CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 19 décembre 2004

.s3ABFC313 { font-size:10pt } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sDB9EB187 { font-weight:bold } .sB4119A68 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; text-align:center; font-size:12pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s66053943 { text-transform:uppercase } .sFBC99493 { font-style:italic } .s7ED160F0 { text-decoration:none } .sA527F4CF { font-size:8pt; vertical-align:super; color:#0069d6 } .s14C34524 { font-size:8pt; vertical-align:super } .sB2A0F2B6 { font-weight:bold; font-style:italic } .sDDB50A14 { color:#ff0000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .s846B54EF { font-size:5.33pt; vertical-align:super; color:#0069d6 } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } Resolution ResDH(2004)88 Two judgments of the European Court of Human Rights against the United Kingdom concerning violations of the right not to incriminate oneself - judgment of 17 December 1996 in the case of Saunders against the United Kingdom - judgment of 19 September 2000 (final on 19 December 2000) in the case of I.J.L., G.M.R. and A.K.P. against the United Kingdom   (Adopted by the Committee of Ministers on 21 December 2004 at the 906th meeting of the Ministers' Deputies)     The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 46, paragraph 2 of the Convention (hereinafter referred to as “the Convention”),   Having regard to the judgments of the European Court of Human Rights in the cases of Saunders and I.J.L. and others [1] , and transmitted to the Committee of Ministers for the supervision of their execution;   Recalling that these cases originated in applications lodged against the United Kingdom and that the European Commission and the European Court declared admissible the applicants' complaints that, in the framework of the criminal proceedings conducted against them, they had been denied a fair hearing on account of the use made by the prosecution of the evidence which they had supplied under statutory powers 1 ;   Recalling that the European Court subsequently held in these cases that there had been a violation of the applicants' right under Article 6, paragraph 1, of the Convention not to incriminate themselves in view of the use made by the prosecution at their trial of incriminatory statements which they had given under statutory compulsion to inspectors appointed by the Department of Trade and Industry 1 and awarded the applicants various sums as just satisfaction 1 ;   Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11, which Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;   Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the abovementioned judgments, having regard to the United Kingdom's obligation under former Article 53 and under Article   46, paragraph 1, of the Convention to abide by them;   Having satisfied itself that, within the time-limit set, the Government of the United Kingdom paid all the applicants the sums awarded by the European Court as just satisfaction 1 ;   Whereas during the examination of the case by the Committee of Ministers, the Committee was informed of the outcome of the domestic proceedings engaged by the applicants to have their convictions quashed and the measures taken by the United Kingdom authorities to prevent new violations of the same kind as that found in the present judgments; this information appears in Appendix I to this resolution;   Considering, as regards the United Kingdom's obligation to ensure, as far as possible, restitutio in integrum for the applicants, that the reasons advanced by the respondent government for not reopening the proceedings at issue do not dispense the Committee from examining, from the point of view of the Convention, whether such a measure, or other measures to erase the consequences of the violation, would be called for;   Considering in this regard that the specific circumstances under which the impugned evidence was taken and used do not appear to cast any serious doubts on its reliability, and that no other elements appear to suggest that the convictions were erroneous or otherwise arbitrary, the Committee is satisfied that the violation established by the European Court was not such as to present serious doubts regarding the outcome of the proceedings at the basis of the applicants' complaints (cf. Recommendation No. R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights);   Concluding that the United Kingdom was thus not called upon, under Article 46 of the Convention, to adopt any measures over and above the just satisfaction awarded by the Court, in order to erase the consequences for the applicants of the violations found;     Recalling as regards the general measures which the respondent state was called upon to adopt without delay to prevent new, similar violations of the Convention, that such measures were adopted following the Court's judgment in the Saunders case (see Interim Resolution DH(2000)27 and the supplementary information contained in the Appendix II to this resolution);   Declares that it has exercised its functions under former Article 54 and Article 46, paragraph 2, of the Convention in these cases.     Appendix I to Resolution ResDH(2004)88   Information provided by the Government of the United Kingdom during the examination of the cases of Saunders and I.J.L. and others by the Committee of Ministers   As regards individual measures   The Government recalls that all applicants were convicted of criminal offences, notwithstanding the fact that, in the view of the Court of Appeal,   a significant part of the prosecution case against them consisted of transcripts of interviews which they had given, under statutory compulsion, to Inspectors appointed by the Department of Trade and Industry, and that the European Court found that the use made of this evidence in the criminal proceedings violated the applicants' right to silence and not to incriminate oneself.   Since such use of evidence was specifically permitted by the legislation in force at the relevant time (Section   434 of the Companies Act 1985), the request submitted by the applicants in these cases to have their convictions quashed following the Strasbourg judgment was rejected by domestic courts (the Court of Appeal and the House of Lords), which stressed that the safety of criminal convictions must be examined according to the law as it stood at the time of the trial, since neither the legislative reform of 1999 (see general measures below) nor the enactment of the 1998 Human Rights Act had had retrospective effect.   The Government further notes that, according to the finding of the Court of Appeal, a substantial body of evidence existed against the applicants besides the interviews given to inspectors appointed by the Department of Trade and Industry, and it was thus impossible to speculate on what the outcome of the trial would have been in the absence of the impugned evidence. In addition, the House of Lords underlined that if there were any other allegations of unfairness besides those relating to the use of evidence obtained under statutory compulsion, the trial court could have examined these under section 78 of the Police and Criminal Evidence Act 1984. Moreover, the Court of Appeal referred to the fact that a new jury trial more than 10 years after the original trial and more than 14 years after the events with which the trial would be concerned was not appropriate, particularly in the light of the appellants' age and state of health.   In such circumstances, the Government considers that further measures such as quashing the criminal convictions or otherwise erasing their consequences would place the applicants in a better position than they were in before the violations occurred, a situation which would go beyond the United Kingdom's obligations under Article 46 of the Convention.     As regards general measures   Interim measures were adopted by the Attorney General in February 1998 to prevent as far as possible under the existing legislation new similar violations of the Convention. The measures took the form of a guidance note to prosecuting authorities about the handling of cases where the evidence available to the prosecution included answers obtained by the exercise of compulsory powers.   According to the note, answers obtained pursuant to a procedure which included the power to compel answers, whatever the investigative or regulatory regime, could not be used in subsequent criminal proceedings as part of the prosecution case, except for the very limited purposes of proceedings for offences arising out of the giving of evidence (e.g. perjury). The guidance note therefore covered not only evidence obtained by the exercise of powers under Section 434 of the Companies Act 1985, which was at issue in the case of Saunders against the United Kingdom, but also evidence obtained under analogous powers. In addition, the guidance restricted the use by prosecutors of compulsorily acquired answers for the purposes of cross-examination.   Legislative work also started, leading to the Youth Justice and Criminal Evidence Act 1999 which entered into force in 2000. This Act added a new provision to Section 434 of the 1985 Companies Act, providing that no evidence relating to the answers given to inspectors appointed by the Department of Trade and Industry by persons under investigation can be adduced in criminal proceedings against them, except for limited purposes.   The Government of the United Kingdom considers in view of the measures taken that the violations of Article   6, paragraph 1, of the Convention found by the European Court in the present cases have been fully remedied and that the United Kingdom has therefore complied with its obligations under Article 46, paragraph   1, of the Convention.     Appendix II   The Saunders case originated in an application (No. 19187/91) against the United Kingdom, lodged with the European Commission of Human Rights on 20 July 1988 under former Article 25 of the Convention by Mr   Ernest Saunders, a British national. The Commission declared admissible the complaint that the use, at the applicant's trial, of statements made by him to inspectors appointed by the Department of Trade and Industry under their compulsory powers had deprived him of a fair hearing.   The case was brought before the Court by the Commission and the Government of the United Kingdom on 9   and 13 September 1994 respectively.   In its judgment of 17 December 1996 the Court:   -   held, by sixteen votes to four, that there had been a violation of Article 6, paragraph 1, of the Convention;   - held, unanimously, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained;   -   held, unanimously, that the government of the respondent state was to pay the applicant, within three months, 75   000 pounds sterling, in respect of costs and expenses, and that simple interest at an annual rate of 8% should be payable from the expiry of the above-mentioned three months until settlement;   - dismissed, unanimously, the reminder of the claim for just satisfaction.   On 27 February 1997, within the time-limit set, the government of the respondent state paid the applicant the sum provided for in the judgment of 17 December 1996. The I.J.L. and others case originated in three applications (Nos. 29522/95, 30056/96 and 30574/96) against the United Kingdom, lodged with the European Commission of Human Rights on 30 November, 18 December and 8 December respectively, under former Article 25 of the Convention, by Mr I.J.L., Mr G.M.R. and Mr A.K.P., three British nationals. The Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the applicants' complaints that, in the framework of the criminal proceedings conducted against them, they were denied a fair hearing on account of (1) the use made by the prosecution of the evidence which they supplied under statutory powers; (2) the alleged improper collusion between the agencies involved; (3) the alleged failure of the prosecution to disclose materials of relevance to their defence; and (4) the alleged unreasonableness of the length of the criminal proceedings.   In its judgment of 19 September 2000 the Court unanimously:   -   held that there had been a violation of Article 6, paragraph 1, of the Convention as regards the use made by the prosecution at the applicants' trial of incriminatory statements which they had given under statutory compulsion to inspectors appointed by the Department of Trade and Industry;   -   held that there had been no violation of Article 6, paragraph 1, of the Convention as regards the alleged improper collusion between inspectors appointed by the Department of Trade and Industry and the prosecuting authorities;   - held that there had been no violation of Article 6, paragraph 1, of the Convention as regards the alleged non-disclosure of materials by the prosecution;   - held that there had been no violation of Article 6, paragraph 1, of the Convention as regards the length of the criminal proceedings against the applicants;   - held that the applicants' complaint under Article 6, paragraph 2, of the Convention regarding the use made by the prosecution at their trial of the transcripts of their interviews with the DTI inspectors gave rise to no separate issue.   In its judgment on just satisfaction of 25 September 2001 (final on 25 December 2001) the Court unanimously:   -   held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, a global amount of   40   000 pounds sterling in respect of costs and expenses, plus any value-added tax that may be chargeable, and that simple interest at an annual rate of 7.5% would be payable on this sum from the expiry of the above-mentioned three months until settlement;   -   dismissed the remainder of the applicants' claim for just satisfaction;   On 24 March 2002, within the time-limit set, the government of the respondent state paid the applicants the sum provided for in the judgment of 25 September 2001. [1] For further details, see Appendix II to this resolution.