CEDH · CASELAW;REPORTS;ENG — 16 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 24266/94                           Roman Cybulski                               against                         the United Kingdom                      REPORT OF THE COMMISSION                   (adopted on 16 September 1997)                          TABLE OF CONTENTS                                                             Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1   PART I   : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3   PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .5                            INTRODUCTION   1.    This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Roman Cybulski against the United Kingdom on 29 March 1994.   It was registered on 3 June 1994 under file No. 24266/94.   2.    The applicant was represented by Messrs. Wilson Barca, solicitors, of London.   3.    The Government of the United Kingdom were represented by their Agent, Mr. M.R. Eaton, of the Foreign and Commonwealth Office, London.   4.    On 16 October 1996 the Commission (First Chamber) declared the application admissible.   It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:        "In the event of the Commission accepting a petition referred to      it:        a.    it shall, with a view to ascertaining the facts, undertake      together with the representatives of the parties an examination      of the petition and, if need be, an investigation, for the      effective conduct of which the States concerned shall furnish all      necessary facilities, after an exchange of views with the      Commission;        b.    it shall at the same time place itself at the disposal of      the parties concerned with a view to securing a friendly      settlement of the matter on the basis of respect for Human Rights      as defined in this Convention."   5.    The Commission (First Chamber) found that the parties had reached a friendly settlement of the case and on 16 September 1997 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   6.    The following members were present when the Report was adopted:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL           Mrs. M. HION           Mr.   R. NICOLINI                               PART I                       STATEMENT OF THE FACTS   7.    The applicant is a United Kingdom citizen, born in 1957 and resident in Thorpe-le-Soken in Essex.   8.    On 2 December 1992 police officers seized a quantity of magazines and some videos from the bookshop where the applicant works.   He was subsequently charged with four offences, one of which eventually proceeded to trial.   That was an allegation that the applicant had had an obscene article for gain, namely the video, contrary to Section 2 (1) of the Obscene Publications Act 1959 (as amended).   9.    The applicant was tried on 28 and 29 March 1994 before a judge, Mr. Assistant Recorder Crowther ("the Recorder") and a jury.   The defence was that the video was not obscene.   The jury unanimously acquitted the applicant.   10.   The applicant's counsel applied to the Recorder for a defendant's costs order pursuant to the Prosecution of Offenders Act 1985.   The Recorder refused the application, the following exchange taking place between the applicant's counsel, Mr. Salter, and the Recorder:        Mr. Salter: ... The effect of denying [the applicant] his costs      would be that he would have been exposed to expense and punished      indirectly, notwithstanding that he was not guilty.   It is, of      course, the view of the jury, not your Honour's view or my view      or anybody else's view of this material which undoubtedly counts.      ... In a broad sense, of course he has brought the prosecution      upon himself because everybody knows that if you publish      pornography, you do so at peril of a prosecution, but on this      occasion this jury who, representing the democratic opinion in      this country, have come to the conclusion that Mr. Cybulski was      right and the prosecution were wrong in their assessment of this      material ... as the court knows there is no avenue of appeal in      this country and if your Honour has in mind to find against me      on this application notwithstanding the verdict of the jury, I      would ask in the circumstances, since I do not know what I will      have to meet, that if your Honour has reasons for refusing this      man his costs, then I would like to know what they are or      provisionally what they are so that I can deal with them.        The Recorder:   You shall know what they are because you can take      this case along with the other ones to the European Court and it      can be recoursed by the fact that you have two cases against me      in the European Court, as I understand.   I am sorry I am not      going to grant costs here.   You said in the course of your      address to the jury that most ordinary people would say that this      video was obscene.        Mr. Salter:   Well ...        The Recorder:   Just let me finish please.   Those who deal in this      kind of material do so at their peril, he has brought it on      himself and he will not have his costs from me.        Mr. Salter:   Your Honour, I am sure [that] you mis-quoted me in      my summing up to the jury.   Of course, ... what I said ... was      that they [the jury] were not required to apply [the word      "obscene"] in the ordinary sense of the word, but, to apply it      in that set out in the Obscene Publications Act 1959 ... I would      ask your Honour ...not to punish [the applicant] financially for      publishing material which the jury - this is a free country your      Honour and the only restriction on the publication of this      material is if the jury say it is obscene. ... They have not done      so ...        The Recorder:   He has brought it upon himself and he is not going      to have his costs.        Mr. Salter:   I am very grateful to you for listening to me, and      that makes three, not two [applications to Strasbourg].        The Recorder:   Very well, three.   11.   The applicant complained of the refusal to make a defendant's costs order in his favour, alleging violation of Article 6 para. 2 of the Convention, Article 6 para. 1 of the Convention and Article 10 of the Convention.                               PART II                          SOLUTION REACHED   12.   Following the decision on the admissibility of the application, the Commission (First Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   13.   In accordance with the usual practice, the Chamber Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   14.   After an exchange of correspondence, the parties agreed on a sum of £6,043.12 in settlement of costs and expenses incurred in the matter.   15.   At its session on 16 September 1997, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   16.   For these reasons, the Commission adopted the present Report.         M.F. BUQUICCHIO                    J. LIDDY           Secretary                      President      to the First Chamber           of the First Chamber