Resolution CM/ResDH(2010)146

Execution of the judgment of the European Court of Human Rights
Kansal against the United Kingdom

(Application No. 21413/02, judgment of 27 April 2004, final on 10 November 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the applicant’s right not to incriminate himself, in view of the use made by the prosecution at his trial of incriminatory statements which he had given under statutory compulsion to the official receiver in bankruptcy proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having noted that the European Court did not award any just satisfaction in this case (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)146

Information about the measures to comply with the judgment in the case of
Kansal against the United Kingdom

Introductory case summary

The case concerns the infringement of the applicant’s right not to incriminate himself, in view of the use made by the prosecution at his trial of incriminatory statements (ruled admissible by the judge under section 433 of the Insolvency Act 1986) which he had given under statutory compulsion (section 291 of the Insolvency Act 1986) in bankruptcy proceedings (violation of Article 6§1). The applicant was sentenced in 1992 to 15 months’ imprisonment for various offences under the Theft Act 1968 and the Insolvency Act 1986.

In 1998, his case was referred back to the domestic courts by the Criminal Cases Review Commission. Nevertheless, the House of Lords confirmed the applicant’s conviction in November 2001, stating that, in view of the lack of retrospective effect of the Human Rights Act 1998, a defendant whose trial took place before the entry into force of the Act cannot rely on a breach of the European Convention on Human Rights in a later appeal against his conviction.

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

No just satisfaction awarded.

b) Individual measures

The procedural mechanism under the Insolvency Act 1986 used in this case to obtain the evidence at issue is equivalent to that used under the Companies Act 1985 in the cases of Saunders against the United Kingdom (19187/91 judgment of 17 December 1996) and I.J.L. and others against the United Kingdom (29522/95 judgment of 19 September 2000). In Resolution ResDH(2004)88 adopted in respect of those two cases no individual measure was considered necessary in view of the fact that the violation of the applicants’ right to a fair trial did not raise any serious doubts regarding the outcome of the proceedings at the origin of the applicants’ complaints. The situation in the present case is similar.

The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. As the applicant failed properly to qualify his claims for costs and expenses (beyond the sums received in legal aid), the European Court was unable to make any award for costs and expenses.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II.	General measures

At the relevant time, the use at trial of evidence given under compulsion in bankruptcy proceedings was explicitly allowed by Section 433 of the Insolvency Act 1986. Following the judgment delivered in 1996 by the European Court with respect to a similar provision in the Companies Act 1986 in the case of Saunders against the United Kingdom (see above) interim measures were adopted by the Attorney General in the form of a guidance note to prosecuting authorities according to which 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. This measure was later put on a statutory footing in the Youth Justice and Criminal Evidence Act 1999.
The judgment of the European Court was published in the European Human Rights Reports at (2004) 39 EHRR 31.

III.	Conclusions of the respondent state

The government considers that no individual measure is required, that the general measures adopted will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.