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CYBULSKI v. THE UNITED KINGDOM

Doc ref: 24266/94 • ECHR ID: 001-45917

Document date: September 16, 1997

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CYBULSKI v. THE UNITED KINGDOM

Doc ref: 24266/94 • ECHR ID: 001-45917

Document date: September 16, 1997

Cited paragraphs only

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

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