CASE OF BULLEN AND SONEJI v. THE UNITED KINGDOM
(Application no. 3383/06)
8 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bullen and Soneji v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Registrar,
Having deliberated in private on 2 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The applicants' conviction and sentence
2. Adjournment pending R. v. Steele and Shevki
3. Mr E.'s appeal and application for an adjournment
4. The proceedings before the Court of Appeal
5. The proceedings before the House of Lords
II. RELEVANT DOMESTIC LAW
“Section 1 (2) – For subsections (1) to (3) (orders confiscating the proceeds of an offence) there shall be substituted the following subsections— (1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.”
“28. The following section shall be inserted in the Criminal Justice Act 1988, after section 72—
72A. — (1) Where a court is acting under section 71 above but considers that it requires further information before—
(a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above;
(b) determining whether his benefit is at least the minimum amount; or
(c) determining the amount to be recovered in his case by virtue of section 72 above,
it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.
(2) More than one postponement may be made under subsection (1) above in relation to the same case.
(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—
(a) by itself; or
(b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,
exceeds six months beginning with the date of conviction.”
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 4 of the 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
Section 8 provides (so far as relevant):
“(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”
Section 10 provides:
“(1) This section applies if –
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies –
(i) all persons who may appeal have stated in writing that they do not intend to do so; or
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”
As regards the length of the proceedings
43. The Court reiterates that Article 35 § 1 of the Convention requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse need be had to remedies which are inadequate or ineffective (see, for example, Kucheruk v. Ukraine, no. 2570/04, § 108, 6 September 2007). The existence of the remedy must be sufficiently certain, failing which it will lack the requisite accessibility and effectiveness. Article 35 of the Convention also provides for a distribution of the burden of proof. It is incumbent on the Government claiming non exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).
(a) The parties' submissions
i) The Government
ii) The applicants
b) The Court's assessment
“a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings, does not dispense the State from complying with the requirement to deal with cases in a reasonable time...The manner in which a State provides for mechanisms to comply with this requirement, whether by way of increasing the numbers of judges, or by automatic time-limits and directions, or by some other method, is for the State to decide. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay.”
B. As regards the unfairness of the proceedings
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President