Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Altina Xhoxhaj;David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE . He used to be the bodyguard of the then NORP President , PERSON . At the time of the introduction of the application , he was detained in GPE pending the outcome of his extradition to GPE .

On DATE at TIME Mr PERSON , a Member of ORG ( “ MP ” ) , and his bodyguards ORG and ORG were shot as they came out of ORG ( “ DP ” ) headquarters in GPE . Mr Hajdari and B.C died DATE in hospital . The second bodyguard PERSON was seriously injured . PERSON was a leading member of the ORG which was one of the CARDINAL main political parties in GPE and , at the material time , in opposition . A criminal investigation was opened into the murder .

On DATE the prosecutor ’s office issued an arrest warrant in respect of the applicant , on suspicion of involvement in the assassination of the MP and of CARDINAL of his bodyguards as well as in the attempted murder of the other bodyguard . The arrest of CARDINAL other people in connection with the murder was also ordered by the prosecutor .

On DATE ORG ( “ ORG ” ) ordered the applicant ’s arrest . He was represented by a court - appointed lawyer .

On DATE ORG declared the applicant a fugitive after unsuccessful attempts to locate him . The decision stated that the applicant ’s family did not know of his whereabouts . His neighbours had also mentioned that no one had lived in the applicant ’s residence for DATE .

On DATE the prosecutor lodged a bill of indictment with ORG . The applicant and CARDINAL other co - accused were indicted on charges of having participated in , or organised , the assassination of the MP , his bodyguard and the attempted murder of civilians .

NORP The trial proceedings against the applicant were conducted in absentia . He was represented by a lawyer appointed by his family in accordance with LAW of LAW ( “ ORG ” ) .

On DATE ORG convicted the applicant in absentia . He was sentenced to DATE imprisonment .

The applicant ’s family - appointed lawyer as well as the co - accused appealed against the conviction to ORG and ORG .

On DATE and DATE ORG and ORG , respectively , upheld ORG decision . The applicant was represented by the family - appointed lawyer .

The applicant ’s family - appointed lawyer did not lodge a constitutional appeal , owing to the lack of a power of attorney to do so . The constitutional appeals of CARDINAL of the co - accused , concerning the overall unfairness of the proceedings , were declared inadmissible by ORG on DATE on the ground that the appeals did not disclose a breach of the right to a fair trial .

A detailed account of the facts , the criminal investigation and the domestic courts’ decisions has been described in GPE v. GPE , no . GPE , DATE , not yet final and ORG v. GPE , no . GPE , DATE , not yet final .

On DATE the applicant was arrested by the NORP authorities , apparently on the basis of an arrest warrant issued by the NORP authorities . It would appear that the NORP authorities requested the applicant ’s extradition . A copy of the extradition request has not been submitted to this ORG . No further information has been provided by the parties as to the outcome of the extradition proceedings in GPE .

The relevant provisions of the ORG as regards the appointment of and representation by a counsel read as follows :

Article DATE Counsel appointed by the accused

“ CARDINAL . The accused has the right to appoint CARDINAL lawyers .

The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel .

The appointment of a counsel for a person detained , arrested or sentenced to imprisonment , unless he has appointed a counsel of his own choosing , may be carried out by his relatives in accordance with the procedure stipulated in paragraph CARDINAL above ” .

Article DATE The defendant ’s appeal

“ CARDINAL . The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law ” .

The relevant provisions of the ORG as regards an application for leave to appeal out of time read as follows :

“ Article DATE Leave to appeal out of time

“ CARDINAL . The prosecutor , the accused , the private parties and the defence counsel may request the reopening of the time - limit if they establish that they had no possibility to comply with the time - limit owing to unforeseen events or force majeure .

In the event of conviction in absentia , the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision .

An application for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant effectively acquires knowledge of the decision . Leave to appeal out of time can not be granted more than once in respect of each party and of each stage of the proceeding ” .

The application is examined by the court seized at the time of its introduction ( për kërkesën vendos organi që procedon në kohën e paraqitjes së saj ) .

The decision on the reopening of the time allowed for appeal [ against a judgment ] may be appealed against in conjunction with the decision on the merits of the case .

An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time ” .

Article DATE The effects of leave to appeal out of time

“ CARDINAL . The court which grants leave to appeal out of time , upon request of the party and in so far as it is possible , orders that those actions in which the party was entitled to participate be carried out again . ”

Articles CARDINAL–CARDINAL of the ORG govern the application for review of a final judgment .

Article DATE Cases for review

An application for review may be lodged :

a ) when the facts of the grounds of the decision do not comply with those of another final decision ;

( b ) when the decision has relied on a civil court decision which has subsequently been quashed ;

( c ) when , subsequent to the decision , new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong ; and

( d ) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence ” .

An application for review should be lodged with ORG .

Section CARDINAL of ORG states that “ a final criminal decision against an extradited person , which was delivered in his absence , can be reviewed at that person ’s request , provided that the Minister of ORG gave such an assurance to the requesting ORG . The application for review should be submitted within DATE of the applicant ’s arrival in the territory of GPE and its examination is subject to the provisions of LAW ” .

NORP The relevant provisions of LAW read as follows :

Section CARDINAL

“ CARDINAL . The lodging of an appeal before the Constitutional Court shall be subject to the time - limits set out in this law .

An individual ’s appeal for a violation of his constitutional rights may be submitted DATE from the occurrence of such violation . If the law provides a remedy , the individual may lodge an appeal with ORG after having exhausted all legal remedies for the protection of his rights . In such cases , the time - limit for the lodging of the appeal is DATE from the notification of the last instance body ’s decision ” .

On DATE and DATE the ORG granted CARDINAL accused ’s applications for leave to appeal out of time against their conviction in absentia . The accused made their applications following their extradition to GPE . In the meantime , they have lodged CARDINAL separate applications with this ORG ( GPE v. GPE , no . CARDINAL/CARDINAL and PERSON v. GPE , no . CARDINAL ) about the fairness of the re - trial . Those applications are pending on the date of the adoption of the present judgment .

On DATE the ORG granted an accused ’s application for leave to appeal out of time against his conviction in absentia . The accused made that application following his extradition to GPE ( see ORG decision no . TIME for more information ) .

In its unifying decision no . CARDINAL of DATE , ORG ruled that , having regard to its strictly personal character , an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him , within DATE of the date on which the accused was effectively informed of the decision given in absentia ( decision no . CARDINAL/CARDINAL ) . This right could not be exercised by the accused ’s family members if the accused was not realistically aware of the decision in absentia . The application for leave to appeal out of time shall be examined by ORG , sitting in a CARDINAL - judge formation . ORG decision can be appealed to ORG and , thereafter , to ORG . However , the last finding was rectified by ORG decision no . TIME ( see paragraph CARDINAL below ) .

In its unifying decision no . CARDINAL of DATE , ORG examined CARDINAL issues concerning an application for leave to appeal out of time ( decision no . CARDINAL/CARDINAL ) . The appellant had been convicted in absentia . His family - appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to ORG . The lawyer ’s subsequent appeals on the merits of the case were rejected by ORG and ORG . Following his extradition to GPE , the appellant was granted leave to appeal out of time against ORG judgment to ORG . He was represented by a lawyer of his own choosing in the proceedings before ORG .

In the first place , ORG ruled that , when an appeal had been previously examined and rejected by ORG bench , in proceedings in absentia in which the accused was represented by a family - appointed lawyer in accordance with ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , neither the accused nor his lawyer could ( re)lodge an application for leave to appeal out of time against a ORG decision on the grounds that the accused had not been informed of the decision in absentia ( me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit ) as this would run counter to the principle of res judicata . The same reasoning would apply to an application for leave to appeal out of time against a ORG decision .

Secondly , ORG held that only when a higher court dismissed an appeal as having been time - barred , without examining the merits or the lawfulness of the complaints raised in the grounds of appeal , would the accused have a right to lodge an application for leave to appeal out of time in accordance with LAW ORG .

The third finding concerned the effect of an appeal lodged by an accused , in the absence of a co - accused ’s appeal , on the latter ’s application for leave to appeal out of time . ORG held that , as a rule , “ in criminal proceedings against several co - accused , the court should not grant an accused ’s application for leave to appeal out of time , if it is proved that the [ merits of the ] case were examined upon the appeal lodged by a co - accused ” . However , “ only when ORG ] [ co - accused ’s ] appeal has been declared inadmissible on the strength of LAW ORG [ non - compliance with formal requirements ] and , only when the court solely examined [ the merits of ] that co - accused ’s appeal , can the accused , who did not lodge an appeal , seek leave to appeal out of time against a court ’s decision given in absentia ” .

On DATE , following CARDINAL accused ’s applications for leave to appeal out of time , ORG , relying on its unifying decision no . CARDINAL/CARDINAL , rejected those applications ( decisions nos . GPE and GPE . ORG held that the accused ’s lawyers , who had been appointed by family members in accordance with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , had previously and unsuccessfully appealed against the accused ’s conviction in absentia to both ORG and ORG . Consequently , their conviction in absentia “ had acquired the force of res judicata ” which barred any re - trial .

Following extradition from GPE , an accused lodged an application for leave to appeal out of time . On DATE ORG , relying on its unifying decision no . CARDINAL/CARDINAL , rejected that application on the ground that the accused ’s family - appointed lawyer had previously and unsuccessfully appealed against the accused ’s conviction in absentia to both ORG and ORG ( decision no . GPE ) .

On DATE ORG , relying on its unifying decision no . CARDINAL/CARDINAL , held , inter alia , that the lower court had erred in granting the accused leave to appeal out of time , since the accused ’s family - appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia ( decision no . PERSON ) .

NORP In response to a referral request by ORG on the constitutionality of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , ORG decided , by decision no . CARDINAL of DATE ( decision no . CARDINAL/CARDINAL ) , that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused ’s intention not to attend the proceedings . The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused ’s family . The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family .

In response to a referral request by ORG on the constitutionality of LAW and CARDINAL of the ORG , ORG , by decision no . CARDINAL of CARDINAL DATE ( decision no . TIME ) , clarified that the term “ the court seized ” provided for in LAW referred to the court against which decision the accused is seeking leave to appeal out of time . If the accused sought leave to appeal against an appellate court decision , the application for leave to appeal out of time should be [ lodged with and ] examined by the appellate court instead of ORG . What confused the interpretation of the above term was the use of the words “ with the court of appeal ” in LAW ORG . ORG decided that those words were unconstitutional and that they could be replaced by the words “ with a higher court ” . Since LAW ORG did not provide for the parties’ [ direct ] right to appeal against a decision granting leave to appeal out of time ( LAW ORG ) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time ( LAW of the CPP ) , ORG further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal . The law as it stood meant that , in the examination of the merits , ORG would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time , which was not compatible with the nature of proceedings before that instance .

On DATE ORG held that an extradited person could make an application for review of the final conviction in absentia under LAW ORG , provided that the Minister of ORG had given an assurance to the requested ORG that the extradited person would be re - tried following extradition ( decision no . CARDINAL/CARDINAL ) . In its reasoning , ORG relied on LAW to LAW which was ratified by GPE and , consequently , took precedence over national law in accordance with the LAW as well as on section CARDINAL § CARDINAL of ORG ( see paragraphs CARDINAL above and DATE below ) . In that case , the appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial . ORG accepted his application for review of the conviction in absentia under LAW ORG , in spite of the exhaustive grounds of review listed in LAW .

On DATE ORG , relying on its decision no . ORG , accepted an appellant ’s application for review of his conviction in absentia under LAW ORG ( decision no . CARDINAL ) . The appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial .

On DATE ORG accepted an appellant ’s application for review of his conviction in absentia under LAW ORG ( decision no . CARDINAL ) . The appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial .

NORP In decision no . CARDINAL of CARDINAL DATE ORG accepted an appellant ’s constitutional complaint against his trial in absentia , following his extradition to GPE . The appellant had been convicted by a final decision of ORG on DATE in absentia , and was extradited to GPE on DATE . ORG found a breach of the appellant ’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him .

In decision ORG . CARDINAL of DATE and CARDINAL of DATE , ORG found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the DATE statutory time - limit , which had started to run on DATE they were extradited to GPE . In both cases , the appellants were separately convicted in absentia by ORG decisions of DATE and DATE . They were extradited on an unspecified date in DATE , CARDINAL from GPE and the other from GPE . Upon extradition , they lodged separate applications for leave to appeal out of time , but these were rejected by ORG on DATE and DATE respectively . ORG held that , having regard to ORG unifying decision no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) , it was not open to the appellants to lodge an application for leave to appeal out of time , as their family - appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia . The appellants should have lodged their constitutional complaints within the DATE statutory time - limit , which had started to run on DATE of their extradition to GPE , when they had been notified of the decisions given in absentia . Instead , they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time , after the expiry of the DATE statutory time - limit .

LAW was ratified by GPE on DATE and it entered into force on CARDINAL DATE . LAW states as follows :

“ LAW in absentia

When a ORG requests from ORG the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia , the requested ORG may refuse to extradite for this purpose if , in its opinion , the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence . However , extradition shall be granted if the requesting ORG gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence . This decision will authorise the requesting ORG either to enforce the judgment in question if the convicted person does not make an opposition or , if he does , to take proceedings against the person extradited .

When the requested ORG informs the person whose extradition has been requested of the judgment rendered against him in absentia , the requesting ORG shall not regard this communication as a formal notification for the purposes of the criminal procedure in that ORG ” .


Lack of jurisdiction (new complaint);No violation of Art. 6-1+6-3-d

ORG The applicant is a GPE citizen born in DATE and resident in GPE .

ORG In DATE the prosecuting authorities decided to take action against the nuisance caused by drug trafficking in GPE . The police had compiled sets of photographs of persons suspected of being drug dealers . These were shown to CARDINAL drug addicts in order to collect statements from them . However , following a similar action in DATE when drug addicts who had made statements to the police had been threatened , it turned out that most of those to whom photographs were shown were only prepared to make statements on condition that their identity was not disclosed to the drug dealers whom they identified . In each set of photographs shown there was one of a person known to be innocent . Statements made by persons who identified this photograph as that of a drug dealer were regarded as unreliable and discounted .

ORG In DATE the police received information from a person referred to by the police under the code number GH.CARDINAL/CARDINAL that the applicant was engaged in drug trafficking . The applicant 's identification photograph , which had been taken in DATE , was thereupon included by the police in the collection of photographs shown to drug addicts .

ORG A number of drug addicts subsequently stated to the police that they recognised the applicant from his photograph and that he had sold drugs . CARDINAL of these drug addicts remained anonymous ; they were referred to by the police under the code names PERSON , PERSON , ORG , GPE , PERSON and PERSON . The identity of CARDINAL others was disclosed , namely NORP and ORG

ORG On DATE the applicant was arrested on suspicion of having committed drug offences . It appears that he was subsequently taken into detention on remand .

ORG On DATE the applicant was shown the photograph made of him by the police and recognised it as a photograph of himself .

ORG A preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened , during which the applicant 's lawyer submitted a request for an examination of the witnesses referred to in the police report in the applicant 's case . The investigating judge ( rechter - commissaris ) accordingly ordered the police to bring these witnesses before him on DATE between TIME and TIME The applicant 's lawyer was notified and invited to attend the questioning of these witnesses before the investigating judge .

On CARDINAL DATE the applicant 's lawyer arrived at the investigating judge 's chambers at TIME However , after TIME had elapsed and none of the witnesses had appeared , he concluded that no questioning would take place . He therefore left for another appointment . According to the lawyer he did so with the consent of the investigating judge , Judge PERSON , who had promised him that if the witnesses should turn up later that day , they would not be heard but would be required to appear for questioning at DATE so that he would be able to attend . After the lawyer had left , CARDINAL of the CARDINAL witnesses referred to in the police report turned up and were heard by the investigating judge in the absence of the lawyer , witness PERSON at TIME and witness PERSON at TIME From an official record of his findings ( proces - verbaal van bevindingen ) drawn up by Judge PERSON on DATE , it appears that ORG and PERSON did not keep a promise to return for further questioning on DATE .

ORG On DATE the applicant appeared before ORG ( arrondissementsrechtbank ) on charges of drug trafficking . At the prosecutor 's request , the court decided to adjourn its examination until DATE .

ORG On DATE ORG resumed the hearing . As ORG was differently composed , it recommenced its examination of the case . The applicant 's lawyer requested the court to refer the case back to the investigating judge for an examination of the CARDINAL anonymous witnesses and to hear the CARDINAL named witnesses NORP and ORG itself . The court refused the first request but ordered the witnesses NORP and PERSON to be brought before it and adjourned the hearing until DATE . ORG also refused a request made by the defence for the applicant 's detention on remand to be terminated or else suspended , being of the opinion that the applicant was still under suspicion and that the reasons for which the detention on remand had been ordered were still valid . CARDINAL of the judges sitting on this occasion was a certain Judge PERSON .

ORG On DATE the applicant 's lawyer submitted to ORG a number of documents including the judgment of ORG in the case of GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) and the report of ORG in the case of PERSON v. the GPE ( report of CARDINAL DATE , application no . CARDINAL ) .

ORG On DATE ORG resumed the proceedings . In view of the fact that all CARDINAL judges of ORG had been replaced , the court again recommenced its examination . The defence again made a request to have the CARDINAL anonymous witnesses examined , which was refused . The named witness ORG appeared , NORP did not . Both the prosecution and the defence were given the opportunity to put questions to ORG Asked to identify the applicant , ORG stated that he did not recognise him . On being shown the applicant 's photograph , he said that he recognised it as that of a man who had given him heroin when he was ill . However , towards the end of his examination he stated that he was no longer quite sure of recognising the man on the photograph ; it might be that the man who had given him the heroin only resembled that man . He further alleged that when shown the photographs by the police , he had only identified the applicant 's photograph as that of a person from whom he had bought drugs because at the time he had felt very ill and had been afraid that the police might not give him back the drugs which they had found in his possession . The court adjourned its further examination until DATE , ordering the appearance of the witnesses NORP and ORG , and - on a motion of the defence - of L. , an expert in the field of problems related to drug trafficking and abuse . It ordered the witness NORP to be brought before it by the police .

ORG On DATE ORG resumed its hearing .

The expert PERSON appeared and was questioned before the court . He doubted whether statements such as that made by the drug addicts in the present case could be qualified as voluntarily made . In any event such statements were in his opinion highly unreliable because before photographs were shown all kinds of promises were made so that when it came to identifying individuals the persons concerned knew exactly what was expected of them by the interrogator , whether police officer or judge .

The witnesses ORG and NORP did not appear , the latter despite the order that he be brought before the court by the police . The defence thereupon withdrew its request to have NORP and ORG examined before the court in order to avoid a further adjournment of the hearing which would mean prolonging the applicant 's detention on remand .

The applicant 's lawyer gave a critical analysis of the statements made by the anonymous witnesses . He remarked moreover that there were no valid reasons for preserving their anonymity as it had not been demonstrated that the applicant had ever taken reprisal action or was of a violent disposition .

ORG On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE imprisonment . In so doing it took into consideration the fact that the applicant had previously been convicted of similar offences .

ORG The applicant appealed to ORG ( gerechtshof ) .

ORG By letter of CARDINAL DATE the applicant 's lawyer requested the procurator general ( procureur - generaal ) of ORG to summon the anonymous witnesses , the named witnesses PERSON and NORP and the expert PERSON for questioning at that court 's hearing , which was scheduled on DATE .

The procurator general replied by letter of CARDINAL DATE that he would summon ORG , NORP and PERSON but not the anonymous witnesses as he wished to preserve their anonymity . If necessary , ORG could decide at the hearing to order these witnesses to be heard in camera by the investigating judge .

ORG On DATE the applicant 's lawyer wrote to the president of ORG requesting that the CARDINAL anonymous witnesses be summoned . In support of this request he pointed out that neither his client nor he had ever had the opportunity to question these witnesses . In this context he referred to the judgment of ORG in the case of PERSON v. the GPE , which had been delivered DATE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) .

ORG The hearing of ORG on DATE was attended by the expert L. but none of the witnesses appeared . The applicant therefore requested that the hearing be adjourned so that they might be summoned for questioning in open court at DATE or , in the alternative , by the investigating judge . ORG decided to verify the necessity of maintaining the anonymity of the witnesses and referred the case back to the investigating judge for this purpose . ORG also requested the investigating judge to examine the witnesses - after deciding whether their anonymity should be preserved or not - with respect to the facts imputed to the applicant , and to offer his lawyer the opportunity both to attend this examination in the room in which it would take place and to put questions to the witnesses . The court also expressed the wish that the series of photographs used by the police should , if still available , be added to the file . Finally , it ordered the appearance of the witnesses NORP and ORG and the expert PERSON before it and adjourned the hearing sine die .

ORG On DATE the investigating judge heard the witnesses PERSON and PERSON in the presence of the applicant 's lawyer . The investigating judge was Judge PERSON . of ORG , who had taken part in the hearing on DATE as a member of the trial court and in the decisions taken on that occasion ( see paragraph CARDINAL above ) .

The lawyer was given the opportunity to put questions to the witnesses but was not informed of their identity . The identity of both witnesses was known to the investigating judge .

Both witnesses expressed the wish to remain anonymous and not to appear in court . Witness PERSON stated that he had in the past suffered injuries at the hands of another drug dealer after he had " talked " and feared similar reprisals from the applicant . Witness PERSON stated that he had in the past been threatened by drug dealers if he were to talk . He further stated that the applicant was aggressive . The investigating judge concluded from the reasons given that both witnesses had sufficient reason to wish to maintain their anonymity and not to appear in open court .

ORG and PERSON were extensively questioned , both by the investigating judge and by the applicant 's lawyer . The latter inquired , inter alia , into their reasons for testifying against a dealer who they both said sold good quality drugs and asked them whether they were being paid for giving evidence . Neither PERSON nor PERSON refused to answer any of the questions put by the applicant 's lawyer . They both stated that they had bought drugs from the applicant and that they had seen him selling drugs to others . They again identified him from the police photograph and gave descriptions of his appearance and dress .

PERSON stated in addition that the police had rehearsed his previous statement with him before taking him to see the investigating judge .

The official record of the examination of ORG mentions that the investigating judge , having come to the conclusion that ORG had good reasons for not wishing to have his identity revealed or to be heard in open court , placed him on oath ; a similar statement is lacking in the official record of the examination of Y.CARDINAL .

ORG On DATE Judge PERSON . drew up an official record of her findings containing information obtained from the police with regard to witnesses PERSON , PERSON , ORG and GPE . Y.CARDINAL , who was a foreign national , had been expelled from the GPE . ORG 's place of residence was unknown . PERSON and PERSON had been seen but attempts to trace them so as to bring them before the investigating judge had not been successful . She added that the sets of photographs could not be spared by the police ; however , should ORG so order , the police could produce them at the trial .

On DATE Judge PERSON . returned the file to ORG .

ORG After notice had been given to the defence that the hearing of ORG would resume on DATE , the applicant 's lawyer requested the procurator general by letter of CARDINAL DATE to summon all CARDINAL anonymous witnesses , PERSON , PERSON , ORG , GPE , PERSON and PERSON , to attend .

On DATE the procurator general refused this request on the ground that ORG and PERSON had been heard for a second time in the presence of the applicant 's lawyer by the investigating judge , who had been aware of their identity and had found that they had valid reasons for their wish to remain anonymous . He further found that in view of the findings of the investigating judge it would serve no useful purpose to attempt to call the other anonymous witnesses . It was also necessary to take into account the desirability of bringing proceedings to an end as expeditiously as possible ( lites finiri oportet ) .

ORG On DATE ORG recommenced its examination , having changed composition .

The defence again asked the court to hear NORP and PERSON and the CARDINAL anonymous witnesses . The court , however , further considering the wish of the witnesses PERSON and PERSON to remain anonymous , concluded that it had been decided on sufficiently convincing grounds that these CARDINAL witnesses had good reasons to feel seriously threatened , in view , inter alia , of police records contained in the case file from which it appeared that there was a real possibility that drug dealers might threaten potential witnesses . Accordingly , it did not order them to be summoned . As to the witnesses PERSON , PERSON , ORG and GPE , the court accepted the findings of the investigating judge that it would be pointless to summon them .

On the other hand , ORG ordered that the witnesses NORP and ORG be brought before it by force and adjourned its hearing until DATE .

ORG By letter of CARDINAL DATE the defence again requested the procurator general to produce the CARDINAL anonymous witnesses . By letter of CARDINAL DATE they also asked him to call PERSON , a university lecturer in criminology who had done a great deal of research on drug addicts in GPE , and PERSON , a former drug addict who had personal experience of interrogation by the police .

ORG The procurator general refused both requests on CARDINAL DATE .

As regards the CARDINAL anonymous witnesses , he referred to his earlier decisions of CARDINAL DATE and CARDINAL DATE and reiterated the finding of ORG of DATE . He based his decision not to call PERSON and PERSON on the fact that PERSON had published a book which rendered his views sufficiently clear and which the defence could quote at the hearing if desired , and on the assumption that ORG would not be able to make statements about anything other than his own experiences as a person suspected of drug offences . It was also unnecessary to call either of them in view of the fact that the expert PERSON would appear at the hearing on DATE .

ORG On DATE , ORG resumed its hearing . The witness PERSON , who was in prison , did not appear . The defence withdrew its request to have him heard but maintained its request that ORG should hear the CARDINAL anonymous witnesses and the expert PERSON to its decision of CARDINAL May , ORG refused to accede to the request of the defence to hear the CARDINAL anonymous witnesses . However , in view of the judgment of ORG of DATE ( see paragraph CARDINAL below ) , it decided to refer the case back to the investigating judge , requesting her to record her findings as to the reliability of the witnesses PERSON and PERSON , adding that if in order to appraise their reliability the investigating judge found it necessary to hear them again she should do so . Although the expert PERSON was present at the hearing on CARDINAL DATE , having been convened by the defence , ORG decided not to hear him . The reason given was that as an expert rather than a witness he could not be expected to contribute to the elucidation of the facts of the case . The witness N. was heard by ORG in the applicant 's presence and the applicant 's lawyer was given the opportunity to question him . PERSON said that his statement to the police had been untrue and that he did not in fact know the applicant . In pursuance of the court 's order of CARDINAL DATE that he be brought by force , the named witness NORP was present initially . It appears that before he was heard , he asked the court usher who was guarding him for permission to leave for TIME ; this being allowed him , he then disappeared and could not be found again . The court subsequently ordered that he be brought before it by force at its next hearing on DATE . ORG heard the expert PERSON , who stated that drug addicts often made unreliable statements concerning alleged drug dealers to the police . He understood from drug addicts that police officers made promises to them and that they made statements only in order to be allowed to leave as soon as possible . Such statements were , in his view , " somewhere between the truth and a lie " .

ORG On DATE the investigating judge , Judge PERSON . , drew up a record of her findings regarding the reliability of the statements made to her by PERSON and PERSON on DATE . She stated in this document that she could not remember the faces of the CARDINAL witnesses , but having re - read the records of the interrogations could recall more or less what had happened . She had the impression that both witnesses knew whom they were talking about and had identified the applicant 's photograph without hesitation . With regard to the facts of which the applicant stood accused , her impression had been that the witnesses themselves believed their statements to be true . As far as she remembered , both witnesses had answered all questions readily and without hesitating although they had made a " somewhat sleepy impression " .

ORG At ORG hearing on DATE , the witness NORP did not appear , the police having been unable to find him . The court thereupon decided that a new order for NORP 's appearance would be pointless . The procurator general brought forward a police officer , ORG , who had been involved in the investigation and asked that he be heard . The applicant 's lawyer protested that the expert PERSON had not been heard and that the defence had no opportunity to prepare for the questioning of ORG ; to agree to hear I. now would prejudice the rights of the defence . ORG nonetheless acceded to the request , and PERSON was heard concerning the way in which the investigation had been conducted . PERSON explained that from DATE until DATE he had been a member of a police team set up to fight drug trafficking in the centre of GPE . Over DATE that team had built up a good understanding with many of the drug addicts living in that area ; making use of that relationship , they had asked them for information on drug dealers . Their cooperation was wholly voluntary . I. denied that the police made promises to drug addicts or put pressure on them ; nor were photographs shown to addicts who had been arrested . In his assessment the statements made by drug addicts were therefore highly reliable . Moreover , action was only taken against alleged drug dealers if there were CARDINAL statements incriminating them . He further confirmed that it had happened in the past that convicted drug dealers , after serving their sentence , had threatened and assaulted drug addicts who had made incriminating statements against them . Although he had never known the applicant to resort to violence or threats , he did not rule out the possibility that he might do so . The defence challenged the reliability of the statements made by the various witnesses , both named and anonymous , pointing to what they considered to be inconsistencies among them . They objected particularly to the admission as evidence of the statements made by PERSON and PERSON , on the grounds , inter alia , that both were drug addicts and that the investigating judge 's record of her findings of DATE did not contain a statement that she believed that the witnesses had been telling the truth . Relying on the GPE v. GPE judgment of ORG DATE ( Series A no . CARDINAL ) , they moreover expressed doubts as to the impartiality of the investigating judge , Judge PERSON . , in that as a member of ORG she had taken part in the hearing of ORG of DATE and in the decisions then made . They protested against the refusal to hear PERSON

ORG On DATE , ORG quashed ORG judgment of CARDINAL DATE , as it was adopting a different approach with regard to the evidence . It found the applicant guilty of the deliberate sale of quantities of heroin and cocaine . This finding was based on the following evidence :

( a ) the fact , as appeared from the police records , that upon information that the applicant was engaged in drug trafficking his photograph was added to the collection of photographs of persons suspected of that offence ;

( b ) the statements made before the investigating judge on DATE by ORG and PERSON ( see paragraph CARDINAL above ) ;

( c ) the fact that on DATE the applicant had recognised himself on the police photograph ( see paragraph CARDINAL above ) ;

( d ) the statements made to the police by the named witnesses PERSON and NORP ( see paragraph CARDINAL above ) .

As regards the applicant 's complaint that the majority of the witnesses had not been heard in the presence of the applicant or his lawyer , the court stated that it had based its conviction on evidence given by the witnesses ORG , NORP , PERSON and PERSON .

The latter CARDINAL had been questioned by the investigating judge in the presence of the applicant 's lawyer . ORG added that it had used their statements " with the necessary caution and circumspection " . It held that these statements could be used in evidence , in view , inter alia , of the consistency between them and the testimony of the police officer I. It also found that the reliability of the witnesses and the well - foundedness of their wish to remain anonymous had been sufficiently verified by the investigating judge . The witness ORG had been heard in open court both at first instance and on appeal . Although he had retracted his earlier statement to the police , that was the statement which ORG chose to believe in light of the testimony of the police officer ORG , the mere fact that the defence had not had the opportunity to question NORP did not mean that his statement could not be used in evidence . ORG rejected the applicant 's complaint based on the alleged lack of impartiality of Judge PERSON . It noted that the hearing on DATE had been summary ; ORG had only considered the applicant 's request to have the CARDINAL anonymous witnesses examined and his request for release . During that hearing ORG had not examined the substance of the applicant 's case . It did not appear , nor had it been argued , that Judge PERSON . had had any dealings with ORG and PERSON before questioning them . An investigating judge in any case did not have to provide the same safeguards as a member of a trial court . Furthermore , no particular facts or circumstances had been suggested or had come to light warranting the conclusion that she had not been able to form an unprejudiced opinion as to the reliability of the witnesses she had examined , or that she had been biased in her examination of those witnesses . The applicant was sentenced to DATE imprisonment . The time which he had spent in police custody and detention on remand was deducted from the sentence .

ORG The applicant filed an appeal on points of law to ORG ( PERSON ) .

Counsel for the applicant submitted a statement of grounds of appeal on DATE . The complaints put forward , in so far as relevant , were the following .

In the first place , ORG ought not to have refused to hear the expert PERSON The fact that the court had chosen to hear I. at the behest of the prosecution , which had brought him forward at TIME , meant that the applicant had not had the possibility to obtain the attendance of a witness on his behalf under the same conditions as a witness against him . In addition , the court had failed to give sufficient reasons as to why the statement of PERSON could not serve the purpose of elucidating the facts , the court not having set out anything either in the record of the hearing or in its judgment with regard to the testimony that PERSON intended to give .

In the second place , ORG ought not to have relied on the statements made by ORG and PERSON . It had ignored the wish of the defence to have them brought before the trial court in order that that court might itself see how unreliable they were and in order that the applicant might put questions to them in person .

In the third place , ORG ought not to have taken account of the statement of NORP , whom the defence had not had the opportunity to question ; nor should it have decided after he had been allowed to abscond that there was no further point in attempting to obtain his attendance .

In the fourth place , given the fact that the prosecution had brought forward the witness I. at the very last moment and without the defence having had any opportunity to prepare itself , ORG should have either declined to hear him or deferred his examination to DATE .

In the fifth place , ORG ought not to have relied on witness statements taken by an investigating judge ( Judge PERSON . ) who had previously , as a member of a trial court and on the basis of the evidence then contained in the case file ( which included statements of all CARDINAL witnesses ) , taken part in a decision to prolong the applicant 's detention on remand . Judge PERSON . had , in his view , failed to preserve an appearance of impartiality .

ORG In accordance with the advisory opinion of the advocate general ( advocaat - generaal ) , PERSON , the applicant 's appeal was rejected by ORG on DATE .

As to the first complaint , ORG held that ORG had given sufficient reasons for not hearing PERSON , especially since the defence had not indicated in what way his statement might be relevant to any decision regarding the charges proffered . Nor had the applicant been denied a " fair hearing " in this respect ; it made no difference that , in spite of the protests made by the defence , ORG had given the prosecution the opportunity to have a witness heard without previously announcing its intention to bring him forward .

As to the second complaint , it was held that the mere fact that a defendant in a criminal case was not able to question an anonymous witness himself but had to do so through his counsel did not constitute a violation of the right to a " fair trial " , guaranteed by LAW CARDINAL ( article CARDINAL ) of the LAW , or of the right protected by LAW CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) .

As to the third complaint , ORG found that the reasoning on which ORG had based its decision to make no further attempts to have NORP brought before it was not unintelligible ; in any case , it could not assess the validity of that reasoning since this was mainly a question of appreciation of facts . In view of the fact that it had proved pointless to repeat attempts to have NORP brought before ORG by force and of the fact that his statement was sufficiently corroborated by other evidence , in particular the statement made by ORG to the police , ORG had been entitled to use his statement in evidence .

As to the fourth complaint , it was held that ORG had not been bound to construe the protests put forward by the defence either as a request for an adjournment or as a defence plea requiring a reasoned decision .

As to the fifth complaint , ORG concurred with ORG that there was no reason to assume that Judge PERSON . had lacked the required impartiality or that the applicant could have had any cause for so fearing . It continued :

" The mere fact that a judge who has been involved in adecision at first instance refusing requests made by thedefence to adjourn the hearing and to refer the case backto the investigating judge for the hearing of anonymouswitnesses and in decisions refusing requests for thetermination or suspension of detention on remand , hasafterwards , pursuant to an order of ORG , heard the said witnesses and given an opinion on thereliability of their testimony and on their reasons forremaining anonymous as a rule does not imply that onappeal the requirement of trial by an ` impartialtribunal ' in the sense of Article CARDINAL para . CARDINAL ( article CARDINAL - CARDINAL)has not been met . It does not appear from the case filethat there are any special circumstances which in thepresent case should lead to a different conclusion . "

ORG Except for the differences noted below ( see paragraphs CARDINAL and following ) , relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the ORG 's above - mentioned PERSON judgment of DATE . Reference is therefore made to that judgment , especially pp . CARDINAL - CARDINAL , paras . CARDINAL - CARDINAL . In so far as legal provisions relating to detention on remand are of relevance , reference is made to the ORG 's PERSON v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL ) , pp . CARDINAL - CARDINAL , para . CARDINAL .

ORG The public prosecutor has the power to call witnesses and experts to the hearing ( LAW ) . In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution . If the accused wishes to call witnesses , he can - according to Article CARDINAL - submit a request to the public prosecutor no DATE before the court hearing to summon a witness before the court . As a rule , the public prosecutor should summon the witness , but - according to Article CARDINAL para . CARDINAL - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ( " GPE redelijkerwijs QUANTITY worden aangenomen , dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord " ) . He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article CARDINAL para . CARDINAL ( see paragraph CARDINAL below ) to renew the request to the trial court at the hearing .

ORG At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called , which is then read out by the registrar ( griffier ) ( Article CARDINAL para . CARDINAL ) .

ORG If the public prosecutor has failed to summon a witness at the request of the accused , or declined to do so , the defence may ask the court to have that witness summoned ( LAW para . CARDINAL ) . The court so orders , unless it finds that the non - appearance of this witness can not reasonably be considered prejudicial to the rights of the defence ( " De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen , tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad " - Article CARDINAL para . CARDINAL ) .

ORG A request by the defence to hear a witness who has not been placed on the list of witnesses , who has not been convened to attend the trial and whose summons the defence has not sought in accordance with LAW under LAW ORG ( see paragraph DATE below ) . It appears from the judgment of DATE by ORG that the trial court needs only accede to a request of this nature if it finds it necessary to do so .

ORG Under LAW ORG the trial court has the power to order of its own accord the production of evidence , including the summoning of witnesses whom it has not yet heard .

ORG If it finds that there is occasion to do so , the trial court may order that a witness be brought to its hearing by the police ( Articles CARDINAL para . CARDINAL and CARDINAL ORG ) .

ORG If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge , it must suspend the hearing and refer the question to the investigating judge along with the case file . The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules ( LAW .

ORG Appeal proceedings against the conviction or sentence at first instance 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 ) .

ORG In its judgment of DATE , PERSON ( ORG , " GPE " ) DATE , no . CARDINAL , ORG considered that it had to be assumed in light of ORG PERSON judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case - law until then . It defined these stricter requirements in the following rule : such a statement must have been taken down by a judge who ( a ) is aware of the identity of the witness , and ( b ) has expressed , in the official record of the hearing of such a witness , his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous , and ( c ) has provided the defence with some opportunity to put questions or have questions put to the witness . This rule is subject to exceptions ; thus , according to the same judgment , the statement of an anonymous witness may be used in evidence if

( a ) the defence have not at any stage of the proceedings asked to be allowed to question the witness concerned , and

( b ) the conviction is based to a significant extent on other evidence not derived from anonymous sources , and

( c ) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection .

The Act of DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL , has added to the ORG a number of detailed provisions relating to the " protection of witnesses " . It entered into force on DATE . The additions include the following . Article ORG now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life , health , safety , family life or socio - economic existence and if the witness has made it clear that he does not wish to make any statement because of this . The decision is made by the investigating judge , who must first hear the prosecution , the defence and the witness himself . An appeal against the decision of the investigating judge lies to the trial court ( Article CARDINALb ) . The investigating judge may order that a threatened witness be heard in the absence of the accused , or of counsel , or of both , so as not to disclose the identity of the threatened witness ; in that event , the prosecution authorities may not attend the questioning of the witness either . The investigating judge must then allow the defence to put questions of its own to the witness , either through the use of telecommunication or in writing ( Article CARDINALd ) . Article CARDINAL now lays down that the prosecution may refuse to summon a threatened witness . If the trial court has ordered that a witness be heard and that witness turns out to be under threat , he must be heard in camera by the investigating judge ( Article CARDINAL para . CARDINAL ) . The statement of an anonymous witness taken in accordance with the above - mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted ( Article CARDINAL para . CARDINAL ( b ) ) . A new paragraph has been added to LAW effect that a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

The applicant was born in DATE and lives in Şırnak .

The facts surrounding the arrest and detention of the applicant are disputed between the parties .

On an unspecified date , the applicant was contacted by CARDINAL persons in the centre of PERSON who asked him either to give them money or to help them . They did not specify what they wished the applicant to do . The applicant refused their request . On DATE , DATE after this incident , they again contacted the applicant , asked him to help them and threatened him with death . As the applicant was scared , he followed their instructions . He went near to a cemetery outside the city centre where CARDINAL armed men appeared . They asked him about the supplies and when the applicant told them that he did not know about the supplies , they beat him . Subsequently , CARDINAL other plain - clothes persons carrying weapons arrived . They tied the applicant ’s hands and covered his mouth . CARDINAL of them had a radio with which he talked to someone whom he addressed as “ my commander ” . The applicant was then blindfolded , put in a vehicle and taken to the Şırnak provincial gendarmerie command .

During his detention in the custody of the gendarmerie the applicant was subjected to ill - treatment . In particular he was stripped naked and beaten . He was also deprived of food and water and was prevented from going to the toilet . The applicant was kept in a small and dark cell , threatened with death and insulted . Furthermore , the gendarmerie officers attempted to rape him .

In TIME of DATE , the applicant ’s son , PERSON , applied to ORG claiming that his father left home at TIME to go to their farm and that he was seen by CARDINAL of their neighbours , PERSON , at around TIME being abducted by an armed group of CARDINAL persons . On DATE an official report was drawn up concerning PERSON claim .

On DATE a similar protocol was drawn up containing Ömer Katar ’s statement about the applicant ’s arrest . He stated that he had seen the applicant being taken away by CARDINAL men who were carrying rifles . PERSON testified that PERSON hands were tied and that he was being beaten by these men .

On DATE the applicant was brought before a forensic doctor , PERSON . The medical report drafted by the doctor at TIME on DATE referred to the following marks on the applicant ’s body : a bruise on the right shoulder , scratches and bruises on the front of his right arm , bruises on the right part of his back , bruises of QUANTITY on his waist , bruises on the front of his left arm , a bruise on the back of his left shoulder , bruises of CARDINAL x QUANTITY on his left hip and a trauma of QUANTITY on his parietal bone . All the bruises on the applicant ’s body were described as purple in colour .

On DATE the gendarmerie officers drafted a document allegedly containing the applicant ’s statements , according to which the applicant admitted to have willingly acted as a courier for the ORG and have fallen and sustained other injuries while trying to escape from the gendarmerie officers on DATE , DATE of his arrest . The applicant was forced to apply his thumbprint to this document .

On DATE the applicant was examined by the same doctor who noted the presence of the traces of old bruises on his shoulders and arms .

On DATE the applicant was brought before the Şırnak public prosecutor . He denied the accusations against him . The statements that he had allegedly made at the gendarmerie command were read to him . The applicant denied that he had made these statements and maintained that he had been forced to sign them . He claimed that he had been threatened with death by CARDINAL men unless he delivered a bag to some people whose identity was not known to him .

After being questioned by the public prosecutor he was brought before ORG ) , where he denied the charges against him . He further pleaded not guilty and reiterated his statement that he had made before ORG . ORG ordered the applicant ’s detention on remand . The court also took note of the applicant ’s allegation that he was threatened with death and decided to refer his complaint to the public prosecutor ’s office .

On DATE the Şırnak public prosecutor issued a decision of non - jurisdiction in respect of the investigation against the applicant holding that the public prosecutor ’s office at ORG had the jurisdiction to conduct this investigation .

On DATE the Şırnak public prosecutor decided to discontinue the investigation based on PERSON allegation . The public prosecutor found that the applicant had not been abducted as alleged by PERSON but taken into custody on DATE on suspicion of aiding the ORG .

On DATE the applicant was arrested by officers from the Şırnak provincial gendarmerie command on suspicion of aiding the ORG . Although on DATE the applicant ’s son lodged a petition with the security directorate and on CARDINAL DATE the applicant ’s neighbour stated that he had seen the applicant being taken away by CARDINAL men , there is no statement indicating that the persons who abducted the applicants had been gendarmerie officers .

According to the arrest report signed by CARDINAL gendarmerie officers , on DATE , at TIME , following information received by the gendarmerie officers the applicant was captured in a rural area while carrying a bag containing clothes that he was taking to members of the ORG . The applicant was told twice to stop by the officers but he tried to escape . While running , he fell , hit his head and sustained injuries to various parts of his body .

On DATE , CARDINAL officers further drafted a scene of the incident report . According to this report , the applicant was captured at TIME following the receipt of information that the applicant was taking supplies to members of the ORG . The officers noted that the applicant had been carrying CARDINAL bags containing clothes , soap and a carpet and that he had sustained injuries when he fell from a height of QUANTITY . It is to be noted that neither the arrest report nor the scene of the incident report bears the signature of the applicant .

Following his arrest , the applicant was examined by a doctor ( see paragraph CARDINAL above ) and , subsequently , taken to the Şırnak gendarmerie command where he made statements admitting that he had aided the members of the ORG . The applicant was kept in custody until DATE .

On DATE the public prosecutor at ORG filed a bill of indictment charging the applicant with aiding and abetting an illegal organisation under LAW .

The first hearing , held before ORG composed of CARDINAL judges including a military judge , on DATE , in the applicant ’s absence , was taken up with procedural matters , such as the measures to be taken for securing the presence of the accused .

On DATE the applicant ’s representative stated before ORG that the applicant was arrested on DATE . He alleged that the protocols prepared by gendarmerie officers contained false information . He maintained that the medical report of DATE established the ill - treatment of the applicant received at the hands of gendarmerie officers . He further complained that the length of the applicant ’s detention was excessive . He made an oral complaint against the gendarmerie officers in relation to the ill - treatment of the applicant before ORG and requested the court to notify the public prosecutor ’s office concerning their complaint . In reply to the request of the applicant ’s representative ORG stated :

“ It has been decided that the representative of the accused be authorised to lodge a complaint with the public prosecutor ’s office where the act took place and that the copy of the hearing TIME be provided if needed . ”

On DATE , the first - instance court decided to request ORG to issue a summons requiring the gendarmerie officers who had signed the arrest and scene of the incident reports to give evidence .

At the beginning of the hearing of CARDINAL DATE , ORG appointed an interpreter to assist the applicant , noting that he did not have a good command of the NORP language .

On DATE , the applicant made statements before the court with the assistance of the interpreter . He maintained , inter alia , that he was at his farm on DATE of his arrest when CARDINAL persons arrived and asked him to give them money . When he refused their request , they beat him . Subsequently , they tied his hands and covered his mouth and took him to a place , where there were supplies . They then asked him to accept that the supplies belonged to him but he refused . The applicant further denied the accuracy of the arrest and scene of the incident reports . The first - instance court decided to postpone the hearing as the statements of the gendarmerie officers had not been taken . It further ordered the applicant ’s release pending trial .

On DATE ORG postponed the hearing as the statements of the gendarmerie officers had not been taken .

On DATE the statements of CARDINAL of the gendarmerie officers were read out . The applicant ’s lawyer maintained before the ORG that the contents of these statements and the arrest and scene of the incident reports were contradictory . The court once again postponed the hearing as it had not received the statements of CARDINAL gendarmerie officers .

On an unspecified date , the statements of the CARDINAL officers were sent to ORG .

On DATE GPE ’s ORG amended LAW and excluded military members from ORG . Following similar amendments made on DATE to the PERSON on ORG , the military judge sitting on ORG hearing the applicant ’s case was replaced by a civilian judge .

At the hearing held on DATE , the public prosecutor read out his observations on the merits of the case . The hearing was postponed for the preparation of the applicant ’s final submissions on the merits of the case .

At the hearing held on DATE the first - instance court heard the applicant ’s lawyer ’s final submissions on the merits of the case . On DATE , the court noticed that the applicant ’s statements of CARDINAL DATE had been taken without the bill of indictment having been read to him . The court therefore requested ORG to read out the bill of indictment to the applicant and to take his statements with the assistance of an interpreter .

On an unspecified date the applicant made statements before ORG with the assistance of an interpreter . These statements were sent to ORG .

At the hearing of CARDINAL DATE the public prosecutor and the applicant ’s lawyer made their final submissions on the merits of the case . The applicant ’s lawyer maintained , inter alia , that the applicant ’s arrest and the length of his detention in custody had been unlawful and that he had been subjected to ill - treatment while in custody .

On DATE , ORG convicted the applicant of aiding and abetting the members of the ORG and sentenced him to DATE and QUANTITY months’ imprisonment . In its judgment , the court relied on the applicant ’s confession statements made in the custody of the gendarmerie , the statements of the gendarmerie officers who had drafted the arrest and scene of the incident protocols and the content of the bag that the applicant was allegedly carrying when he was arrested .

The military judge sitting on the bench of ORG was present at CARDINAL preliminary hearing and QUANTITY hearings on the merits until DATE . After the replacement of the military judge with a civilian judge , the first - instance court held CARDINAL hearings before rendering its judgment in the case .

On DATE the applicant appealed against the judgment of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s appeal and upheld the judgment of ORG .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ECHR CARDINAL ... ( extracts ) ) ; PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ; and PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § PERSON , ECHR CARDINAL- ... ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE a ORG - owned bank requested the police to investigate whether a former bank director , ORG , had committed offences as the bank had advanced loans without acceptable guarantees to such an extent that its solvency was endangered . The bank also requested the police to investigate whether ORG or some other person had received unlawful financial inducements or whether blackmail had been involved .

On DATE the bank supplemented its request maintaining that the applicant had possibly committed offences of dishonesty as a debtor , debt fraud or aggravated debt fraud during DATE , as he had allegedly participated in transferring bank shares owned by certain limited liability corporations into his own control , thereby causing CARDINAL of the ORG biggest creditors , the bank , financial losses of MONEY ( ORG ; equivalent to CARDINAL : ORG ) .

On DATE the applicant was arrested . On DATE he was questioned by the police for the first time . On DATE the ORG ( käräjäoikeus , tingsrätten ) ordered his detention on remand since he was suspected of aggravated blackmail and CARDINAL counts of dishonesty as a debtor . He was released on DATE .

On DATE the police completed their pre - trial investigation . A summons was served on the applicant on DATE . It was alleged that the offences had been committed DATE and DATE .

On DATE the applicant was charged with aggravated fraud and CARDINAL counts of dishonesty as a debtor . On DATE the Salo ORG upheld the applicant ’s claim that he had not been legally summoned to the trial and declared the case against him inadmissible . On DATE ORG ( hovioikeus , hovrätten ) upheld the decision . On DATE ORG ( korkein oikeus , högsta domstolen ) quashed the previous decisions and remitted the case to ORG . Meanwhile , on DATE ORG also upheld a co - defendant ’s claim that he had not been lawfully summoned . On DATE ORG quashed the decision . On DATE ORG upheld ORG decision .

Meanwhile , at the second hearing on DATE , the applicant was charged additionally with a count of aggravated fraud and incitement to dishonesty as a debtor . The public prosecutor thereafter added to the charges on several occasions .

At the third hearing on DATE , the acting public prosecutor was found by ORG to be biased and a new prosecutor was assigned to the case .

On DATE ORG upheld the applicant ’s claim that he had not been lawfully summoned ( as regards a summons delivered on DATE to his wife in GPE ) and that the statute of limitations had already expired . On DATE ORG quashed the decision and remitted the case to ORG . On DATE ORG upheld ORG decision .

Meanwhile , on DATE ORG noted in its minutes that the parties were in disagreement as regards the question whether the “ reasonable time ” requirement according to LAW had been fulfilled , and that the court would decide at a later stage on whether the trial could continue .

On DATE ORG issued a separate decision dismissing the applicant ’s request that the charges against him be declared inadmissible due to the excessive length of the proceedings . It held , inter alia , that the case was exceptionally difficult involving voluminous evidence and that it was of significant public interest .

On DATE ORG dismissed the applicant ’s renewed request to that effect . On DATE he lodged a procedural complaint with ORG . It was dismissed on DATE .

There were DATE of hearings in ORG up to DATE , held at CARDINAL months’ intervals . There were DATE of hearings which concerned the applicant in DATE , CARDINAL in DATE and CARDINAL in DATE .

On DATE co - defendant X was granted immunity . On DATE the NORP Government consented to the continued prosecution of X in GPE whereupon he challenged the lawfulness of the consent . On DATE ORG gave a decision .

On DATE and DATE ORG dismissed the applicant ’s further requests that the charges be ruled inadmissible owing to the length of the proceedings . On DATE ORG also dismissed the request of the applicant ’s co - defendants to that effect . ORG upheld the last - mentioned decision on DATE . On CARDINAL DATE ORG dismissed the applicant ’s renewed request that the charges be ruled inadmissible owing to the length of the proceedings .

During the trial the police conducted CARDINAL additional investigations , the last of which , according to the Government , was completed on DATE .

There had been a total of DATE of hearings DATE when ORG started to receive evidence . After that there were DATE of hearings up until DATE . On DATE ORG , noting at the outset that he lacked competence to interfere with the ongoing proceedings , drew the ORG ’s attention to the need for the allocation of adequate financial resources to ORG and to the authorities involved in the case .

On DATE the ORG gave its judgment . It convicted the applicant of aggravated fraud . It dismissed as time - barred the charges concerning CARDINAL counts of dishonesty as a debtor . The court found that the “ reasonable time ” requirement laid down in the LAW and the LAW had not been respected and that the applicant was therefore entitled to redress . The court noted that it had dismissed as time - barred some of the charges . As the court was not allowed to pass any judgment on the time - barred charges , the redress for the length of the proceedings had to be given in some other way . Accordingly , the applicant ’s sentence had to be mitigated . The court considered that the redress had to be significant and , having regard to the exceptionally lengthy nature of the proceedings , it should also be substantial . The court stated that it was taking CARDINAL third off the applicant ’s sentence owing to the breach of the “ reasonable time ” requirement . Taking an earlier sentence into account , it sentenced the applicant to DATE and CARDINAL days’ imprisonment .

The case is still pending before ORG .


Violation of Art. 8 (in case of deportation)

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

The applicant was born in DATE in GPE . He entered GPE on DATE , when he was DATE , as a dependant of his father . He was granted indefinite leave to remain . He was educated in GPE and spent DATE there .

On an unidentified date in DATE he was found guilty of the theft of an insurance document . On an unidentified date in DATE he was fined following a conviction for the use of a forged banker ’s draft .

On DATE he was convicted by a ORG of involvement in the importation of a class A controlled drug . The conviction related to the attempted importation of QUANTITY of heroin with an estimated street value of GBP CARDINAL,CARDINAL.CARDINAL . The applicant pleaded guilty . In his sentencing remarks the judge noted that he was not the principal in the criminal activity but concluded that he was a “ knowledgeable , able and willing assistant ” . He was sentenced to DATE imprisonment but he was released on DATE because of his good conduct in prison .

On CARDINAL DATE the Secretary of ORG for ORG served on the applicant a notice of decision to make a deportation order pursuant to section CARDINAL ( CARDINAL ) of LAW DATE . The Secretary of ORG regarded as particularly serious those offences involving violence , sex , arson and drugs . Therefore , in view of the nature and severity of the applicant ’s offence , the Secretary of ORG concluded that his removal from GPE would be necessary in a NORP society for the prevention of disorder and crime and for the protection of health and morals .

The applicant appealed to an Immigration Judge . He indicated that he had been in GPE since he was DATE and was not familiar with the culture in GPE . All of his immediate family were in GPE . His mother and his siblings were all in poor health and he was the main person who kept the house clean . His mother had diabetes and a heart condition . His siblings suffered from asthma and/or eczema . The applicant suffered from ulcerative colitis for which he received treatment in GPE . He therefore submitted that his removal would be disproportionate in the circumstances and would violate his rights under LAW .

On DATE an Immigration Judge dismissed the applicant ’s appeal against the deportation order . He agreed that the applicant ’s deportation would be conducive to the public good and that the crime he had committed was sufficiently serious to warrant deportation . With regard to the applicant ’s family life in GPE , he found that it did not go beyond the natural ties of affection . In particular , he noted that the family had managed to cope without the applicant while he was in prison . He also found that the applicant would be able to adapt to life in GPE . He relied on the fact that he was an unemployed , single man of DATE of age who , apart from having ulcerative colitis , was in good health . It was accepted that he could speak NORP . Moreover , the Immigration Judge observed that the medical evidence suggested that the applicant ’s attendance at hospital for treatment of his ulcerative colitis had been inconsistent and he could therefore continue to attend hospital sporadically in GPE .

On DATE ORG made no order on his application for reconsideration . A Senior Immigration Judge noted that the applicant had been sentenced to CARDINAL years’ imprisonment for his involvement in the importation of heroin and the ORG was entitled to find that this was a very serious matter and sufficiently serious of itself to warrant deportation .

On DATE ORG dismissed his application for reconsideration of the Immigration Judge ’s decision as it did not disclose any arguable error of law and an appeal would have no real prospect of success .

On DATE the applicant ’s representative wrote to ORG , indicating that the applicant had been receiving death threats from CARDINAL of his co - defendants in the drugs offence . The co - defendant was believed to be living in GPE . The applicant therefore submitted that if returned there was a real risk that his life would be in danger . He further submitted that in view of his mother ’s ill health , if he were deported then in all likelihood he would not see her again .

On DATE the Secretary of ORG for ORG advised the applicant that he would not consider the new representations as a fresh claim for asylum . In particular , the Secretary of ORG noted that the late asylum claim damaged the applicant ’s credibility as the first threatening phone call was allegedly received in DATE .

In a letter dated CARDINAL DATE the applicant advised ORG that his NORP girlfriend was pregnant and due to give birth to their child on DATE . He submitted a statement by his girlfriend , in which she confirmed that she was pregnant and stated that she had been in a relationship with the applicant since DATE . On DATE the applicant advised the ORG that his girlfriend had given birth to a baby girl . He subsequently submitted a birth certificate , which named him as the father .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG for ORG deems his deportation to be conducive to the public good . Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision on the grounds , inter alia , that the decision is incompatible with the Convention .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

The Rules relating to the revocation of a deportation order are contained in CARDINAL of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although ORG to LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation would not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant brought proceedings before the GPE ORG for compensation against the ORG PERSON ( ORG ) company and applied for legal aid . He submitted that on DATE his right leg was pinned by the closing doors of a train carriage of that company . The applicant , who already suffered from reduced mobility , claimed to have sustained serious physical injuries and damage to his mental health thereby .

On DATE ORG held a hearing .

On DATE ORG dismissed the applicant ’s request to be sent train tickets in order to be able to attend another hearing . That decision was quashed on appeal .

On DATE ORG heard CARDINAL witnesses .

On ORG request of CARDINAL DATE , a NORP court heard another witness on commission on DATE .

On DATE the GPE ORG , having held another hearing , ordered the defendant to pay the applicant by way of compensation for non - pecuniary damage CARDINAL ORG ) , representing PERCENT of the damages claimed . The remainder of the claim was not allowed as the applicant had been contributorily negligent . The defendant was also ordered to reimburse costs the applicant had incurred for a medical certificate ORG ) . The court further declared that the defendant was to compensate the applicant for MONEY of the future loss he would incur as a result of the accident on DATE and dismissed the remainder of the applicant ’s action .

On DATE the applicant lodged an appeal against the judgment of the GPE ORG , for which he submitted detailed reasons on DATE .

He was subsequently granted legal aid for counsel different from his representation at first instance . Legal aid was later extended to cover a change of legal aid lawyer .

On DATE and on DATE the applicant extended his initial action . He claimed the payment of further compensation for non - pecuniary damage as he was now obliged to use a wheelchair and suffered from allergies and asthma as a result of the accident .

On DATE ORG , having held a hearing , requested forensic expert PERSON to submit a report by consulting also an expert for accident analysis ( PERSON ) and a psychiatric expert , on the question whether the applicant had suffered the damage he now claimed through the accident on DATE . It refused to grant the applicant legal aid in respect of his additional claims .

On DATE experts PERSON submitted their report giving advice on accident analysis and informed the court that they were not in a position to give a psychiatric expert opinion .

On DATE ORG ruled the applicant ’s motion for bias against expert PERSON inadmissible as it had been lodged out of time .

On DATE , when ORG also held a hearing , and on DATE a different bench of ORG dismissed motions for bias lodged by the applicant on CARDINAL and DATE and CARDINAL DATE as ill - founded .

On DATE ORG appointed a psychiatric expert .

On DATE and on DATE ORG dismissed repeated requests by the applicant for legal aid to mandate a new lawyer .

On DATE ORG dismissed another motion for bias lodged by the applicant on DATE .

As the applicant had repeatedly failed to attend examinations the dates of which had been fixed with the court - appointed psychiatric expert until DATE , ORG decided not to consult that expert .

On DATE ORG , having held another hearing , partly quashing the judgment of ORG , held that the defendant was to pay the applicant DEM CARDINAL in compensation for non - pecuniary damage and dismissed the remainder of the applicant ’s action . Contrary to ORG view , ORG , having regard to the report submitted by experts PERSON , found that the applicant had not been physically injured by the accident . The applicant ’s numerous confused submissions had led the court to consider whether the applicant was mentally capable of involvement in proceedings . However , as he had refused to present himself for a psychiatric examination , the court was not able to come to any conclusions on the point . The court found that the applicant had failed to prove that the accident had any long - term consequences for his mental health . ORG itself dismissed further motions for bias dated DATE and DATE as inadmissible , as they merely referred to the applicant ’s previous motions which had already been rejected .

The judgment was served on the applicant ’s recently appointed counsel on DATE .

On DATE ORG rejected the request of the applicant , represented by counsel , to be granted legal aid in order to lodge a complaint against the refusal to grant him leave to appeal on points of law . It found that the applicant ’s complaint did not have sufficient prospects of success . On DATE ORG dismissed the applicant ’s objection of DATE to its decision of CARDINAL DATE .

On DATE ORG dismissed a complaint by the applicant about the refusal to grant him leave to appeal against the judgment of ORG . It found that the complaint was inadmissible as the applicant had failed to submit reasons for it within the statutory time - limit .

On DATE and on DATE the applicant lodged a complaint about the judgments of ORG and ORG and the CARDINAL decisions of ORG with ORG . He submitted , inter alia , that the civil proceedings had been unreasonably long and had been unfair for several reasons . In particular , ORG and ORG had refused to grant him legal aid . ORG had further based its decision on a report which a partial expert had not drawn up in due form . Moreover , only his lawyer had received the summons for hearings and copies of the judgments .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found , without giving further explanations , that the complaint was inadmissible .

The applicant received the decision on DATE .