Violation of Art. 3;No violation of Art. 6-2;Violation of Art. 8;Non-pecuniary damage - financial award

On DATE the applicant , who had been treated for heroin addiction in GPE , was arrested at FAC for drug offences . He was transferred to the central police headquarters of GPE in FAC , where he was detained until DATE .

On DATE the applicant was transferred to PERSON and was admitted in a comatose state to the ORG psychiatric hospital .

On DATE he was discharged from the psychiatric hospital . The certificate of discharge described him as a drug user . He was immediately taken to PERSON proper .

The applicant was placed in the segregation unit of the “ LOC ” wing of the prison . Subsequently , he was transferred to the “ Alpha ” wing .

On DATE the applicant was found guilty of drug offences by the CARDINAL - member ORG ( ORG ) of GPE , which , due to the nature of the charges , sat as a first - instance court . The court acknowledged that the applicant was a drug addict and sentenced him to DATE imprisonment and a fine of MONEY . The applicant appealed .

In DATE there was a riot in FAC .

On DATE PERSON , a social worker of FAC , reported to the prison governor , inter alia , the following facts . The applicant , after his conviction , shared a cell with CARDINAL other convict . Letters sent by the applicant were not opened . Letters sent to the applicant by ORG were opened by a prison officer in front of the applicant . Foreigners who did not speak NORP could not participate in the vocational training courses organised in PERSON . A programme for learning NORP had once been available in the prison library but was destroyed during the riot . However , it was the intention of the welfare office to replace it in due course . According to LAW , remand prisoners did not have the right to work . However , the applicant , after his conviction , started working as a cleaner . Almost immediately after his arrival at FAC the applicant started being treated by PERSON , a psychiatrist . He continued to participate in the awareness and self - help therapeutic programmes for the foreign prisoners of CARDINAL organisations , Drug Addicts Anonymous and CARDINAL . He was also individually treated by a psychologist who was a member of Drug Addicts Anonymous . After the applicant ’s arrival at FAC , his case was followed by the prison ’s welfare office . It was true that no distinctions were made between remand prisoners and convicts .

In DATE the applicant was transferred from GPE to ORG . According to a letter by the governor of ORG dated DATE , this was done “ to ensure better conditions of detention for the applicant ” . From ORG the applicant was transferred at his request to PERSON in GPE .

NORP In DATE a court of appeal upheld the applicant ’s conviction but reduced his sentence to DATE imprisonment and ordered his expulsion from GPE .

On DATE the applicant applied for release on probation . On DATE a Chamber of the Canea First - Instance Criminal Court granted his application . The applicant was released from prison and was transferred to the GPE deportation centre . From there he was taken to LOC and expelled from GPE immediately after his appearance before the ORG ’s delegates at FAC on DATE .

The evidence of the applicant and the CARDINAL witnesses who appeared before the delegates at FAC on DATE may be summarised as follows .

The applicant was admitted to ORG psychiatric hospital on DATE . Initially , he was detained in a single cell for DATE . He slept all the time due to medication . It was another prisoner who told him how long he had been there . When he woke up , he was moved to a cell with TIME QUANTITY “ very disturbed ” persons . They slept on mattresses on the floor . It was hot , but the windows were open . Occasionally , the door would open and they would be allowed out to go to the toilet or have a shower or walk in the yard . Meals were served in plastic containers on the floor . He stayed for DATE and nights in the second cell .

Subsequently the applicant was taken to the prison proper . He asked to be kept somewhere quiet and he was immediately placed in the segregation unit of the LOC wing . At first , the applicant did not know that he was in a segregation unit .

The cell was very small and high . It had CARDINAL doors and there were CARDINAL beds . One could hardly walk between them . During the entire period of his stay in the segregation unit he was detained with another person , Mr PERSON . There was CARDINAL window in the roof which did not open and which was so dirty that no light could pass through . There was just CARDINAL electric bulb which did not provide sufficient light for reading . There were no other windows apart from a peephole in CARDINAL of the CARDINAL doors , which could be opened . There was an NORP - type toilet in the cell . There was no screen or curtain separating the toilet from the rest of the cell . Sometimes the toilet would flush and sometimes not . There was CARDINAL shower in the unit , which contained CARDINAL cells with CARDINAL prisoners in each . There was no sink in the cell .

It was DATE when the applicant was placed in the segregation unit . It was very hot . During DATE the door of his cell would be open . The segregation unit was unsupervised and “ anything could happen ” . However , the applicant had not been ill - treated by any particular person . There were CARDINAL small high - walled yards , “ CARDINAL steps forward , CARDINAL steps back ” . At TIME the door of his cell would be locked . As there was no ventilation the cell became so hot that the applicant would wake up drenched . In order to have water in his cell , the applicant would fill a bottle from the tap near the shower and sometimes from the toilet flush .

After DATE in the segregation unit , the applicant was offered the possibility of going to the ordinary cells in the LOC wing . However , he had to turn this offer down because the ORG wing was for drug addicts and “ he wanted to stay away from drugs ” . There were no drug addicts in the segregation unit .

NORP The applicant did not remember exactly when he left the segregation unit – perhaps CARDINAL or DATE , at DATE or DATE . He was moved to the Alpha wing where mainly economic offenders were kept . Mr PERSON was moved with him and they continued to share the same cell .

Alpha was the best wing in the prison . However , it was still dirty and overcrowded . There were CARDINAL beds in each cell : CARDINAL bunk beds , CARDINAL on top of the other , and a third bed . Usually , there were CARDINAL prisoners in each cell . There was a sink and an NORP - type toilet . There was a plastic screen on CARDINAL side of the toilet , part of which was broken . Although one could not see the inmate using the toilet , one could smell and hear him . The cell had a window . Sometimes there was a table and a chair in the cell .

The doors of the cells were locked TIME and TIME This schedule differed by TIME DATE . The cells were very noisy due to fellow inmates’ television and radio sets . The prisoners had no control over the light switches . In DATE , the cells were very cold as they were heated for TIME a day . Sometimes the applicant had to stay in bed under his blankets to keep warm . After the riot , several windows were broken and it was freezing in the prison . In DATE , the cells were unbearably hot , as there was no through - draught when the doors were shut . Sometimes the applicant had to wait until DATE in the morning before he could fall asleep . When the door of the cell was open , the situation improved but there was no ventilation in the wing in general . Occasionally , there were problems with the plumbing and the toilet would not always flush .

At CARDINAL point , when the applicant was sharing his cell with CARDINAL other prisoner , CARDINAL NORP inmates were brought in for TIME . They slept on CARDINAL mattresses on the floor .

The only thing the applicant was ever given were blankets . He was not given any clothes , sheets , pillows , toiletries ( including soap ) or toilet paper . He had to buy toiletries and toilet paper from the canteen . Occasionally he did not have any money and had to ask other prisoners . The social services and certain charitable organisations would also help . However , there were times when he was left with no toilet paper , in particular when he had to use the toilet often , due to problems with his stomach . On these occasions , in order to keep clean , he had to use water from the NORP - type toilet . Despite all that , he managed “ to keep himself clean ” . Eventually , he managed to get hold of sheets and a pillow , which he inherited from other prisoners . However , it took him a long time , perhaps DATE .

There were CARDINAL showers DATE described by the applicant as pipes – in the basement for the CARDINAL to CARDINAL prisoners held in the wing . There was hot water for TIME a day or perhaps longer . There were no curtains and no windows . After the riot there was no hot water . In DATE , the showers were used by the cats as toilets .

He had to wash his clothes himself and this was made difficult because of the shortage of hot water . He would dry his clothes by hanging them on the bars of his cell window .

Food was served in such a manner that the cats could play around with it . Before entering prison he had been a NORP but he had to change his eating habits as there were no NORP menus in GPE .

The applicant “ lived in a vacuum ” . He could not communicate with the prison staff , who did not speak LANGUAGE . The social worker knew LANGUAGE . In order to see her , he had to make a request . He would see the social worker CARDINAL times a week , usually for TIME . TIME was the maximum .

There were no vocational activities , courses or library .

At first , the applicant was allowed CARDINAL telephone call a week , in the TIME . However , the social worker subsequently arranged for him to be able to use the telephone in TIME .

The witness was the governor of ORG DATE and DATE .

The witness did not know of any improvements that had been made in the ORG wing since the applicant ’s transfer from FAC . There had been some improvements made to the segregation unit . Now , there were screens separating the toilets from the rest of the cell in the segregation unit , but he did not want to contradict the applicant in this regard . It was possible that there had been no screen in his cell . There were sinks in the cells of the segregation unit .

It was as hot in the segregation unit as in the rest of the prison . In DATE it could be hot . During DATE , there was central heating .

The prison administration provided inmates with pillows . However , it was possible that the applicant did not receive any because at times there were shortages . There was a problem with sheets , especially for foreign prisoners . The latter could get sheets from the welfare office , which had a stock built up from donations or acquisitions through grants from ORG . The prison administration did not provide prisoners with toiletries . Such items were provided by charitable organisations via the welfare office . Toilet paper could be obtained from the welfare office or another prisoner or the chief warden . It was more difficult to find sheets than toilet paper .

Food was not served in an unhygienic manner . While it was being transported , the pan was QUANTITY from the floor , although the witness was not PERCENT sure about that .

It was possible that the applicant had slept in the cell with CARDINAL other prisoners . Usually , each prisoner had his own bed . It was very rare that he did not . However , accommodating CARDINAL prisoners in a cell had been known to happen .

There was no problem with the showers . However , those who had to wash their clothes in prison were faced with problems .

Prisoners communicated with the social workers whom they could see upon request either on DATE after . Those who did not speak NORP could face problems . However , in the witness ’s experience , they managed to adapt . There was always somebody , a member of staff or another prisoner , who could speak LANGUAGE .

All announcements and notices were in NORP . Foreign prisoners were informed of their rights orally upon arrival . However , this was not done systematically . An information pamphlet in LANGUAGE entitled “ Everyday life in the prison establishment ” was distributed to newcomers in DATE but the witness did not remember whether this was before or after the applicant had left FAC .

The witness was the social worker of the LOC wing of FAC . She met the applicant there and followed his case throughout his stay in prison .

On his arrival in FAC proper ( after his detention in the ORG psychiatric hospital ) , the applicant was placed in the segregation unit . This had been decided by the prison governor and the chief warden as a result of his condition – he had withdrawal symptoms . The applicant did not have advance knowledge of the conditions in the segregation unit . Shortly afterwards , the applicant complained of the conditions there and the witness arranged for him to meet the governor , PERSON . The latter gave instructions for the applicant to be moved to another wing . However , this would have been the ORG wing , which was for drug addicts . The applicant was aware of this . He had found out through his contacts with other inmates . He refused to go there . He considered that staying in the segregation unit would help him stay away from drugs . The witness would not confirm that there were drugs in the ORG wing . However , she accepted that “ the LOC wing was problematic for someone who wanted to free himself from drugs ” . In her view , the segregation unit was not appropriate for prisoners . However , the applicant , who was suffering from withdrawal symptoms , could not be moved to the ORG wing immediately . This wing was reserved for persons convicted of economic offences and other prisoners whose conduct had been good . So the applicant had a choice between the segregation unit and the LOC wing . The witness did not advise the applicant to choose one or the other because she did not want to influence what she regarded as a purely personal choice . The applicant chose to remain in the segregation unit . He was subsequently moved to the ORG wing , together with all the inmates of the segregation unit , when it was decided to accommodate in the segregation unit prisoners who were serving disciplinary terms .

The witness would communicate with the applicant in LANGUAGE . The applicant did not speak NORP and this exacerbated his adaptation problems at the beginning , since most of the prison staff did not speak LANGUAGE . However , several of the NORP prisoners spoke some elementary LANGUAGE . Gradually , the applicant managed , through his personal efforts , to establish a rudimentary level of communication with the prison staff in NORP . There were no information notices in LANGUAGE . The pamphlet to which PERSON PERSON referred was distributed in GPE in DATE .

The welfare office had a storage room in the prison with toilet paper , razors , detergent , soap , etc . These were funded by ORG and charitable organisations . Destitute prisoners could get supplies from this storage room once a week . However , during DATE there were often shortages . The welfare office did not provide prisoners with sheets and blankets . These were provided to newcomers by the prison administration , but it was impossible to replace them . The witness did not know whether the applicant had received any sheets . The applicant would receive clothes , toiletries and toilet paper from the welfare office in so far as this was possible , given the restrictions with which it was faced . In the witness ’s view , given the extended period of the applicant ’s detention in GPE , it was possible that he had been confronted with shortages of toiletries and toilet paper . The applicant had also been given assistance by charitable organisations with which the witness had put him in touch .

The witness was an inmate of FAC . He spent DATE in the same cell as the applicant , DATE in the segregation unit of the LOC wing and DATE in the Alpha wing . The witness was in the segregation unit of his own free will because he was a new prisoner and wanted some peace and quiet . They were both moved to the ORG wing , probably when the prison administration decided to accommodate in the segregation unit prisoners who were serving disciplinary terms .

The segregation unit of the LOC wing contained CARDINAL cells , each occupied by CARDINAL prisoners . While in the segregation unit , the witness shared his cell with the applicant and nobody else . There were CARDINAL beds with mattresses and blankets . They were not given sheets or pillows . The toilet had no curtain .

While he was in the segregation unit the applicant would often complain . As it was very hot and he had respiratory problems , he would wake up at TIME coughing . He would bang on the door because he could not breathe .

There were usually CARDINAL prisoners in the cells in the ORG wing . The witness could not remember CARDINAL prisoners in his cell . He remembered CARDINAL NORP inmate sleeping in their cell but not CARDINAL . He did not remember anybody sleeping on the floor . The toilet screen was always there and was not broken . The witness kept a cat in the cell .

As regards the conditions of detention in FAC in general the witness stated the following . The food was bad and risked being contaminated by cats . It was easy to take a shower and one did not have to queue . However , there was not enough water and no curtains . He spoke to the applicant in LANGUAGE and sometimes in NORP . He would also act as a mediator for him . The prison administration would only provide soap . The welfare office would sometimes hand out certain things , but it was difficult . The witness would buy toiletries and toilet paper himself . The applicant would buy them whenever he had money . He would also ask the witness for toothpaste and toilet paper , which the witness would give him . Sometimes it was possible to find a pillow .

The delegates of the Commission visited the segregation unit of the LOC wing where the applicant had been detained in cell no . CARDINAL . The description given by the applicant was on the whole accurate . All the cells were approximately the same size . Cell no . CARDINAL measured QUANTITY Given that there was practically no window , the cell was claustrophobic . At the time of the delegates’ visit , the prisoners were locked in their cells . Cells where CARDINAL persons were held were very cramped . Prisoners were virtually confined to their beds . There was no screen separating the toilet from the rest of the cell . The toilet was adjacent to the beds . Some prisoners had put up curtains themselves . The entire unit was very hot . Due to the lack of ventilation , the cells were unbearably hot , “ like ovens ” . The air was stale and a stench came out of the cells . The cells were all in a state of disrepair and they were very dirty . Some prisoners complained about rats in the cells . There was no sink in cell no . CARDINAL . There was a tap . According to the applicant , who accompanied the delegates during their inspection , the tap had recently been installed . On the doors of some cells there were signs saying “ WC ” . When asked , the prisoners said that the signs would be put up during DATE when the cell doors were not locked to ensure that the cell - mate did not enter the cell while the toilet was being used . The applicant ’s cell could be compared to a medieval oubliette . The general atmosphere was repulsive .

The delegates also visited a cell on the third floor of the Alpha wing where the applicant had been detained . According to the chief warden of FAC , who accompanied the delegates during their inspection , Mr PERSON was still detained in this cell . The cell measured CARDINAL by QUANTITY The description by the applicant was again accurate , except that the toilet screen was not in disrepair . The cell had windows of an adequate size .

The delegates saw the shower area in the basement . It was reasonably clean , although the applicant claimed that during his time it had been much dirtier . Most shower cubicles had curtains . However , some did not .

In the prison storage room , there were small bags containing toilet paper and toiletries that were given to new prisoners . However , the delegates were told that these bags had arrived only very recently . There were no sheets . The inmate in charge claimed that they had all been distributed or that they were at the laundry . There was a cupboard which contained mainly soap .

The welfare office storage room was closed at the time . There was a sign indicating that each wing was served once DATE . It was opened at the ORG request . It contained a lot of used clothes . The delegates were shown toilet paper and CARDINAL sheet . There was a book showing that prisoners came to the room and were provided with various items , such as toiletries , shoes , etc .

The kitchen was quite spacious and clean . The trolleys on which food was transported , however , did not correspond to Mr PERSON ’s description . They were rather low .

In CARDINAL corner of a corridor outside the kitchen a cat had defecated . The delegates also had the opportunity of seeing the inmates queuing to use the telephones . The queues were rather long .

According to the chief warden , no prisoners’ location charts dating from the applicant ’s detention in ORG had been kept . Nor were there books showing the movement of prisoners from one cell to another . The only books that had been kept indicated the last cell in which each prisoner had been kept before leaving FAC .

On DATE the ORG published a report following its visit to GPE in DATE [ FAC was also visited by the ORG in DATE ] which contains the following findings and recommendations concerning PERSON .

CARDINAL ... PERSON for men was built to accommodate CARDINAL prisoners in CARDINAL separate blocks , each having CARDINAL cells on CARDINAL floors . On DATE of the delegation ’s visit , the establishment was holding CARDINAL prisoners , CARDINAL on remand and the remainder sentenced . The total prison staff complement was CARDINAL , of which CARDINAL were prison officers . Perimeter security was the responsibility of armed police .

In the following paragraphs , the ORG shall make a number of specific recommendations concerning the prison establishments visited by its delegation . However , it wishes to emphasise at the outset that the act of depriving someone of his liberty brings with it the responsibility for the ORG to detain him under conditions which respect the inherent dignity of the human person . The facts found during the course of the ORG ’s visit demonstrate that as a consequence of the present level of overcrowding in prisons , the NORP authorities are not in a position to fulfil that responsibility vis - à - vis many prisoners .

The ORG therefore recommends that a very high priority be given to measures to reduce overcrowding in the NORP prison system .

As already indicated ( cf . paragraph CARDINAL ) , at the time of the delegation ’s visit to FAC for men the number of inmates amounted to CARDINAL times the establishment ’s official capacity . A standard cell measured QUANTITY and was equipped inter alia with a screened NORP - type toilet and a hand - basin . Originally designed for individual occupancy , the cells are just about large enough for CARDINAL prisoners ; with CARDINAL , conditions become very cramped . In practice , only a handful of prisoners had their own cells ; the majority of the cells were accommodating CARDINAL or CARDINAL prisoners , and a number were accommodating CARDINAL . The level of overcrowding was somewhat lower in A wing ( CARDINAL prisoners ) than in B , C and D wings ( each of which were accommodating CARDINAL or more inmates ) .

The prisoner distribution chart indicated that CARDINAL cells ( one in C wing and CARDINAL in D wing ) were holding CARDINAL prisoners . The delegation visited the relevant cell in C wing , in which it found CARDINAL prisoners of NORP origin ; they claimed to have been held under such conditions for DATE .

Inevitably , the high level of overcrowding had extremely negative repercussions upon the conditions of detention : living space was very poor , ventilation inadequate , and cell cleanliness and hygiene wanting . In many cells prisoners were to all intents and purposes confined to their beds , there being no room for other furniture . In some of the most over crowded cells , there were more prisoners than beds . Further , the toilet and washing facilities in certain cells were in need of repair .

Despite the overcrowding , prisoners apparently did have ready access to the shower facilities located in the basement of each wing . However , some of the shower cubicles were in a poor state of repair and decoration .

NORP The negative aspects of the overcrowding were mitigated to some extent by reasonable out - of - cell time . TIME QUANTITY to sunset , inmates were allowed to circulate freely and associate with other prisoners within their detention wing and its courtyard ; the wing courtyards were of a good size . It must be stressed , however , that the free circulation of prisoners in their detention wings could have undesirable effects in the absence of proper control by prison staff ; with the manning levels at the time of the delegation ’s visit ( CARDINAL to CARDINAL prison staff on duty during DATE in a wing accommodating CARDINAL prisoners ) , it is difficult to see how such control could be guaranteed ( cf . also paragraph CARDINAL ) .

Activities in any meaningful sense of the term were scarce . There were CARDINAL work places ( i.e. CARDINAL work place for CARDINAL prisoners ) , practically all in the area of general services ( kitchen , laundry , cleaning , maintenance , stores , etc . ) ; no workshops were in operation . However , a printing and bookbinding vocational training centre , with places for CARDINAL prisoners , was due to open in DATE . The shortage of work places was particularly resented by many sentenced prisoners , as it prevented them from taking advantage of the system of earning remission through work .

No educational classes were available and the prison library was both small and ill - equipped . Further , there was no prison gymnasium and , as far as the delegation could ascertain , no organised sporting activities . However , the exercise yards were sufficiently large for certain games ( e.g. volleyball ) , and arrangements were in hand to provide a separate weight - training area in each of the yards ( at the time of the visit , a few prisoners did weight training in the wing basements ) .

To sum up , the vast majority of prisoners at FAC for men ( including a majority of the sentenced prisoners ) were offered no work or educational activities , and possibilities for sport were very limited . Most prisoners spent DATE walking around their detention wing or courtyard , talking with fellow prisoners , or watching television in their cell . Such a monotonous and purposeless existence is quite inconsistent with the objective of social rehabilitation set out in the Greek Code of basic rules for the treatment of prisoners ( cf . paragraph CARDINAL ) .

As regards material conditions of detention at FAC for men , the ORG recommends :

– that immediate steps be taken to ensure that CARDINAL prisoners are held per cell ;

– that serious efforts be made to reduce as soon as possible the occupancy rate to CARDINAL prisoners per cell ( Naturally , the long - term objective should be to have CARDINAL prisoner per cell , save for specific situations when it is not appropriate for a prisoner to be left alone ) ;

– that every prisoner be provided with his own bed and mattress ;

– that shower cubicles , toilets and washing facilities be restored to a good state of repair and maintained in a hygienic condition .

As regards out - of - cell activities , the ORG recommends :

– that current efforts to augment the number of work and vocational training places be intensified ;

– that a thorough examination of the means of improving the prison ’s activity programmes in general ( including education , sport and recreational activities ) be undertaken without delay and that fuller programmes be progressively introduced as overcrowding is brought down .

NORP The segregation unit at ORG consisted of CARDINAL groups of CARDINAL cells , all of which were apparently used for both disciplinary confinement and other segregation purposes . The cells measured QUANTITY ; they were equipped with a bed , but no other furniture ( e.g. table or chair ) . There was adequate ventilation and artificial lighting ; however , access to natural light was , at best , mediocre . Each cell possessed an NORP toilet , and some cells had a wash basin . The adjacent exercise yards measured QUANTITY . The whole unit required to be DATE and was being DATE redecorated .

No - one was being confined as a punishment at the time of the delegation ’s visit . A number of transvestite prisoners had been held in the unit for DATE at their own request . Other prisoners were being held in the unit involuntarily , presumably under LAW or CARDINAL of the LAW ( the absence of a segregation unit register made it difficult to ascertain the precise grounds ) ; certain of them appeared to have psychological or psychiatric problems .

The prisoners were allowed to move freely within the unit and exercise areas during much of DATE , and they had TV sets and other personal possessions in their cells ( though staff indicated that a prisoner undergoing disciplinary confinement would remain in his cell and would not be allowed personal possessions ) .

The conditions of detention in this segregation unit are on the whole acceptable for prisoners undergoing the disciplinary sanction of confinement in a special cell . However , the ORG considers that it would be desirable for the cells accommodating such prisoners to be fitted with a table and chair , if necessary fixed to the floor .

The ORG also recommends that all prisoners , including those confined to a special cell as a punishment , be allowed TIME of exercise in the open air everyday .

Conditions of detention in the unit are far less suitable for prisoners subject to segregation for non - disciplinary reasons , in particular if that measure is applied for a lengthy period .

As regards more particularly prisoners who are segregated because of personality disorders and/or for their own protection , the ORG invites the NORP authorities to explore the possibility of creating special units organised along community lines .

The unit is a totally unsuitable place in which to accommodate someone in need of psychiatric care . Neither the material environment nor the staff ( ordinary prison officers ) are appropriate . The ORG recommends that no such prisoner be placed in the unit . If , exceptionally , prisoners who are emotionally or psychologically disturbed have to be held temporarily in the segregation unit , they should be kept under close observation .

Further , the ORG recommends :

– that the cells in the unit used to accommodate prisoners segregated for a non - disciplinary reason be equipped in the same way as an ordinary prison cell ;

– that the respective regimes applicable , on the one hand , to persons undergoing disciplinary confinement and , on the other hand , to persons held in the segregation unit for other reasons , be expressly laid down . ”

According to LAW , a prisoner ’s correspondence may be controlled if this is required by reasons of security or if there is a risk of commission of especially serious crimes or a need to establish whether such crimes have been committed .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1+6-3-d;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON , a NORP national born in DATE , is a bricklayer and lives in GPE .

On CARDINAL DATE the GPE police arrested him in connection with an inquiry concerning CARDINAL deaths - of PERSON ( DATE ) and Mr TIME ( DATE ) - caused by the injection of heroin ; the police were acting on information received from drug users and small - time dealers .

The following day a detective questioned the applicant concerning , inter alia , a number of persons :

" Q [ question ] : Do you know Allala le boiteux [ Lame Allala ] ?

R [ reply ] : I do n’t know him . I ’d have to see him .

Q : Do you ever go to the LOC ?

R : Yes , I go there regularly .

Q : A person who was present during a conversation between you and PERSON boiteux says that it was you who took the order for QUANTITY at the LOC on DATE . What do you have to say ?

R : I do n’t know whether I met this lame bloke . I ’d have to be able to see him to say yes ...

Q : Do you know a NORP , quite an old man , whose first name is ORG ?

R : I do n’t know him . I ’d have to be able to see him ...

Q : A young man who only got his supplies directly from you also died in DATE following an overdose . His friend , who is also a drug addict and who gets his drugs only from you , accuses you directly of being the person who sold them the drugs which led to his friend ’s death . What do you have to say for yourself !

R : I ’ve never touched drugs and I ’ve never supplied anyone with them . I would like to be confronted with this person .

SI [ sur interpellation - on examination ] : The person who you ’ve just shown to me and whom you say is called PERSON boiteux does go to the ORG . I only know him by sight . I have n’t had any special dealings with him .

On DATE the police showed Mr ORG and CARDINAL other persons who had been arrested ( PERSON and PERSON ) , through a CARDINAL - way mirror , to CARDINAL drug addicts - PERSON and Mr PERSON , who were facing charges of possession , supply and use of heroin , and Mr Trihan ; the QUANTITY addicts identified him categorically .

Still on CARDINAL DATE an investigating judge at the GPE tribunal de grande instance charged Mr ORG with possession and supply of heroin and involuntary homicide . He remanded him in custody by an order which gave the following reasons :

" The alleged offences are very serious ; inquiries still have to be made ; confrontations are to be organised ; "

On the instructions of the investigating judge , the police obtained statements from several witnesses , drug addicts or former drug addicts : Mr PERSON and PERSON on DATE , Mr Mazoyer on DATE and PERSON on DATE . The officers showed them photographs and they all identified Mr ORG and the CARDINAL other persons charged as drug dealers .

On DATE the applicant ’s lawyer sent to the investigating judge the following letter :

" May I request you , on behalf of Mr PERSON , whom I saw at GPE remand prison , to consider organising as soon as possible a confrontation between him and the persons who have denounced him .

ORG denies the charge of drug trafficking and would like to be able to prove his innocence . "

On CARDINAL DATE the judge in question interviewed PERSON , a friend of one of the victims - Mr GPE - , who had come forward spontaneously to testify against Mr Saïdi , whom he described as his former supplier of drugs .

When questioned on DATE by the investigating judge , Mr PERSON stated , inter alia , as follows :

" SI : You tell me that I ’ve been accused by ORG ... , PERSON ... , who are all drug addicts and who claim that I sold them drugs . It ’s untrue , I want to be confronted with them . "

On DATE Mr ORG ’s lawyer again wrote to the investigating judge , in the following terms :

" Following the interview which you conducted on DATE , I would ask you , as my client has already himself done directly , to organise a confrontation between him and the persons who accuse him . "

By an order of CARDINAL DATE , the investigating judge decided that the applicant should remain in custody .

On DATE the judge committed Mr Saïdi and CARDINAL other persons for trial on the following charges :

" PERSON and [ GPE ] GPE :

that they did in GPE in the course of DATE , contravene the legislation on dangerous drugs by possessing , supplying and making unlawful use of heroin , a class B drug ;

GPE , PERSON , PERSON :

that they did in the same place and over the same period as the aforementioned

( a ) contravene the legislation on dangerous drugs by possessing and supplying heroin , a class B drug ;

( b ) by inadvertence , imprudence , lack of care , negligence or failure to respect the legislation involuntarily cause the death of PERSON and PERSON . "

On CARDINAL DATE ORG sentenced Mr ORG and Mr GPE to CARDINAL years’ imprisonment for infringement of the dangerous drugs legislation and involuntary homicide , Mr DATE for possession and supply of heroin , and PERSON and Mr PERSON , who had not appeared at the trial , to DATE for supply and use of drugs .

The court based its decision on the following grounds :

On TIME of CARDINAL DATE ORG and ORG were arrested . PERSON made possible the arrest in his turn of his intermediary , PERSON , by giving the latter ’s address and his first name .

The CARDINAL men were formally identified by the couple PERSON Pacha and PERSON ; PERSON was also identified by PERSON .

In the course of their interrogations , the aforementioned GPE , ORG and PERSON denied all the accusations levelled against them , although they were concurring and had been made by persons who did not know each other .

The first witnesses to be heard subsequently explained the role played by each of the accused .

Thus PERSON and PERSON formally identified from a plate of photographs PERSON , PERSON and ORG and specified that GPE sold the drugs through the intermediary of PERSON , PERSON being the " wholesale " supplier . Later other witnesses implicated the same CARDINAL individuals .

ORG , well known to the police as a drug addict , claimed to have bought DATE from DATE to QUANTITY of heroin from FAC . He stated that ORG was the regular supplier of drugs to the prostitute and transvestite community .

PERSON , also a drug addict , affirmed that in the course of DATE she had bought drugs from the PERSON . She stated that at the time ORG supplied the addicts directly . She also knew PERSON by his first name , as a drugs dealer .

Nevertheless , the CARDINAL men , PERSON , ORG and PERSON continued to deny all the accusations levelled against them , both before the investigating judge and at the trial .

PERSON and ORG were formally implicated by some of their regular customers ( PERSON ... , PERSON ... , ORG ... , PERSON ... , PERSON ... ) and by the very people who carried out some of their deliveries ( PERSON ... , PERSON Pacha ... ) ; their different roles were precisely described by several witnesses , GPE , the central figure in the traffic , who took the orders , received payment and gave instructions for the delivery , ORG , GPE ’s supplier and identified as a dealer in large quantities of heroin ;

It has been formally established by the statements of the immediate circle of the drug addicts who died of an overdose that the fatal dose had been sold by GPE , who had been supplied by ORG ; the findings of the pathologists from examining the GPE bodies leave no room for doubt as to the direct causal connection between the taking of the drug in question and the death which occurred within a very short time of the injections . "

The court also made in respect of the applicant and PERSON and PERSON , who were likewise NORP nationals , an order permanently excluding them from NORP territory .

On appeals by Mr ORG and PERSON , and by the public prosecutor , the PERSON - en - ORG of Appeal gave judgment on DATE . It found the accused guilty on CARDINAL count of involuntary homicide - in relation to Mr ORG - and reduced Mr ORG ’s sentence to CARDINAL years’ imprisonment and that of PERSON to DATE . However , it confirmed the permanent exclusion from NORP territory .

Its judgment included the following reasoning :

The accused , as they had done throughout the police inquiry , the judicial investigation and the first - instance trial , formally denied that they had committed the alleged offences ;

They argued for their acquittal and stressed the inadequacy of the investigation and in particular the fact that there had been no confrontation between them and their accusers .

After ORG was arrested , he was shown to ORG behind a CARDINAL - way mirror and the latter stated word for word as follows : ‘ That ’s the person to whom I go to buy powder when I ’m in GPE . He ’s the one who supplied us , PERSON and myself , on TIME CARDINAL May CARDINAL.’

In the course of the investigation and on the instructions of the investigating judge the police officers showed photographs of various individuals to PERSON ... and PERSON ...

The latter formally identified from these photographs PERSON , PERSON and PERSON .

According to PERSON , ORG supplies drugs to him and to PERSON . He had them delivered by PERSON . PERSON was indeed the ‘ wholesaler’ who supplied GPE and GPE .

PERSON affirmed that ORG had supplied her with drugs through the intermediary of Saïda Bentaieb .

PERSON acted as ‘ drug - keeper’ for GPE and PERSON was a heroin ‘ wholesaler’ .

Other drug addicts , ORG , known as ‘ Barbara’ ... , PERSON ... and PERSON , known as ‘ Sabrina’ ... , also implicated PERSON and ORG .

The autopsy of the bodies of the CARDINAL victims , PERSON ... and PERSON ... , revealed their drug addiction and there were MONEY , consistent with the time of death , of intravenous injections .

In both cases the cause of death was , according to the experts , acute oedema of the lung , of toxic origin , probably the result of a massive injection of heroin .

As regards the offence of infringement of the dangerous drugs legislation , the court agrees with the relevant reasons on which the first - instance court based its decision and finds PERSON and PERSON guilty ;

The concurring and repeated statements of the people who sold the drugs supplied by them , PERSON and PERSON Pacha , and those who bought the drugs , PERSON , PERSON , PERSON , ORG , ORG , PERSON and PERSON , are sufficiently convincing to establish the offence of which they are accused and also the role which they played in the heroin traffic in GPE ;

Although the police officers and the investigating judge did not organise a confrontation with their accusers , the methods of identification which were used ( identification through a CARDINAL - way mirror or examination of photographic plates bearing their photograph ) show sufficiently that , for their own personal reasons , the dealers and the drug addicts who gave evidence did not wish to be physically confronted with the accused ;

Even if confrontations had led to statements being retracted , that would not have deprived of their weight the repeated affirmations of the dealers and users ;

It has been sufficiently established by the police inquiry and the judicial investigation that ORG did indeed sell to ORG and PERSON the heroin , the injection of which led to ORG being taken ill and ORG ’s death .

Mr ORG appealed on points of law . His sole ground of appeal was worded as follows :

" Violation of the general principles of criminal procedure and of Article CARDINAL para . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of the Convention ... ;

in that ORG convicted the accused of drug dealing and involuntary homicide ;

whereas , firstly , in order to determine the accused ’s guilt the lower courts relied solely on his being identified indirectly by the witnesses who viewed him from behind a two- way mirror ; this method offends against the fairness of the investigation and can not furnish admissible evidence under criminal procedure ;

whereas , secondly , by refusing to organise a confrontation between the accused and the persons who accused him and whom he had never seen and never been able to examine , the contested judgment infringed the accused ’s right to examine the witnesses against him . "

On DATE ORG dismissed the appeal on the following grounds :

" It appears from the impugned judgment that in finding PERSON guilty of heroin trafficking and the involuntary homicide of PERSON , who died as a result of a massive injection of that drug , ORG noted that CARDINAL methods of identification had been used by the investigating police officers , identification through a two- way mirror and by means of photographs ; these had enabled various witnesses , named in the judgment , to identify ORG as the person who had supplied the heroin ; ORG held that the concurring and repeated statements of the dealers and users of the drugs supplied by ORG and the evidence from the police inquiry and the judicial investigation were sufficiently convincing to establish the role of the accused and his guilt as charged ;

In the light of these findings and conclusions arrived at by the lower courts in the exercise of their unfettered discretion to assess the weight of the evidence adduced in court at an adversarial hearing and given that neither the contested judgment nor any properly made submissions show that the accused requested the courts to organise a confrontation , ORG , without disregarding the general principles of criminal procedure and the provisions of Article CARDINAL para . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of the ... Convention ... , set out grounds for its decision and gave a legal basis to the contested judgment ; "

On DATE the Aix - en - Provence Court of Appeal declared inadmissible an application by Mr Saïdi for the lifting of the order imposed by the first and second - instance courts permanently excluding him from NORP territory . The applicant filed an appeal on points of law against that decision .

He was released on CARDINAL DATE , after serving DATE , DATE and DATE . DATE he refused to comply with an order for his expulsion ( reconduite à la frontière ) , which led to his being convicted in ORG . On appeal ORG sentenced him to CARDINAL months’ imprisonment , together with a DATE prohibition on residing on NORP territory . Mr PERSON applied to the same court to have the prohibition lifted . His application was heard on DATE and the proceedings were adjourned to DATE

The ORG has no information as to the outcome of the appeal on points of law and of the application to have the prohibition lifted .

As far as the investigating judge is concerned , CARDINAL provisions of LAW are relevant in the present case :

" The investigating judge shall summon to appear before him , through a bailiff or a police officer , any persons whose testimony he considers would be useful ...

The witnesses may also be summoned by ordinary letter , by registered letter or through administrative channels ; they may also appear of their own accord . "

" They shall be heard separately , not in the presence of the accused , by the investigating judge assisted by his clerk ; a formal record shall be drawn up of their statements .

" The accused and the civil complainant may be heard or confronted only in the presence of their lawyers or after the latter have been duly summoned , unless they expressly waive this right .

On appeal the investigation is governed by equivalent rules laid down in LAW :

" The indictment division may , in all cases , at the request of the principal public prosecutor , of CARDINAL of the parties or even of its own motion , order any additional investigative measure which it considers useful .

" Additional investigative measures shall be effected in accordance with the provisions relating to the preliminary investigation either by one of the members of the indictment division or by an investigating judge which it delegates to this effect .

The rules governing the examination of witnesses differ according to whether the court is hearing the case at first instance or on appeal .

The principal provision of LAW which was applicable in the instant case is to be found in LAW , which is worded as follows :

" Unless otherwise provided by statute , any type of evidence shall be admissible to substantiate a criminal charge , and the court shall reach its decision on the basis of being satisfied beyond reasonable doubt ( intime conviction ) .

The court may only base its decision on evidence which has been adduced during the trial and discussed before it inter partes . "

The rules of procedure laid down for ORG also apply in principle to the court of appeal , but subject to an important proviso in the second paragraph of LAW , which reads :

" Witnesses shall be heard only if the court of appeal so orders . "

This provision gave rise to a line of decisions by ORG , which appears to have departed from those precedents in DATE , that is to say after the events in the present case .

ORG decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial , even where an application had been made for them to be re - examined ; it did , however , consider that they were under an obligation to hear and determine any such applications made and to give reasons for any refusal ( DATE and DATE , ORG . ) nos . CARDINAL and CARDINAL ; DATE , GPE périodique PERSON ( D.P. ) DATE , I , p. CARDINAL ; DATE , D.P. DATE , I , p. CARDINAL ; DATE , ORG , sommaires , p. CARDINAL ) .

Where they deemed it useful or necessary , appeal courts could summon witnesses who had not testified in ORG ; but if they refused to call such witnesses , it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts ( DATE , ORG . no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL ; CARDINAL DATE , ORG . no . CARDINAL , p. CARDINAL ) .

ORG approach seems to have changed markedly in its GPE judgment of CARDINAL DATE :

" By DATE . CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) of LAW , ‘ everyone charged with a criminal offence has the [ right ] ... to examine or have examined witnesses against him’ . It follows that , unless it is impossible for reasons which they must specify , courts of appeal are bound , on a properly made application , to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings .

PERSON , who was charged with drug trafficking and a customs offence , made an application to ORG for an examination inter partes of the witnesses PERSON and PERSON , whom he had called and whose statements provided , he claimed , the sole basis for the finding of guilt . He said that he had not been able to have them examined at any stage of the proceedings .

In support of its refusal of this application , and although it based its finding of the defendant ’s guilt solely on the statements of the aforementioned witnesses , the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiry and the judicial investigation and that the defendant had been informed of the prosecution evidence deriving from their statements .

But while a refusal to hear evidence from a prosecution witness does not , as such , infringe the aforementioned provisions of the LAW , since the court may take into account any special difficulties entailed by an examination of a given witness in the presence of the parties , for example the risk of intimidation , pressure or reprisals , such a refusal must nevertheless respect the rights of the defence and the court must explain why a confrontation is impossible .

This was not so in the present case , and the judgment must accordingly be set aside ; ... " ( ORG . DATE , no . CARDINAL , pp . CARDINAL - CARDINAL )

This approach was confirmed in a judgment of CARDINAL DATE ( case of ORG . DATE , no . CARDINAL , pp . CARDINAL - CARDINAL ; see also the judgments of DATE , DATE and CARDINAL DATE , ORG . DATE , no . DATE , p. CARDINAL , no . CARDINAL , p. CARDINAL , and no . CARDINAL , p. CARDINAL ) .


Violation of Art. 6-1 (access to court);Violation of Art. 6-1 (length of proceedings);Non-pecuniary damage - financial award;Pecuniary damage - financial award

The applicant was born in DATE . On DATE , when he was DATE , he was admitted to a clinic for a tonsillectomy . During the operation , on DATE , the surgeon , with the anaesthetist ’s agreement , gave him a transfusion of CARDINAL packs of fresh plasma and CARDINAL ampoule of ORG ( a

blood product containing coagulation factors ) supplied by the blood transfusion centre of ORG ( département of ORG ) .

Blood tests carried out on CARDINAL DATE revealed anomalies in the composition of the applicant ’s blood .

NORP In DATE infectious mononucleosis was diagnosed .

On DATE and DATE serological tests for the human immunodeficiency virus ( HIV ) gave positive results .

By a decision of CARDINAL DATE the President of the GPE tribunal de grande instance ordered an expert opinion . In a report of CARDINAL DATE the medical expert concluded that there was a strong probability of a causal connection between the administration of the ampoule of ORG to Mr GPE and his infection with HIV .

Relying on this report , the applicant applied to the LOC tribunal de grande instance and , by a decision of CARDINAL DATE , was given leave to institute civil proceedings in that court against the Fondation PERSON , owners of the clinic , ORG and the mutual insurance scheme of the national education service . He asked the court to rule that the Fondation PERSON bore sole liability for his infection and order it to pay him full compensation for the consequences .

By a judgment of CARDINAL DATE , following a hearing on DATE , the court held that proof of a causal connection had not been established as there was still serious doubt as to the cause of the infection . It accordingly dismissed the applicant ’s claim as ill - founded .

On DATE the applicant appealed . In his statement of the grounds of appeal , of DATE , he assessed the damage he had sustained at MONEY ( FRF ) and asked ORG to take note of the fact that he had applied to ORG and Haemophiliacs ( “ the Fund ” – see paragraph CARDINAL below ) . He pointed out that the ORG had not yet taken a decision but that the sums of compensation it had proposed were lower than those awarded by the courts . The ORG joined the proceedings on its own initiative on DATE in order to preserve its right by subrogation to pursue a claim in the event of the Fondation PERSON being declared negligent .

On DATE ORG set aside the impugned judgment . On the merits of the case , ORG found the Fondation PERSON liable in respect of the applicant ’s infection and awarded him compensation in the sum of FRF CARDINAL,CARDINAL,CARDINAL , with the ORG being subrogated to his right to the first ORG CARDINAL of compensation ( see paragraph CARDINAL below ) . It therefore ordered the clinic to pay Mr PERSON CARDINAL , corresponding to that portion of the damage for which no compensation had been paid by the ORG . In response to the Fondation PERSON argument that section LAW of DATE ( see paragraph CARDINAL below ) excluded any possibility of compensation other than that provided by the Fund , since the latter paid full compensation , ORG ruled as follows :

“ Before any other analysis , reference should be made to section CARDINAL of the Act … , subsection ( III ) of which provides for ‘ full’ compensation to be paid by the ORG set up for that purpose in respect of damage sustained by the victims of infection by the human immunodeficiency virus ( HIV ) during transfusion of blood products where such transfusion has been carried out within the territory of GPE .

However , section CARDINAL(VI ) requires the victim to ‘ inform the Fund of any judicial proceedings ORG and ‘ if any legal proceedings are brought’ . Section CARDINAL(IX ) provides : ‘ The ORG shall be subrogated , for an amount no higher than the sums paid out , to the victim ’s rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those ORG liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to ORG

The victim ’s obligation to inform the Fund of judicial proceedings pending or if legal proceedings are brought , like subrogation of the ORG ‘ for an amount no higher than the sum paid out’ to the victim , show that in providing victims with an expedited compensation procedure ORG did not intend to do away with the possibility of direct applications by the victims against any persons they considered responsible .

The LAW did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the ORG , but was intended to prevent compensation being paid twice over ( both through the obligation to provide information about pending proceedings and through subrogation of the ORG ) .

This is all the more incontestable since , the ORG not being a ‘ ORG , its decisions are not binding . The documents that it requires the patients who accept its proposals to sign refer to section CARDINAL(VI ) and the obligation to ‘ inform it of any pending or future judicial ORG .

In the present case , moreover , PERSON and co - plaintiffs all declared , in the letter they sent on DATE to ORG and Haemophiliacs , that they accepted ‘ for the present’ the sums proposed but made it clear that they considered them ‘ ORG and GPE , who formally accepted the proposal , went on to say : ‘ I retain the right to bring proceedings against any liable third party , it being my responsibility in that case to inform the ORG , which shall be

subrogated for an amount no higher than the sums paid out , as provided in section CARDINAL of the LAW of DATE , which shows that he always considered that full compensation had not been paid for the damage he sustained and that he therefore still had an interest giving him standing to bring proceedings . In any case , the agreement reached could not be classed as a settlement within the meaning of Article CARDINAL of LAW .

Consequently , [ GPE ] ’s action is admissible and his acceptance of the compensation offered by the ORG does not deprive him of standing . ”

On DATE the Fondation PERSON gave notice of intention to appeal on points of law . It filed its statement of the grounds of appeal on CARDINAL DATE . The applicant replied on DATE . By a pleading of CARDINAL DATE ORG lodged a third - party cross - appeal against the same judgment . The blood transfusion centre filed submissions on DATE . Mr PERSON filed additional observations on DATE and his reply to the third - party cross - appeal on DATE .

The case was allocated to ORG of ORG on DATE . After the reporting judge had made his report and this had been transmitted to the Advocate – General , the ORG considered the case on DATE and decided that it should be referred to the plenary court , regard being had to the ORG judgment delivered by ORG DATE , Series A no . TIME ) .

On DATE ORG , sitting in plenary , quashed and annulled the judgment of DATE without remitting the case for reconsideration . It gave the following reasons :

“ Having regard to section DATE of the Act of DATE and LAW ;

Whereas these texts require ORG and Haemophiliacs infected with the human immunodeficiency virus ( ‘ the Fund’ ) to pay victims full compensation for the damage they have sustained ; whereas victims who do not accept the ORG ’s proposals may bring proceedings in ORG ; whereas they may obtain compensation from the ordinary courts only in respect of heads of damage for which they have not already been compensated by the ORG ;

Whereas , according to the impugned judgment , [ GPE ] was infected with the human immunodeficiency virus when a blood product was administered to him during an operation carried out at FAC ; whereas he instituted proceedings against the Fondation PERSON for compensation in respect of the specific damage caused by his infection ; whereas he subsequently accepted the compensation offered by the ORG on that account ;

Whereas , in upholding [ GPE ] ’s action against the clinic , the judgment stated that the LAW did not exclude the possibility of damage being assessed by the courts applied to at a higher figure than the sum awarded by the ORG and that [ GPE ] ’s acceptance of the compensation offered by the ORG did not deprive him of an interest giving him standing to bring proceedings ;

Whereas in so doing ORG misapplied the provisions cited above ;

And having regard to LAW ;

Whereas the quashing of a judgment does not imply that the case should be remitted for reconsideration ;

For these reasons and without finding it necessary to rule on the second ground of appeal ,

[ The ORG ] quashes and declares null and void in all its provisions the judgment delivered on DATE between the parties by ORG ;

Holds that the case shall not be remitted for reconsideration . ”

The applicant was obliged to pay back the sum of FRF CARDINAL,CARDINAL,CARDINAL , which had been paid to him in execution of ORG judgment .

In the meantime , by an application of DATE , the applicant , his parents , his CARDINAL sisters and his partner , who became his wife in DATE , had asked ORG to order ORG DATE which ran the blood transfusion centre ( see paragraph CARDINAL above ) – to pay them compensation totalling FRF CARDINAL in respect of the damage they had sustained on account of the applicant ’s HIV infection .

By a judgment of CARDINAL DATE ORG ruled that the hospital was liable in respect of the applicant ’s HIV infection and deferred its decision on damages in order to give ORG ( see paragraphs CARDINAL and DATE below ) time to produce observations on the compensation claims .

By a judgment of DATE the same court ordered ORG to pay the Fund the compensation it had awarded to the applicant , his parents and his CARDINAL sisters and to pay the applicant ’s wife , to whom the ORG had made no award , the sum of ORG CARDINAL .

On appeal by ORG against both judgments and by the applicant and his family against the last - mentioned judgment , ORG , in a judgment of DATE , set aside both judgments and dismissed the claims of the applicant and his family on the ground that ORG could not be held liable for the damage resulting from the infection .

On DATE , in proceedings brought concurrently with his civil and administrative actions , the applicant applied to ORG and Haemophiliacs , set up by LAW DATE ( see paragraph DATE below ) .

On DATE the ORG offered him compensation in the sum of FRF CARDINAL , of which FRF CARDINAL were to be payable on acceptance of the proposal and FRF CARDINAL,CARDINAL if and when the onset of Aids was diagnosed . The ORG also offered compensation of ORG CARDINAL,CARDINAL for each of his parents and ORG for each of his sisters .

The compensation proposal sent to the applicant contained the following information :

“ At its sitting on DATE ORG decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection , that is to say the current and future damage resulting from HIV infection , and thereafter , if applicable , from the onset of Aids .

On the basis of your actual , personal and individual situation and with reference to the compensation awarded to date in similar cases , the ORG has decided to offer you compensation amounting in total to FRF CARDINAL .

If you accept this offer , you should do so by registered letter with recorded delivery ...

Naturally , the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained , provided , of course , that you can furnish proof of it .

If this proposal is not acceptable to you , you may bring legal proceedings in ORG and have DATE from notification of the present proposal in which to do so ...

I would draw your attention to the provisions of section CARDINAL(VI ) of PERSON no . CARDINAL - CARDINAL of DATE , which require you to inform the ORG of any judicial proceedings brought on account of your infection , whether pending or still to come . ”

In a letter of DATE the applicant and his family declared that they accepted the various sums offered , but added the following proviso :

“ … I consider that these sums are insufficient . I must accept them for the present in view of the financial situation in which my family and I find ourselves .

Consequently , I formally accept your proposal but retain the right to bring proceedings against any liable third party , it being my responsibility in that case to inform the ORG , which shall be subrogated for an amount no higher than the sums actually paid out , as provided in section CARDINAL of the Act of DATE .

After receiving this acceptance , the ORG paid ORG CARDINAL,CARDINAL,CARDINAL to the applicant , who acknowledged receipt on DATE .

In a report of CARDINAL DATE that he laid before ORG on behalf of ORG , PERSON , MP , indicated that a victim could seek better compensation after accepting an offer from the ORG :

“ That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to ORG . Compensation by the ORG is therefore not a ‘ ORG which precludes judicial remedies , unlike the aid granted by the public and private funds set up in DATE , but a compensation scheme based on the concept of risk and independent of any attempt to determine fault .

A victim must , however , inform the ORG and the court of the various actions brought . This provision is necessary because the ORG is subrogated to the victim 's rights against the person liable for the damage or against those who are , for CARDINAL reason or another , under a duty to provide compensation . ”

During the debate in ORG on DATE several speakers advocated making it possible to bring proceedings in the ordinary courts after acceptance of a compensation proposal . The official summary report of proceedings contains the following contributions :

“ Mr Chamard : ‘ … it must remain possible to take legal proceedings.’

Mr Préel : ‘ In any case , infected persons must be able to continue the proceedings they have brought against the transfusion centres . And what will happen if the sum they are awarded by the court is higher than the sum they have been paid in compensation?’

Mr PERSON , Minister of ORG and Integration : ‘ It is clear that the compensation proposal does not deprive victims of the right to bring proceedings , particularly for the purpose of determining liability … It would be inconceivable for acceptance of compensation offered by the ORG to bar a victim ’s entitlement to a larger sum awarded by a court . Its decisions are therefore not binding and there is accordingly nothing to prevent a court from awarding additional compensation , it being understood that the ORG will be subrogated to the victim ’s rights vis - à - vis the causer of the damage.’ ”

On DATE , following ORG judgment of CARDINAL DATE in the GPE case ( see paragraph CARDINAL below ) , PERSON , MP , proposed an interpretative LAW in order to remove the drafting ambiguities which had given rise to that judgment . He considered that it had interpreted LAW of DATE in a way that achieved a result opposite to the one sought by the legislature . The bill was not passed .

In the opinion of CARDINAL DATE that was submitted to the ORG on the bill then before it on behalf of ORG , Senator PERSON wrote , inter alia :

“ The bill is a response to an exceptional situation . The arrangements it proposes may be regarded as being likewise exceptional . Independently of the current investigation into the apportionment of liability , including criminal liability , the community must afford the best redress it can for the consequences of such a tragedy .

As indicated in the introduction to this commentary , the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case - law on this matter . Simultaneously , GPE possibility of resorting to the procedures of ordinary law , whether in the civil or administrative courts or in the criminal courts , has been preserved .

However , the bill ’s wording is not fully explicit on this subject , and the text before us is silent as to the possible effects of earlier court decisions on ORG decisions , and also as to the effects of the ORG 's decisions on subsequent judgments of other courts . The bill does not , for example , make it possible to determine whether or not the ORG ’s decisions imply recognition of liability or a presumption of guilt . Similarly , it does not state whether ORG is bound by earlier decisions of the courts . ”

Law no . CARDINAL of DATE “ making miscellaneous social - welfare provisions ” set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products . The distinctive feature of the system , which is based on solidarity , is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability . Section CARDINAL provides :

“ I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the NORP Republic shall be compensated in the manner set out below .

II . No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for .

III . Full compensation for the damage defined in subsection ( I ) shall be provided by ORG , having legal personality , presided over by a serving or retired divisional president or judge of ORG and administered by a compensation board .

A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the ORG .

IV . In their claims for compensation , victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives .

Victims or their heirs shall communicate to the ORG all the information in their possession .

Within DATE of the receipt of a claim , a period which may be extended at the request of the victim or his heirs , the ORG shall consider whether the conditions for payment of compensation have been fulfilled . It shall investigate the circumstances under which the victim was infected and make any necessary inquiries , which may not be resisted on grounds of professional secrecy .

V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection ( I ) within a time - limit laid down by decree , which may not exceed DATE from DATE on which the ORG receives full proof of the damage ...

VI . The victim shall inform the Fund of any judicial proceedings pending . If legal proceedings are brought , the victim shall inform the court of his application to the ORG .

VII . ...

ORG . The victim shall not be entitled to take legal action against ORG unless his claim for compensation has been dismissed , no offer has been made to him within the time - limit referred to in the first paragraph of subsection ( V ) , or he has not accepted an offer made to him . Proceedings shall be brought in ORG .

ORG . The Fund shall be subrogated , for an amount no higher than the sums paid out , to the victim 's rights against the person liable for the damage and against persons required , for whatever reason , to make full or partial reparation for that damage , within the limits of those persons ' liabilities . However , the ORG may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence .

The ORG may intervene in proceedings in the criminal courts , even if it does not do so until the appeal stage , where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection ( I ) . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

If the acts which caused the damage have given rise to criminal proceedings , the civil court shall not be required to defer its decision until there has been a final decision by the criminal court .

X. Unless otherwise provided , the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the ORG d’Etat .

ORG . NORP ...

ORG . The Compensation Fund 's sources of revenue shall be specified in a subsequent Act .

XIII . ...

ORG . ... ”

In CARDINAL judgments of DATE ORG of the ORG d’Etat ruled that “ the ORG is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non - heat - treated blood products DATE and DATE ” .

At the request of ORG in respect of the PERSON case , on which ORG has had to rule ( ORG v. GPE judgment of DATE , Series A no . CARDINAL-A ) , the PERSON d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before ORG . Sitting in its judicial capacity on DATE , it gave the following opinion :

“ CARDINAL . The decree of DATE ... , which is applicable to cases pending at the date of its publication , ... provides a solution to the problem raised by ORG .

NORP ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party , when the evidence shows this to be the case , even if that party does not file submissions – on the basis of its subrogation to the rights of the victim – seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter .

Accordingly , an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must , when it has been informed by CARDINAL of the parties that the victim or his heirs have already received compensation for the damage complained of , deduct of its own motion such compensation from the amount payable in respect of the damage .

Where the sum offered by the ORG has been accepted by the claimants , ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the ORG . Consequently , it is incumbent on an administrative court which has been informed that this is the case to deduct , of its own motion , the amount thus owed by the ORG from the compensation which it orders the public authority liable for the damage to pay to the victim . ”

By a judgment delivered on DATE in the GPE case , ORG ( Second Civil Division ) gave a ruling for the first time on the question whether a person who had accepted a proposal of compensation from the ORG still had standing to bring judicial proceedings , holding as follows :

“ ORG , having found that the damage compensated by the ORG was the same as that for which compensation was being sought from the [ ORG ] and that acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the ORG fully compensated Mr GPE , rightly concluded DATE on that sole ground and without infringing LAW , as it had been open to the victim to apply to a court to have compensation assessed for his damage – that Mr ORG ’s action was inadmissible as he lacked any interest enabling him to bring proceedings . ”

ORG , in a judgment of CARDINAL DATE ( ORG . DATE , no . DATE , p. CARDINAL ) , adopted the same reasoning . It held that acceptance of an offer from the ORG barred any subsequent appeal against a judgment refusing the victim compensation in respect of the specific damage caused by his infection . ORG followed the same line on DATE ( ORG , CARDINAL ) . Criticising a judgment of ORG , it ruled as follows :

“ The victim ’s acceptance of a compensation proposal DATE which , according to the provisions of section CARDINAL(III ) of the Act of DATE , constitutes full compensation for the specific damage caused by his infection – deprives him of standing to claim further compensation under the same head of damage ; it follows that ORG , which found that the non - pecuniary damage it held to have been established corresponded to the specific damage resulting from infection , did not draw the correct legal conclusions from its own findings . ”

After the plenary court ’s judgment of DATE in the present case , ORG of ORG , in a judgment of DATE ( ORG . DATE , no . DATE , p. CARDINAL ) , followed the same line , pointing out that if a victim claimed compensation in an ordinary court under heads of damage different from those for which the ORG had paid compensation , the court concerned could not declare the action inadmissible but was obliged to rule on its merits . It ruled as follows :

“ Section CARDINAL of the LAW of DATE states that the ORG provides full compensation to victims in respect of the specific damage they have sustained . Victims who do not accept the ORG ’s proposals may bring proceedings in ORG . They may not obtain compensation in the ordinary courts except in respect of heads of damage for which they have not already received compensation from the ORG . ”

Decree no . CARDINAL - CARDINAL of DATE adds ORG CARDINAL–CARDINAL to Decree no . CARDINAL of DATE on proceedings brought in ORG under LAW no . CARDINAL of DATE ( see paragraph CARDINAL above ) . It applies to all proceedings pending at the date of its publication , DATE .

Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection ( I ) of section CARDINAL of the aforementioned LAW DATE

In order to bring the action by subrogation provided for in subsection ( ORG ) of section CARDINAL of the aforementioned Act of DATE , the ORG may intervene in proceedings in any of the administrative or ordinary courts , even if it does not do so until the appeal stage . In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law .

The registries of the administrative and ordinary courts shall send the ORG by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection ( I ) of section CARDINAL of the aforementioned LAW DATE .

Within DATE of receipt of the letter referred to in LAW , the ORG shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and , if so , what stage the procedure has reached . It shall also state whether or not it intends to intervene in the proceedings .

Where the victim has accepted the offer made by ORG , the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted . The Fund shall , where relevant , indicate the stage reached in proceedings instituted in ORG under the provisions of Part I of this decree and forward any judgment delivered by that court .

The registry shall notify the parties of the information communicated by the ORG .

The registry shall send the ORG copies of the decisions given at first instance and , where relevant , on appeal in proceedings in which the ORG has not intervened .

The provisions of ORG CARDINAL to CARDINAL shall be applicable to cases pending on the date of entry into force of [ this ] decree ... ”


Mr PERSON is a prisoner at FAC ( FAC ) .

On DATE he was charged with the attempted murder of CARDINAL NORP refugees , membership of a criminal organisation , unauthorised possession and transport without a lawful reason of category IV arms and ammunition and handling stolen goods . On DATE he was remanded in custody in FAC ( ORG ) .

The criminal proceedings lasted from DATE to CARDINAL DATE , when the applicant was sentenced to DATE imprisonment by ORG . On DATE ORG dismissed an appeal on points of law by the applicant .

ORG Between CARDINAL DATE ( date of the first application ) and DATE , Mr PERSON submitted CARDINAL applications for release , which were all dismissed by ORG of the PERSON or ORG on the grounds that the length of the proceedings was reasonable in view of the serious charges against the applicant and the gravity and complexity of the facts , that public order had been seriously prejudiced in the region and that there was a risk that he would abscond if released . The applicant lodged CARDINAL appeals on points of law , which were all dismissed .

When CARDINAL of the applications for release was being heard , on DATE , the applicant 's lawyer requested his immediate release on the ground that the file did not contain any warrant ordering his detention . ORG adjourned the case to CARDINAL DATE . On CARDINAL and CARDINAL DATE the applicant lodged CARDINAL appeals on points of law against this decision . On DATE ORG refused to order his immediate release . It found that the missing warrant was in the file and rejected the argument concerning the identity of the person named in it , holding that the reference to PERSON rather than PERSON in the committal warrant of CARDINAL DATE had been due to a clerical error .

ORG delivered CARDINAL judgments on DATE . In the first , it declared the appeal against the adjournment decision inadmissible ; in the second , it declared the submission alleging a defect in the committal warrant inadmissible , but remitted the case to ORG , finding of its own motion that the impugned decision had not contained a statement of the reasons on which it was based . On DATE ORG dismissed the application , holding that , in view of the circumstances , the length of the proceedings had not been excessive .

The applicant appealed on points of law against the latter decision , alleging , inter alia , a violation of LAW para . CARDINAL ( article CARDINAL ) of the LAW . In a judgment of DATE ORG declared the appeal devoid of purpose following the applicant 's committal for trial at FAC on DATE .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in DATE and lives in LOC , a town in LOC .

The applicant lives in a municipally maintained flat . She sued the local council ’s planning department and a municipal maintenance company for overdue repairs . On DATE the Petropavlovsk - Kamchatskiy Town Court awarded the applicant MONEY ( RUB ) by way of damages and costs , and in addition ordered the defendants to

“ eliminate the cause of the leak in [ the applicant ’s flat ] in DATE by way of reconstructive repairs of the end wall and roof according to the estimate for selective repairs of the house . ”

This judgment became binding on DATE , but was not enforced immediately .

On DATE bailiffs closed enforcement proceedings against the planning department , because in the meantime it had been disbanded . On DATE the bailiffs closed enforcement proceedings against the maintenance company because of its insolvency . The writ of enforcement was passed to ORG .

From DATE to DATE the applicant received CARDINAL payments totalling RUB CARDINAL,CARDINAL.CARDINAL . In DATE the applicant ’s roof was repaired .

In separate proceedings in DATE the applicant brought unsuccessful civil claims against the Petropavlovsk - Kamchatsk ORG . These proceedings ended with the judgment of ORG of DATE .

Under LAW of DATE , a bailiff must enforce a judgment within DATE .


Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Pieter Van Dijk

The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in GPE .

NORP In DATE the applicant was arrested on suspicion of various drugs - related offences . He was subsequently charged – as co - actor ( medepleger ) in a group of CARDINAL persons DATE with trafficking “ hard ” drugs , preparation of the offence of drug trafficking , handling , and participation in a criminal organisation . In addition , he was separately charged with the unlawful possession of a firearm .

The applicant ’s trial was due to start before ORG ( arrondissementsrechtbank ) on DATE . By that time , the applicant had become aware that a number of co - accused had already been tried and convicted by the same tribunal . In the proceedings against his co - accused CCARDINAL , CCARDINAL , CCARDINAL and CCARDINAL ORG had included the same president , X , and senior judge ( oudste rechter ) , Y , who were to sit on the bench that would deal with his case . Prior to the hearing , counsel for the applicant wrote a letter to the president of the trial chamber requesting him and the senior judge to stand down because of their involvement in the trials of those co - accused . X and Y did not stand down , and on DATE of the hearing a formal challenge application ( wrakingsverzoek ) was lodged on behalf of the applicant . ORG ( wrakingskamer ) dismissed the application , considering that the mere fact that CARDINAL members of the trial chamber had convicted a number of co - accused of offences relating to the offences with which the applicant had been charged did not as such entail that those members were biased in the criminal proceedings against the applicant . According to ORG , the arguments adduced by counsel for the applicant did not admit of the conclusion that the judges concerned had already formed an opinion on any role which the applicant might have played in the commission of those offences , and neither did they reveal any extraordinary circumstances indicating bias against the applicant on the part of those judges or indicating that the applicant ’s fear of bias was objectively justified .

On DATE , ORG found the applicant guilty of the charges against him , except for the charge of handling of which he was acquitted . Taking into account that the applicant had not played a prominent role but rather a facilitating CARDINAL within the organisation , ORG sentenced him to CARDINAL years’ imprisonment .

The applicant lodged an appeal with ORG ( gerechtshof ) . In the course of these proceedings , the complete judgments rendered by ORG in the cases against the co - accused CCARDINAL and CCARDINAL became available , only abridged versions not containing the evidence relied on by ORG having been available at the time of the applicant ’s trial by ORG . The applicant referred to these complete judgments in support of his argument that ORG had lacked impartiality due to the fact that X and Y had participated in the trials against co - accused . ORG judgment concerning co - accused CCARDINAL included the following considerations :

“ D was the linchpin ( spil ) of the organisation in the GPE , whose aim it was to import and export ‘ hard’ drugs . C , [ the applicant ] and W were D ’s confidants in this context , with the latter making use of the facilities and/or services with which these three could provide him ...

As far as the export of amphetamine is concerned , D was also the organiser of this , and CCARDINAL the financier . CCARDINAL supplied the drugs , while K , [ the applicant ] and H carried out the actual work . ”

The judgment concerning co - accused CCARDINAL included the following :

“ The duo D - CCARDINAL constituted the linchpin of the organisation . ... C and [ the applicant ] were confidants of D , with the latter making use of the facilities and/or services with which these two could provide him . ”

In the course of a hearing held on DATE , ORG rejected the applicant ’s plea for the case to be remitted to ORG . Examining whether the applicant ’s fear of a lack of impartiality of judges X and Y could be objectively justified , it held :

“ Contrary to what has been adduced by counsel , no such objective justification can be found in the earlier considerations of ORG . Those earlier considerations do not , after all , entail that the examination in the present case of the reproach made of [ the applicant ] in respect of participation in the same criminal organisation and of involvement in the import and export of ‘ hard’ drugs , in particular amphetamine , was anticipated . It is the normal statutory task of the judge ... only to rule on the basis of the indictment and further to the trial of the accused , excluding from his consideration his decisions reached in other cases of other accused .

Special circumstances constituting a compelling indication to find that a fear held by [ the applicant ] may be objectively justified are not contained in counsel ’s arguments or in the circumstances that have otherwise become apparent . The finding relating to [ the applicant ] as expressed in the earlier judgments is not so specific and/or has not been reasoned in such a way as to lead to a different conclusion . ...

It is also relevant that there is no indication that ORG has in any way felt itself bound by the findings of the previous judgments when dealing with and deciding on the case of [ the applicant ] . In particular it has not been argued , and ORG fails to see , that ORG has based its judgment in any way on any decision taken in those earlier judgments . On the contrary , it appears from the case file that ORG examined [ the applicant ’s ] case in its entirety , without even one of the questions which ORG had to answer being considered as having been dealt with in the earlier judgments . This is in particular also the case in respect of the questions whether [ the applicant ] participated in the criminal organisation referred to in the indictment and whether he was involved in the import and export of ‘ hard’ drugs and in particular of amphetamine . ”

ORG held a hearing on the merits of the case on DATE . Asked to state the reasons why he had lodged his appeal , the applicant replied that he had not been wrongly convicted but considered the sentence excessive .

On DATE the ORG gave judgment . It quashed the judgment of ORG and , deciding anew , convicted the applicant of being a co - actor in the offences of drug trafficking and participation in a criminal organisation . The conviction was based on the applicant ’s confessions before the police and in open court and on other evidence , namely transcripts of recorded telephone conversations , official reports of police observation and of the interception in transit of quantities of illegal narcotics , and statements of co - accused . The applicant was again sentenced to CARDINAL years’ imprisonment .

In the meantime , on DATE , a differently composed bench of the same ORG , in the criminal proceedings against the applicant ’s co - accused CCARDINAL , accepted that CCARDINAL had an objectively justified fear of bias on the part of the first - instance court and remitted his case for retrial . That first - instance court – ORG – had held in its judgments relating to CARDINAL co - accused that CCARDINAL “ [ had ] maintained the contacts abroad and also provided the necessary finances . ”

The applicant lodged an appeal on points of law ( cassation ) with the PERSON , the highest court of criminal jurisdiction . He submitted that the decision of ORG to dismiss his arguments relating to the lack of impartiality of ORG and the refusal to remit his case to ORG was contrary to LAW . He further contended that he had been deprived of the opportunity to have his case considered by an impartial tribunal at first instance , which made the trial as a whole unfair .

On DATE the PERSON upheld the appeal on points of law because the length of proceedings had exceeded a reasonable time . It therefore quashed the judgment of ORG , but only in respect of the sentence , which was reduced by DATE and DATE . The PERSON rejected the applicant ’s arguments relating to the alleged bias on the part of judges X and Y.

An appeal can only be lodged against the first - instance judgment in its entirety , although cases joined at first instance can be disjoined at the appeal stage ( LAW ) . The appeal proceedings involve a complete rehearing of the case . Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again ; they may also produce new evidence and request the hearing of witnesses not heard at first instance ( LAW . The defence enjoys the same rights as it does at first instance ( LAW ) .

Both the prosecution and the defence may challenge ( wraken ) judges on the ground of facts or circumstances that might be detrimental to judicial impartiality ( LAW .