CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC

NORP The applicants’ details are set out in the Appendix .

DATE the applicants were placed in special schools ( zvláštní školy ) in PERSON , either directly or after a period in an ordinary primary school ( základní školy ) . Special schools are a category of specialised school ( speciální školy ) and are intended for children with learning disabilities who are unable to attend “ ordinary ” or specialised primary schools . By law , the decision to place a child in a special school is taken by the head teacher on the basis of the results of tests to measure the child ’s intellectual capacity carried out in an educational psychology and child guidance centre and requires the consent of the parent or legal guardian of the child .

The material before the ORG shows that the applicants’ parents had consented to and in some instances expressly requested their children ’s placement in a special school . A written decision in the appropriate form was issued by the head teachers of the schools concerned and the applicants’ parents were notified of it . The decisions contained instructions on the right to appeal , a right which none of those concerned exercised .

On DATE the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school . It appears that CARDINAL of the applicants ( nos . CARDINAL , DATE , DATE and DATE ) were successful in aptitude tests and now attend ordinary schools .

In the review and appeals procedures referred to below , the applicants were represented by a lawyer , acting on the basis of signed written authorities from their parents .

On DATE all the applicants apart from applicants nos . CARDINAL , CARDINAL , DATE and DATE ( see Appendix ) asked ORG ( Školský úřad ) to reconsider , outside the formal appeal procedure , the administrative decisions to place them in special schools ( přezkoumání mimo odvolací řízení ) . They argued that their intellectual capacity had not been reliably tested and that their representatives had not been sufficiently informed of the consequences of consenting to their placement in a special school . They therefore asked ORG to revoke the impugned decisions , which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination .

On DATE ORG informed the applicants that , as the impugned decisions complied with the legislation , they did not satisfy the conditions for bringing proceedings outside the appeal procedure .

On DATE applicants CARDINAL in the Appendix lodged a constitutional appeal in which they complained , inter alia , of de facto discrimination in the general functioning of the special education system . In that connection , they relied , inter alia on CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL . While acknowledging that they had not appealed against the decisions to place them in special schools , they alleged that they had not been sufficiently informed of the consequences of placement and argued ( on the question of the exhaustion of remedies ) that their case concerned continuing violations and issues that went far beyond their personal interests .

In their grounds of appeal , the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules . In their submission , that practice had resulted in de facto racial segregation and discrimination that was reflected in the existence of CARDINAL independent educational systems for members of different racial groups , namely special schools for the GPE and “ ordinary ” primary schools for the majority of the population . That difference in treatment was not based on any objective and reasonable justification , amounted to degrading treatment and had deprived them of the right to education ( as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre ) . The applicants argued that they had received an inadequate education and an affront to their dignity and asked ORG ( GPE soud ) to find a violation of the rights they had relied on , to quash the decisions to place them in special schools , to order the respondents ( the special schools concerned , ORG and ORG ) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory education .

In their written submissions to ORG , the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology and child guidance centre and with the consent of their representatives ; furthermore , the representatives had been duly informed of the relevant decisions and none of them had decided to appeal . According to the schools , the ORG representatives had been informed of the differences between the special - school curriculum and the primary - school curriculum . Regular meetings of teaching staff were held to assess pupils ( with a view to their possible transfer to primary school ) . They added that some of the applicants ( nos . CARDINAL to CARDINAL in the Appendix ) had been advised that there was a possibility of their being placed in primary school .

The education authority pointed out in its written submissions that the special schools had their own legal personality , that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the schools inspectorate .

ORG denied any discrimination and said that parents of GPE children tended to have a rather negative attitude to school work . It asserted that each placement in a special school was preceded by an assessment of the child ’s intellectual capacity and that parental consent was a decisive factor . It further noted that there were CARDINAL educational assistants of GPE origin in schools in PERSON .

In their final written submissions , the applicants pointed out ( i ) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school , ( ii ) that the reports from the educational psychology and child guidance centres contained no information on the tests that were used and ( iii ) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the NORP language , an over - tolerant attitude on the part of the parents or an ill - adapted social environment . They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment .

On DATE ORG dismissed the ORG appeal , partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it . It nevertheless invited the competent authorities to give careful and effective consideration to the ORG proposals .

( a ) With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools , ORG held that , CARDINAL decisions were actually referred to in the notice of appeal , it had no jurisdiction to decide the cases of the applicants who had not appealed against the decisions concerned .

As to the CARDINAL applicants who had lodged constitutional appeals against the decisions to place them in special schools ( nos . CARDINAL , CARDINAL , DATE , DATE and DATE in the Appendix ) , ORG decided to disregard the fact that they had not lodged ordinary appeals against those decisions , as it agreed that the scope of their constitutional appeals went beyond their personal interests . However , it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally , since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology and child guidance centres and with the consent of the ORG representatives .

( b ) With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination , ORG noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations . It further noted that the applicants had had a right of appeal against the decisions to place them in special schools , but had not exercised it . As to the objection that insufficient information had been given about the consequences of placement in a special school , ORG considered that the ORG representatives could have obtained the information by liaising with the schools and that there was nothing in the file to show that they had made any enquiries about the possibility of transferring to a primary school . ORG therefore ruled that this part of the appeal was manifestly ill - unfounded .

Prior to DATE , section CARDINAL ) provided that to be eligible for secondary - school education pupils had to have successfully completed their primary - school ( základní škola ) education .

Following amendment no . CARDINAL/CARDINAL , which came into force on DATE , the amended section CARDINAL(CARDINAL ) provided that to be eligible for secondary - school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course .

Section CARDINAL(CARDINAL ) provided that special schools ( zvláštní školy ) were intended for children with learning disabilities that prevented them from following the curricula in ordinary primary schools or in specialised primary schools ( speciální základní škola ) intended for children suffering from sensory impairment , illness or disability .

LAW laid down that the following schools were available for children and pupils suffering from mental disability : specialised nursery schools ( speciální mateřské školy ) , special schools , auxiliary schools ( pomocné školy ) , vocational training centres ( odborná učiliště ) and practical training schools ( praktické školy ) .

Article CARDINAL § CARDINAL stipulated that if during the child ’s or the pupil ’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability , the head teacher of the school attended by the child or pupil was required , after an interview with the pupil ’s representative , to recommend the pupil ’s placement in another specialised school or in an ordinary school .

Article CARDINAL stipulated that the decision to enrol or place a child or pupil in , inter alia , a special school was to be taken by the head teacher , provided that the child ’s or pupil ’s parents or legal guardian consented . The head teacher was entitled to consult sources such as the parents or legal guardian , the school attended by the pupil , educational psychology and child guidance centres , hospitals or clinics , authorities with responsibility for family and child welfare and health centres . The educational psychology and child guidance centre was responsible for assembling all the documents required to reach a decision and required to make a recommendation to the head teacher regarding the type of school .

In the section of the report that dealt with the policy aspects of education and training , ORG stated that public opinion appeared sometimes to be rather negative towards certain groups , especially the ORG community and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society . It added that special measures should be taken as regards education and training of the members of minority groups , particularly members of ORG community .

With regard to the access of GPE children to education , ORG said in this report that it was concerned that GPE children continued to be sent to special schools which , besides perpetuating their segregation from mainstream society , severely disadvantaged them for the rest of their lives . The standardised test developed by ORG for assessing a child ’s mental level was not mandatory and was CARDINAL of a battery of tools and methods recommended to the psychological counselling centres . As far as the other element required in order to send a child to a special school – the consent of a parent or legal guardian of the child – ECRI observed that parents making such decisions continued to lack information concerning the long - term negative consequences of sending their children to such schools , which were often presented to parents as an opportunity for their children to receive specialised attention and be with other GPE children . ORG also said that it had received reports of GPE parents being turned away from regular schools .

ORG also noted that LAW had entered into force in DATE and provided the opportunity for graduates of special schools to apply for admission to secondary schools . According to various sources , that remained largely a theoretical possibility as special schools did not provide children with the knowledge required in order for them to attend regular schools . There were no measures in place to provide additional education to students who had gone through the special school system to bring them to a level where they would be adequately prepared for regular secondary schools .

ORG had received very positive feedback concerning the success of ‘ CARDINAL grade courses’ ( preparatory classes ) at preschool level in increasing the number of GPE children who attended regular schools . It expressed its concern , however , over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools . In that connection , a number of concerned actors were worried that the new draft GPE created the possibility for even further separation of GPE through the introduction of a new category of special programmes for the ‘ socially disadvantaged’ .

Lastly , ORG noted that despite initiatives taken by ORG ( assistant teachers , training programmes for teachers , revision of the primary school curriculum ) , the problem of low levels of GPE participation in secondary and tertiary level education described by ORG in its second report persisted .

The document stated that the Government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments , in particular the NORP community , by opening preparatory classes in elementary and special schools . It was noted that “ Romany children with average or above - average intellect are often placed in such schools on the basis of results of psychological tests ( this happens always with the consent of the parents ) . These tests are conceived for the majority population and do not take Romany specifics into consideration . Work is being done on restructuring these tests ” . In some special schools Romany pupils made up PERCENT of the total number of pupils .

GPE accepted that the GPE were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti - discrimination tools associated with the implementation of ORG implementing the principle of equal treatment . New legislation was due to be enacted in DATE .

In the field of GPE education , the report said that the ORG had taken various measures of affirmative action in order to radically change the present situation of GPE children . The Government regarded the practice of referring large numbers of GPE children to special schools as untenable . The need for affirmative action was due not only to the sociocultural handicap of GPE children , but also to the nature of the whole education system , its inability to sufficiently reflect cultural differences . The draft new GPE would bring changes to the special education system ( transforming “ special schools ” into “ special primary schools ” ) , providing the children targeted assistance in overcoming their sociocultural handicap . These included preparatory classes , individual study programmes for children in special schools , measures concerning preschool education , an expanded role for assistants from the GPE community and specialised teacher - training programmes . As CARDINAL of the main problems encountered by GPE pupils was their poor command of the NORP language , ORG considered that the best solution ( and the only realistic one ) would be to provide preparatory classes at the preschool stage for children from a disadvantaged sociocultural background .

The report also cited a number of projects and programmes that had been implemented nationally in this sphere ( ‘ Support for ORG , ‘ ORG for ORG , and ‘ LOC special school pupils in primary PERSON ) .


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

The applicant is an NORP citizen currently residing in GPE Grazie , GPE .

In DATE ORG attached to ORG in the course of investigations concerning the bankruptcy of the private bank ORG seized certain material relating to the ORG lodge called “ Propaganda CARDINAL - PCARDINAL ” .

The applicant was suspected inter alia of association aiming at political conspiracy , seeking and obtaining classified information , false pretences , espionage , fraud , aggravated slander and extortion , forgery in public deeds .

The investigations concerned CARDINAL co - accused and CARDINAL charges .

On DATE , CARDINAL DATE and CARDINAL DATE warrants of arrest were issued against the applicant by ORG attached to ORG for aggravated slander , fraud and false pretences respectively . At the time , the applicant resided in GPE .

On DATE the NORP authorities requested the NORP authorities to extradite the applicant to GPE in connection with the charges of aggravated slander , fraud and false pretences .

On DATE the applicant was arrested in GPE and detained with a view to extradition .

On DATE an order of arrest was issued against the applicant by ORG attached to ORG for fraudulent bankruptcy in relation to ORG .

On DATE the Investigating Judge attached to ORG issued a warrant of arrest against the applicant for fraudulent bankruptcy .

On DATE the NORP authorities further requested the NORP authorities to extradite the applicant in connection with the charge of fraudulent bankruptcy .

On DATE the ORG granted the request of the NORP authorities for the applicant 's extradition in relation to all the charges .

The applicant , however , had escaped from Champ - Dollon prison , where he had been detained , on DATE .

The question of the territorial competence to decide the case was brought before ORG , which by judgment of CARDINAL DATE ruled that ORG was competent .

On DATE the applicant was again arrested in GPE and was extradited to GPE on DATE pursuant to a decision taken by ORG on DATE .

In DATE the applicant was placed under house arrest .

By a judgment decision of CARDINAL DATE , filed with ORG on DATE , the Investigating Judge attached to the GPE ORG inter alia committed CARDINAL co - accused for trial on a charge of political conspiracy . The applicant was committed for trial on charges of false pretences , corruption , aggravated slander and seeking and obtaining classified information . The charges of political conspiracy , espionage and extortion were dropped , the applicant having not been extradited in relation to them , and the charge of forgery in public deeds was dropped by application of an amnesty . The judgment consisted of CARDINAL pages .

The first hearing was held on DATE . Further hearings were held on CARDINAL and DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE , CARDINAL and DATE , CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE ( postponed due to a ORG strike ) , CARDINAL , DATE and DATE , CARDINAL , DATE ( postponed due to a ORG strike ) , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE , DATE , DATE and DATE , CARDINAL , DATE , DATE and DATE , CARDINAL and DATE . The ORG questioned CARDINAL witnesses .

The pleadings started on DATE and continued until DATE ( QUANTITY hearings ) .

On DATE ORG of GPE inter alia found the applicant guilty of false pretences , aggravated slander and seeking and obtaining classified information and sentenced him to DATE imprisonment , of which DATE and the payment of the fine were pardoned . The judgment consisted of CARDINAL , CARDINAL pages .

On DATE the applicant lodged an appeal against the said judgment with ORG . ORG also appealed .

Both ORG and the applicant filed the grounds for the appeal with ORG on DATE .

The case - file reached ORG on DATE .

In the preliminary phase , the court ruled that the proceedings against CARDINAL deceased co - accused be discontinued and dismissed the appeal lodged by ORG in respect of certain co - accused including the applicant , on the ground that he had failed to file the grounds for the appeal .

The trial was set for DATE but was adjourned until DATE , as the lawyers were on strike . By a decision of CARDINAL DATE the court dismissed the parties’ request for further evidence .

Further hearings were held on DATE , CARDINAL , DATE , DATE , DATE and DATE .

By a judgment consisting of CARDINAL pages , delivered on DATE and filed with ORG DATE , ORG upheld the previous judgment .

On DATE and DATE , the applicant and his counsel respectively lodged appeals on points of law .

By a judgment of DATE , ORG ruled that the charges of false pretences and slander against the applicant be dropped as time - barred . It confirmed the remainder of the judgment and accordingly reduced the sentence . The judgment was filed with ORG on DATE .


CASE OF MUSTAFA AND ARMAĞAN AKIN v. TURKEY

Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the first applicant 's wife instituted divorce proceedings and asked for the custody of their CARDINAL children ; PERSON ( the second applicant ) and his younger sister PERSON who was born in DATE .

ORG of First Instance ( “ the ORG ” ) granted the couple 's divorce on DATE . Having regard to the “ parties ' incomes and the ages of the CARDINAL children ” , ORG awarded custody of GPE to the first applicant and that of PERSON to her mother . It also decided that the parents would exchange the children DATE , during DATE and for a total period of DATE during the CARDINAL religious holidays .

On DATE the first applicant requested ORG to grant an interim measure to the effect that he would have both children DATE and his ex - wife would have them the next . This way , he argued , the children would not lose contact with each other and he would have the opportunity to spend DATE with both his children . This request was rejected on DATE by ORG which considered that its decision concerning the custody issue had been correct .

The appeal lodged by the applicant against ORG decision of DATE was rejected by ORG on DATE . A request made by the first applicant for a rectification of that decision was rejected on DATE .

On DATE the first applicant brought a court case on behalf of his son and on his own behalf against his ex - wife . He claimed that although he and his son were living in the same town and very close to his ex - wife and his daughter , the decision of ORG had prevented the CARDINAL children from seeing each other and him from spending time with both his children . This , he claimed , was causing irreversible psychological problems for the children . Even when the children saw each other in the street they were prevented from talking to each other by their mother . He requested that the children be able to see each other DATE .

He also asked the court to order his ex - wife to pay maintenance to him in respect of Armağan .

ORG refused the applicants ' requests on DATE . It held that , although diligence had to be shown to satisfy the needs of the parents and their children and to improve the ties between them , ordering PERSON to spend DATE with her father would mean a continual change of environment for her and would confront her with variations in discipline .

The applicants appealed and referred in their appeal to a number of decisions of ORG . According to those decisions , the applicable law and procedure required domestic courts to ensure that access arrangements do not prevent the children of divorced parents from seeing each other . The applicants maintained that ensuring this was a matter for a court of law to consider of its own motion . They also argued that the children 's best interests should be given paramount importance . They drew ORG attention to the fact that the CARDINAL siblings had not seen each other for DATE .

The appeal was rejected by ORG on DATE which considered that ORG had “ adequately examined the evidence available to it and that its conclusion had been in accordance with the applicable legislation ” . A subsequent rectification request lodged by the applicants was rejected on DATE . In their request for rectification the applicants submitted that the CARDINAL children had not seen each other for DATE and that their request for rectification was their last chance of seeing each other .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

On DATE the police searched the applicant 's apartment on account of a suspicion that it had been used for procuring . On DATE she was questioned as a suspect . On DATE the pre - trial investigation was completed .

On DATE the public prosecutor preferred charges against the applicant for procuring , allegedly committed during the period from DATE .

On an unspecified date the applicant was summoned to appear before the GPE ORG ( käräjäoikeus , tingsrätten ) at a hearing which was to take place on DATE .

NORP However , the hearing was cancelled owing to the fact that PERSON , a witness , had failed to appear before the court although lawfully summoned to do so . Another witness , PERSON , had not been summoned . Both witnesses were NORP citizens . The hearing of the case was postponed until DATE and PERSON was summoned to appear before the court on pain of a fine of MONEY ( ORG ) .

On DATE ORG noted that the above - mentioned witnesses had failed to appear before it although lawfully summoned . The court adjourned the case until DATE and decided to summon the witnesses on pain of a fine of LAW each .

On DATE ORG noted that the witnesses had not been summoned , postponed the hearing of the case until DATE and decided that the witnesses should be summoned to appear before it on pain of a fine of LAW each . The court also issued warrants for their arrest .

On DATE ORG again noted that the witnesses had not been summoned , adjourned the case until DATE and decided that the witnesses should be summoned to appear on pain of a fine of EUR CARDINAL each . The court also issued warrants for their arrest .

NORP On DATE the District court noted that PERSON had not been summoned and that PERSON had been summoned but failed to appear . It postponed the hearing of the case until DATE , issued warrants for their arrest and decided that they should be brought to court .

On DATE ORG noted that the witnesses had not been found . The case was adjourned until further notice .

According to the ORG , CARDINAL more attempts were made by ORG to hold an oral hearing DATE . These attempts proved unsuccessful , as the witnesses could not be brought before the court in GPE .

NORP In DATE ORG contacted the NORP liaison prosecutor in GPE to explore the possibility of arranging the hearing of the witnesses through a video link .

In DATE ORG received video - conferencing equipment . On DATE ORG issued a request for international legal assistance to GPE to have the hearing by video link arranged .

On DATE ORG held its oral hearing . The applicant argued that the proceedings had exceeded a reasonable time and were thus in breach of the Convention . In consequence , the charges against her should be dismissed . The court rejected the applicant 's argument . It acknowledged that the proceedings had been delayed but noted that the delay had resulted from the unsuccessful attempts to bring the crucial witnesses before the court . It was only after the GPE ORG was provided with video - conferencing equipment that the hearing could be held and the court was able to receive testimony from the witnesses in their own country .

On DATE the ORG gave its judgment . It found that , CARDINAL , the applicant had provided an apartment for the practice of prostitution for QUANTITY women and gained from that arrangement . It convicted the applicant of procuring and sentenced her to CARDINAL unit fines . It also ordered her to pay the ORG PERSON ( ORG ) representing the proceeds of the offence .

In assessing the gravity of the offence the court noted that the CARDINAL women who had occupied the applicant 's apartment had not been controlled by her , but had provided sexual services of their own free will . The court again acknowledged the excessive length of the proceedings , noting that it was not attributable to the applicant . Relying on LAW , LAW ( rikoslaki , strafflagen ) it stated that she was entitled to redress for the delay , which could be awarded either by choosing a more lenient type of punishment or by reducing the sentence . The court went on to state that the applicant had been found guilty of fairly small - scale unorganised procuring . It also took into account the short period of time over which the offence had been committed and the small amount of proceeds obtained . For those reasons , and due to the length of the proceedings , the court concluded that the applicant should be sentenced to a fine . The court also took into account the delay in the proceedings in the amount of the unit fines , without specifying the reduction in the sentence .

No appeals were filed with ORG ( hovioikeus , hovrätten ) and the judgment gained legal force on DATE .

Chapter DATE , LAW , as amended by LAW . MONEY , which took effect on DATE , reads in relevant parts :

“ In addition to what is provided above in LAW grounds for mitigating the sentence that are also to be taken into consideration are

( CARDINAL ) a considerably long period that has passed since the commission of the offence ;

if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result . ”

The sanction for procuring provided by LAW runs from CARDINAL unit fine to DATE imprisonment ( LAW , LAW , LAW ) .

Chapter DATE , Article PERSON of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) , as amended by Act no . CARDINAL/CARDINAL , which came into force on DATE , provides the following :

“ A witness ... may be heard in the oral hearing without his or her appearance in person with the use of a video conference of other appropriate technical means of communication , where the persons participating in the hearing have an audio and video link with one another , if the court deems that this is suitable and :

CARDINAL ) the person to be heard can not , due to illness or another reason , appear in person in the oral hearing , or his or her personal appearance in proportion to the significance of the testimony would cause unreasonable costs or unreasonable inconvenience ;

CARDINAL ) the credibility of the statement of the person to be heard can be reliably assessed without his or her personal appearance at the oral hearing ;

CARDINAL ) the procedure is necessary in order to protect the person to be heard or a person related to him or her in the manner referred to in LAW , LAW ) of LAW , from a threat directed at life or health ; or

CARDINAL ) the person to be heard has not reached DATE or he or she is mentally incapacitated .

A party shall be given an opportunity to put questions to the person being heard .

In the cases referred to above in points CARDINAL and CARDINAL of paragraph CARDINAL , however , a telephone may also be used at the hearing . ”


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The first applicant is the son of the second applicant . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

On DATE the applicants lodged an application with the ORG ( application no . CARDINAL/CARDINAL ) against GPE under LAW of the LAW . They alleged that ORG , CARDINAL § DATE , DATE , DATE , DATE and LAW CARDINAL to the Convention had been violated as a result of the non - enforcement of a final judgment of CARDINAL DATE obliging the local water supply company to conclude a contract for water supply with the second applicant , distinctive than the one concluded with the association of all landlords living in the same building .

NORP In a judgment of DATE the ORG analysed all the complaints raised by the applicants only under LAW and held that there had been a violation of this article due to the non - enforcement of the final judgment in the ORG favour . As to the application of Article CARDINAL , the ORG ordered ORG to pay the applicants jointly QUANTITY in respect of pecuniary and non - pecuniary damages .

On DATE ORG paid the damages as ordered by the ORG .

At their FAC meeting held on DATE , the Deputies decided to postpone the examination of this case at their next meeting in view of the fact that bilateral contacts were under way in order to assess new information received from the Government on the issue of the continuing non - enforcement of the domestic court judgment of CARDINAL DATE . The adoption of a resolution is still pending in this case .

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

Following the adoption of the ORG ’s judgment of DATE , the water supply company sent several letters to the applicants expressing its willingness to conclude a contract with them . Hence , by letters sent on DATE , DATE , DATE and DATE , the company informed the applicants that in order to conclude a distinctive water supply contract a new branching was necessary with the purpose to separate the supply to their apartment from the common supply of the entire building . On CARDINAL occasions , on DATE and DATE , representatives of the water supply company came to the applicants’ building in order to perform the necessary works but did not find them at home .

By a letter of DATE addressed to the water supply company the applicants expressed their disagreement for the construction of a separate branching invoking both the domestic judgment as well as the ORG ’s judgment which made no express order in this respect .

According to the parties’ submissions , the judgment of CARDINAL DATE remained non - enforced to date .

The relevant domestic law concerning the execution of final judgments , namely excerpts of LAW and Law no . PERSON on the powers and functions of bailiffs , is summed up in the ORG ’s judgment in the case of GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE , the applicant was arrested mainly on charges of robbery and trespassing . The criminal proceedings against him and CARDINAL other persons were opened DATE .

On DATE , he was released from custody .

NORP In an indictment dated DATE , ORG attached to ORG committed the applicant and the CARDINAL other persons for trial .

On DATE the case was registered with ORG .

On DATE , on an appeal by CARDINAL of the co - accused against an interlocutory judgment rendered in the case , the file was sent to the ORG , from where it was returned on CARDINAL DATE and was entered into the court 's list on CARDINAL DATE . However , none of the contents of the file could be found after DATE .

Consequently , on DATE , ORG sent the case back to ORG to reconstitute the file .

On DATE , under LAW , ORG referred the case back to ORG , this being the appropriate judicial authority to reconstitute the file at that stage of the proceedings .

Therefore , on DATE , the case was re - entered into the ORG list .

Several items , such as the indictment and the arrest warrants , were requested from ORG .

On DATE ORG considered the file reconstituted . It gave judgment on DATE , sentencing the applicant to DATE imprisonment .

Most of the adjournments of the hearings were caused by the failings of the judicial authorities in summoning the defendants or civil parties

Following an appeal by the applicant , the sentence was upheld in a decision of CARDINAL DATE of ORG and lastly in a final decision of DATE of ORG .


No violation of Art. 6-1 as regards the proceedings on the merits;Violation of Art. 6-1 as regards the urgent proceedings

The application relates to CARDINAL sets of proceedings . The first concerns the divorce proceedings proper before the court of first instance and the second concerns the interim measures in respect of which LAW gives the summary applications court special power and jurisdiction to hear applications for interim measures during the divorce proceedings .

On DATE the applicant 's husband filed a divorce petition against her on a specified ground .

After a hearing on DATE judgment was reserved until DATE , when ORG granted a divorce against the applicant and ordered each party to pay its own costs .

On DATE the applicant 's husband appealed against the costs order .

At a preliminary hearing on DATE the parties declared that the case was ready for trial . It was immediately set down for hearing in the relevant ordinary division . On DATE , in reply to a letter from the applicant 's lawyer , the registry of ORG informed her that it would take DATE for the appeal to be heard . On DATE the registry listed the case for hearing on DATE . At the hearing the applicant 's husband stated that he was withdrawing his appeal . The court gave judgment on DATE acknowledging that the appeal had been withdrawn .

The divorce decree was registered on DATE .

On DATE the applicant was summoned before ORG , as the court hearing summary applications , to deal with interim measures relating to the divorce petition and , more particularly , to the CARDINAL children , born in DATE and DATE , of whom the father had had custody since the couple had separated in DATE . The parties filed their main pleadings before the hearing of DATE . The applicant then filed further pleadings at the hearing . In an order of CARDINAL DATE the President of ORG provisionally granted the mother renewed contact with the children and determined the maintenance payable to the applicant by the father per child and per month .

On DATE the applicant 's husband appealed against that order . Neither party appeared at a preliminary hearing on CARDINAL DATE and the appeal was re - listed for hearing . On DATE the appellant asked for the hearing date to be fixed by judicial recorded delivery . At the hearing listed for CARDINAL DATE the appeal was adjourned until DATE for the court to check that it was ready for hearing . At the hearing the parties filed their grounds of appeal and a timetable for subsequent pleadings . On DATE the applicant filed further pleadings and a list of documents . Her ex - husband filed further pleadings on DATE . On DATE the case , which was now ready for hearing , was set down for hearing in an ordinary division .

On DATE , in reply to a letter from the applicant 's lawyer , the registry of ORG stated that the case had been set down for hearing and would take DATE to come to a hearing . On DATE the registry informed the parties that the case would be heard on DATE but did not specify how the hearing would be conducted .

On DATE the parties filed joint pleadings with the registry of ORG stating that they intended to withdraw from the proceedings . After a hearing on DATE ORG gave judgment on DATE acknowledging their decision . In its judgment it noted that counsel for the parties had stated at the hearing that the parties would continue to comply with the interim measures set out in the order of CARDINAL DATE .


Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicants , PERSON and DATE others listed in the annex ( application no . CARDINAL ) , PERSON and PERSON ( application no . CARDINAL/CARDINAL ) and Mr PERSON and PERSON PERSON ( application no . CARDINAL/CARDINAL ) , are NORP nationals who live in GPE , GPE and GPE . They are represented before the ORG by Mr I. Kamiński , Mr NORP PERSON and PERSON , NORP lawyers practising respectively in GPE , Gdańsk and ORG .

All the applicants are relatives of servicemen in ORG who were taken prisoner by ORG in DATE following the occupation of the eastern part of GPE by the GPE . On DATE Mr PERSON , head of the GPE ’s FAC , wrote to PERSON , Secretary General of ORG , proposing to approve the shooting of NORP prisoners of war on the grounds that they were all “ enemies of the NORP authorities and full of hatred towards the NORP system ” . On DATE the ORG of ORG of ORG took the decision to consider , “ using a special procedure ” and employing “ capital punishment – shooting ” in the case of NORP officers held in the prisoner - of - war camps . Examination of the cases was delegated to a CARDINAL - person panel ( “ troika ” ) composed of ORG officials , which operated on the basis of lists of detainees compiled by the regional branches of the FAC . The executions took place in DATE and DATE .

After the burial pits were discovered , the NORP authorities responded by putting the blame on the NORP who DATE according to GPE – had in DATE allegedly taken control of the NORP prisoners and had therefore murdered them . On DATE PERSON , Chairman of ORG ( ORG ) , prepared a note recommending “ the destruction of all the [ CARDINAL ] records on the persons shot in DATE in the ... operation ... ” The remaining documents were put in a special file , known as “ package no . CARDINAL ” , and sealed . In NORP times , only the Secretary General of ORG had the right of access to the file . On DATE its contents were officially made public on the website of ORG .

On DATE the official news agency of the GPE acknowledged the responsibility of GPE officials for “ the crime committed in ORG ” . In DATE , prosecutors in GPE and GPE ( Tver ) instituted criminal investigations in connection with the discovery of mass burials . The investigations were later joined and taken over by the NORP ORG ( “ case no . CARDINAL ” ) .

On DATE the Chief Military Prosecutor ’s Office decided to discontinue criminal case no . CARDINAL on the ground that the persons allegedly responsible for the crime had already died . In the meantime , on DATE , ORG for ORG classified CARDINAL volumes of the case file – out of a total of CARDINAL volumes – as “ top secret ” and a further CARDINAL volumes as “ for internal use only ” . The decision to discontinue the investigation was given top - secret classification and its existence was only revealed on DATE at a press conference given by ORG .

On DATE the Chief Military Prosecutor ’s Office rejected a request for rehabilitation submitted by counsel on behalf of Ms ORG and other applicants in case no . CARDINAL ( “ the ORG group ” ) . The prosecutor ’s office stated that it was not able to determine the legal basis for the repression against NORP citizens in DATE . Following a judicial appeal against the prosecutor ’s refusal , on DATE ORG upheld it at final instance as lawful and justified .

On DATE ORG of ORG rejected a further complaint against the prosecutor ’s decision on the discontinuation of case no . CARDINAL . It found that the ORG relatives had not been among those identified and that “ the ‘ Katyń’ investigation ... [ had ] not establish[ed ] the fate of the said individuals . ” On DATE ORG of ORG of GPE upheld the judgment of DATE , repeating verbatim extensive passages of the findings of ORG . It added that the decision of DATE could not be quashed because the prescription period had expired .

The applicants in the instant case awaited the outcome of the legal proceedings instituted by the ORG group .

On various dates in DATE the applicants submitted requests to ORG concerning the rehabilitation of their relatives and the discontinuation of case no . CARDINAL .

The Chief Military Prosecutor ’s Office rejected their requests and justified its decisions in a manner identical to that of the decisions concerning the ORG group . All the decisions were sent to the applicants via ORG of the Polish Embassy in GPE and reached them on various dates in DATE and DATE ( applications nos . CARDINAL and CARDINAL/CARDINAL ) or DATE ( application no . CARDINAL/CARDINAL ) .


Violation of Art. 6-1 (one applicant);No violation of Art. 6-1 (other applicants);No violation of Art. 6-1

All the applicants , but the fifth , were members of a motor cycle club named “ Screwdrivers ” , which was based in PERSON and was , at the time of the events giving rise to the proceedings described below , the “ Hang - Around Club ” of ORG . On DATE it became a ORG of the latter and , as from DATE , a “ LAW . The fifth applicant was a member of ORG in GPE .

On DATE the applicants , along with CARDINAL other defendants , PERSON and PERSON , were indicted ( count I ) under LAW ( CARDINAL ) ( second alternative ) of LAW for having instigated fire or explosion capable of causing loss of human life and extensive material damage and resulting in death , or for aiding and abetting in this . On DATE , DATE at TIME in GPE , they had , after having planned the operation , blown up parts of the club house in CARDINAL , FAC , of another motor cycle club , named GPE . A ORG had been placed in the latter 's courtyard , loaded with explosives that were detonated . The force of the explosion had been such that metal and rubber parts of the vehicle had hit and killed the driver of a passing car . The building in question had in part subsided and a massive fire had broken out , putting at risk the lives of CARDINAL persons inside the building . The building had burned down to the ground and a neighbouring property had been severely damaged , several vehicles had been totally or largely destroyed . The total damage had amounted to at least NOK CARDINAL . Moreover , the applicants were indicted ( count II ) under Article CARDINAL ) and ( CARDINAL ) for the acquisition , confection or storage of explosives , or for aiding or abetting thereto , with the knowledge that the explosives had been intended to be used for the commission of the offence described under count I above , during the period before DATE . Furthermore , the applicants were indicted ( count III ) under Articles CARDINAL and CARDINAL for aggravated offences of serious material damage in respect of CARDINAL , GPE and a number of properties adjacent to or in the vicinity thereof , amounting to ORG ( approximately LAW ) .

By a judgment of DATE , ORG ( tingrett ) acquitted the first , second and third applicants of counts I and II but convicted them of count III and sentenced each of them to DATE imprisonment . The fourth applicant was acquitted of count II but convicted of counts I and III and sentenced to DATE imprisonment . For each of them the time spent in pre - trial detention was to be deducted . The fifth applicant was acquitted of all the charges .

The CARDINAL co - defendants , PERSON and PERSON , were convicted of all the charges and were sentenced respectively to DATE imprisonment .

On DATE ORG ( lagmannsrett ) , sitting with CARDINAL judges , including Judge PERSON , rejected an appeal by the fourth applicant against a decision of DATE by ORG to prolong his provisional detention . The decision included the following reasons :

“ ORG has ordered detention of [ the fourth applicant ] on the ground of danger of evasion , see LAW CARDINAL of LAW , and the defence counsel 's first supporting letter concerned imprisonment on this ground . ORG found it correct to assess whether there were grounds for imprisonment on the basis of law enforcement considerations pursuant to LAW , and notified the defence counsel and prosecutor of this by telephone . The defence counsel 's second supporting letter concerns this issue .

According to ORG convicting judgment , the basic condition for remanding the prisoner in custody pursuant to LAW ... ] on ground of reasonable suspicion has been fulfilled . ORG does not find it necessary to consider whether the danger of evasion ought to lead to imprisonment , but points out that if [ the fourth applicant ] does not attend court for the hearing of the appeal , his conviction will remain in force . This , and his personal circumstances as described by the defence counsel , are factors which indicate that the danger of evasion is not sufficiently great .

The defence counsel has stated that the basic condition for imprisonment pursuant to Article CARDINAL [ ... ] , namely the existence of factors which particularly strengthen the suspicion , has not been met and has alleged that the conviction is based on the statement of a co - defendant which is contradicted by other statements and evidence . The High Court bases its judgment , as in ORG ruling of DATE in the ORG case ( appeal case DATE ) on the fact that when there is a convicting judgment , the qualified requirement of suspicion stated in Article CARDINAL has usually been fulfilled . It is true that in that case this was not contested by the defence counsel , nor during the subsequent hearing by ORG ( see PERSON ( “ FAC ) DATE , page CARDINAL ) , but this is a matter the courts must consider of their own motion . In ORG opinion , there are no grounds for taking a different view in this case either . The basic condition stated in Article CARDINAL is regarded as having been met .

As regards the discretionary decision regarding whether imprisonment under Article CARDINAL should take place , the High Court refers to the extensive discussions in the case mentioned above . The present case was widely covered by the media just after the explosion , regularly during the subsequent period , and later in connection with the arrest and the ORG proceedings . It appears from the judgment that this was a planned crime , within the meaning of section CARDINAL of LAW , organised by several persons where a passer - by lost her life . The explosion took place in a town and could easily have led to the loss of more lives . Damage amounting to great sums was caused . ORG based its ruling on the fact that the matter arose out of rivalry between CARDINAL Motor Cyclist milieus . ORG adds , as a factor when assessing the case pursuant to LAW , that this rivalry in NORP countries has led to a number of violent confrontations , including several deaths . This case is undoubtedly likely to cause such a reaction among the general public as Article CARDINAL is intended to counteract and must be said to lie in the core area for the application of this provision . On the basis of an overall assessment , ORG has found that the law enforcement considerations which form the basis of Article CARDINAL are so prominent here that the accused should remain in prison also after judgment . The accused 's personal and family circumstances pointed out by the defence counsel can not be given sufficient weight in the opposite direction , and continued imprisonment can not be said to be a disproportionate measure under Article CARDINAL

The decisions by ORG to which the defence counsel has referred – reported in GPE DATE , page CARDINAL , ORG , page CARDINAL , ORG , page DATE , and Rt CARDINAL , page CARDINAL - can not lead to any different result . ORG has also considered decisions included in DATE , page CARDINAL , page DATE and page DATE .

Unless it is of importance for the decision regarding whether or not the accused is to be released , especially in relation to the consideration of proportionality , where the accused is placed during the remand period is outside ORG control . The regime he is now subject to is found to be of no importance to ORG assessment . ”

The first , second and third applicants appealed to ORG against ORG assessment of facts concerning the question of guilt and the application of the law with respect to count III . The fourth applicant appealed against the assessment of facts concerning the question of guilt , the application of the law and sentencing with regard to counts I and III . The prosecution appealed against the acquittals of the first , second and third applicants on count II and that of the fifth applicant 's acquittal on counts I and III .

M did not appeal whereas B only pursued an appeal against the sentence which ORG dismissed by a separate decision of CARDINAL DATE .

As for the appeal brought by the applicants , ORG held an oral hearing DATE and DATE . ORG was sitting with a jury of CARDINAL members ( reduced to CARDINAL on DATE as one of the jury members was disqualified , see below ) and with CARDINAL professional judges , CARDINAL of whom was Judge PERSON In the questions put to the jury the offences were described in the way set out in the indictment . The jury answered all the questions in the affirmative , except for CARDINAL regarding count II with respect to the fourth applicant . The professional judges decided to pass judgment on the basis of the jury 's verdict ( Article CARDINAL , first section , of the Code or Criminal Procedure ) and , by a judgment of DATE , convicted all CARDINAL applicants on counts I and III .

Thereafter , ORG , composed of the CARDINAL professional judges , the jury chairperson and CARDINAL other jurors drawn by lots among the jury ( LAW ) , unanimously sentenced the first , second and third applicants to DATE imprisonment and the fourth and fifth applicants to CARDINAL and DATE , respectively . For each applicant , DATE spent in provisional detention was to be deducted from the sentence .

Finally , the CARDINAL professional judges awarded ORG CARDINAL in compensation for non - pecuniary damage to the husband of the woman killed by the explosion .

The issue of compensation for pecuniary damage was postponed .

The applicants all appealed to ORG against the High Court procedure and the sentences . As regards the former appeal ground they all argued that they had not been afforded an impartial hearing before ORG .

Firstly , they argued that Judge PERSON had taken part in the ORG decision of DATE rejecting an appeal against a prolongation by ORG of the fourth applicant 's provisional detention . Unlike ORG , which had applied the ordinary grounds for such detention in LAW , ORG had applied a special ground contained in Article CARDINAL , which authorised such detention , even if the ordinary grounds under Article CARDINAL were not fulfilled , namely where it concerned an offence punishable by imprisonment for DATE or more and provided that there was a confession or ( as found here ) other circumstances which strengthen particularly the suspicion ( som i særlig grad styrker mistanken ) against the defendant . The decision of DATE , it was argued , had also had implications for the other defendants .

Secondly , they submitted that on DATE of the trial hearing , after having taken part for DATE , a member of the jury had stated that on DATE she had made a witness statement to the police that related to the case . Her name had not been included on the list of witnesses . ORG had then discharged the jury member in question and had continued the trial , despite a request by the defence to postpone it and to have the case tried by a differently composed court .

However , on DATE ORG unanimously rejected both appeal grounds , on procedure and sentencing , subject to certain adjustments to DATE to be deducted on account of provisional detention . The first voting judge , Mr Justice PERSON , gave inter alia the following reasons :

“ ( CARDINAL ) I will first deal with the allegation that ORG judge , Judge PERSON , was disqualified . ...

( CARDINAL ) From the outset , I find reason to point out that our rules of procedure for criminal cases in a High Court that sits with a jury are based on a distribution of functions . The decision regarding the question of guilt is the jury 's alone , while the court proceedings are determined by ORG CARDINAL professional judges . These decide on the issue of sentencing together with the jury 's foreman and CARDINAL members of the jury . In cases that are heard and ruled on in the first and second instance by a court sitting with professional judges and lay judges , the lay judges and professional judges have the same authority regarding all issues , which are decided on jointly .

( CARDINAL ) Following the landmark judgment by ORG DATE in the case GPE v. GPE ( application no . CARDINAL/CARDINAL ) regarding disqualification by reason of prejudice due to participation in decisions regarding remand in custody , there is extensive ORG case law on this . In criminal cases which at first and second instance are heard and decided on by a court sitting with professional and lay judges , a professional judge who has previously taken part in a remand case in which imprisonment has been ordered under LAW is regarded as being disqualified and shall therefore not take part in any subsequent main hearing to determine , inter alia , the question of the guilt of the same accused in the same body of cases . In RtCARDINAL , ORG has stated that the same applies to the presiding judge in a ORG case involving a jury . The first voting judge stated , on page CARDINAL , the following regarding the relationship to section CARDINAL of ORG :

' As regards the relationship with section CARDINAL of ORG , I would point out : Article CARDINAL of LAW stipulates that there must be a very strong probability that the accused is guilty , see the wording of the section according to which , in the serious crimes covered , there must be ' a confession or other circumstances that strengthen the suspicion to a particularly high degree ' . This is clearly a stronger suspicion than the one which is sufficient pursuant to LAW , which stipulates ' reasonable grounds ' for suspicion . '

( CARDINAL ) ...

( CARDINAL ) In the above - mentioned judgment , the question of imprisonment was decided during the investigation and without a conviction by any court . In CARDINAL , the presiding judge of ORG was , with dissenting votes , also regarded as being disqualified in a situation where the order to remand the accused in custody pursuant to LAW had been made after there was a conviction by a first instance court .

( CARDINAL ) In our case too , the relevant remand order had been made after a conviction by the court of first instance . But here the objection on the grounds of disqualification is not aimed at the presiding judge of ORG , but at CARDINAL of the other CARDINAL professional judges who took part . It appears from what I have previously quoted from the first voting judge 's vote in GPE - CARDINAL , that the emphasis was placed on the fact that the presiding judge in a jury case had a key function , with particular emphasis on his / her instructions to the jury , in which the evidence in the case was regularly reviewed . The question now is whether the other professional judges in a High Court that is convened with a jury are to be regarded as disqualified under section CARDINAL of ORG due to the fact that they have previously been involved in applying Article CARDINAL of LAW as a basis for imprisoning CARDINAL or more of the accused in the same criminal case .

( CARDINAL ) I find that there are insufficient grounds for regarding the other professional judges as being disqualified in such a situation , and refer to what I have already stated about the distribution of functions in criminal cases that are heard by a jury . It is for the presiding judge to give instructions to the jury , see LAW , and this is his responsibility alone . It is true that all the professional judges take part in the subsequent assessment of whether the jury 's decision is to form the basis of the judgment , or in exceptional cases be set aside , see ORG , PERSON and CARDINALC of LAW . However , such a setting aside of decisions does not determine the question of guilt and is also so exceptional that , in my opinion , it can not be given any significance worth mentioning in this context .

( CARDINAL ) ...

( CARDINAL ) My conclusion is thus that Judge PERSON of ORG was not disqualified .

( CARDINAL ) I will now deal with the allegation that the jury members were disqualified . The factual basis for this allegation is as follows :

( CARDINAL ) PERSON went to the police at an early stage of the investigations , due to a newspaper article on DATE which described , inter alia , the car that was used in the explosion . She believed she had seen such a car on CARDINAL occasions at the ORG petrol station on the LAW near PERSON toll station , on DATE May and on DATE , when the explosion took place . She gave a statement regarding this to CARDINAL of the detectives on DATE . When questioned by the police , she described CARDINAL people she had seen both near the car and inside the shop , and stated she believed she had seen that CARDINAL of them was carrying a black petrol can . She also stated what she believed she remembered of the car 's licence number .

( CARDINAL ) When ORG presiding judge discussed the impartiality rules with the jury members on DATE in court , on DATE , PERSON did not give any account of her previous statement to the police . She had not heard any more from the police and was not on the list of witnesses . The jury was constituted with CARDINAL members , according to LAW .

( CARDINAL ) After the hearing had been adjourned on DATE , juror PERSON contacted a policeman she knew and asked if she could sit on the jury even though she had been questioned by the police on CARDINAL occasion . This question was then put to the public prosecutor , and the matter was made known to ORG when it convened on DATE . Her statement to the police , which was given on DATE , was read out and the parties were given the opportunity to make a statement . ORG thereafter ordered that PERSON was to withdraw from the jury , and stated :

' It has become known that jury member PERSON gave a statement to the police on DATE [ presumably DATE . She has not been called as a witness in the case , and her impartiality must be assessed under LAW . According to this provision , no one can be a jury member if there are special circumstances that may weaken confidence in the impartiality of the person concerned . All the defence counsel have petitioned for her to withdraw and have also stated that the entire jury is disqualified .

The High Court finds that such special circumstances exist in this case . It bases its decision on the fact that the jury member reported to the police as a witness and told the police about her observations in close connection to DATE of the explosion . Her observations are of such a nature that it can be questioned whether she is impartial in this case .

However , ORG does not find that the jury member may , by having possibly stated her observations to the other members of the jury , have influenced the other jury members so that they are disqualified . It must be assumed that the jury members will be able to disregard any information she may have told the jury , as they are assumed to be able to disregard other information on the case that has arisen outside the court room , for example in the media . '

( CARDINAL ) After this , PERSON withdrew from the jury and the hearing continued with CARDINAL jury members .

( CARDINAL ) I agree with ORG that PERSON was prejudiced . The question is then whether the other CARDINAL members of the jury became prejudiced as a result of PERSON serving on the jury for DATE of the hearing .

( CARDINAL ) ...

( CARDINAL ) ...

( CARDINAL ) ...

( CARDINAL ) ...

( CARDINAL ) What is decisive for our case is therefore whether the aforementioned matter can be regarded as a procedural error that may be considered pursuant to the provision stated in LAW . The question here is whether PERSON 's presence as a member of the jury during DATE of the hearing may have influenced the jury 's verdict .

( CARDINAL ) The defence counsel have alleged to ORG that ORG has , in its reasons for regarding the other jury members as being impartial , incorrectly treated any information from PERSON on the same footing as information on the case that arose outside the court room , for example in the media . I agree that , when considering the impartiality issue , one can not always treat these matters as being equal . The jury members will regularly be told by the presiding judge that , when deciding on the question of guilt , they must only place emphasis on what is stated as evidence in court , and that they must not discuss the case with third parties . There is no corresponding barrier to the jury members discussing the case among themselves – even continuously during the court hearing DATE and it is realistic to expect that this actually happens to a certain extent .

( CARDINAL ) ...

( CARDINAL ) When I nonetheless have decided that the jury members can not be regarded as having been disqualified to serve as a result of jury member PERSON 's disqualification , I have placed decisive emphasis on the following : the statements that the foreperson of the jury and PERSON have given to the police for use in ORG do not provide any basis for assuming that she had given the other members of the jury factual information regarding her private knowledge of the case or in any other way influenced the others before she withdrew on DATE . I refer to the fact that PERSON was at no time called as a witness in the case , by either the prosecuting authority or the defendants . The prosecutor has stated to ORG that the observations she had told to the police on DATE including about parts of the vehicle in question 's licence number – were clarified early on as being of no importance to the further investigation .

( CARDINAL ) The jury foreperson has explained that the situation that arose after PERSON had withdrawn was discussed by the jury members and that they agreed that her participation during DATE had not had any effect on the jury 's verdict .

( DATE ) Accordingly , I can not see that PERSON 's presence as a member of the jury during the introductory presentation of evidence in DATE of the hearing can be regarded as a procedural error to which LAW applies . ”

Rules on the impartiality of judges and jurors are set out in sections CARDINAL to CARDINAL of ORG ( domstolloven - PERSON of CARDINAL DATE no . CARDINAL ) . In the present case , the national courts relied in particular on LAW , which reads :

Section CARDINAL

“ Nor may a person sit as a judge or juror if there are other particular circumstances which are liable to weaken the confidence in his impartiality . This applies in particular if a party requests that he withdraws on this ground . ”

The conditions for provisional detention were set out in Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , the relevant parts of which provided :

Article CARDINAL

“ Any person who on reasonable ground is suspected of CARDINAL or more acts which according to statute is or are punishable with DATE imprisonment , may be arrested if :

CARDINAL ) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautionary measures ,

CARDINAL ) there is an immediate risk that he will spoil the evidence in the case , e.g. by removing clues or influencing witnesses or accomplices ,

CARDINAL ) it is deemed to be necessary in order to prevent him from re - committing a criminal act punishable by DATE imprisonment ,

CARDINAL ) he himself has requested it for reasons that are found to be satisfactory .

Article CARDINAL

“ When a person is suspected of

a crime punishable by imprisonment for DATE or more , or of an attempt to commit such a crime , or

a criminal offence under LAW ( CARDINAL ) , second alternative , see LAW , Article CARDINAL second alternative , see LAW , or LAW alternative , s / he may be arrested even if the conditions in Article CARDINAL are not fulfilled , provided that s / he has made a confession or there are other circumstances which to a particularly high degree strengthen the suspicion . In the assessment emphasis shall be placed particularly on whether it would provoke the public 's perceptions of justice or create insecurity if the suspect is at large . Any increase of the maximum penalty because of any repetition or concurrence of offences shall not be taken into account . ”

NORP The relationship between LAW and section CARDINAL of the Administration of Court Act was dealt with by ORG in a landmark judgment reported in ORG , several passages of which were quoted in ORG judgment in the present case ( see paragraph CARDINAL above , paragraph ( CARDINAL ) of ORG judgment ) . In another part of the DATE judgment , ORG took note of a Circular ( G-CARDINAL/CARDINAL ) issued by ORG informing the national courts about the NORP judgment . It quoted inter alia the following statement , with respect to the High Court proceedings conducted without a jury :

“ A decision on detention on remand is normally taken by the district - or city court ... However , if ORG has examined the question of detention on remand under LAW , the same judge may not take part in the decision on the question of guilt under the main hearing . ”

The following provisions of LAW pertaining to jury trials are of relevance :

Article CARDINAL

“ ... Before the hearing begins , the president of the court shall ascertain whether any of the jurors or their deputies are disqualified , cf . section CARDINAL of ORG . ”

Article CARDINAL

“ The President of the court shall inform the members of the jury of the course of the court proceedings and of the jury 's tasks and responsibility . He shall especially impress on the members of the jury that until the verdict of the jury has finally been pronounced , they must not have any discussion or contact with any person other than the court as regards the case , and that they must not without the permission of the President of the court leave the conference room after they have retired to answer the questions put to them . ”

Article CARDINAL

“ The President of the court shall then ask the members of the jury : ' Do you affirm that you will pay close attention to the whole proceedings in the court and answer the questions that will be submitted to you as truthfully and justly as you can according to the law and the evidence in the case ? ' The members of the jury standing and each in turn shall answer : ' I do so affirm . ' ... ”

Article CARDINAL

“ After the production of evidence relating to the issue of guilt is completed , the prosecutor shall submit a draft of the questions to be put to the jury . Defence counsel shall be given an opportunity to comment on the said draft . When required , a short adjournment shall be granted in order to study the draft .

The President of the court shall formulate the questions and submit them to the parties . If any of them raises any objection to the questions , the court shall decide the matter . ”

Article CARDINAL

“ When the questions have been defined , the President of the court shall read them aloud . Each member of the jury shall receive a transcript of the questions .

The President of the court shall sum up the evidence in the case and explain the questions and the legal principles applicable .

The parties may request further explanation on specific points . They may also submit proposals concerning amendments to the questions .

The parties may require that specially indicated parts of the explanation of the legal principles shall be entered in the court record . Any such application must be submitted before the jury has retired to consider its verdict , see Article CARDINAL . ”

Article CARDINAL

“ The jury shall then retire to a secluded room to consider its verdict . The jury shall take with it the written list of questions signed by the President of the court .

When retiring to consider its verdict the jury may take with it pictures , drawings , maps , and other objects that have been produced during the main hearing . The jury may also take with it written exhibits and other written evidence that has been produced when the court finds this appropriate . As a general rule , the jury should not be permitted to take with it statements previously made by the person indicted , witnesses or experts . ”

Article CARDINAL

“ The foreperson of the jury shall be in charge of the jury 's consideration of its verdict .

If the jury finds that it needs further clarification of the questions , of the legal principles applicable , or of the procedure to be followed , or if it finds that the questions should be amended or that new questions be put , it shall return to the courtroom so that the President of the court may do what is required . The jury may summon the President of the court in order to receive guidance concerning the questions referred to in the first sentence .

If it is to be decided whether the questions are to be amended or new questions put , the parties shall be given the opportunity to express their views . ”

Article CARDINAL

“ When it has finished considering its verdict , the jury shall under the leadership of its foreperson vote on the individual questions in the order in which they are put . ... ”

Article CARDINAL

“ After the voting the members of the jury shall return to their places in the courtroom . The foreperson shall rise and say : ' The jury has on its honour and in good conscience given the following answers to the questions that have been put . ' He shall then read aloud the answers that have been given to each of the questions .

The foreperson shall deliver the written list of questions and the signed answers to the court . ”

Under Articles CARDINAL , CARDINAL , CARDINAL and CARDINALC of LAW , the professional judges shall pronounce judgment in accordance with the jury 's verdict , unless they decide differently on the conditions set out in these provisions . The professional judges may set aside a jury verdict concluding with the indicted person being found not guilty , if they find that he is undoubtedly guilty ( LAW and may also set aside a “ guilty ” verdict , if they find that insufficient evidence has been produced ( LAW . In both situations the case is tried anew by other judges in a composite court . Article CARDINALC reads :

Article CARDINALC

“ If the jury 's verdict is that the person indicted is guilty , but the court finds that insufficient evidence of his guilt has been produced , the court may decide that the case shall be retried before other judges . The provisions of LAW , first paragraph , final sentence , and second and third paragraphs , shall apply correspondingly . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was unrepresented before the ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . They had no children from the marriage . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant was informed of this on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .