Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested on suspicion of theft and abuse of power .

On DATE the applicant was placed in the Simferopol Temporary Detention Centre No . CARDINAL ( the “ GPE ” ) .

On DATE the applicant was released on bail subject to an undertaking not to abscond . According to the applicant , he was released because of his poor state of health .

On DATE the applicant was hospitalised . He was found to suffer from second degree hypertension , hyperpiesia , and other vascular diseases , and underwent medical treatment until DATE .

On DATE the prosecutors decided to arrest the applicant on the same charges of theft and abuse of power . On DATE the applicant was placed in the Simferopol SIZO .

On DATE the applicant was examined by a paramedic , a general practitioner and a dermatologist , who all noted in the medical records , submitted by the Government , that the applicant did not have complaints about his state of health . The paramedic noted that the applicant suffered from coronary heart disease and that he had to be further examined by a doctor . The general practitioner noted that the applicant suffered from coronary heart disease and angina of effort . The dermatologist noted that the applicant was healthy .

According to the same records , on DATE the applicant was further examined by a general practitioner and a dermatologist . They both noted that the applicant did not have complaints about his state of health . On DATE , DATE , and DATE the applicant underwent CARDINAL X - ray examinations , none of which revealed any pathological changes in his heart or lungs .

In his letter of DATE , the applicant requested the President of the Zaliznodorozhnyy ORG of PERSON to release him on bail , alleging unlawfulness of his detention . The applicant maintained that he suffered from vascular diseases , stomach ulcer , and adenoma of the prostate , and that he required urgent medical treatment , which he could not receive in GPE . On DATE , CARDINAL DATE the applicant made similar submissions to ORG and the President of ORG of PERSON , respectively .

On DATE the applicant 's lawyer challenged before the ORG the decision of DATE . On DATE the court refused to consider the lawyer 's complaint on the ground that the criminal case against the applicant had been submitted to ORG for consideration . ORG further held that its decision was final and was not subject to appeal .

According to the Government , on DATE the applicant requested medical aid and was immediately examined by a doctor , who found that the applicant suffered from a severe respiratory tract infection . The applicant received the necessary treatment , so that on CARDINAL DATE the medical examination did not reveal any symptoms of such illness .

On DATE the applicant was released from the Simferopol SIZO .

On DATE the applicant was placed in a hospital , where he underwent an abdominal surgery . According to the medical records of DATE , submitted by the applicant , he suffered from several vascular and stomach diseases .

The applicant stated that he had been detained in the cells of QUANTITY , which had been occupied by CARDINAL inmates at the same time , some of whom had suffered from tuberculosis and AIDS . The applicant had had to take turns to sleep because there had been not enough beds . The natural light or fresh air virtually did not go through because of the shutters on the windows and the windows ' size , while the electric light was very poor and it was on all the time . The cells were dirty and infested with pests , cockroaches and bedbugs . There was no access to hot water in the cells and cold water did not reach the cells higher than those on the forth floor . There was no heating in the cells .

The applicant maintained that he had had DATE walks which were limited to TIME outside in an area not larger than a cell . The area was not protected from direct sunlight . The applicant also stated that he had not been able to purchase medicines or enough food from outside of the GPE , while the quality of food provided in the GPE had been unsatisfactory .

The applicant further maintained that he had spent TIME in the special cells for detainees in transit , which measured QUANTITY , together with CARDINAL other persons , the majority of whom had been smoking . These cells were deprived of natural light and fresh air .

The Government submitted that from DATE until DATE the applicant was detained together with CARDINAL other detainees in the cell no . CARDINAL , which measured QUANTITY ; from DATE until CARDINAL DATE – in the cell no . CARDINAL of QUANTITY together with CARDINAL other detainees ; and from DATE until CARDINAL DATE in the cell no . CARDINAL of QUANTITY occupied by CARDINAL persons . The Government acknowledged the problem of overcrowding in the Simferopol SIZO at the material time . They however maintained that the cells were equipped with the necessary number of beds , lavatories , tables , chairs , electric light , etc . There were windows which allowed access of daylight and fresh air . In general , the conditions of the applicant 's detention corresponded to the relevant hygiene and sanitation standards . The Government submitted photographs of several cells in the Simferopol SIZO which had been taken in DATE .

The Government further maintained that the applicant had had DATE walks for TIME and an TIME ' non - stop sleep DATE .

On DATE ORG of PERSON found the applicant guilty of aggravated theft and abuse of power , and sentenced him to DATE imprisonment under a special high security regime ( “ посиленого режиму ” ) . The court also ordered confiscation of the applicant 's property and deprived him of the right to occupy positions involving administrative functions for DATE .

On DATE ORG of GPE upheld the decision of DATE .

On DATE the Governor of the Simferopol SIZO , upon the applicant 's motion , allowed him to work as an employee at the maintenance department of the Simferopol SIZO , while serving his sentence . According to the records submitted by the Government , the applicant 's entire remuneration for his work at the Simferopol SIZO had been used to cover his expenses for food and other everyday necessities .

On an unspecified date the President of ORG of GPE lodged a request with the ORG of that court , seeking initiation of supervisory review of the case .

On DATE the ORG allowed the request and partly changed the decisions of DATE and CARDINAL DATE . It found the applicant guilty of abuse of power and sentenced him to DATE imprisonment . The ORG also deprived him of the right to occupy positions involving administrative functions for DATE . It further released the applicant from serving his prison sentence on the ground that he suffered from vascular diseases and that he was not dangerous to the society .

Under LAW and DATE , the LAW is directly applicable . There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of LAW .

Under LAW and CARDINAL , everyone is guaranteed the right to challenge the decisions , actions or omissions of the ORG authorities , local self - government bodies , officials and officers of a court of law . After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which GPE is a member or participant .

Article CARDINAL § CARDINAL provides that a convicted person enjoys all human and citizens ' rights , subject only to restrictions determined by law and established by a court ruling .

According to LAW , pre - trial detention is a preventive measure in respect of an accused , a defendant or a person suspected of having committed a crime punishable with imprisonment , or a convicted person whose sentence has not yet become final . Such detention shall be in compliance with LAW , other international norms and standards of treatment of detainees .

Under LAW , convicted persons , upon their written motion , may be granted leave to stay in a temporary detention centre in order to carry out logistics related work .

Article CARDINAL provides inter alia that persons placed in detention shall be searched , medically checked , and photographed . Their fingerprints must be taken . They shall be informed about their rights and obligations , as well as about the requirements of the detention regime . Detainees ' personal belongings and correspondence must be checked . They are not allowed to keep money or valuables . The money shall be transferred to their bank accounts , while their valuables shall be deposited in the detention centre .

Pursuant to LAW , detainees have the following rights :

to be defended in accordance with the rules of criminal procedure law ;

to familiarize themselves with the rules of detention ;

to take a TIME DATE walk ;

to receive twice a month a parcel weighing QUANTITY and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery ;

to buy foodstuffs and toiletries to the value of DATE statutory minimum wage , paying by written order , as well as unlimited amounts of stationery , newspapers and books ;

to use their own clothing and footwear and to keep documents and notes related to their criminal cases ;

to use TV sets received from relatives or other persons and board games , newspapers and books borrowed from the library of the detention centre and bought at shops ;

to perform individually religious rituals and use religious literature and objects made of semi - precious materials pertaining to their beliefs , provided that this neither leads to a breach of the internal rules of the detention centre nor restricts the rights of other persons ;

to sleep TIME a night , during which they shall not be required to participate in proceedings or to do anything else , except in cases of extreme emergency ;

to lodge complaints and petitions and send letters to the ORG authorities and officials in accordance with the procedure prescribed by LAW .

Under LAW , detainees shall be provided with everyday conditions that meet sanitary and hygiene requirements . The cell area for CARDINAL person may not be QUANTITY . Detainees are to be supplied with meals , individual sleeping - places , bedclothes and other types of everyday provisions free of charge and according to the norms laid down by ORG . In case of need , detainees shall be supplied with clothes and footwear of a standard form . There shall be medical assistance and preventive treatment organised in accordance with the health care legislation and the rules developed by ORG , ORG , and ORG .

Article CARDINAL provides that detainees , upon their consent , may be engaged in work , which shall be remunerated in accordance with the wages existing in public economy . There may be contributions made in respect of writs of execution out of the detainees ' earnings . Detainees may also be engaged , for no longer than TIME a day and when they do not take part in the investigative proceedings , in a non - remunerated work necessary for maintaining proper conditions of their detention .

Under LAW , the prosecutors shall supervise observance of laws in detention facilities . The administration of the detention centres must comply with the resolutions and instructions issued by the prosecutors in respect of conditions of detention .

According to LAW sentenced to DATE imprisonment may , in exceptional cases and upon their written motion , stay in a temporary detention centre in order to carry out logistics related work .

The visit of the ORG delegation to GPE took place from DATE , in the course of which the delegation inspected inter alia FAC . CARDINAL in PERSON . The ORG recorded “ situations of grave concern in terms of conditions of detention ” and those at the PERSON were “ particularly telling ” . It was noted that substantial overcrowding was one of the major deficiencies at the SIZOs . The ORG stressed that the NORP authorities should “ increase the current standard of CARDINAL m² of living space per prisoner to CARDINAL m² ” ( paragraph CARDINAL ) .

NORP The relevant parts of the ORG report read as follows ( emphasis added by the ORG ) :

“ DATE . Simferopol GPE No . CARDINAL , located within the town , was built at DATE , and had a capacity of CARDINAL persons in CARDINAL cells . At the time of the visit , it accommodated CARDINAL persons , of which CARDINAL women and CARDINAL minors . While the majority of the prison population was on remand , there were CARDINAL sentenced prisoners , including CARDINAL sentenced to life imprisonment .

Prisoners were held in CARDINAL blocks , CARDINAL dating back to DATE and the other of more recent design , built in DATE .

The detention areas reserved for women and juveniles ( both male and female ) offered the best material conditions , in terms of natural light , artificial lighting , cleanliness and furniture . In particular , the ORG welcomes the fact that the shutters covering the cell windows had been removed shortly before the visit , thereby providing not only adequate access to natural light , but also much better ventilation .

Major deficiencies nevertheless remained . In particular , the occupancy rate was excessive in many cells ( for example , CARDINAL women in an area of QUANTITY m² , CARDINAL in an area of CARDINAL m² ) and , in addition , not all women had their own beds .

The remainder of the prison population ( adult men , most of them on remand ) were subjected to appalling material conditions . These inmates were crammed into severely overcrowded dormitories ( for example , CARDINAL prisoners in an area of CARDINAL m² and up to CARDINAL in an area of CARDINAL m² ) , with virtually no natural light , often poor artificial lighting and inefficient ventilation . The air was so stifling that most of the inmates remained in their underclothes . Furthermore , the establishment was unable to provide each prisoner with a bed ; consequently , in many dormitories , inmates had to take turns to sleep .

While some dormitories had been freshly painted , many others were dirty and infested with cockroaches and other vermin . In - cell toilets ( as a rule only partially partitioned ) were in an extremely poor state .

The adult men had also greater difficulty maintaining satisfactory personal hygiene , since basic products were severely rationed ( for example , CARDINAL g of soap per month as against CARDINAL g for women and CARDINAL g for minors ) . Further , they were not issued with toilet paper , which was restricted to women and minors . In practice , they were largely dependent on their families in this respect .

In addition , as at ORG , arrangements for cleaning clothes were unsatisfactory : all prisoners were compelled to wash them in cold water in their cells .

As regards activities , efforts were made to offer minors some educational activities ( secondary education ) , particularly with the aid of local authorities , which provided school textbooks and volunteer teachers who visited the GPE in their free time . Further , the staff assigned to minors performed work of a social nature with them , which included teaching them behavioural norms and the rules of day - to - day living . Apart from this , minors had no other form of organised purposeful activities ( such as sporting and cultural activities ) .

The rest of the prison population had no real form of organised activities . Apart from CARDINAL inmates assigned to prison chores , prisoners had no work or sporting or recreational activities . In practice , the only time they spent out of their cells was for TIME open air exercise per day , taken under conditions which did not allow real exercise ( the exercise areas ranged from CARDINAL m² to a maximum of CARDINAL m² ) .

To sum up , the majority of prisoners were locked up for almost the whole of DATE in severely overcrowded and insalubrious cells , without being offered any activities worthy of the name . Under such conditions , to be incarcerated in PERSON No . CARDINAL could only be a stultifying experience .

Lasting improvements to the situation at GPE No . CARDINAL will inevitably take time . This will very largely depend on a substantial reduction of overcrowding . Once more , the delegation 's findings demonstrate the importance and urgency of implementing the recommendation made in paragraph CARDINAL above .

Nevertheless , measures can and must be taken without delay to palliate certain of the most serious deficiencies observed .

As regards material conditions , the ORG recommends that steps be taken :

- to provide all inmates ( men and women ) with adequate amounts of personal hygiene products and cleaning products for their dormitories , and adequate facilities for cleaning their clothes ;

- to ensure that each inmate has a bed or sleeping place ;

- to ensure that material conditions throughout both detention blocks reach the standards prevailing in the women 's and minors ' sections as soon as possible , in terms of natural light ( by removing the shutters on the windows ) , artificial lighting , ventilation and cleanliness .

As regards activities , the ORG recommends that high priority be given to the development of activity programmes for minors to enable them to enjoy a full programme of educational , recreational and other purposeful activities designed to bring out their potential for social ( re)integration ; physical education should constitute an important part of that programme .

As regards adult inmates , the ORG recommends that ways of providing them with a minimum of recreational and sporting activities be explored as of now . It is axiomatic that as overcrowding is reduced , fuller programmes of activities must be introduced . In this regard , the ORG draws attention to the long - term objectives for activities set out in CARDINAL and CARDINAL respectively of the reports on DATE visits , which apply to all the GPE 's in the country .

Lastly , the ORG recommends that the design of the exercise yards be reviewed with a view to enlarging them . ”

As regards medical assistance offered to detainees at the Simferopol GPE , the ORG found as follows :

“ ORG . The DATE visit again highlighted the extreme inadequacy of the arrangements for the supply of appropriate medicines ( for example , Colony No . CARDINAL had no medicines in stock at the time of the visit , while GPE No . CARDINAL did not have a sufficient amount or variety of medicines and none for the treatment of tuberculosis ) . Despite the contributions made by ORG out of its own budget , prisons depended mainly on the humanitarian aid they could secure and on prisoners ' families .

As the ORG has repeatedly emphasised , this solution is not satisfactory , and is intolerable where the treatment of certain diseases such as tuberculosis is concerned . ORG must point out yet again that it is the responsibility of the ORG to ensure that , irrespective of the prevailing economic circumstances , persons in its custody have access to basic elements of health - care , including the medicines required by their state of health ...

Simferopol GPE No . CARDINAL had provision for CARDINAL full - time medical doctors ( general practitioners and specialists in pneumology , psychiatry , gynaecology and dermatology , as well as a dentist ) . However , CARDINAL general practitioner post was vacant . Moreover , the gynaecologist was an outside consultant and many women had no access to this specialist because they were unable to pay for the consultations . Such a situation is not acceptable . As regards feldshers , there were CARDINAL posts , of which CARDINAL were filled .

Such a team can hardly be deemed sufficient to provide adequate health - care to CARDINAL prisoners , in particular as regards the number of feldshers . The ORG recommends that the vacant doctor 's and feldshers ' posts be filled as soon as possible , and that the question of women 's access to gynaecological care be immediately reviewed .

The examination / consultation rooms were modestly equipped , but clean . As regards the supply of medicines , reference should be made to the recommendation in paragraph ORG ...

Medical screening of newly arrived prisoners was inadequate in several of the establishments visited . It was a perfunctory medical check confined , at best , to weighing the prisoner and measuring his blood pressure ; moreover , at the Simferopol SIZO , this task was left to the feldsher alone , who consulted a doctor only if this was expressly requested by the prisoner .

Every newly - arrived prisoner should be properly interviewed and physically examined by a medical doctor as soon as possible after his / her arrival ; save for in exceptional circumstances that interview / examination should be carried out on DATE of admission , especially in so far as remand establishments are concerned . Such medical screening on admission could also be performed by a feldsher reporting to the doctor . The ORG recommends that steps be taken to ensure that this is the case in all penitentiary establishments .

As regards the recording of injuries observed on prisoners , reference should be made to the recommendations made in paragraph CARDINAL above and in paragraph CARDINAL of the report on its DATE visit .

In CARDINAL of the establishments visited ( PERSON and ORG . CARDINAL ) , neither the medical examinations on arrival nor those performed during detention were confidential , since prison staff attended the consultations . The ORG recommends that all medical examinations of prisoners ( whether on arrival or at a later stage and irrespective of the category of prisoner ) be conducted out of hearing and - unless the doctor concerned requests otherwise in a particular case - out of the sight of prison officers ; the same rule should apply during treatment provided to prisoners .

The DATE Report also contains the findings of the ORG concerning the conditions in which detainees were being transferred from CARDINAL place of detention to another :

“ CARDINAL . Concerning road transport of prisoners , the delegation inspected CARDINAL ORG vans in GPE . Each vehicle had collective compartments and an individual compartment . The individual compartments were as small as CARDINAL m² ; in paragraph CARDINAL of the report on its DATE visit , the ORG has already recommended that the practice of placing prisoners in compartments of this size cease . Conditions in the vehicle were also similar in other respects to those described in the aforementioned paragraph of the report on the DATE visit ( poor artificial lighting , inadequate ventilation ) .

Concerning rail transport , the delegation examined the facilities in CARDINAL of the special carriages used for transporting prisoners . It had compartments measuring CARDINAL and CARDINAL m² , with folding benches . The authorised capacity in the smaller compartments was CARDINAL persons for journeys lasting not TIME , and CARDINAL persons for longer journeys . In the larger CARDINAL ORG compartments , CARDINAL persons could be accommodated for short distances and CARDINAL for long distances . The compartments had some access to natural light ; however , ventilation was poor . The toilets for prisoners were in a disgusting state , clogged with excrement , despite the fact that prisoners were due to board TIME for a long journey .

There were no arrangements to provide prisoners with food , even over long distances ; as for drinking water , only a small container was provided to supply the prisoners throughout the journey .

The manner in which prisoners are transported , particularly by train , is unacceptable , having regard inter alia to the material conditions and possible duration of travel .

The ORG recommends that conditions of prisoners ' transport in GPE be reviewed in the light of the foregoing remarks . As an immediate measure , it recommends that the NORP authorities take steps to :

- significantly reduce the maximum number of prisoners per compartment in a railway carriage : CARDINAL m² compartments should never CARDINAL persons , and CARDINAL m² compartments never CARDINAL persons ;

- ensure that during rail transport , prisoners are supplied with drinking water and that for long journeys , the necessary arrangements are made for them to be properly fed ;

- no longer use CARDINAL m² compartments in vans for transporting prisoners . ”


The applicant , Mr PERSON , is a GPE national , who was born in DATE and lives in 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 .

The applicant is an actor and at the relevant time starred in “ GPE 's Burning ” , a popular NORP drama series . In or DATE , M , a journalist for a tabloid newspaper called “ News of the World ” , received a telephone call from an informant stating that the applicant had been supplying drugs in ' show business ' circles . M 's assistant approached the applicant 's agent to offer the applicant employment as a celebrity guest at the opening of a TIME - club in GPE .

A meeting was arranged at ORG on DATE and audio and video surveillance equipment was placed in the hotel room in order to record events . M posed as a sheikh with a number of other newspaper staff posing as his entourage and the plan was to steer the conversation towards the possibility of the applicant supplying drugs to the sheikh . During the meeting , M raised the topic of drugs and extensive conversation ensued about cocaine use . M then said that he required cocaine for a party in GPE and the applicant stated that he could supply the cocaine . He reconfirmed this offer several times . M 's assistant , posing as the sheikh 's personal assistant , asked the applicant whether he could supply cannabis for her that TIME . The applicant responded affirmatively and stated that he could go and get a sample . The party then went to dinner where the conversation was not recorded .

According to M , the applicant used M 's mobile telephone to arrange to collect samples of cocaine and cannabis . The applicant states that he had difficulty in obtaining the drugs and first asked his agent and then a friend . He finally located the drugs through someone that his friend knew . The applicant 's agent later gave evidence that the applicant had telephoned him during dinner in an excited state saying that the sheikh wanted him to get some cocaine . The applicant 's agent asked the applicant if he knew what he was doing and made it clear that he would not get involved . The applicant got angry and stated that he would arrange it himself . M gave the applicant GBP CARDINAL for the samples and the applicant and his friend went to collect the drugs from the dealer with a car and driver provided by PERSON applicant then returned to the hotel and gave the drugs to PERSON left without any arrangement being made for a further meeting or further supply of drugs .

On DATE a lengthy article by M appeared in the ' News of the World ' under the front page headline of “ GPE 's ORG is Cocaine Dealer ” . The article detailed the events of DATE and was largely based on the recorded material . At the end of the article , M offered to make the material available to the police . M had previously carried out operations of this type before and later stated ( during the criminal proceedings described below ) that his actions had led to CARDINAL successful criminal convictions .

The police subsequently took over the investigative material from the newspaper and arrested the applicant on DATE . The police took witness statements and analysed the drugs provided but relied on the evidence collected by the newspaper . The applicant admitted that he was formerly a cocaine user but stated that he no longer used the drug . He did not have any prior criminal record . On DATE the applicant was charged with CARDINAL count of supplying a Class A controlled drug , CARDINAL count of supplying a Class B controlled drug and CARDINAL count of offering to supply a Class A controlled drug ( the offer to provide cocaine for the supposed sheikh 's party ) . M refused from the outset to disclose the identity of his informant to the prosecution or the court relying on section CARDINAL of the Contempt of Court Act DATE which provides , as relevant , that the court can not require the disclosure of the source of information in a publication unless the interests of justice require .

Before the trial began , the applicant applied under section CARDINAL of ORG ) DATE for the exclusion of the evidence obtained by M on the grounds that it had been obtained by entrapment and therefore its admission would adversely affect the fairness of the trial . Following a voire dire , the trial judge refused the application on DATE on the grounds that the applicant was not entrapped since he volunteered , offered and agreed to supply drugs without being subject to pressure . Further , even if the applicant had been entrapped , that could not constitute a defence in LANGUAGE law and the admission of the evidence would not adversely affect the fairness of the proceedings under the terms of section CARDINAL of PACE .

Following the ruling of CARDINAL DATE , the applicant pleaded guilty to all CARDINAL charges . However , he later changed his plea to not guilty and a trial was held from DATE to CARDINAL DATE . The applicant requested the prosecution to disclose any material in its possession regarding ORG operation and the original informant , but no further disclosure was made . The applicant then made an oral application for an order requiring M to disclose the identity of his informant on the basis that this knowledge was necessary for the defence to be able to put the best case forward for the exclusion of prosecution evidence according to section DATE of PACE . The applicant believed that the informant may have been someone with a personal grudge against the applicant and therefore the motive for the exposé could be called into question . The trial judge ruled that it was not relevant or necessary for the identity of the informant to be disclosed on the grounds that there was agreed evidence of the meeting between the applicant and M and that the informant had played no further role in events after the initial telephone conversation with PERSON trial judge therefore concluded that the non - disclosure of the identity of the informant did not affect the fairness of the trial as a whole .

On DATE the applicant was convicted of supplying a Class A and a Class B controlled drug but was acquitted of the third charge of offering to supply . On DATE the applicant was sentenced to DATE imprisonment on each count , the sentences to run concurrently . A confiscation order was also made for GBP CARDINAL and the applicant was ordered to pay GBP MONEY towards the costs of the prosecution .

The applicant applied for leave to appeal on the basis that the trial judge erred in refusing to order the disclosure of the identity of M 's informant and in refusing to exclude the prosecution evidence according to common law or section CARDINAL of PACE . The application for leave to appeal was refused by a single judge of ORG but his renewed leave application was granted by the full ORG on CARDINAL DATE after an oral hearing .

ORG dismissed the applicant 's appeal on DATE on the grounds that the trial judge had not erred in the CARDINAL rulings . ORG agreed that the trial judge was entitled to refuse to order the disclosure of the identity of M 's informant since it was not necessary in order to enable the applicant to put forward his defence . The court stated that the applicant 's argument that the newspaper may have acted for ' grudge ' reasons was “ an insubstantial and insufficient basis on which to order immediate disclosure of the identity of the informant ... ” .

After reviewing the authorities , ORG concluded that the fact of entrapment or enticement would not itself be sufficient to require exclusion of the evidence under section CARDINAL but rather that evidence gained by entrapment would only be excluded if its admission adversely affected the procedural fairness of the trial . The court considered that :

“ ... the ultimate question is not the broad one : is the bringing of proceedings fair ( in the sense of appropriate ) in entrapment cases . It is whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur or evidence which is available as the result of his action or activities . So , for instance , if there is good reason to question the credibility of evidence given by an agent provocateur , or which casts doubt on the reliability of other evidence procured by or resulting from his actions , and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available , admissible and ' untainted ' evidence , then the judge may readily conclude that such evidence should be excluded . If on the other hand , the unfairness complained of is no more than the visceral reaction that it is in principle unfair as a matter of policy , or wrong as a matter of law , for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others , then that is not itself sufficient , unless the behaviour of the police ( or someone acting on behalf of or in league with the police ) and/or the prosecuting authority has been such as to justify a stay on grounds of abuse of process ” .

ORG also examined this ORG 's judgment in PERSON v. GPE ( judgment of DATE , Reports CARDINAL-IV ) but did not interpret the case as authority for the proposition that any incitement or instigation of a crime by an agent provocateur rendered any trial by definition “ unfair ” . In the view of ORG , the statement in that judgment to the effect that the intervention by the police and the use of the evidence so obtained “ meant that , right from the outset , the applicant was definitively deprived of a fair trial ” was to be read in its context , as the ORG 's conclusion on the facts and circumstances of the particular case . If it was not so read , it was not clear how the statement was to be reconciled with the ORG 's observation that the admissibility of evidence was primarily a matter for regulation by national law and that as a general rule it was for national courts to assess the evidence before them . It was further noted that the judgment in the PERSON case was “ specifically directed to the actions of police officers and the safeguards ( in the form of judicial controls ) properly to be applied to them in the course of their investigations as agents of the ORG ” and made clear that the line was to be drawn at the point of actual incitement . In the present case , the trial judge ( who was in any event not dealing with the activities of the police ) had correctly found that the evidence fell short of establishing actual incitement or instigation of the offences concerned .

In any event , ORG was satisfied that although the applicant was encouraged in a broad sense by the setting and opportunity presented , he voluntarily and readily applied himself to the trick by volunteering to supply the drugs and therefore , there was no entrapment . The court further noted that :

“ ... by reason of the appellant 's obvious familiarity with the current price of cocaine and his ready advice as to obtaining it in the quantity and to the quality required , he displayed a familiarity with the dealing scene which itself suggested a predisposition to be part of it ” .

The court pointed out that what was said or done by the newspaper staff at various points may have amounted to enticement but , even so , the applicant had a clear opportunity to withdraw from any enticement and the admission of the evidence did not have an adverse effect on the procedural fairness of the trial . In this regard , the court noted that the telephone call made by the applicant to his agent during dinner showed that :

“ ... whatever the truth as to who first raised the question of drugs supply during dinner , the appellant remained eager rather than reluctant to take advantage of the opportunity with which he was presented ” .

ORG noted that the trial judge imposed a lenient sentence “ having taken into account in the [ applicant 's ] favour the full circumstances in which the offences were committed ” .

ORG Cmd . CARDINAL ) defined an “ agent provocateur ” as :

“ a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such an offence ” .

Beyond this statement , there is no clear definition of entrapment in LANGUAGE law but the key factor appears to be acts or words amounting to enticement to commit an offence followed by the passing of information to the police .

The principal authorities on entrapment have concentrated largely on entrapment by law enforcement officers but the domestic courts have so far applied the same principles to cases of private entrapment , that is , entrapment by persons who are not agents of the ORG .

The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under LANGUAGE law ( NORP v. PERSON [ DATE ] Appeal Cases p.CARDINAL , ORG judgment ) .

There are , however , CARDINAL ways in which it is possible to prevent evidence obtained by entrapment from forming the basis of criminal proceedings . First , a trial judge has a discretion at common law to order a stay of the prosecution on the grounds of abuse of process where it appears that evidence was obtained by entrapment , as ORG affirmed in NORP v. Loosely ; Attorney - General 's Reference ( No . DATE ) ( [ DATE ] ORG CARDINAL ) , a judgment which followed and approved the case - law as it stood at the time of the applicant 's trial , including the judgment of ORG in NORP v. PERSON ( [ DATE ] vol . CARDINAL Weekly Law Reports p.CARDINAL ) . In Loosely , Lord PERSON of GPE explained :

“ My ORG , every court has an inherent power and duty to prevent abuse of its process . This is a fundamental principle of the rule of law . By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive , law enforcement functions of the courts and thereby oppress citizens of the state . Entrapment ... is an instance where such misuse may occur . It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so . That would be entrapment . That would be a misuse of state power , and an abuse of the process of the courts . The unattractive consequences , frightening and sinister in extreme cases , which state conduct of this nature could have are obvious . The role of the courts is to stand between the state and its citizens and make sure this does not happen ” .

Similarly , in ORG v. PERSON ( [ DATE ] CARDINAL Cr . App . CARDINAL at p.CARDINAL ) , Lord Chief Justice PERSON stated that domestic courts :

“ recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he had only committed because he had been incited , instigated , persuaded , pressurised or wheedled into committing it by a law enforcement officer . On the other hand , it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law , of which the defendant freely takes advantage , in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else ” .

In GPE , their ORG agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “ state created crime ” . In each case it was for the judge , having regard to all the circumstances , to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute . The court stated that the police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing . In the cases cited above , the courts were concerned with allegations of an abuse of power by agents of the ORG .

The second way in which evidence obtained by entrapment may be excluded from criminal proceedings is under section CARDINAL of ORG which provides as relevant :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , and including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

In Loosely ( cited above ) , ORG stated that courts may use section CARDINAL to exclude evidence obtained by an undercover police officer where , inter alia , the defendant would not have committed the offence without the police incitement . This confirmed the position set out by ORG in NORP v. Smurthwaite ; PERSON ( ( DATE ) vol . CARDINAL ORG p. CARDINAL ) that section CARDINAL did not change the rule that while entrapment or the use of an agent provocateur does not constitute a defence in LANGUAGE law , evidence obtained from entrapment might in appropriate cases be excluded under the terms of that section .

In ORG judgment in Loosely , Lord Justice PERSON stated that :

“ if an accused person 's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence , or by that person being trapped into committing the offence by a law enforcement officer , then the evidence of the law enforcement officer should be excluded by the trial judge exercising his power under section CARDINAL of the DATE LAW .

As regards the effect of LAW on the domestic law on entrapment , in ORG v. PERSON ( cited above ) , ORG considered the judgment in PERSON and concluded that LAW did not provide a ground for the exclusion of evidence of an undercover officer who had merely afforded an accused the opportunity to commit an offence without exerting any pressure upon him to do so . In PERSON ( cited above ) , ORG considered that there was no appreciable difference between the requirements of LAW and current LANGUAGE law .

The domestic courts have not so far drawn a clear distinction between entrapment by police officers and entrapment by private persons including journalists . In NORP v. GPE and ORG ( DATE ) Crim . L.R. CARDINAL , a journalist bought counterfeit currency from the appellants and then handed the evidence to police . In upholding the trial judge 's decision not to exclude the evidence under section CARDINAL of PACE , Lord PERSON stated that :

“ Although one might dislike the activities of certain informants or journalists , the criterion for admissibility did not depend on this or that motive of a newspaper to sell a story or make money . It was clear that there was no defence in LANGUAGE law of entrapment , and it made no difference whether an undercover police officer or a journalist was involved . The question under section CARDINAL of ORG was one of fairness . ”

In NORP v. PERSON ( ( DATE ) CARDINAL Cr . App . R.(S. ) CARDINAL ) , ORG indicated that the fact of entrapment may be relevant to the sentence imposed . In that case , journalists approached the appellant and requested her to obtain heroin on behalf of the sheikh for whom they worked . The court stated :

“ We can not ignore the fact that the appellant was set up to commit the offence . She was tempted by the journalists to obtain and to supply the drug to them ... The element of entrapment by journalists [ should have been ] properly reflected in the sentence that was imposed ” .

A case which was decided after that of the present applicant departed from previous cases in suggesting that a distinction should be drawn between entrapment by law enforcement officials and entrapment by journalists . In NORP v. PERSON and ORG ( ( DATE ) Crim . L.R. CARDINAL ) , the appellants were approached by a journalist and invited to meet his employers , CARDINAL ' wealthy NORP ' , and supplied cocaine during the meeting . The appellants submitted that the proceedings should have been stayed for abuse of process . In dismissing the appeals , ORG stated :

“ ... it is of some importance to note that what the court seeks not to condone is “ malpractice by law enforcement agencies ” which “ would undermine public confidence in the criminal justice system and bring it into disrepute ” . Obviously that is not a consideration which applies with anything like the same force when the investigator allegedly guilty of malpractice is outside the criminal justice system altogether ...

... [ The trial judge ] made CARDINAL discernible error favourable to the defence in that he seems to have accepted that commercial lawlessness and executive lawlessness should be treated in the same way ... that is not correct ... ” .

ORG therefore indicated that a more flexible test for abuse of process would be applied to entrapment by journalists ( “ commercial lawlessness ” ) than to entrapment by law enforcement officers ( “ executive lawlessness ” ) .

This approach conforms to the distinction drawn by ORG in NORP v. PERSON and PERSON ( ( DATE ) CARDINAL Cr . App . PERSON ) between exclusion under section CARDINAL and abuse of process , in which he stated that the former was concerned merely with “ the fairness of the trial ” while the latter had the partial function of “ discouraging abuse of power ” and “ the marking of disapproval of the prosecution 's breach ” .


PERSON ( “ the first applicant ” ) is a NORP national born in DATE . DATE her initials were PERSON ( “ the second applicant ” ) is a NORP national born in DATE . The applicants live in GPE .

Since DATE the applicants had been co - habiting . On DATE the first applicant give birth to a boy , ORG

On DATE ORG maternal grandparents , PERSON and PERSON , lodged with the ORG a foster family application . They asked the court to deprive the applicants of their parental rights in respect of ORG and designate themselves as the boy ’s foster family . GPE and PERSON submitted that since DATE ORG had remained in ORG as a result of the first applicant ’s negligence . They pointed out that the boy , who was DATE , had been admitted to the hospital because he was emaciated . He weighed QUANTITY , whereas his weight at the time of his birth was QUANTITY . Moreover , GPE and PERSON submitted that the first applicant suffered from a serious disability . In particular , she suffered from infantile cerebral paralysis , paraparesis , and was mentally retarded . The applicants lived in a building owned by the state railway company which was located near the railway and did not have any sanitary facilities . The toilet was situated in the courtyard and there was no running water , which had to be fetched from a well . The applicants could not afford to pay the rent , electricity and heating bills , and the second applicant could not earn money to pay those bills because he was receiving a disability allowance .

On DATE GPE and PERSON made an application to ORG for an interim residence order requiring ORG to reside with them .

On DATE the ORG made an interim residence order requiring ORG to reside with his maternal grandparents . At the same time it decided that the foster family application should be transmitted to the FAC . The court referred to LAW and gave the following reasons for its decision :

“ The minor PERSON was born on DATE out of a relationship between ORG and ORG Both parents are handicapped pensioners . ORG suffered from infantile cerebral paralysis . The family lives in very bad accommodation , which does not have running water , a bathroom or a toilet . The flat is damp , neglected and requires renovation .

The parents are unable to properly take care of the child because of their disabilities . In addition , they are in a very difficult financial situation as they receive disability allowances in the total amount of ORG and they are helped by the social services in GPE . On DATE the child was admitted to the hospital because of underweight and malnutrition . While the boy remained in the hospital his condition improved . He requires proper nutrition and care . The minor ’s grandparents – the applicants – have proper conditions to provide the child with adequate care .

The court has established the foregoing facts on the basis of the information received from ORG , where the minor PERSON is hospitalised , and social services in PERSON . This information makes it clear that the child ’s parents are unable to provide him with proper care because of their disabilities and inadequate accommodation .

In these circumstances , the court has come to the conclusion that the well - being of the minor child is threatened DATE this is also shown by the child ’s malnutrition . It has therefore decided to issue an interim residence order under LAW . The background check carried out in respect of the minor ’s maternal grandparents has confirmed that they have proper conditions to take care of the child until the end of the proceedings and clarification of the situation of the family . ”

On DATE the applicants filed with the ORG an appeal against the decision of DATE . The first applicant made allegations of abuse against her parents in the appeal and submitted that they should not be given the custody of ORG as he might suffer the same abuse .

On DATE the ORG dismissed the ORG appeal . ORG agreed with the reasoning of ORG . In addition , it noted that ORG was DATE , i.e. , was of the age when the most important processes in the development of a child took place . Therefore , a situation where such a minor was in the custody of the parents who could not provide him with proper hygiene and nutrition amounted to an urgent case .

On an unspecified date in DATE the applicants married .

In DATE PERSON approached the ORG for ORG ) . The ORG carried out interviews in the neighbourhoods where the applicants and GPE and GPE lived , as well as in the health centre in NORP and social services in PERSON . On DATE the ORG sent to the GPE ORG a letter in which it submitted that the application to deprive the applicants of the parental rights was unjustified . The letter was signed by a pedagogue and a psychologist and emphasised that the applicants were “ morally and materially competent to take care of their child ” . The letter also expressed the ORG ’s astonishment that social services in PERSON , which were responsible for helping parents , supported the removal of the child from their custody .

On DATE the applicants asked the ORG to order GPE and PERSON to undergo psychiatric examination .

On DATE the applicants decided that they would stop visiting their son because of the hostile attitude of the grandparents .

On DATE the applicants filed with the President of the Środa ORG a request challenging the presiding judge . However , on DATE that request was dismissed .

On DATE the ORG ( ORG PERSON ) submitted to the GPE ORG an expert opinion in the case concerning the foster family application . The opinion was signed by the director of the centre , CARDINAL psychologists and a medical doctor . It included the following conclusions :

“ CARDINAL/ presently the emotional bonds of the minor ORG with the grandparents are the strongest as they have been taking care of him since DATE ( i.e. for DATE ) . The minor considers the grandparents to be his closest persons , he feels loved and safe in their presence , shows them his feelings and spontaneously receives from them signs of affection and closeness ;

GPE the emotional bonds between the child and the biological parents have been loosened because of the lack of constant positive contacts between them . The meetings of the parents with the son showed emotional tension which resulted from the conflicts between the biological parents and the present carers of the child ( ... ) ;

ORG the psychological condition of ORG does not allow her presently and in the future to take care of the child on her own . [ It is characterized by ] low intellectual ability , significant mental and social immaturity , low level of critical assessment of her abilities and behaviour , excessive dependence on dominant personalities – including that of her husband , lack of ability to receive and show feelings , lack of proper assessment of the development needs of a child , as well as lack of sufficient predisposition and abilities to direct a child ;

GPE has suffered from infantile cerebral paralysis and her mobility is limited . She needs constant support and help from others . For the above reasons the biological mother is not able to fully secure the emotional and psychomotor needs of the child as well as the proper living conditions and accommodation ;

CARDINAL/ despite the help declared by the child ’s father , who himself is ill and has low educational capabilities , it is impossible to provide the minor PERSON with the proper conditions for his development if he is given over to the permanent and direct care of the biological parents ;

CARDINAL from the psychological and medical point of view , both parents do not guarantee the proper care of the child and the proper stimulation of his development . Both parents are disabled , have very low incomes and modest accommodation – without basic facilities ( toilet located outside , no running water which is taken from a well ) ;

CARDINAL/ in view of the above , we consider that it is in the best interest of the minor ORG to stay with the foster family of grandparents ( ... ) who presently give the best guarantee of providing the child with better living conditions ;

CARDINAL/ in order to provide the child with direct contacts with his biological parents and to secure his proper emotional development we suggest that GPE and PERSON take the minor PERSON for a walk twice a week ( ... ) and in addition take him to their flat in DATE ( ... ) ;

CARDINAL/ the supervision of both parents by a court curator is necessary in order to know whether they properly fulfil their obligations relating to the care and education of the minor ORG ;

CARDINAL/ we suggest that after DATE a new examination take place in our centre in order to decide whether the change of the present recommendations is necessary ;

CARDINAL if the court curator finds gross negligence on the part of the biological parents , consideration should be given again to the application to deprive GPE and PERSON of the parental rights over their son ;

CARDINAL it has proved impossible to mediate between the parties in our centre in view of the lack of mutual understanding and negative attitudes to each other ( ... ) ;

CARDINAL/ the most difficult problem to solve in the present case is the lack of proper relationship between the parties . We think that a psycho corrective approach should be taken in that respect ( ... ) . ”

On DATE the applicants submitted to the ORG a letter in which they contested the conclusions of the expert opinion .

On DATE a hearing took place before the ORG . The court heard CARDINAL expert witnesses who had signed the opinion of DATE . Both expert witnesses confirmed the conclusions of the expert opinion . The court decided to request ORG in Poznań to submit an opinion concerning the bonds between ORG and his parents . It also decided that mediation between the child ’s parents and maternal grandparents should take place .


The applicant is a GPE national , born in DATE and resident on GPE ( GPE ) .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

The applicant hails originally from GPE ( GPE ) . It appears that at some time before the events complained of he was convicted of drugs dealing there and spent DATE in prison . He subsequently moved to the GPE .

In DATE the applicant went to visit his native GPE . He returned to the GPE on DATE , arriving at GPE ( GPE ) Airport on DATE .

Passing through customs the applicant stated that he had nothing to declare . Nonetheless his luggage was inspected by customs officials . A clock was found which had a wooden casing decorated with a picture of a typical LOC house . It appears from an official record subsequently drawn up by the customs officials concerned that they had felt the clock body to be “ rather thick ” and that , when they tapped it , it had sounded hollow . They had drilled a hole into it and some white powder had come out on the drill . When opened the clock was found to contain QUANTITY grams of a substance identified as cocaine .

The cocaine and the clock were seized . The applicant was arrested and questioned by a police officer and a customs officer . He stated that he had not known that the clock contained cocaine . The police officer placed him in police custody ( inverzekeringstelling ) .

The applicant was questioned by the police officer and the customs officer on DATE . According to his statement on this occasion , he had met a young woman , CARDINAL NORP , on GPE , with whom he had entered into an intimate relationship . The applicant and NORP had planned to travel to the GPE together . For this reason he had postponed his departure for DATE . His airline ticket , which had cost MONEY , had been bought for him by a friend . He had given this friend MONEY and the friend had paid the balance himself . He declined to give the name of the friend . On DATE of the applicant ’s and NORP ’s planned departure , DATE , NORP had told the applicant that she would not accompany him . She had given him a souvenir clock . The applicant had travelled to the GPE alone . The applicant stated that he was not prepared to relinquish title ( afstand doen ) to the clock and the cocaine because they were not his .

An unsigned document which was apparently appended to a receipt dated DATE and delivered to the applicant by the police officer and the customs officer states that the applicant had in fact relinquished title to the clock and the cocaine . This document further states that the clock and the cocaine would be kept by the police at FAC pending a decision of the public prosecutor .

The applicant was questioned by an investigating judge on DATE . He made a brief statement confirming the statement made DATE to the police officer and the customs officer . The investigating judge placed him in detention on remand ( voorlopige hechtenis ) .

On DATE the applicant was released pending trial by order of ORG after a brief hearing in camera . According to the applicant ’s counsel the clock was present at that hearing . ORG order , however , does not refer to it .

Proceedings in ORG

On DATE the public prosecutor ( officier van justitie ) sent the applicant a notification that he would be prosecuted for importing or , in the alternative , possessing a quantity of cocaine .

The applicant was summoned to appear before ORG ( arrondissementsrechtbank ) of GPE on DATE . The summons was served at the applicant ’s registered address in NORP on DATE . As the applicant was not at home at the time , the summons was handed to his sister , who agreed to take charge of it and ensure that it reached the applicant without delay .

On DATE the applicant ’s lawyer sent CARDINAL fax messages , CARDINAL to ORG registrar and one to the public prosecutor , both asking for the clock to be produced at the hearing . DATE the applicant ’s lawyer received a message by telephone from the secretary of the public prosecutor to the effect that the clock had not been deposited at the registry of ORG and could not be traced .

The applicant did not appear at the hearing on DATE . His counsel , who was present , stated that the applicant was apparently living in GPE and that he had the impression that the summons had reached the applicant . He did not seek an adjournment for lack of any arguments on which to base such a request . ORG proceeded with the trial in the applicant ’s absence .

Invoking the report of ORG in the case of PERSON v. the GPE ( DATE , no . CARDINAL , Series A no . CARDINAL-A ) , the applicant ’s counsel asked to be allowed to address the court in the applicant ’s defence . The prosecution objected on the ground that no compelling reasons were apparent which prevented the applicant from attending the hearing . This objection was accepted by ORG , which accordingly proceeded to a judgment without hearing any defence argument .

On DATE ORG gave its judgment . It found the applicant guilty of having intentionally imported QUANTITY of cocaine into the GPE and sentenced him to CARDINAL months’ imprisonment . It withdrew the clock and the cocaine from circulation .

ORG in ORG

The applicant appealed to ORG ( gerechtshof ) of GPE .

A summons to appear before ORG on DATE was addressed to the applicant at his address in LOC . However , it appeared that the applicant had in the meanwhile returned to GPE , and so ORG declared the summons null and void . The applicant was summoned anew , this time to appear before ORG on DATE .

The applicant ’s counsel – not the same lawyer who had tried to defend the applicant before ORG – submitted grounds of appeal in writing .

Relying on ORG PERSON v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL-A ) he argued that the first - instance proceedings had not been fair because the defence had not been heard . He asked for the case to be referred back to ORG for rehearing in the applicant ’s presence .

Relying on , inter alia , the judgment of ORG in the case of PERSON v. GPE ( DATE , Series A no . CARDINAL-A ) , he argued that criminal intent on the part of the applicant could not be proved . The clock which NORP had given the applicant had appeared perfectly normal and there had been nothing to suggest that it might contain any illicit substance . He asked for the clock to be produced at the hearing .

The Procurator General ( procureur - generaal ) of ORG wrote to the applicant ’s counsel on DATE informing him that the clock could not be produced because it had been destroyed .

The applicant and his counsel were present at the hearing on DATE . Counsel asked ORG first to rule on the preliminary objections contained in his statement of grounds of appeal .

ORG withdrew to consider these objections . After deliberating in private it rejected the objection that the summons to the first - instance hearing had been served at the wrong address , noting that the address to which it had been served had been the address at which the applicant was registered and that it did not appear that the applicant had not been resident there . It further found that LAW did not oblige it to refer the case back to ORG on the ground that the applicant ’s counsel had not had the opportunity to address that court in the applicant ’s absence .

The hearing was resumed . The applicant availed himself of his right to remain silent .

The applicant ’s lawyer again asked for the clock to be produced . The Procurator General again stated that it had been destroyed .

The lawyer then argued that the prosecution ought to be declared inadmissible because what it considered to be the most essential item of prosecution evidence , the clock , had been destroyed ; in the alternative , since the clock could not be produced , it should be assumed that the applicant had not had any real reason to examine it when it was given to him , and so the clock could not be relied upon to ground a conviction .

ORG gave its judgment on DATE . It found the applicant guilty of having intentionally imported cocaine into the GPE and sentenced him to CARDINAL months’ imprisonment .

ORG noted that although the applicant had not formally relinquished title to the clock , it could be inferred from his “ procedural attitude ” ( proceshouding ) at the relevant time that he had not been interested in having the clock re - examined at a later stage . There was therefore no need to declare the prosecution inadmissible merely because the clock had been destroyed by mistake . Moreover , the clock was not so important an item of prosecution evidence as the defence claimed . In any event , sufficient information about it was available in the form of descriptions and photographs , and to that extent the rights of the defence were not impaired to any material extent .

In so far as the defence claimed that it had not been apparent that there had been anything unusual about the clock , ORG referred to the official report by the customs officers who had arrested the applicant , from which it appeared that the applicant had been found in possession of a clock comprising a wooden body which had appeared “ rather thick ” and which , when tapped on , had sounded hollow .

Proceedings in ORG

The applicant , through his lawyer , lodged an appeal on points of law to ORG ( PERSON ) on CARDINAL DATE .

He complained , as his first ground of appeal , that since the prosecution had been responsible for the destruction of the clock , the prosecution ought to have been declared inadmissible or , in the alternative , all evidence based on the clock ought to have been rejected . It was of essential importance whether or not the appearance of the clock had been such as to justify any reasonable suspicion that it might contain cocaine – which in his contention was not the case . Moreover , even if the applicant should be considered to have relinquished title to the clock DATE which in his contention was not so either – he had not waived the right to base a defence on it . Finally , the photographs contained in the file were not adequate substitutes for the clock itself .

He claimed , as his second ground of appeal , that since he had consistently denied all knowledge of the fact that the clock contained cocaine , it could not be proved that he had intentionally imported that substance into the GPE . In his contention the finding of intent had been based solely on the presence of the cocaine in his luggage .

As his third ground of appeal , relying on ORG above - mentioned PERSON judgment , he complained about the refusal by ORG to refer the case back to ORG for a rehearing at first instance , given that ORG had refused to allow his counsel to address it in his defence .

Finally , should the above grounds of appeal in themselves not constitute sufficient reason to overturn the judgment of ORG , he argued that , taken together , they reflected a general lack of fairness of the proceedings .

ORG gave its judgment on DATE . It rejected the appeal in its entirety .

With regard to the third ground of appeal , ORG referred to its own case - law according to which the failure by the first - instance court to allow counsel to plead in the absence of the accused , although unlawful per se , did not entail any obligation on the part of ORG to refer the case back to ORG for a rehearing at first instance .

The fourth ground of appeal was rejected in view of what had been held with regard to the other CARDINAL points .


CASE OF ILJINA AND SARULIENE v. LITHUANIA

Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto

The first applicant was born in DATE . The second applicant was born in DATE . Both of them live in GPE . The first applicant is the second applicant 's mother .

According to the second applicant , at TIME on DATE a police officer , in plain clothes , arrived at the applicants ' apartment block to conduct a search for stolen goods in a flat which was situated next door to that of the applicants . The police officer was accompanied by a technical expert who worked for the company which owned the goods in question . The applicants ' neighbour refused to let the police officer in , alleging that he was not the owner of the flat and that the officer was not wearing a uniform . At the same time , the second applicant , her uncle , ORG , and her brother , PERSON , came out on to the staircase for a smoke . According to the second applicant , she and her brother told the police officer that he had no right to enter the flat by force . The policeman went for reinforcements , but before leaving said “ get ready to go [ with the police ] ” .

The further circumstances of the conflict on the staircase are in dispute between the parties .

According to the second applicant , CARDINAL more uniformed policemen arrived later at the scene of the incident . CARDINAL of them suddenly grabbed PERSON , loaded his gun and pointed it at GPE The second applicant screamed for help and the policeman pointed the gun at her . The other policemen told the first officer to put away the gun and both policemen started hitting GPE The officers called for more reinforcements , and more policemen arrived ; they hit GPE and ORG with rubber truncheons and punched and kicked them . At that time the second applicant 's father , PERSON , returned from work and asked the police to explain what was happening . Instead of replying , the police started hitting him on the head , shoulders and hands with a rubber truncheon . The second applicant 's daughter , who was DATE and DATE , attempted to come out of the flat to see what was happening in the corridor ; a policeman tried to push and close the flat 's reinforced door . The second applicant placed her foot between the door and the wall to prevent her daughter from being hurt ; consequently , the second applicant 's foot was injured . ORG , GPE and PERSON were arrested . The second applicant telephoned the first applicant .

According to the first applicant , she received a telephone call from her daughter and went straight to the scene of the incident . In the courtyard of the apartment block she saw CARDINAL police cars and several policemen . O.B. , GPE and PERSON were in the police cars and there were a lot of people milling around . She asked the police officers what was going on . However , no explanation was given , and the officers started pushing people further away from the police cars . The first applicant tried to stop the police officers and lay down on the bonnet of a police car . The policemen started driving the car and the applicant felt pain in her whole body . An officer forcibly dragged her away from the car , tore off her blouse , kicked her bottom and threw her , wearing no blouse but only a bra , onto the grass . She came round as the police were leaving .

In their submissions of DATE the ORG stated that as reinforcement , CARDINAL more police officers arrived at the staircase . PERSON again came out of his flat and used offensive language towards the officers . The second applicant and her friend PERSON came out on to the staircase . The police officers demanded that PERSON stop acting inappropriately and warned him of the impending consequences . PERSON did not comply and the police officers attempted to arrest him . He resisted the arrest , hitting the officers . Then ORG ran out of the flat and started hitting the officers . More reinforcements were called for and CARDINAL more officers arrived at the scene . The policemen attempted to arrest GPE and O.B. At this point PERSON turned up and joined in the fight , trying to prevent the policemen from restraining his relatives . The second applicant and ORG were also obstructing the officers from carrying out their duty by jostling and pulling their clothes . The Government pointed out that as regards the second applicant 's leg injury , the latter 's friend PERSON , when questioned by police , stated that “ the police officer slammed the door so loudly that the second applicant 's daughter started crying ” . Eventually GPE , ORG and PERSON were handcuffed and put into police cars in the courtyard of the apartment block . None of the policemen used or showed a gun , nor did they threaten to use one . The first applicant tried to prevent the police cars from leaving the courtyard and lay down on the bonnet of the first car . At the time the engine was turned off and the car was not moving . CARDINAL of the officers , with some help from CARDINAL other officers , forcibly moved the second applicant away from the car , holding her by both hands .

The documents before the ORG indicate that on CARDINAL and CARDINAL DATE a medical expert of ORG examined the applicants and CARDINAL of their family members who had taken part in the incident . It was established that all CARDINAL of them had sustained light health impairment . In particular , the first applicant had a scratch on her forehead and CARDINAL bruises on her upper arms , ranging in size from QUANTITY to QUANTITY , which were the result of CARDINAL impacts . A doctor 's certificate attested that she was unfit for work from MONEY to DATE .

The second applicant had an injury to her right foot , caused by a single impact with a hard blunt object . The second applicant 's brother , PERSON , had sustained bruises and scratches on his elbows , forearms and left knee , caused by having had CARDINAL traumatic impacts with small hard blunt objects . He received leave of absence from work until DATE .

The second applicant 's father , PERSON , told the doctor that the police officer had hit him several times on the head and left shoulder with a rubber truncheon . The doctor found a CARDINAL - diameter bruise on PERSON 's left temple and scratches on his right hand . Those injuries had been caused by CARDINAL traumatic impacts .

The first applicant 's brother , ORG , told the medical expert that during the altercation with the police the officers had beaten him , twisted his arms behind his back and kicked him in the chest . The medical expert established that there was a swollen CARDINAL x CARDINAL scratch on ORG 's right forearm and a CARDINAL - diameter swollen bruise on his right shoulder , which were the consequence of CARDINAL traumatic impacts from hard blunt objects , possibly in the way and at the time described by ORG He received leave of absence from work until DATE .

The medical expert also concluded that the injuries mentioned above could have been received during the altercation with the police officers .

During TIME CARDINAL DATE the CARDINAL applicants submitted written complaints about the police actions to ORG and to the prosecutors . The applicants asked for an assessment of the actions of the policemen , and that the officers who had taken part in the events be identified . ORG , GPE and PERSON were kept in police custody TIME . The following TIME PERSON , GPE and PERSON were questioned and TIME released from custody .

The police investigator charged PERSON , GPE and ORG under LAW ( insulting a public servant or a person discharging public functions ) and LAW ( resistance to a public servant or a person discharging public functions ) . However , on DATE the prosecutor dropped the charges against PERSON , PERSON and ORG for lack of evidence of guilt ( LAW ( CARDINAL ) of LAW ) .

On DATE PERSON , PERSON and ORG submitted a written complaint to the GPE Region chief prosecutor . They stated that they had been beaten up by the policemen without any reason and even experienced a threat that a firearm would be used against them . Whilst arguing that the police officers had brought charges against them of obstruction of justice only to defend the uniform , PERSON , GPE and ORG invoked ORG CARDINAL and CARDINAL § CARDINAL of LAW and asked the prosecutor that the actions of the policemen be scrutinised by a prosecutor , without delegating the inquiry to police investigators .

At the applicants ' request , on CARDINAL DATE ORG of ORG began a pre - trial investigation into alleged ill - treatment by the police officers , under LAW , which establishes criminal liability for abuse of power .

When testifying to the investigators of ORG , the police officers stated that PERSON had tried to obstruct them in the performance of their duties and had insulted them . They had attempted to arrest him for this behaviour , but he had resisted , using violence against them ; then ORG had arrived and tried to stop the policemen from restraining PERSON , PERSON had appeared on the scene and also become involved in the fight . Moreover , there were CARDINAL women on the staircase who grabbed the officers by the arms . Consequently , ORG , GPE and PERSON had been arrested and taken to the police station . During the incident none of the policemen had used or shown a gun , nor had they threatened to use one .

DATE and DATE ORG investigator at ORG questioned the policemen , the applicants and their male family members as well as the applicants ' neighbours who had witnessed the incident . The questioning took place on police premises . Neither the applicants nor PERSON , GPE or ORG had lawyers present when they were being questioned . The policemen and the applicants maintained their respective versions of events .

On DATE a prosecutor of ORG discontinued the pre - trial investigation , stating that there was not enough objective evidence to conclude that the police officers had abused their powers or used unnecessary force .

On DATE and DATE the applicants appealed against that decision to ORG , claiming that “ they could not have expected a different outcome of the inquiry , given that the [ police ] investigator was misleading the witnesses with the aim of obtaining testimony favourable to the [ police ] officers ” . The applicants argued that the police officers had used excessive force against them and threatened to use a firearm . They also alleged that the testimony police officers had given during the pre - trial investigation was not comprehensive , given that the officers had not specified which special fighting actions ( kovinių imtynių veiksmus ) they had used . Moreover , the localisation of the wounds on the applicants ' bodies allowed the assumption that the police had had recourse not only to restraining measures , but to clear physical violence .

On DATE the deputy chief prosecutor of ORG dismissed the applicants ' appeal as unfounded . He noted the prosecutor 's decision of DATE to drop the charges against PERSON , PERSON and ORG as unfounded , for lack of evidence . However , having , as it appears from his decision , analysed the statements of the parties to the incident , as written down by the police internal affairs investigator , the prosecutor found that there were no objective data to substantiate the applicants ' allegations that the policemen had acted unlawfully . For the prosecutor , the applicants ' request that the policemen be questioned CARDINAL more time was not to be entertained , because “ the testimony of the police officers about the actions of GPE , PERSON and the others who obstructed the police , as well as about the force used when arresting them , was sufficiently detailed and comprehensive ” .

On DATE the applicants appealed to ORG asking that the pre - trial investigation be reopened and the witnesses be comprehensively questioned CARDINAL more time . They maintained that the police investigator had refused to record statements by certain witnesses , thereby destroying the evidence of the crime committed by the policemen . The investigation into the police actions had been superficial . The applicants asked the court to establish which particular actions should be attributed to each of the policemen . They also noted that on DATE the prosecutor had decided to drop the criminal charges against PERSON , GPE and ORG

On DATE the Vilnius City ORG in a CARDINAL - page ruling held that the pre - trial investigation had been thorough and that the prosecutors had taken reasoned decisions . According to the court , the medical experts ' conclusions that the applicants and their family members had sustained light physical harm was not evidence of an abuse of powers by the police – the applicants had resisted the policemen and had been injured as a result . The court also noted that the applicants had not submitted new evidence . For those reasons the complaint was dismissed . That decision was final .

Article CARDINAL of the Penal Code sets out that there is criminal liability for abuse of authority when such abuse by a civil servant or a person of equivalent status causes serious damage to a legal or natural person . Under Article CARDINAL of the Code a person can be held criminally liable for having opposed a policeman 's orders and threatened the latter with physical violence . Article CARDINAL of the Code sets out that there is criminal liability for insulting a public officer or a civil servant .

Under LAW , a police officer must respect and protect human dignity , ensure and safeguard human rights and freedoms . The police officers have a right to use coercion when it is necessary to prevent violations of the law and to apprehend those who have committed such violations , as well as in other cases when lawful interests of an individual or the ORG are at stake . Physical coercion can be used when apprehending a person who has committed a violation of the law and who evades arrest by active actions ( Articles CARDINAL and DATE ) .

The PERSON on the Prosecutor 's Office stipulates that in discharging his functions the prosecutor is independent ( LAW ) . It is for a prosecutor to conduct , organise and direct the pre - trial investigation and to supervise the procedural activities of pre - trial investigation officers . A prosecutor 's decision can be appealed against to a superior prosecutor ( ORG CARDINAL and CARDINAL ) .

The Code of Criminal Procedure provides that parties to criminal proceedings can lodge complaints with the prosecutor against the procedural actions and decisions of the pre - trial investigating officer . The prosecutor 's decision can be complained against to a superior prosecutor and subsequently to an investigating judge ( Articles CARDINAL and DATE ) . When examining the complaint , the prosecutor and the investigating judge have a right to examine the pre - trial investigation materials and request statements from the pre - trial investigation officer or the prosecutor , provided that they had not been submitted before . The prosecutor , counsel , the accused and the complainant may be present during the examination of the complaint by the investigating judge . Furthermore , an investigating judge has a right to question witnesses , suspects and victims . Up to CARDINAL DATE the decision of the investigating judge was final ( Articles DATE and CARDINAL ) . Since DATE , a decision of an investigating judge can be appealed against to a superior court ( Article CARDINAL § CARDINAL ) .

The pre - trial investigation can be conducted by the police , but it has to be organised and led by a prosecutor , who has an obligation to oversee the course of the investigation and who can decide to conduct all or part of the investigation himself ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL § CARDINAL of LAW ) . Under Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL of the Code , a prosecutor is to terminate the pre - trial investigation where insufficient evidence of the suspect 's culpability in respect of a crime has been gathered .

The Regulations of the Internal Affairs Department of ORG , approved on CARDINAL DATE , stipulate that the ORG is an autonomous structural unit subordinate and accountable to the Chief of Police at ORG or his deputy . It is the ORG 's function to conduct pre - trial investigations of criminal acts committed by police officers . When conducting an investigation , the ORG 's officials have the right to question police officers and other persons .

In their observations on the admissibility and merits of the case , the Government provided the ORG with examples of recent domestic courts ' practice in cases of abuse by the police . In particular , the ORG referred to the judgment of CARDINAL DATE when ORG convicted QUANTITY police officers of abuse of authority . The policemen were charged with using excessive force when apprehending CARDINAL suspects and later beating them while they were in custody . The Government noted that after hearing and seeing various witnesses and evaluating their credibility , the court had accepted the victims ' version as more credible . The ORG also referred to the judgment of the same court of CARDINAL DATE , subsequently upheld by ORG , when QUANTITY police officers were convicted of abuse of authority and beating up a suspect during questioning . The conviction was based on the version of events presented by the victim , supported by corroborating medical examination . The fact that fellow police officers had testified in favour of the accused policemen did not cast doubt for the court on the credibility of the victim 's claims .