who were convicted under LAW ( Law no . CARDINAL ) or other laws as editors for offences committed before DATE shall be deferred .

The provision in the first paragraph shall also apply to editors who are already serving their sentences .

The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought , or where a preliminary investigation has been commenced but criminal proceedings have not been instituted , or where the final judicial investigation has been commenced but judgment has not yet been delivered , or where the judgment has still not become final . ”

“ If an editor who has benefited under the provisions of the first paragraph of section CARDINAL is convicted as an editor for committing an intentional offence within DATE of the date of deferment , he must serve the entirety of the suspended sentence .

Where there has been a deferment , criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within DATE of the date of deferment .

Any conviction as an editor for an offence committed before DATE shall be deemed a nullity if the aforesaid period of DATE without any further conviction for an intentional offence . Similarly , if no criminal proceedings have been instituted , it shall no longer be possible to bring any , and , if any have been instituted , they shall be discontinued . ”

The Execution of Sentences Act provides , inter alia :

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits .

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

“ … persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served CARDINAL of their sentence , provided they have been of good conduct ... ”

The Code of Criminal Procedure contains the following provisions :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness [ ] . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where CARDINAL of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of several decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) , or of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of PERSON no . PERSON – see paragraph CARDINAL above ) . In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor ’s decision included such considerations as the fact that the proceedings were time - barred , that some of the constituent elements of the offence could not be made out or that there was insufficient evidence . Other grounds included the fact that the publications in issue had not been distributed , that there had been no unlawful intent , that no offence had been committed or that those responsible could not be identified .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the above - mentioned offences had been found not guilty . These were the following judgments : DATE ( no . CARDINAL ) and DATE ( no . CARDINAL ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . DATE ) , DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) .

As regards more particularly proceedings against authors of works dealing with the NORP problem , ORG in these cases reached their decisions on the ground that there had been no dissemination of “ propaganda ” , CARDINAL of the constituent elements of the offence , or on account of the objective nature of the words used .


CASE OF TARNOPOLSKAYA AND OTHERS v. RUSSIA

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni

The applicants ' names and other details are indicated in the appended table .

The applicants emigrated to GPE from the GPE in DATE and obtained NORP nationality . Before immigration they had been receiving old - age pensions from the NORP authorities . However , once the applicants left the GPE , the payments were discontinued in accordance with the GPE pension law applicable at the material time . As they left the GPE prior to its collapse , they were not entitled to a pension under the new NORP legislation .

NORP In DATE the applicants unsuccessfully applied to the regional departments of ORG of GPE ( “ the Pension Fund ” ) for the payment of their pensions to be restored . On unspecified dates they brought civil proceedings against ORG requesting restoration of the payment of their pensions .

By the final judgments listed in the appended table the applicants ' claims were allowed and ORG was ordered to restore pension payments .

In their judgments the courts found , inter alia , that although the pensions had initially been awarded in accordance with the GPE legislation , the latter was also applicable in GPE . The courts interpreted the relevant legal provisions in the light of the Constitutional Court judgment of DATE , considering that the pension payments should be restored regardless of the date or place of emigration from GPE .

The Pension Fund restored the payments in CARDINAL cases ( see § QUANTITY below ) .

On DATE ORG , in a letter numbered ORG , asked ORG of GPE to provide an explanation of the issue . It based the request on the fact that courts of different regions had different attitudes towards the problem . Thus , it noted that in GPE , LOC and in most of the other regions the courts rejected claims for payment of pensions to emigrant pensioners whose pensions had been awarded in accordance with the legislation of the GPE . At the same time , the courts in GPE , in GPE , in LOC and in LOC awarded such payment .

Subsequently the Pension Fund , as a party to the proceedings in the present case , lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants ' favour . The PERSON of the regional courts granted the requests , quashed the judgments and dismissed the applicants ' claims .

The PERSON found that according to the relevant GPE legislation , under which the pensions had been awarded , there was no possibility to continue the payments to the applicants , as they had left the country . According to their interpretation of the Ruling of the Constitutional Court of DATE , the payments were to be restored only if the pensions had been awarded in accordance with the legislation of GPE , not the GPE . The PERSON accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants .

The relevant data on the PERSON decisions is listed below .

For the relevant provisions on the supervisory - review proceedings contained in LAW see , among many other authorities , the ORG 's judgment in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL et seq . , § DATE , CARDINAL DATE ) .

According to the law “ On LAW GPE ” , no . CARDINAL of DATE , ORG of GPE is a supreme judicial body performing judicial supervision over the activities of all the courts of general jurisdiction and , inter alia , providing explanations on the issues of judicial practices .

The relevant provisions on the payment of pensions to those who left the GPE and GPE are as follows .

According to the Provisions regulating the award and payment of state pensions , which were approved by ORG on DATE , GPE citizens living abroad shall be paid their pensions unless they left the GPE for permanent residence or for capitalist countries .

The law of CARDINAL DATE “ On ORG of the GPE on the Territory of the GPE ” provided that the GPE legal acts operated directly on the territory of GPE unless they contradicted the GPE legislation .

According to the Order of ORG DATE “ On ORG ” , the judicial norms of the former GPE were to be applied in GPE prior to adoption of the relevant legislation of GPE .

According to the decree of ORG of GPE no . PERSON of DATE , ORG was allowed to pay pensions awarded under the GPE legislation to pensioners who had been receiving such pensions in GPE and had left for permanent residence abroad .

The law “ On Pension Payments to Persons Leaving GPE ” no . ORG of DATE provided that upon a written request by a pensioner leaving GPE the pension should be transferred to him or her abroad .

On DATE ORG ruled ( in Decision no . CARDINALP ) that law no . CARDINAL-I of DATE , applied at the material time , contradicted the LAW in the part concerning the refusal to pay pensions to persons who had left GPE DATE .

According to the law “ On Pension Payments to Persons Leaving GPE ” no . CARDINAL-FZ of DATE , pensions were to be paid to persons who had acquired the right to receive a pension in accordance with the legislation of GPE at the time they left the country .

The new law “ On State Pensions in the NORP Federation ” no . CARDINAL of DATE reiterated that upon a written request by a pensioner leaving GPE the pension should be paid in GPE by power of attorney or transferred to him or her abroad ( DATE ) . It also provided that payments that had not been received in time because of the fault of the bodies responsible for the pension award or payment should be paid for the entire previous period ( LAW .

On DATE in Ruling no . DATE ORG of GPE found that no pension payments should be made if they were initially awarded in accordance with GPE , not GPE , legislation . It noted , in particular , that “ those who had been entitled to pension in accordance with the GPE legislation [ ... ] and had left GPE for permanent residence abroad have lost their title to the pension ” .