No violation of Art. 6-1;Remainder inadmissible

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested and placed in pre - trial detention on suspicion of having participated in smuggling NORP nationals into GPE .

In the first part of its bill of indictment dated DATE ( running to a total of CARDINAL pages ) , ORG set out the charges ( GPE , compare LAW , first sentence , of LAW in paragraph CARDINAL below ) against the applicant and CARDINAL co - defendants , including his sister ( pp . CARDINAL ) . It accused the defendants of numerous counts of human trafficking , committed DATE in exchange for money and as members of a gang . In addition to that , the applicant and his sister were charged with planning a robbery .

In the part of the indictment setting out the essential results of the investigations ( wesentliches PERSON , compare LAW , first sentence , of LAW in paragraph CARDINAL below ) , the prosecution set out in detail the exact course of events for each charge of human trafficking and summarised the testimonies of the witnesses and the contents of the intercepted telecommunications which were to prove the charges ( pp . CARDINAL of the indictment ) . It took the view , inter alia , that the applicant had concluded a fictitious contract of employment with his sister in order to pretend to have a legal income to support his family . Moreover , it stated that it would have to be taken into consideration as an aggravating factor when sentencing the applicant that he had involved his young children in his criminal activities .

On DATE ORG opened the trial against the applicant and CARDINAL co - defendants , including his sister . The court , sitting as a grand criminal division ( große Strafkammer ) , was composed of CARDINAL professional judges and CARDINAL lay judges . CARDINAL substitute professional judge and CARDINAL substitute lay judges also attended the hearings . The prosecution read out the charges against the applicant and his co - defendants at this hearing ( see Article CARDINAL § CARDINAL of LAW in paragraph CARDINAL below ) .

On DATE ORG , following her confession , separated the proceedings against the applicant ’s sister from those against the applicant . The hearings in both sets of proceedings continued to be conducted by the same professional and lay judges .

On DATE , in the course of the separated proceedings against the applicant ’s sister , the lay judges and their substitutes were informed of the essential results of the prosecution ’s investigations against all ( CARDINAL ) defendants by being given a copy of this part of the indictment which they were to read outside the main hearing . The professional judges of ORG had considered it necessary to inform the lay judges of the contents of the essential results of the investigations as the applicant ’s sister had stated that she generally confessed to the offences described therein , including their manner of execution , without , however , being willing to make any further , more detailed statement . ORG subsequently convicted the applicant ’s sister according to the confession she had made of numerous offences of human trafficking in exchange for money and as a member of a gang .

On DATE ORG informed the applicant in the course of his hearing ( the fifteenth hearing before that court in his case ) that the lay judges had been given copies of the part of the bill of indictment containing the essential results of the investigations in the proceedings against his sister . The applicant thereupon lodged a motion for bias against the CARDINAL lay judges and their CARDINAL substitutes . He argued that the lay judges could no longer follow the trial without prejudice after having taken note of the entire pre - assessment of the evidence by the prosecution . Pursuant to LAW ( see paragraph CARDINAL below ) it was expressly prohibited to disclose the essential results of the investigations to lay judges .

On DATE the CARDINAL lay judges thereupon made a separate formal declaration in writing in identical terms . They stated that in the proceedings against the applicant ’s sister , the latter had confessed that the accusations against her as set out in the prosecution ’s essential results of the investigations were well - founded . The applicant ’s sister , represented by counsel , had agreed that the lay judges were informed of the contents of these results by being provided with a copy of this part of the indictment , which they had read .

The lay judges further explained that prior to being given a copy of this document , the president of the chamber had informed them that , as a rule , this part of the indictment was not disclosed to lay judges as it contained the prosecution ’s view at the end of the investigation proceedings and was not to be confused with the taking of evidence in the main hearing . Moreover , the president had pointed out to them that the proceedings against the applicant and those against his sister had to be assessed separately . They were aware of this , able to distinguish between the taking of evidence in both sets of proceedings and knew that the essential results of the investigations , of which they had taken note in the proceedings against the applicant ’s sister , were not relevant for the taking of evidence in the proceedings at issue . Consequently , they were not biased against the applicant . They further stated that the submissions in writing were their personal declarations .

On DATE the CARDINAL professional judges of ORG dismissed the applicant ’s motion for bias as ill - founded . They argued that , assessing the case in a reasonable manner , there were no grounds to doubt the lay judges’ impartiality ( compare Articles CARDINAL § DATE of the Code of Criminal Procedure in paragraph CARDINAL below ) . Having regard to the diverging views taken by the criminal courts and by legal writers on the question as to whether lay judges could be provided with the essential results of the investigations ( see paragraph CARDINAL below ) , they took the view that LAW ( see paragraph CARDINAL below ) presupposed that lay judges took note of the contents of the case file . As the lay judges had explained in their declarations made following the applicant ’s complaints of bias , they were aware , due to the explanations given by the professional judges , that the copy of the part of the bill of indictment containing the essential results of the investigations expressed the view taken by the prosecution . The lay judges understood that this document was not to be confused with the results of the main hearing , on which alone the judgment should later be based . Therefore , the defendant had no reason to fear that the lay judges could consider their reading of the document in question part of the proceedings against him .

On DATE the applicant lodged a complaint of bias against the CARDINAL professional judges . He argued that they had failed to take account of his fears that the lay judges were no longer impartial and that the presiding judge had formulated the written declarations made by the lay judges . The court dismissed this complaint as inadmissible on DATE , arguing that it was in substance an appeal against the decision of DATE against which however no appeal lay to ORG .

In a total of CARDINAL hearings , ORG read out numerous TIME of tape recordings of intercepted telecommunications , which had been made in NORP and translated into NORP , and heard many witnesses , some of whom had been named by the applicant , as well as CARDINAL experts on the question of his mental condition .

On DATE ORG , while acquitting him of having planned a robbery , convicted the applicant , inter alia , of human trafficking , acting on a commercial basis and as a member of a gang , and sentenced him to DATE and CARDINAL months’ imprisonment . It found that the applicant had been party to numerous offences of human trafficking by storing and handing over passports belonging to the persons smuggled into GPE by other gang members . It based its findings on the submissions of the applicant , who had admitted having stored and handed over passports in cooperation with his sister . Moreover , the court considered the testimony of a police officer who had reported on the results of the interception of the telephone conversations made from the applicant ’s phone and that of the café he ran with his sister . Furthermore , a witness who had been smuggled into GPE had testified that he had picked up his passport at the applicant ’s café . When searching his home , the police had found CARDINAL NORP passports . In fixing the sentence , ORG considered as a mitigating factor that the applicant had acted also with the intention of helping his fellow countrymen who had become refugees following the ethnic persecution of residents of NORP origin in GPE .

The applicant was released from prison DATE .

On DATE the applicant lodged an appeal on points of law . He claimed that the lay judges adjudicating on his case had been biased . He submitted that LAW only allowed documents serving as evidence to be brought to the notice of lay judges . However , the essential results of the investigations were not such documents within the meaning of that LAW Pursuant to LAW , it was expressly prohibited to allow lay judges to take note of this part of the indictment . The fact that it was impossible for the lay judges to distinguish between the proceedings against the applicant and those against his sister was illustrated by the fact that even in the judgment drafted by the professional judges the CARDINAL separate proceedings had been confused ( by referring to the wrong person as being the defendant ) .

NORP Moreover , the applicant claimed that ORG had not fulfilled its duty to investigate the matter . In particular , it had not played the recorded telephone conversations in the main hearing and had merely questioned a police officer on their contents instead . In addition , ORG had failed to take into consideration relevant submissions of an expert on the cultural background and situation in GPE .

On DATE ORG , without giving further reasons , dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE the applicant lodged a complaint with ORG . Referring to his submissions before ORG , he claimed that his trial before ORG had been unfair and that his right to liberty as guaranteed by LAW had been infringed .

On DATE ORG declined to consider the applicant ’s constitutional complaint .

Following an order issued by ORG , the applicant served the remainder of his prison sentence from DATE . In DATE he was again released from prison on probation , the remaining part of his sentence having been suspended .

Article CARDINAL of the Code of Criminal Procedure regulates the contents of the bill of indictment . Pursuant to LAW , first sentence , the bill of indictment shall indicate the accused , the criminal offence he is charged with , the time and place of its commission , its statutory elements and the applicable criminal provisions ( the charges ) . Moreover , the evidence , the court before which the main hearing shall be held and the defence counsel shall be indicated ( LAW , second sentence ) .

According to LAW , first sentence , of LAW , the essential results of the investigations shall also be presented in the bill of indictment .

ORG , when sitting as a grand criminal division , are composed of CARDINAL professional judges , including the president , and CARDINAL lay judges ( Article CARDINAL § CARDINAL of LAW – Gerichtsverfassungsgesetz ) . Pursuant to LAW lay judges exercise full judicial function during the main hearing and have the same voting rights as professional judges in so far as there are no exceptions provided for by law .

Article CARDINAL § QUANTITY of LAW provides that a judge may be challenged for fear of bias if there is reason to doubt his impartiality . The provision applies , mutatis mutandis , to lay judges ( LAW ) .

The Directives for Criminal Proceedings and Proceedings Concerning Regulatory Offences ( PERSON für das PERSON RiStBV ) set out recommendations for the prosecution authorities concerning the conduct , in particular , of criminal proceedings . These Directives are not statutory provisions , but administrative guidelines agreed upon by ORG of all Länder .

Article CARDINAL § CARDINAL of these Directives provides that the bill of indictment may not be disclosed to the lay judges . However , notably in proceedings concerning extensive or complex facts , they may be provided with a copy of the charges during the main hearing after these have been read out in court .

Article CARDINAL of the Code of Criminal Procedure regulates the course of the trial . After the presiding judge has ascertained that the defendant and his counsel as well as witnesses and experts summoned are present and has questioned the defendant on his personal situation ( § § CARDINAL and CARDINAL ) , the Public Prosecutor shall read out the charges ( § CARDINAL ) .

According to LAW , title deeds and other documents serving as evidence shall be read out at the main hearing . LAW CARDINAL of LAW provides that the reading out may be dispensed with if the professional and lay judges have taken note of the wording of the title deed or document and if the other participants had an opportunity to do so ( so - called self - reading procedure – Selbstleseverfahren ) .

In its judgment of DATE ( no . CARDINAL StR CARDINAL/CARDINAL , ORG ) ( BGHSt ) , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL ) , ORG reiterated :

“ Access to case files for lay judges – just as for associate professional judges DATE is not regulated by law . It appears that until now the courts only dealt with the specific case of providing a report by ORG on the essential results of the investigations to lay judges , which they considered as unlawful . ORG of ORG , referring to the legislator ’s will as apparent from the law ’s drafting history , specified in this respect that providing [ the report to lay judges ] contravened the principles of oral proceedings and immediacy . Lay judges risked mixing up their impressions from that report with those from the main hearing whereas professional judges , as a rule , were able to distinguish between the CARDINAL sources of information due to their training and professional experience ( see ORG of ORG of the German PERSON ( RGSt ) , vol . CARDINAL , pp . CARDINAL , CARDINAL ) . ORG has until now shared this legal opinion ( BGHSt , vol . CARDINAL , pp . CARDINAL et seq . ; ... BGHSt , vol . CARDINAL , pp . CARDINAL et seq . ... ; ORG ( PERSON ) , DATE , p. CARDINAL ) . However , ORG , in an obiter dictum , raised doubts as to whether it would further follow these precedents , because different treatment for professional and lay judges was not provided for by law and no convincing reasons could be given for it . Lay judges , who were called upon to decide on all difficult factual and legal issues together and of equal rank with the professional judges , could well be believed to be capable of understanding the sense and meaning of the bill of indictment ( ORG , judgment of DATE , no . CARDINAL StR CARDINAL/CARDINAL ) .

On the contrary , the majority of legal writers DATE consider granting lay judges access to the case files to be lawful ...

The ORG does not have to decide in the present case whether the existing practice of ORG on providing the essential results of the investigations to lay judges can be upheld or whether the doubts expressed by ORG and the dissenting opinion of legal writers have to be preferred , what it indeed tends to do . In any event , it considers providing TIME of tape - recordings as a means to facilitate the better understanding of the taking of evidence about intercepted telecommunications in the main hearing to be lawful . It may adjudicate on this issue ... because providing such documents is vitally different from taking note of the essential results of the investigations , which essentially involves the evaluation of the suspicion of a criminal act on the part of ORG . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer with ORG in GPE . The respondent Government were represented by Mr P. Laptev , former Representative of GPE at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant was a professor and a research scientist at ORG .

On DATE ORG of ORG of GPE ( “ the ORG ” ) opened a criminal investigation into disclosure of ORG secrets , an offence under LAW .

On DATE the applicant 's home and office were searched and a body search was carried out on his person . Reports containing technical information on NORP - made missiles and related engineering drawings were found during the searches .

On DATE the applicant was charged with disclosure of ORG secrets , an offence under LAW . On DATE the charge was amended to that of high treason ( LAW ) . The applicant was accused of having transmitted CARDINAL reports containing ORG secrets to PERSON , a GPE citizen and retired naval officer employed by ORG . He was also accused of collecting classified engineering drawings which he supposedly intended to transmit to PERSON had allegedly received remuneration for his services .

In DATE the applicant had a heart attack . The proceedings against him were stayed pending his convalescence .

On DATE ORG found PERSON guilty of espionage under LAW and sentenced him to DATE imprisonment in a high - security colony . On DATE PERSON was amnestied by a special decree of the NORP President , expelled from GPE and prohibited from re - entering the country .

On DATE the proceedings against the applicant were resumed .

At the trial the applicant testified that he had participated in a cooperation project with ORG . He admitted that he had communicated information to PERSON in connection with that project . He insisted , however , that that information had been transmitted through the official university channels and had not contained ORG secrets . He denied receiving any remuneration . He further confirmed that he had obtained engineering drawings from PERSON but claimed that they had been necessary for his work . He had had no intention of making them available to Mr P.

The court questioned several participants in the cooperation project with ORG . They testified that the applicant had collected information on the missiles , had personally prepared CARDINAL reports describing the technical characteristics of those missiles and had transmitted the reports to PERSON had received remuneration for his work .

The prosecutor then requested the court 's permission to read out the statements made by PERSON during his trial and statements that PERSON had made as a prosecution witness during the pre - trial investigation . It was impossible to obtain PERSON attendance as he had been expelled from GPE and had been prohibited from re - entering the country . Mr I. had refused to appear , referring to his unstable condition following his heart attack and a medical opinion that he was not fit to appear in court . The applicant did not object to the reading out of PERSON statements . However , he made an objection to admitting PERSON depositions in evidence .

The court allowed the prosecutor 's request and the statements by PERSON and PERSON were read out . PERSON confirmed that he had received reports containing technical information on the missiles from the applicant and had paid him for that task . Mr I. testified that the applicant had obtained engineering drawings from him in order to pass them on to PERSON

The court further examined expert reports submitted by the prosecutor . The experts established that the reports transmitted by the applicant to PERSON and the engineering drawings found on the applicant contained classified information .

Finally , the court listened to audio recordings and watched video recordings of the applicant 's meetings with PERSON During the meetings the applicant had received instructions from PERSON as to the nature of the information to be collected and transmitted . The applicant and PERSON had also discussed the amount of remuneration the applicant was to receive for his services .

On DATE ORG found the applicant guilty of high treason committed in the form of espionage , an offence under LAW . Relying on the statements by the applicant 's colleagues , PERSON depositions and the audio and video recordings , the court found that the applicant had personally transmitted reports containing information on NORP - made missiles to PERSON and had received money for doing so . The classified nature of the communicated information had been established by the experts . Finally , referring to the testimony by PERSON , the court found that the applicant had collected engineering drawings with the intention of transmitting them to PERSON It considered that the applicant 's actions had undermined the external security of GPE . Having regard to the applicant 's age and frail health , the court sentenced him to DATE imprisonment conditional on DATE probation .

Both the prosecution and the defence appealed against the judgment . The applicant submitted , in particular , that PERSON had not been summoned as a witness against him . He had not had any procedural status in the proceedings and the trial court had been barred from relying on his statements . He further complained that the trial court had failed to secure the attendance of the prosecution witness Mr I.

On DATE ORG of GPE upheld the judgment of DATE . As to the alleged procedural defects , it found as follows :

“ ... The case materials were reviewed with sufficient thoroughness ; in particular , an assessment of the statements by PERSON P[. ] , whose conviction had become final and whose depositions were read out in accordance with LAW , was made ; there have been no substantial breaches of the rules of criminal procedure in the trial ... ”

ORG also quoted the deposition by the witness PERSON , without indicating the reasons for his non - attendance .

LAW of the Russian Federation provides as follows :

“ High treason , that is , espionage , disclosure of ORG secrets or assistance otherwise provided to a foreign ORG , a foreign organisation or their representatives for ... subversive activities undermining the external security of GPE , committed by a NORP national , shall be punishable by DATE imprisonment and confiscation of property ... ”

“ Communication of State secrets , as well as their collection , theft or storage with a view to communicating them to a foreign ORG , a foreign organisation or their representatives , and also communication or collection of other items of information at the request of a foreign intelligence service , for the purpose of using them to harm the external security of GPE , committed by a foreign national or a stateless person , shall be punishable by DATE imprisonment . ”

“ Disclosure of ORG secrets not amounting to high treason , by a person who has been granted access to ORG secrets or to whom such secrets have become known in the course of his service or work ... , shall be punishable by DATE arrest or by DATE imprisonment with or without a prohibition on occupying certain positions ... ”

LAW defines evidence as any information on the basis of which a court establishes the existence or absence of circumstances that have to be proved in a criminal case ( LAW § CARDINAL ) . Admissible evidence includes ( i ) statements by the accused or defendant ; ( ii ) statements by the victim or witness ; ( iii ) conclusions and statements of an expert ; ( iv ) material evidence ; ( v ) records of investigative or judicial steps ; and ( vi ) other documents ( LAW ) .

Circumstances established by a final judgment may be accepted by the court without further inquiry if they do not raise doubts in the judge 's mind . However , such judgment can not prejudge the guilt of individuals who have not participated in the proceedings leading to that judgment ( LAW .

Witnesses are to be examined directly by the trial court ( LAW ) . Statements given by the victim or a witness during the pre - trial investigation may be read out with the consent of the parties in CARDINAL cases : ( i ) if there is a substantial discrepancy between those statements and the testimony before the court ; or ( ii ) if the victim or witness has failed to appear in court ( Article CARDINAL ) .

The judgment may only be founded on the evidence that has been examined at the trial ( LAW DATE ) .


Violation of Art. 5-4;No violation of Art. 5-2 and 5-3;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr PERSON is a NORP citizen who was born in DATE ; he lives at Verviers and is a company director .

On DATE , a private limited company ( " société de personnes à responsabilité limitée - " SPRL Lamy " ) of which he was the manager and which built industrial premises filed a declaration of insolvency with the registry of ORG , and the court adjudged the company bankrupt on DATE .

ORG On DATE , an investigating judge of the Verviers tribunal de première instance ( regional court of first instance ) questioned PERSON and issued a warrant for his arrest .

The warrant set out several grounds : the seriousness of the offences and of the adverse effects on public order and safety ; the scale of the bankrupt company ’s liabilities ( MONEY BF ) ; the needs of the investigation ; the accused ’s deliberate and unmistakable attempts to deprive the creditors of their security ; his expenditure ; and the risk of his absconding abroad .

On the back of the warrant the charges listed against the applicant were :

" I. That , being the majority partner in PERSON at ORG , which was adjudged bankrupt by ORG on CARDINAL , and himself a trader adjudged personally bankrupt by the same court on DATE , he did at Verviers , PERSON or elsewhere in the district or GPE , within the limitation period , commit :

( a ) ... fraudulent bankruptcy by , among other things :

misappropriating or concealing assets worth over CARDINAL F ; and

withholding his books or other accounting documents or fraudulently removing , deleting or altering their content ;

( b ) ... ordinary bankruptcy by , among other things :

incurring excessive personal and household expenditure ;

not giving notice of cessation of payments within the time - limit prescribed in LAW ;

failing , in the late notice , to give the explanations and accurate information required by LAW ;

paying or favouring some creditors to the detriment of the creditors as a whole , after cessation of payments .

II . That as principal , joint principal or accessory , at Verviers or elsewhere in the GPE DATE , he did on several occasions fraudulently or maliciously :

( a ) forge notarised and public documents , private documents and bank or commercial documents by means of false signatures , or by forging or altering documents or signatures , or by fabricating or inserting terms , provisions , obligations or discharges in documents , or by adding or altering clauses , statements or facts which it was the purpose of the documents to set out and record , in that he inter alia :

( i ) submitted a false balance sheet on CARDINAL.CARDINAL.CARDINAL ;

( ii ) kept a separate set of false accounts of his business with GPE and GPE among others ;

( b ) use these documents knowing them to be false ;

( c ) fraudulently misappropriate or , to the the detriment of another , part with bills of exchange , money , merchandise , promissory notes , receipts or documents which he had been given on condition he returned them or used them for specific purposes , in particular :

( i ) CARDINAL F due in GPE and ,

( ii ) over QUANTITY to the detriment of SPRL PERSON ( sale of civil - engineering equipment ) ;

( d ) obtain , in order to appropriate property of another , funds , movables , obligations , receipts or discharges , by using assumed names or false status or making other false pretences to induce belief in the existence of fictitious businesses , powers or credit , engender hope or apprehension of success , or otherwise deceive in order more particularly to :

( i ) obtain CARDINAL F from the LOC authority to the detriment of PERSON .

III . That at Verviers or elsewhere in the GPE DATE , being a trader , he did carry on a professional activity for which he was not registered in ORG . "

After receiving a copy of the warrant , PERSON was taken into custody at the remand prison at Verviers .

ORG On DATE , the applicant , assisted by his lawyer , appeared before the chambre du conseil of the Verviers tribunal de première instance . His counsel filed pleadings in which he disputed in particular that there were " serious and exceptional circumstances " within the meaning of section CARDINAL of the Act of DATE ( see paragraph CARDINAL below ) . He also handed over a file concerning , inter alia , the proceedings relating to the applicant ’s personal bankruptcy ( see paragraph CARDINAL below ) .

ORG After hearing the investigating judge , Assistant Crown Counsel and the defence , the chambre du conseil upheld the arrest warrant . It accepted the reasons given in the warrant and held that the interests of public safety required that the applicant should continue to be held in custody .

ORG On DATE , PERSON challenged the chambre du conseil ’s order in ORG of ORG . He argued that no reasons were given for the order , the circumstances noted by the chambre du conseil were not such as to justify his detention , and the warrant of DATE was unlawful as it did not bear any signature and was wrongly dated ( DATE ) .

The prosecution filed pleadings on DATE .

ORG On DATE , ORG set aside the order on grounds of failure to reply to the applicant ’s submissions . At the same time , however , it decided that the arrest warrant should remain in force .

As regards whether there was sufficient evidence of guilt and of serious and exceptional circumstances relating to public safety , ORG founded its judgment on the following reasons :

" It is to be noted that even in his own account of the state of the firm ’s affairs , given in the form of submissions , the accused conceded that the balance sheet of DATE was inaccurate , although he denied any fraudulent intent and stated that after verification of sums owed to the firm its liabilities came to MONEY , against which he set primarily the expected outcome of a hypothetical action against a third party , whose value he said could ‘ reasonably’ be put at MONEY ;

Account must be taken of his admissions concerning the irregular transactions referred to in report CARDINAL of the Verviers police and in the record of his examination by the investigating judge on DATE , corroborated by the admissions of the co - accused PERSON , in police report CARDINAL , although the accused now denies their extent ;

The foregoing provides sufficient evidence of guilt to justify the impugned arrest warrant , given the extremely large sums involved , the needs of the investigation , which the accused disputed to no avail , and the risk of his attempting to evade justice despite his protestations of good faith and the good intentions he professes - all considerations which are set out in the warrant appealed against , which are serious and exceptional , and which required his arrest in the interests of public safety . "

As to the alleged unlawfulness of the warrant , ORG noted , in the first place , that the copy given to the applicant mentioned that the original identified the investigating judge and was signed by him . The court added : " It [ could ] not be seriously questioned ... that the copy given to the [ applicant ] bore DATE instead of CARDINAL DATE purely as a result of a clerical error of no consequence " . The court concluded that these circumstances in no way made the arrest arbitrary and could not have prejudiced the rights of the defence .

Mr PERSON appealed on points of law to ORG on DATE , putting forward CARDINAL grounds . Firstly , he maintained that mandatory formal requirements had not been complied with , as the arrest warrant was unsigned and the attached order committing him to prison bore DATE . Additionally , he considered the reasoning of ORG judgment to be unclear and contradictory . Lastly , he stated that ORG had relied on reports CARDINAL and CARDINAL of the Verviers police - documents that had not been communicated to the accused ; in this connection he relied on Article CARDINAL paras . CARDINAL and CARDINAL ( article DATE , article CARDINAL ) of the Convention .

The Court of Cassation dismissed the appeal on CARDINAL DATE .

As regards the first ground of appeal , it noted that the formalities provided for in LAW for serving an arrest warrant were not mandatory and that failure to comply with them did not entail nullity . It reiterated ORG remarks as to the lack of a signature and the error in the date and concluded that there had been no infringement of the rights of the defence or of the principle of personal liberty .

With respect to the second ground of appeal , ORG held that the reasons given for the judgment appealed against were neither unclear nor contradictory , as the judgment was based not only on the applicant ’s admissions concerning the irregular transactions referred to in reports CARDINAL and CARDINAL but also on the extremely large sums involved , the needs of the investigation and the risk that the accused might try to evade justice . ORG inferred from this that there were serious and exceptional circumstances affecting public safety .

As to the third ground , ORG held that LAW was concerned with the exercise of the rights of the defence in trial courts and not with procedure followed in the matter of detention on remand . Furthermore , the LAW precluded communication of the file to the accused or his counsel at this stage in the proceedings ; this was apparent from section CARDINAL , taken together with the final paragraph of CARDINAL . ORG had accordingly not been able to " conclude from the non - communication of the file that there had been any infringement of the rights of the defence " .

ORG The chambre du conseil made reasoned orders extending Mr PERSON ’s detention on remand DATE by DATE ( section CARDINAL , second paragraph , of the DATE Act - see paragraph CARDINAL below ) . The applicant regained his freedom on CARDINAL DATE as the vacation court , exercising the jurisdiction of ORG , took the view that the needs of the investigation no longer precluded his release .

ORG On DATE , on an application by the trustees in bankruptcy for SPRL Lamy , ORG adjudged the applicant personally bankrupt .

An application by PERSON to have that judgment set aside was dismissed by ORG on DATE , but on appeal ORG , in a judgment delivered on DATE , quashed the judgment of CARDINAL DATE and declared the judgment of DATE to be null and void .

ORG On DATE , the chambre du conseil of the Verviers tribunal de première instance committed Mr PERSON and CARDINAL co - defendants for trial at ORG .

ORG An application by PERSON to have that order set aside was declared inadmissible by ORG in a judgment given on DATE .

Mr PERSON ’s appeal on points of law against that judgment was dismissed by ORG on DATE .

ORG Throughout the proceedings relating to the committal for trial , the applicant pleaded various grounds of nullity . He argued in particular that his counsel had not been able to inspect the file when the arrest warrant was first confirmed by the chambre du conseil and had subsequently had DATE hours’ notice of each appearance , which was not sufficient for preparing the defence .

ORG On DATE , ORG convicted the defendant and sentenced him to CARDINAL GPE imprisonment , suspended for DATE in respect of that part of the sentence which exceeded the time already spent in custody on remand , and imposed CARDINAL fines of CARDINAL BF .

Unlike his co - defendants , Mr PERSON did not appeal .

Detention on remand is governed by LAW of DATE , as amended or supplemented by , inter alia , Acts of CARDINAL DATE and CARDINAL DATE . The main provisions relevant in the instant case are set out below :

" After the examination , the investigating judge may issue an arrest warrant where the offence is punishable by CARDINAL months’ imprisonment or a heavier penalty .

If the accused is resident in GPE , the investigating judge may issue such a warrant only in serious and exceptional circumstances , where necessary in the interests of public safety .

" In the eventuality provided for in paragraph CARDINAL of section CARDINAL , the warrant shall state the serious and exceptional circumstances affecting public safety which justify arrest and shall specify the special features of the case or of the accused ’s personality . "

" Immediately after the first interview with the investigating judge , the accused shall be allowed to communicate freely with his counsel .

" The arrest warrant shall expire unless , within DATE following the examination , the chambre du conseil renews it on the basis of the investigating judge ’s report and after hearing submissions by ORG and the accused .

If the accused , who shall be asked specifically about his wishes in the matter , desires the assistance of a lawyer , that fact shall be mentioned in the record of his examination by the investigating judge .

In that event , the presiding judge of the chambre du conseil dealing with the case shall cause the place , date and time of the hearing to be entered in a special register at the registry at least TIME beforehand .

The registrar shall notify these details by registered letter to the lawyer nominated . "

" If , within DATE after the examination by the investigating judge , the chambre du conseil has not given a ruling on the remand , the accused shall be released unless , in a unanimous reasoned decision , after hearing submissions by ORG and the accused or his lawyer , the chambre du conseil rules that serious and exceptional circumstances affecting public safety necessitate the accused ’s further remand . Such a decision shall state the relevant circumstances and the special features of the case or of the accused ’s personality .

The same shall apply DATE thereafter if the chambre du conseil has not ruled on the remand by DATE .

Prior to a hearing by the chambre du conseil or ORG , the file shall be made available to the accused ’s lawyer at the registry for DATE . The registrar shall notify the lawyer accordingly by registered letter . "

" The accused and the prosecution may appeal to ORG against decisions of the chambre du conseil in the cases provided for in DATE , CARDINAL .... "

" Such an appeal shall be entered within DATE following DATE of the decision in the case of the prosecution and following DATE on which the decision was served on him in the case of the accused .

Service shall be effected within TIME . The relevant document shall advise the accused of his right of appeal and of the time - limit for exercising that right .

Notice of appeal shall be lodged with the registry of ORG and recorded in the register of criminal appeals .

Crown Counsel shall forward the documents to Principal Crown Counsel .

Notifications to the accused ’s lawyer shall be made by the Registrar .

The Indictments Chamber shall give a ruling straightaway after hearing submissions by the prosecution and the accused or his lawyer .

ORG It should be noted that section CARDINAL does not contain any provision corresponding to the last paragraph of LAW , which was inserted by LAW of DATE .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in ORG .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE and CARDINAL DATE he made CARDINAL requests that a date be set for a hearing .

On DATE the judge presiding the case was appointed to ORG ( PERSON v PERSON ) and the case was assigned to a new first - instance court judge .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts . The court also sought an additional opinion from CARDINAL of the appointed experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG . ZT cross - appealed .

On DATE the court allowed the appeals in part , lowered the damages awarded , and remitted the case , in the part concerning the costs and expenses of the proceedings , to the first - instance court for re - examination .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

The proceedings are still pending .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE .

may be summarised as follows .

The applicant and his wife PERSON , also a NORP national , lived in GPE where they operated their own company . They have QUANTITY children , PERSON born in DATE and NORP born on DATE . In DATE the applicant and C. separated , and DATE PERSON moved out of the marital home .

On DATE C. ’s residence permit for GPE expired , she could now stay in GPE only up to DATE within a DATE period ; upon request dated DATE C. ’s right of residence was for humanitarian reasons prolonged once until DATE . On DATE C. registered as a resident in GPE , GPE , at her mother ’s address . With letter dated DATE the applicant terminated ORG ’s employment contract in view of her residence permit status in GPE .

Since DATE C. repeatedly travelled to GPE with NORP for medical treatment and for visits . In particular , in DATE D. underwent surgery in GPE because of a kidney tumour . On DATE C. and NORP moved into their own flat in PERSON , but continued also to live in the former marital home in FAC , which had been assigned to C. by ORG decisions of DATE and DATE . From DATE C. stayed in GPE with NORP more often ; in DATE she moved her household and personal effects from Russe to Olpe .

In DATE C. filed a divorce petition with ORG in Russe . In a hearing on DATE she informed the applicant and the court that NORP had a suspected kidney tumour which she wanted to have treated in GPE . The parties concluded a settlement , approved by the court , whereby the applicant agreed that C. assume custody of NORP until the end of the divorce proceedings , and that she could leave GPE with NORP at any time . At the same time contact rights for the applicant were set . In DATE ORG refused the applicant ’s request that this settlement be modified , awarded C. also custody of A. and assigned the former marital home to her . In DATE this decision was modified by ORG to that effect that custody of A. was now awarded to the applicant . In DATE C. withdrew her divorce petition . Consequently , the proceedings were discontinued .

The applicant then filed his own divorce petition and on DATE ORG , by way of temporary measure , awarded C. custody of NORP and the applicant custody of NORP until the end of the divorce proceedings . ORG also set contact rights for both parties with regard to the other child and assigned the former marital home to C. This decision was upheld by ORG on DATE .

On DATE the applicant lodged a request for the return of NORP to GPE , or alternatively for contact rights , pursuant to the provisions of LAW ( hereafter “ LAW ) . On DATE the ORG appointed a guardian ad litem ( PERSON ) for NORP On DATE ORG submitted a report regarding NORP ’s social situation . On DATE , following CARDINAL oral hearings , in which ORG heard the applicant , C. , NORP and the guardian ad litem , it granted the applicant ’s request and ordered C. to return NORP to GPE . In its decision ORG mainly relied on a letter from ORG dealing primarily with a request of ORG under LAW in respect of DATE as well as on a corresponding private expert opinion submitted by the applicant . It argued that ORG had been awarded custody of NORP only as a temporary measure until the end of the divorce proceedings . Her custody right therefore had to be interpreted as limited to the territory of GPE . Consequently , ORG considered the removal of NORP to GPE wrongful under LAW because it violated the applicant ’s joint custody right in so far as a change of NORP ’s residence outside of GPE was concerned .

C. appealed the decision . On DATE the ORG ordered the applicant to submit a certificate of illegality ( Widerrechtlichkeitsbescheinigung ) pursuant to LAW . By a letter dated DATE , submitted with an LANGUAGE translation , ORG stated that :

“ ... the care for the child NORP is granted to the mother , in accordance with the usual residence of the child . The personal contact with the child [ A. ] ... – too . This contact has to be realized exactly in GPE . Subsequent changes of the enacted temporary measures , motivated eventually by a changed place of residence of the mother , do not reflect on the executive force of the court decision . ... ”

On DATE , following an earlier oral hearing to which it had summoned NORP but had then refrained from hearing him because of his young age , ORG ordered C. to adhere to the contact regime set out by ORG but dismissed the applicant ’s request to return NORP to GPE . It found that , irrespective of whether NORP or NORP law was applicable , since ORG had sole custody of NORP his removal had not been in breach of any custody right of the applicant . It could be deduced neither from the NORP courts’ decisions nor from the provisional character of those decisions that the right was limited to the territory of GPE . ORG was not convinced by the reasoning of ORG and the private expert opinion ; it found that their interpretation did not follow from the NORP courts’ decisions or the relevant provisions of NORP law and was not substantiated by case - law or professional literature . It further found that while a certificate of wrongness was meant to facilitate the determination of whether there was a violation of a custody right it did not bind the court . The decision was served on the applicant ’s lawyer on DATE .

On DATE the applicant lodged a constitutional complaint . On DATE ORG refused to accept the constitutional complaint for examination , stating that it was inadmissible without giving further reasons .

Article CARDINAL

“ The objects of the present Convention are –

a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

Article CARDINAL

“ The removal or the retention of a child is to be considered wrongful where DATE

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

Article CARDINAL

“ For the purposes of this Convention –

a ) " rights of custody " shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;

b ) " rights of access " shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence . ”

Article CARDINAL

“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ... ”