The applicant , PERSON , is a NORP national born in DATE who resides in GPE in GPE . Before the ORG he is represented by PERSON M. Ziegler , a lawyer practising in GPE .

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

Criminal proceedings were instituted against the applicant on account of water pollution . During the course of the investigations he was remanded in custody for DATE . On DATE the ORG ( LOC ) convicted the applicant of various charges of having contravened LAW ( Umweltschutzgesetz ) and ORG ( Gewässerschutzgesetz ) . The conviction was confirmed upon appeal by ORG ) of the GPE of GPE on DATE which sentenced the applicant to CARDINAL months’ imprisonment , suspended on probation , a fine of MONEY ( CHF ) , and damages of CHF CARDINAL .

The applicant then filed CARDINAL pleas of nullity ( PERSON ) , CARDINAL with ORG ( Kassationsgericht ) of the GPE of GPE in which he complained of various procedural deficiencies , the other with ORG ( PERSON ) in which he complained of his conviction . On DATE ORG partly upheld the applicant ’s plea of nullity . In particular , it found that ORG , contrary to LAW , had not pronounced its judgment publicly ; however , ORG considered it unnecessary for this reason to quash the previous decision as this would unnecessarily prolong the proceedings .

Against the decision of ORG the applicant filed on DATE a public law appeal ( staatsrechtliche Beschwerde ) with ORG . Therein , he complained , inter alia , that ORG had not conducted an oral hearing and had disregarded certain submissions of his ; that it had failed to transmit CARDINAL submission of a lower instance to him for observation ; that it had failed to draw the necessary conclusions from the fact that the judgment of ORG had not been pronounced publicly ; that a LOC Attorney who had ordered the applicant ’s detention on remand had breached LAW ; that certain ORG judges had been biased ; and that previous instances had in various respects incorrectly assessed the evidence . In his public law appeal the applicant also requested all submissions in the proceedings to be transmitted to him for his observations .

ORG transmitted a copy of the applicant ’s public law appeal to ORG of the GPE of GPE and to ORG . The latter filed no observations , whereas ORG submitted a reply , numbering CARDINAL pages , on DATE . Therein it explained , inter alia , why the applicant could in respect of CARDINAL issue no longer be considered a victim , and why certain other submissions were new and could not therefore be considered by ORG . It pointed out that the ORG ’s jugment in the PERSON ( judgment of DATE , Reports DATE , p. CARDINAL ) would , if applied consistently , prolong proceedings ad infinitum , and it also explained its point of view in respect of the complaint under LAW .

On DATE ORG transmitted a copy of the observations of ORG to the applicant . By letter of DATE the applicant filed a request with ORG , asking for the opportunity to reply to the observations of that court , though it appears that he received no reply thereto .

In CARDINAL judgments of DATE ORG dealt with the applicant ’s plea of nullity and public law appeal . Both judgments were served on the applicant on DATE .

In the judgment of DATE concerning the applicant ’s plea of nullity , ORG considered the various relevant legal provisions and concluded that the applicant had been incorrectly convicted . As a result , it quashed the judgment of ORG of the GPE of GPE of DATE . The applicant was awarded CHF CARDINAL as compensation for costs .

In the other judgment of DATE , numbering CARDINAL pages , ORG dismissed the applicant ’s public law appeal , while imposing CHF CARDINAL as court costs on him . In its judgment it dismissed the applicant ’s complaints that he had not had an oral hearing before ORG and that his subsequent submissions had not been considered . To the extent that the applicant had not been able to comment before ORG on the observations of a lower instance , ORG considered a reply unnecessary as the submissions had been “ completely irrelevant ” ( völlig belanglos ) . Insofar as the applicant complained about the consequences of the lack of public pronouncement , ORG found that the applicant had insufficiently substantiated this complaint , and that in any event it found ORG reasoning pertinent . ORG also dismissed the applicant ’s complaints about the taking of evidence .

Proceedings were then resumed before ORG of the GPE of GPE which on DATE acquitted the applicant of the various offences .


Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved

The applicant , a NORP citizen born in DATE , lives in GPE . In DATE , she met a Mr. B , with whom she started living . Her son , A , was born on CARDINAL DATE , shortly after Mr. PERSON ’s release from a term of imprisonment . She had a second child , PERSON , on DATE and a third - who is not the subject of the present proceedings - in DATE .

DATE after her discharge from hospital after the birth of A , the applicant was severely assaulted by Mr. PERSON He again assaulted her in DATE , during a visit to A in hospital . Although the applicant was not aware of it at the time , this incident caused ORG of the local authority ( " the ORG " ) in whose area she lived to put A on the " at - risk register " ; such registers , which are maintained on a non - statutory basis by each local authority for reference purposes as an administrative aid for agencies with professional responsibilities for children , record particulars of children identified as being actually or potentially at risk of abuse .

In DATE , after a period of accommodation in hostels , the applicant and Mr. B obtained the tenancy of a flat , but difficulties arose because of his drinking , his constant assaults on the applicant and his failure to pay the rent . The applicant acknowledges that at this time she was managing to look after A but unable to give him enough love and attention . From DATE , the family was regularly visited by a social worker , who assisted it notably with its financial problems .

In DATE , the applicant was visited by a social worker who told her of ORG ’s entry on the " at - risk register " . On another occasion , the social worker warned Mr. B that , if he did not " buck his ideas up " , A would be taken away . In DATE , Mr. PERSON sought treatment for his drinking problem , but when on DATE leave relapsed and again assaulted the applicant .

During the course of a visit by the applicant , A and Mr. B to the latter ’s family in GPE in DATE , Mr. PERSON was arrested on fraud charges . On returning home with A , the applicant discovered that Mr. B had permitted squatters to enter the flat and had " sold " them the key . The ORG advised the applicant to put A into voluntary care ( see paragraphs CARDINAL below ) for DATE until the flat could be recovered and it placed A with short - term foster parents employed by its ORG . The ORG subsequently evicted the squatters ; the applicant , who was again pregnant , followed its advice to leave A in voluntary care until after her confinement .

The applicant ’s second child , J , was born on DATE , by which time Mr. B had returned from GPE , having been given a suspended sentence . On DATE , he arrived at the foster GPE home , drunk and in an aggressive mood , to collect A to visit the applicant in hospital . On being notified by the foster parents , the ORG sent a social worker to accompany Mr. PERSON A. It was worried that Mr. B would remove A from care and the night - duty staff were warned to apply for a place of safety order ( see paragraph CARDINAL below ) should he try to do so . The social workers also warned Mr. B that , unless his behaviour improved , the ORG might assume his parental rights ( see paragraph CARDINAL below ) .

The applicant was discharged from hospital on DATE and A was returned home in DATE , but the situation with Mr. PERSON did not improve .

In DATE , the applicant was admitted to hospital urgently . She and Mr. PERSON decided that since he was incapable of looking after the children , they should be put into the voluntary care of the ORG , which placed them with foster parents . Whilst in hospital , the applicant decided to leave Mr. PERSON With the assistance of a social worker she went to a women ’s aid refuge where she stayed for DATE .

The ORG was fearful as to Mr. B ’s likely reaction to the applicant ’s decision to leave him and the possibility that he might discharge the children from voluntary care . In DATE , the Chairman of the ORG ’s ORG approved the passing of a resolution assuming Mr. B ’s parental rights over the children - although , since they were illegitimate , he did not in fact have , for the purposes of the relevant legislation , any such rights - , on the ground that his " habits or mode of life render[ed ] him unfit to have the care of the child[ren ] " . He was told of this resolution , but made no objection ( see paragraph CARDINAL below ) . He continued to receive support from the social services and was admitted to hospital in DATE for alcohol detoxification , but relapsed .

Whilst at the women ’s refuge , the applicant visited A and J frequently at their foster GPE home . She told the social worker responsible that she wanted to discharge the children from care when she had recovered from the period in hospital . She also took legal advice with a view to excluding Mr. PERSON from contact with her or the children , as the ORG had made this a condition for offering her accommodation with them .

Following a case conference held in DATE - in the absence of the applicant , who had not been informed of the meeting - , the ORG decided to place J , in addition to A , on the " at - risk register " in view of the uncertainty of the family ’s position . Nevertheless , the social worker responsible told the meeting that it was hoped that in time the children would be re - united with the applicant ; the possibility that she might resume living with Mr. PERSON was also discussed , but no decision was reached as to the consequences which this should have for her and the children .

On DATE , A and J were discharged from care and went to live with the applicant at the refuge .

The applicant had applied to the local ORG for an injunction excluding Mr. B from the flat and on DATE she heard from her solicitor that the proceedings were to come on for hearing on DATE . On the basis of the good relations existing between them , the applicant arranged with the short - term foster parents , with whom the children had been placed before , that they would look after the children on DATE of the hearing ; this was an informal arrangement in which the ORG was not involved .

On DATE , the applicant met Mr. B outside the court and they agreed to try to resume their relationship despite the proceedings . The facts relating to the subsequent TIME are in dispute . According to the applicant , she asked the foster parents to look after the children for a further night so that she could establish the effectiveness of the reconciliation with Mr. PERSON She also states that she was told to contact a senior social worker , whom she had never met , who informed her that she could not have her children returned to her if she intended to resume her relationship with Mr. B ; she understood the position to be that she should leave the children with the foster parents until DATE , that the ORG would take no action in the meantime and that , on that date , she should discuss the matter with the social worker whom she knew . According to the social worker ’s records , the applicant and Mr. B were both warned on DATE that the ORG would have to obtain some legal authority over the children , although a parental rights resolution was not mentioned .

During a discussion on DATE , the CARDINAL social workers responsible for the case agreed that an application should be made to assume the applicant ’s parental rights . The relevant notes record :

" ... In the longer term , consideration should be given to spelling out to [ the applicant ] what we would expect of her prior to discharging the children to her again , and that if she appears unable to provide long - term satisfactory care for them we would move to considering freeing them for adoption . "

The applicant , who had not been contacted by the ORG on DATE either in respect of this discussion or otherwise , attended ORG on DATE as , according to her , she had arranged . She states that she was informed on DATE that the ORG had passed a resolution assuming her parental rights over A and J.

The circumstances surrounding the exact date and the manner of the passing of the resolution are confused . In all subsequent proceedings the ORG maintained that it was passed on DATE , but ORG investigation ( see paragraph CARDINAL below ) reveals that it was dated DATE , possibly as a result of delay in typing the document . Although at the time the children were de facto placed with the foster parents who had looked after them when they were in voluntary care ( see paragraph CARDINAL above ) , it appears to be very doubtful whether they were then , as a matter of law , in the voluntary care of the ORG and therefore whether the resolution was lawfully made ( section CARDINAL(CARDINAL ) of LAW DATE ; see paragraph CARDINAL below ) . According to ORG , the ORG believed the resolution to be lawful and its officers had acted in good faith . The grounds for the purported assumption of the applicant ’s parental rights were that she had consistently failed , without reasonable cause , to discharge the obligations of a parent so as to be unfit to have the care of the children .

After service by the applicant , on DATE , of a counter - notice objecting to the parental rights resolution , the question of its appropriateness was referred by the ORG on DATE to the juvenile court for decision ( see paragraph CARDINAL below ) . Various hearing dates were set , but had to be vacated ; in the meantime , A and J , who had been placed with short - term foster parents , remained subject to the resolution and were visited by the applicant , approximately once a week . The social worker responsible informed her that if Mr. B obtained work and if their flat was improved , the social worker would not oppose the children ’s return home . On DATE , the applicant was offered increased access of CARDINAL visits per week . According to ORG report , the applicant told a social worker in DATE that she was very anxious about the children returning home because of Mr. PERSON ’s behaviour and , on DATE , that she felt " unable to look after the children " . In DATE , the juvenile court hearing was adjourned because the applicant ’s solicitor was ill and to enable her to obtain a medical report on Mr. PERSON

On DATE , Mr. B got drunk and broke into a safe in a hospital where he and the applicant had started voluntary work . After going to GPE and spending the proceeds there , they were both arrested and charged , the applicant subsequently being released on bail . On DATE , she was sentenced to CARDINAL months’ imprisonment but on DATE , following an appeal to ORG , she was released on DATE probation . Mr. PERSON was imprisoned until DATE , and there has been no further contact between him and the applicant .

At a case conference on DATE , the ORG took the contingent decision that if the parental rights resolution did not lapse - because the applicant either withdrew her objection thereto or failed in challenging it before the juvenile court - , her access to A and J would be stopped and they would be placed for adoption with long - term foster parents . The applicant was not notified of the conference or its outcome and the fact that this decision was taken was only revealed subsequently .

The adjourned hearing before the juvenile court was held on DATE , but on that occasion the applicant withdrew her objection to the parental rights resolution : her then solicitors had advised her that , being in prison at the time , she could not realistically contest the resolution , although she should be able to retain contact with the children .

On her release from prison on DATE , the applicant asked to see her children . She was told that she could not , firstly because she had been in prison and secondly because of her relationship with Mr. B ; she also learned , for the first time , that it was proposed to place the children for adoption in the very near future . They were in fact so placed in DATE , with long - term foster parents to whom they had been introduced on DATE . The applicant , who had last seen A and J on DATE , did not see them again until DATE ( see paragraph CARDINAL below ) .

Having taken further legal advice , the applicant applied on DATE to the juvenile court for the discharge of the parental rights resolution ( see paragraph CARDINAL below ) . She was no longer able to maintain that she had opposed the resolution throughout , but submitted that its discharge would be in the children ’s best interests . Due to court delays the case was not heard until CARDINAL and DATE , when the juvenile court decided by a majority that the resolution should stand . It considered that there was a risk that the applicant would resume her relationship with , and hence expose the children to the influence of , Mr. PERSON ; further , that it would be disruptive for the children to move them from the long - term foster parents .

An appeal by the applicant to ORG of ORG against this decision was heard on DATE and was dismissed . The judges took the view that it would cause the children unjustifiable disruption to remove them from their foster parents and concluded that , on balance , the children ’s interests were best served by their remaining in care . The applicant had argued that if her appeal were not allowed , the question of her access to the children would be decided by the ORG in its sole discretion and unfavourably to her , given its commitment to their adoption . Whilst it considered this argument , ORG was not able to examine the question of access as a separate issue ( see paragraph CARDINAL below ) . Both judges referred to the effects of the passage of time between the placing of the children with prospective adopters in DATE and the hearing of the appeal , the President of ORG stating :

" I do not suggest anyone is to blame for this . It may merely be the result of circumstances ... It can not be sufficiently stressed that in a case such as the present , where continuity is seen by all concerned to be highly relevant , and indeed was the very basis of the decision of the court below , expedition is all in relation to the possible success of an appeal . There is no reason why an interlocutory application should not be made in this court to expedite the hearing of an appeal . "

The applicant was given leave to appeal to ORG against ORG decision , but did not pursue the matter .

After taking further advice , the applicant applied to ORG in DATE to make the children wards of court ( see paragraphs DATE and DATE below ) , in order to raise the issue of her access to them . On DATE , ORG , following the principles set out by ORG in A v. ORG , declined to exercise its jurisdiction to continue the wardship : it found it impossible to say that there had been some clear abuse by the ORG in the exercise of its discretion ( see paragraphs CARDINAL - CARDINAL below ) . It considered , inter alia , that it would have been " premature " for the ORG to have informed the applicant in DATE of its contingent decision of DATE ( see paragraph CARDINAL above ) .

The applicant was granted leave to appeal against this decision but was advised that there were no grounds for doing so ; she was also told at that time that there were no further remedies available to her for the resumption of access to the children .

The applicant referred the matter to ORG , who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions .

The applicant alleged maladministration in that ( a ) there were shortcomings in the way in which the ORG assumed her parental rights in DATE and ( b ) the ORG failed subsequently to keep her informed of its intentions for her children . In his report of CARDINAL DATE , ORG found maladministration on the first but not on the second of these grounds , although he added that ideally the applicant should have been told of the decision taken at the case conference of CARDINAL DATE ( see paragraph CARDINAL above ) . In considering the injustice suffered as a result of the maladministration found , he stated :

" I can not now speculate what would have happened had the errors not occurred . Events may quite well have turned out no differently , but it is impossible to say . The clock can not be put back and , as I have made clear , the future of the children is in the hands of the courts . Accordingly there is little that the [ ORG ] can now do to remedy the possible injustice , except to apologise to [ the applicant ] and reimburse her for any costs she has incurred in making her complaint to me , and to review [ its ] procedures . I am pleased to note that [ it is ] already carrying out such a review . "

On CARDINAL DATE , the foster parents applied to adopt A and J. In DATE , whilst adoption proceedings were pending before ORG , the applicant applied to it for the children to be made wards of court , notably because the prospective adopters had separated and in order to seek access to and care and control of the children . In DATE , the ORG , by its own decision , rescinded the parental rights resolution . On DATE , ORG confirmed the wardship and also dismissed the foster GPE application to dispense with the applicant ’s consent to the adoption ( see paragraph CARDINAL below ) ; the question of access was adjourned .

On DATE , an order was made in ORG authorising the guardian ad litem ( see paragraph DATE below ) to arrange and supervise up to CARDINAL visits per year between the applicant and A and J ; the latter are still wards of court and are living with the foster mother . Such visits took place in DATE and DATE and , at the time of the hearings before ORG , another was in prospect for DATE .

In the law of GPE and GPE , there are a number of different and partially co - ordinated procedures for dealing with the welfare of children . Whilst the oldest of these is the wardship jurisdiction of ORG , it has for DATE co - existed with , but not been ousted by , various statutory provisions whereby a child who is at risk may be put into the care of a local authority .

Although the terms are not wholly accurate , the legislation is commonly divided into CARDINAL categories : the first provides for " compulsory care " , by establishing machinery whereby a local authority can obtain a court order committing a child to its care ; the second concerns " voluntary care " , the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts . At any given time , there are CARDINAL children in public care in GPE and GPE , of whom CARDINAL are not living with their parents or a relative .

The statutory provisions have been amended on several occasions and many of them were repealed and replaced by LAW ( " LAW " ) , a consolidating measure the greater part of which came into force on DATE . In the following summary of the law in force at the time of the present case , the original enactments are cited first and any corresponding provision of the DATE Act in force at the relevant time is indicated in square brackets .

By way of general background information , the summary covers all CARDINAL of the procedures referred to above ( namely those relating to compulsory care , voluntary care and wardship ) , but in the present case it was the machinery for voluntary care and the wardship jurisdiction of ORG which were directly relevant .

The principal statute concerning compulsory care is ORG " LAW " ) , as amended by LAW DATE and then partly replaced by LAW ; it enables a local authority to obtain , as a temporary measure , a " place of safety order " and , as longer - term measures , a variety of other orders .

Under section CARDINAL ) of the CARDINAL Act , any person , including a local authority , may apply to a justice of the peace for authority to detain a child and take him to a place of safety ; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe , inter alia , that the child ’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill - treated , or that he is exposed to moral danger .

A " place of safety order " so granted lasts for a maximum of DATE and can not be extended . The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it .

If the local authority wishes to retain the child in protective surroundings after the DATE period , it has either to make the child a ward of court ( see paragraphs DATE below ) , or to institute care proceedings under LAW ( see paragraphs CARDINAL below ) , or to apply to a justice or a GPE court for an interim order under section PERSON ) ( see paragraph CARDINAL below ) ; if an application of the last kind is refused , the child ’s immediate release " may be ordered " .

Under sections CARDINAL and CARDINAL ) of the DATE Act , a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is , subject to certain exceptions , under a duty to institute care proceedings by bringing the child before a juvenile court .

In care proceedings instituted by a local authority , the parties are the local authority and the child , but not the latter ’s parents . The child is entitled , subject to his means , to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer . If the child is of sufficient competence , he may decide that he wishes to be separately represented .

A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority . As a matter of practice , the court will also allow such parent to cross - examine witnesses on behalf of the local authority and to have separate legal representation .

If the court before which the child is brought is satisfied that CARDINAL of the grounds specified in section CARDINAL of the DATE Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made , it may make , inter alia , a supervision order , a care order or an interim order . The specified grounds include those on which a place of safety order may be made ( see paragraph CARDINAL above ) .

A supervision order is an order placing the child under the structured supervision of the local authority ; subject thereto , he may continue to live with his parents .

A care order is an order committing the child to the care of the local authority . The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order ( section CARDINAL of the DATE Act [ ORG ) of the DATE Act ] ) , except that it can not cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it can not agree to the child ’s adoption .

An interim order is a care order limited to a specified period not exceeding DATE ; it may be renewed on application ( section QUANTITY of the DATE Act ) . It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made ( section CARDINAL(CARDINAL ) ) or , alternatively , during the currency of a place of safety order ( see paragraph CARDINAL above ) . The powers and duties of the local authority under an interim order are the same as under a full care order ( see paragraph CARDINAL above ) .

A full care order normally terminates when the child in question attains DATE ( section CARDINAL(CARDINAL)(b ) of the CARDINAL Act ) .

In addition , under sections CARDINAL ) and CARDINAL ) , the juvenile court may , on application by the child or his parent on the child ’s ( but not his own ) behalf and if it considers it appropriate , discharge the care order and may , on discharging it , make a supervision order in respect of the child . Such applications may be made DATE or , with the juvenile court ’s permission , more frequently ( section ORG ) ) . The paramount consideration in deciding whether to discharge the order is the interests of the child .

Under sections ORG ) and CARDINAL ) of the DATE Act , the child in respect of whom the care order was made , or his parent on the child ’s ( but not his own ) behalf , may appeal to ORG against the making of a care order , against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge . ORG will review the decision by way of re - hearing the case . From ORG a further appeal may , with leave , be made to ORG by way of case stated ; thereafter an appeal lies to ORG and , in rare cases , to ORG .

The local authority has no general right to appeal against a juvenile court ’s refusal to make a care order , except on a point of law to ORG .

The principal statute concerning voluntary care is LAW DATE ( " LAW " ) , as amended by LAW DATE and then replaced by LAW . This legislation in effect enables a parent to place his child into the care of a local authority ; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently .

LAW [ CARDINAL of the DATE Act ] imposes on the local authority a duty to receive into its care a child under CARDINAL where it appears , inter alia , that his parents or guardian are for the time being or permanently prevented by illness , incapacity or other circumstances from providing for his proper accommodation , maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child ’s welfare . Whilst the authority must , save as otherwise provided in the LAW , keep the child in its care so long as his welfare requires it and he has not attained the age of DATE , it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child ’s welfare .

LAW [ CARDINAL of the DATE Act ] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care . However , if the child has been in care throughout DATE , no person may take him away unless he has given CARDINAL days’ notice of his intention to do so or has the authority ’s consent ( section CARDINAL(CARDINALA ) [ CARDINAL ) ] ) .

Moreover , if a parent requests the return of the child , the authority is not compelled to comply regardless of his welfare ( ORG v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . If it then considers the transfer of care to the parent to be inconsistent with that welfare , it may either pass a parental rights resolution ( see paragraph CARDINAL below ) or apply to make the child a ward of court ( see paragraphs CARDINAL - CARDINAL below ) .

If it appears to a local authority in relation to any child who is in its care under LAW [ CARDINAL of the DATE Act ] that , inter alia , a parent of his is unfit to have the care of the child on account , notably , of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent , the local authority may resolve that there vest in it the parental rights and duties with respect to that child ( section CARDINAL(CARDINAL ) [ CARDINAL ) ] ) . The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property , including " a right of access " but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders ( section CARDINAL(CARDINAL ) of the DATE Act [ CARDINAL(CARDINAL ) of LAW ] and section CARDINAL(CARDINAL ) of LAW DATE ) .

Before passing a parental rights resolution , the local authority must consider a report from its ORG on the desirability of assuming parental rights , which report should contain all the material necessary for the proper exercise of the authority ’s discretion . In deciding the matter , the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account .

If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known , he must be served with notice of it , indicating his right to object by counter - notice within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ] ) . If such objection is made , the resolution lapses on the expiry of DATE from service of the counter - notice ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) . However , within that period , the local authority may " complain " to a juvenile court , in which event the resolution will not lapse until the complaint is determined ; on hearing the complaint , the court may order that the resolution is not to lapse , provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child ’s interest ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) ] ) .

A parental rights resolution continues in force until the child attains DATE , unless it is previously rescinded by the local authority or terminated by a juvenile court ( LAW CARDINAL of LAW [ CARDINAL of the DATE Act ] ) .

The parent concerned , even if he did not originally object to the parental rights resolution , may apply to a juvenile court for its discharge . The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child ’s interests ( section CARDINAL(CARDINAL)(b ) [ CARDINAL(CARDINAL)(b ) ] ) . An application based on the original foundation for the resolution can , however , be entertained only if lodged within DATE of its adoption ( section CARDINAL of the Magistrates’ Court Act DATE ) .

Under section CARDINAL of the DATE LAW ] , an appeal ( by the parent or the local authority ) lies to ORG of ORG from the making by a juvenile court of an order confirming ( under section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) or discharging ( under section CARDINAL(CARDINAL)(b ) [ CARDINAL ) ] ) a parental rights resolution , or from a juvenile court ’s refusal to make such an order . A further appeal lies to ORG and , with leave , to ORG .

ORG of ORG has an inherent jurisdiction , independent of statutory provisions and deriving from the prerogative power of the ORG acting in its capacity as parens patriae , to make a child a ward of court .

The effect of wardship is that custody , in a broad sense , of the child is vested in the court itself ; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever , notably as regards the care and control of and access to the child and his education , religion or property . In making such orders , the court is required to treat the child ’s welfare as the " first and paramount consideration " ( Guardianship of Minors Act DATE , section CARDINAL ) . Unless terminated earlier by order of the court , the wardship continues until the child attains his majority .

Where there are exceptional circumstances making it impracticable or undesirable for the ward to be , or continue to be , under the care of his parents , the court may make an order committing him to the care of the local authority ( LAW DATE , section CARDINAL(CARDINAL ) ) , subject to the power of the court to give directions ( Matrimonial Causes Act DATE , section CARDINAL(CARDINAL)(a ) ) . In such circumstances , custody of the child remains with the court and it is for the court , and not the local authority , to take major decisions regarding the ward ’s future ; it retains , inter alia , jurisdiction to make orders for access to the child .

PERSON proceedings may be instituted by anyone who can show an appropriate interest in the child ’s welfare . An application for a wardship order has to be made by originating summons . The child becomes a ward immediately the summons is issued but the wardship automatically lapses after DATE unless within that time an appointment is made for the hearing of the summons . This appointment is normally held before a registrar who , subject to an appeal to a judge , may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings .

A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child . From the judge ’s order , an appeal lies to ORG and thence , with leave , to ORG .

The child may be represented in wardship proceedings by a guardian ad litem appointed by the court ; this is usually the Official Solicitor , who is a full - time public employee entirely independent of the executive .

Under the Rules of ORG , it is possible to seek an order expediting the proceedings , notably if a party thereto is dilatory .

The functions of a local authority in child - care matters are exercised and decisions are taken either by its ORG or by a sub - committee or an officer to whom powers have been delegated . At the time relevant to the present case , the practice varied from authority to authority , there being no precise requirements or guidance even of a non - statutory kind , and much depended on the nature or gravity of the decision to be taken . Whether the child is in its care by virtue of the DATE [ DATE ] or LAW , the local authority must give first consideration to the need to safeguard and promote the child ’s welfare throughout his childhood , and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them , having regard to his age and understanding ( section CARDINAL of LAW DATE [ CARDINAL ) of the DATE Act ] ) .

Authorities’ decisions in this area are , in fact , often based on the outcome of case reviews or case conferences . The authority is under a statutory duty to review the case of each child in its care at DATE intervals ( section CARDINAL(CARDINAL ) of the DATE Act ) and , as a matter of practice , the child ’s position will in addition be regularly examined at case conferences . Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority ’s ORG , as well as by such other persons as health visitors , doctors and police officers .

A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof , although he has no legal right to do so . His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority .

In the absence of legal proceedings , the parent can not compel the local authority to produce or permit inspection of TIME of its relevant meetings or reports produced thereat , although the authority has a discretion to allow such inspection . In proceedings for judicial review ( but not in juvenile court proceedings ) , the court may order the pre - trial disclosure of such documents , but only after leave to institute the proceedings has been obtained ( see paragraph CARDINAL below ) ; however , this would be a rare occurrence , the general rule being that the documents are privileged and not open to inspection .

A parent whose child is in the care of a local authority is not automatically deprived of access to him . The continuation of access is , however , a matter within the discretionary power of the authority ( per Lord PERSON in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Thus , under LANGUAGE law , the question whether and to what extent a parent is to have access to his child who is in public care was , at the relevant time , within the competence of the local authority to decide , without any application to a court .

Both the DATE [ CARDINAL ] Act and the DATE Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable : the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time .

The statutory remedies described in paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL above , whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution , are directed to the order or resolution as such , there being , at the relevant time , no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child .

A decision of a local authority concerning access can , however , be challenged by way of an application for judicial review . Anyone who wishes to make such an application must first seek , normally within DATE of the decision , the leave of the court . The circumstances where judicial review will lie may be briefly summarised as follows :

( a ) the authority acted illegally , ultra vires or in bad faith ;

( b ) the authority failed to take into account relevant considerations , took account of irrelevant considerations or came to a decision to which no reasonable authority could have come ( Associated Provincial Picture Houses , Ltd. v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ;

( c ) the authority failed to observe statutory procedural rules or to act fairly ( see notably R v. ORG , ex parte C and R v. GPE , ex parte B , ORG , DATE ) .

The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision - making process itself , and the court will not act as a " court of appeal " from the body involved . Thus , where on a successful application for judicial review the court quashes an authority ’s decision , it will normally remit the matter to the authority for reconsideration ; it may , however , also direct the authority to reach a conclusion in accordance with the court ’s findings ( Rules of ORG , Order CARDINAL , rule ORG ) ) .

In certain circumstances , the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former ’s care . The general rule is that the prerogative power of the ORG is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation . In the leading case of ORG , ORG examined the relationship between the wardship jurisdiction and the authorities’ statutory powers . Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions , notably on such matters as access to the child : the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise ( except on judicial review principles ; see paragraph CARDINAL above ) the exercise of discretion within the field committed to them by statute . Sometimes , however , the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court .

The foregoing limits on ORG powers apply only where the wardship proceedings concern a child who is already in public care . If he is not , ORG can examine fully such questions as access and make such order as it considers to be in his best interests .

The inability of parents to approach the courts , save as explained above , where decisions are made by a local authority affecting access to their children led ORG , in ORG Social Security Adjudications Act CARDINAL , to modify the law on this point .

Under the new provisions - which came into force on DATE , that is after the events giving rise to the present case - , a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent . The latter then has a right to apply to a juvenile court for an access order , requiring the local authority to allow access subject to such conditions as the court may specify . Where an access order has been made , there is a right to apply for variation . An appeal against the juvenile court ’s decision lies to ORG . Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration .

This new remedy applies only to decisions refusing or terminating access ; in all other cases , the nature and extent of access remain within the local authority ’s discretion .

In DATE , the ORG published a Code of Practice on Access to Children in Care . This document stresses the importance of involving the child ’s natural parents in the local authority ’s decision - making process in this area and of informing them fully and promptly as to the substance of decisions concerning access .

A court can not make an adoption order in respect of a child unless , inter alia , it is satisfied that each parent freely and unconditionally agrees ( Children Act DATE , section CARDINAL ) . However , such agreement may be dispensed with upon a number of grounds specified in that section , notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties . In reaching any decision relating to the adoption of a child , a court must have regard to all the circumstances , first consideration being given to the need to safeguard and promote his welfare throughout his childhood ( Children Act DATE , section CARDINAL ) .

Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of ORG . On an application for leave , the court ’s function is to consider whether the proposed adoption application is one that might reasonably succeed , the merits of the matter being examined subsequently , once leave has been granted and after compliance with the requirements concerning notices and reports .


The first applicant , in ORG . CARDINAL/CARDINAL , is a citizen of both GPE and GPE , born in DATE . He is presently detained at a prison in GPE . Before the Court he is represented by Mr. PERSON , a lawyer practising in GPE , and by Mr. PERSON , a lawyer practising in GPE .

The second applicant , in Application No . CARDINAL/CARDINAL , is an NORP citizen , born in DATE . He is presently detained at a prison in GPE . Before the ORG he is represented by Mr. PERSON , a lawyer practising in GPE .

A.

On DATE the applicants were arrested and subsequently remanded in custody on suspicion of having murdered PERSON who had recently disappeared . PERSON had been , like the second applicant , a film director and producer . He had been a competitor of the second applicant and PERSON had , in a letter addressed to ORG , accused the second applicant of having bribed public officials in order to be awarded film production contracts by that ministry . In DATE parts of a human body were discovered in GPE . This body was subsequently identified as being GPE Before their arrest , the applicants were repeatedly questioned by the police and the investigating judge . The second applicant confessed to having killed PERSON in GPE and gave further details of the circumstances . The first applicant stated that , until TIME , he had not been aware of any plans to kill PERSON but had later helped to dispose of the body .

On DATE the trial against the applicants , both charged with murder , commenced before ORG ( PERSON für PERSON ) , sitting as an Assize Court ( Geschworenengericht ) . Both applicants pleaded “ not guilty ” .

At the hearing the applicants were confronted with the second applicant 's confession to the police and the investigating judge . According to that confession , both applicants had planned to lure ORG to GPE with the help of ORG , a young woman . ORG , with whom PERSON had become friendly , invited him to visit her uncle in GPE . The first applicant played the uncle 's role . Once FAC arrived at the apartment of this uncle , the first applicant served him refreshments mixed with a sleeping drug . Thereupon the second applicant shot him and cut the body up , helped by the first applicant . For that purpose they had brought with them an electric saw , a cutter , plastic bags and a pistol . The second applicant also stated that he had committed these acts under the influence of the first applicant .

When heard by the court , the first applicant stated that he had not been involved in the plot and had thought that they were to meet LANGUAGE and other film - makers in the apartment in GPE in order to discuss film projects . As PERSON had been unwilling to meet the second applicant , they had had to use unusual methods to persuade him come to GPE and , therefore , had used ORG as a decoy , and he had pretended to be her uncle . He had not seen how PERSON had been shot , as he had been in the kitchen when he suddenly heard a noise . He returned to the room where GPE was lying on the sofa . The second applicant said that LANGUAGE was dead . The second applicant then left the room , still holding a gun in his hand , whereupon the first applicant realised that the second applicant had shot PERSON had not helped the second applicant undress or cut up the victim . Instead he went to the neighbours to inform them that there might be some noise due to construction works . On his return , he saw several black bags outside the bathroom . The second applicant took them to the car and the first applicant assisted him in finding containers , in order to deposit the bags . Against his advice to sell the pistol , the second applicant had thrown it into the river . The following day they cleaned the apartment and removed the bed . The second applicant elaborated a plan that they should pretend that PERSON was still alive . The first applicant denied having given any medicine or sleeping drugs to the victim , or having seen a third person at the apartment . He said that he had fallen asleep soon after the victim had arrived , and for this reason had not been present all the time . He claimed that he had assisted the second applicant after the killing because he was his friend and because he feared him .

The second applicant withdrew his earlier confession and stated that neither he nor the second applicant had killed ORG third man had been present in the apartment , whose name was PERSON , a NORP who had connections with the ORG . PERSON had been cheated by PERSON , another film - maker , and had hoped that the victim had information about that person . He further claimed that on DATE in question he had been completely drunk and had stayed alone in a separate room . He had only heard a fight going on in the room where the victim was . The fight had taken place between the victim and PERSON In the course of this fight PERSON must have shot PERSON did not know how the body had been sawn into pieces , or what had happened to his pistol . He had lured GPE to GPE in order to play a trick on him , since PERSON had tried to ruin his reputation at the ministry . He had intended to hide cocaine in GPE 's car and to call the customs authorities . It had been PERSON who had brought him the cocaine and some other medicine in order to persuade PERSON to talk about PERSON 's whereabouts .

Asked by the Presiding Judge why he had not mentioned PERSON , but only when he had been questioned by the investigating judge the last time , the second applicant stated that he had promised PERSON to protect him for DATE .

The Presiding Judge questioned the second applicant in detail on how he had been able to give details about the crime in his confession to the police although he had allegedly not seen anything . In reply the second applicant claimed that he had been able to reconstruct the crime on the basis of the questions asked by the police and the pictures they had shown him . When he made his first false confession , he had felt he was in a state of unreality , believing that he was himself a police officer . He had therefore enjoyed developing his confession on the basis of the police questions . The second applicant admitted that , after PERSON had been killed , he and the first applicant had planned to pretend that GPE was still alive .

On DATE of the trial , the court heard several witnesses , namely neighbours to the apartment in GPE , an employee and a friend of the victim , the bank agent , the victim 's aunt , the secretary of the first applicant and a friend of the first applicant . The wife of the second applicant refused to give evidence . Moreover , the court heard the police officers who were involved in the preliminary investigations and questioned them , in particular , about the confession of the second applicant and the manner in which it was made . Then the court heard CARDINAL court experts in , inter alia , forensic medicine and psychiatry .

The court rejected the request to hear ORG in person , but read out her statement made during the preliminary proceedings . Relying on medical certificates and on the report of CARDINAL of the medical experts present at the trial , the court concluded that to summon and question ORG would create a risk for her health , since she lived now in GPE and was suffering from multiple sclerosis , which meant she had to avoid unnecessary effort and excitement .

On DATE ORG convicted the second applicant of murder and sentenced him to life imprisonment . The first applicant was convicted of aiding and abetting and sentenced to DATE imprisonment . The jury found that , according to their common plan , the second applicant had killed PERSON , while the first applicant had assisted in the murder by giving sleeping drugs to the victim .

On DATE the applicants filed a common request for rectification of the transcript of the trial ( PERSON ) . They argued that the Presiding Judge had made several mocking remarks and gestures which had not been recorded in the transcript but which could have influenced the jury . Defence counsel referred to their private notes , according to which the Presiding Judge had expressed doubts in respect of the existence of PERSON From DATE of the trial , the Presiding Judge had DATE requested the defence counsel of the second applicant to provide the name of the witness who would testify that CARDINAL of the jurors was biased , as claimed by the defence . Moreover , the Presiding Judge had interrupted both applicants several times , especially at the end of the trial , when they wanted to give their last speech to the jury .

On DATE the Presiding Judge rejected the request for rectification of the transcripts . He stated that he and the court clerk responsible for the record ( PERSON ) had compared the transcript of the hearing with the stenographic notes and had found that the transcript corresponded to those notes . Contrary to the private notes and the applicants ' submissions , the Presiding Judge had announced the names of the jurors and their substitutes , and had shown where they were seated . In respect of the conduct of the defence counsel of the second applicant , ORG , as well as that of the Presiding Judge , the transcript was accurate .

It transpires from the transcript of the trial , which covers CARDINAL pages , that the relationship between defence counsel , ORG , and the Presiding Judge was rather tense and characterised by mutual accusations . The following events are mentioned in the transcript :

At the hearing on DATE , ORG challenged CARDINAL juror for bias . He claimed that he had been informed that this juror had stated after the hearing on DATE that the applicants should be sentenced to life imprisonment . The juror denied that she had made such a statement . ORG said that a letter sent to the court containing the name of the " informant " had been provided by a third person .

In the hearing on DATE , the Presiding Judge asked ORG to provide him with the name of the informant , so that the court could decide the defence 's challenge of the juror for bias . Otherwise he warned that he would inform ORG and ORG to take steps against counsel for having defamed a juror .

On DATE ( DATE of the trial ) counsel gave the Presiding Judge a copy of a criminal information he had filed with ORG concerning the conduct of the Presiding Judge . At the same time he challenged the Presiding Judge for bias . He submitted that the Presiding Judge lacked the necessary objectivity and tried to influence the jury by means of gestures , facial expressions and ironical , cynical remarks . Moreover , he complained that the Presiding Judge exercised unnecessary pressure on him , since he had repeatedly asked for the name of the informant . In this context he also accused the Presiding Judge of making propaganda ( PERSON ) in the courtroom .

At the hearing on DATE , the bench of ORG ( PERSON ) dismissed the second applicant 's motion challenging the Presiding Judge for bias , finding that the Presiding Judge 's possible smiles ( allfälliges GPE ) at certain statements did not influence the jurors , who were responsible ( mündige ) citizens . The court denied that any propaganda to the press or the public had occurred . That day , the defence counsel of the first applicant requested the hearing of certain journalists with possible knowledge of the juror 's bias . However , he did not know the name of the person who had , in turn , informed the journalists . The second applicant joined the request .

At the hearing on DATE , ORG dismissed the motion challenging a juror for bias . It found that it had not been proved that the juror had made the contested statement . Moreover , the defence had not provided the court with the name of the person who had allegedly heard the partial statement . The court further dismissed the request to hear the journalists since they could not give any direct testimony themselves , having only spoken on the telephone to an anonymous informant .

On an unspecified day the first applicant filed a plea of nullity ( PERSON ) and an appeal against sentence ( GPE ) . He complained that at the trial it had not been possible for him to understand which member of the jury was a full member and which a substitute member , that the Presiding Judge had failed to swear in CARDINAL members of the jury by hand - shake and that CARDINAL members of the jury had been biased . He further complained that the Presiding Judge had interrupted him when he had addressed his last words to the jury , and that evidence requested by him had not been obtained by the court . He also complained that the verdict of the jury had been wrong because the submissions of the second applicant had been implausible . He argued that further questions should have been put to the jury and that NORP law , which was more lenient in relation to the offence of which he was accused , should have been applied .

On DATE the second applicant filed a plea of nullity and an appeal against sentence . He complained that ORG had refused to take the evidence requested by him and had dismissed his challenge for bias of the Presiding Judge , that further questions should have been put to the jury and that there were contradictions between the verdict and the contents of the case - file .

On DATE ORG dismissed the pleas of nullity and appeals against sentence . It confirmed the sentence in respect of the second applicant and increased the sentence of the first applicant to life imprisonment . The decision was served on the applicants on DATE .

As regards the first applicant 's complaint as to the membership of the jury , ORG noted that according to the transcripts of the trial the Presiding Judge had called up each member of the jury by name and assigned a fixed place to him or her . It had therefore been clear which juror was sitting as a full member and which juror was a substitute . The jury was consequently not wrongly composed as claimed by the applicant . The Presiding Judge 's failure to swear in by handshake the members of the jury who had no religious belief , might have been a procedural mistake but did not constitute a ground of nullity .

As regards the first applicant 's complaint that he was denied the right to the last word , ORG noted that these allegations were not confirmed by the transcript of the trial . In any event , the applicant had failed to respect the procedural requirements for raising this ground of nullity because he should have requested an interim decision on this issue .

ORG also held that ORG had acted correctly when it dismissed the first applicant 's requests for the taking of evidence . As regards his request to hear his urologist ( sic ) on whether the first applicant had undergone a change in his personality after a car accident in DATE , it found that CARDINAL expert psychiatric reports had been obtained which were sufficient . As regards the request to hear journalists about a juror 's alleged bias , ORG noted they could not give any direct testimony themselves , having only spoken on the telephone to an anonymous informant . Even if ORG had heard the journalists , this would not have proved that the information given by the anonymous person had been correct . As regards the hearing of ORG , ORG referred to its reasoning on the second applicant 's plea of nullity ( below ) . As regards the first applicant 's complaint that NORP law had not been applied , ORG found that in the present case NORP law was applicable , since it concerned an offence committed abroad by an NORP citizen against another NORP citizen .

As regards the second applicant 's plea of nullity , ORG found that the complaint about the alleged bias of the Presiding Judge was unfounded . ORG noted that the request for rectification of the transcripts had been dismissed and the applicant 's complaints could not therefore be examined on the basis of the allegations made in the request for rectification . ORG stated that a judge is not prevented from forming his own opinion about the guilt of the accused before the end of the trial . Only if the judge maintains this opinion despite evidence to the contrary could he or she be deemed biased . In particular , in the case of spontaneous reactions ( like gestures and changing facial expressions ) , the judge 's lack of impartiality must be shown by additional concrete indications . The same considerations applied to remarks by which a judge expressed his sceptical attitude vis - à - vis a submission . A judge is not prevented from showing such an attitude , since a judge also indicates his attitude when referring an accused or witnesses to contradictions in or the improbability of their statements . Since the second applicant had not submitted any specific circumstances on which an objective observer could doubt the impartiality of the Presiding Judge , there was no infringement of the applicant 's defence rights .

As regards the complaint about the failure of ORG to take the evidence requested by the second applicant , ORG found that ORG had acted correctly when rejecting these requests . ORG had not been present when the offence had been committed and had always claimed that she had not been involved in the applicants ' plans . It was therefore not necessary to hear her on the question whether there had been any indication that F.K. should be killed in GPE . Moreover , a medical expert had confirmed that appearing before the court would involve a danger to her health , as she was suffering from a serious illness . Given that ORG was living in GPE , the NORP courts could not compel her to appear at the trial .


Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

The applicants were born in DATE and DATE respectively .

The first applicant started serving a DATE prison sentence in DATE . On DATE his sentence was suspended on probation . According to the latest information submitted by the second applicant he is serving a prison sentence and is detained in FAC .

NORP In DATE , the applicants were involved in an affair which had largescale media coverage called “ The Car Boot Affair ” ( FAC ) . ORG , the applicants’ friend , was kidnapped and subjected to illtreatment for DATE by people paid by a businessman , PERSON , to get back money he had allegedly stolen from the boot of a car belonging to the businessman .

In TIME of DATE , TIME , ORG received a phone call from one of his friends , GPE , who informed him that he was invited at the headquarters of PERSON ’s company to clarify the situation of the stolen money . ORG accepted the invitation and went to the place indicated . Immediately after his arrival , ORG admitted under threat that he had stolen the money , with another person . From that moment he was kept prisoner , permanently guarded by the people being paid by PERSON , in different buildings in GPE .

On DATE he was taken to a villa belonging to QUANTITY in LOC . On DATE , taking advantage of a lapse of attention on the part of the people guarding him , ORG climbed out of a window of the toilets and escaped .

NORP Immediately after ORG ’s escape , PERSON left the country in order to avoid arrest .

NORP The role played by the applicants in this affair was highly controversial .

The prosecutors presented them as individuals paid by PERSON to kidnap ORG and keep him under guard .

According to the statements given by ORG , the victim , and other witnesses , the applicants were friends of the victim and they were present at the meeting between PERSON and ORG as protection for the latter .

According to a statement given by a witness , GPE , before ORG on DATE , the applicants were sent to the headquarters of ORG company to protect ORG and to keep their mutual friends informed of what was happening .

In his statement given on DATE , GPE recognised that he had contacted the applicants and asked them to be present at the meeting . He also added that they had informed him that their friend ORG needed help , which they could not provide as they were outnumbered and surrounded by armed persons .

Furthermore , at the last hearing before ORG held on DATE , ORG ’s lawyer called for the CARDINAL applicants to be acquitted , stressing that they were the victim ’s friends , who had tried to make their friend ’s situation easier under the circumstances .

According to the applicants , they were present at the meeting which took place on DATE between their friend and PERSON They informed GPE and GPE ( another friend of ORG ) that ORG would not be released until he returned the stolen money . When they saw that the people paid by PERSON had left the headquarters of PERSON ’s company with their friend , they tried to find out where he had been taken . On being informed that their friend was being kept in a deserted house outside GPE , they went there and tried to release him .

When threatened by PERSON and the people paid by him they were forced to give up and leave . They maintained that they did not inform the police , because they were frightened by PERSON ’s threats .

Also , when they found out that GPE ’s house had been set on fire and that PERSON ’s car had been found full of spent bullets , the applicants decided to run and hide in GPE until the situation was clarified even though they knew that warrants had been issued on them as witnesses .

By a bill of indictment delivered on DATE by the prosecutor ’s office attached to ORG , the applicants and CARDINAL other defendants were charged with conspiracy to commit a crime under LAW of LAW and with deprivation of liberty under LAW of LAW . Their arrest was also ordered . It was not possible to arrest the applicants as they were hiding in GPE .

On DATE the applicants informed the mass media that they intended to surrender to the NORP authorities DATE . They alleged that in this way they had tried to obtain some protection against the individuals in the pay of PERSON , who were continuing to threaten them . DATE they surrendered to police at FAC .

At a hearing on DATE ORG replaced the arrest warrant on the applicants with an obligation not to leave the city , citing as a reason that the justification for keeping them under arrest had changed in the light of the evidence adduced before the court .

By a judgment delivered on DATE the GPE Court acquitted the applicants . It found the rest of the defendants guilty as charged and sentenced them to imprisonment ( most of DATE ) . It noted that the victim had stated before the court that the applicants “ did not threaten or hit him or keep him prisoner , but on the contrary they protected him as much they could , and maybe if they had not been there he would be dead ” . Furthermore , it referred to the victim ’s statement of CARDINAL DATE , which reads as follows : ” PERSON and Auras untied me and they could not simply just leave as they were afraid ... and on the other hand they tried to calm things down , helping me as much they could so as not to be killed ( omorât în bătaie ) ” . The ORG also noted that this statement was in agreement with the statements of the witnesses GPE , GPE and GPE

The prosecutor ’s office attached to GPE ORG lodged an appeal , seeking , inter alia , a guilty verdict on the applicants . It maintained that the applicants were part of the group controlled by PERSON and that they had contributed to ORG ’s being held captive , as they had invited him to the place where he was kidnapped .

On DATE ORG allowed the appeal in part but maintained the not - guilty verdict on the applicants . It held that the mere fact of their presence at the headquarters of GPE ’s company could not lead to the conclusion that they were guilty , in the absence of any incriminatory evidence .

The prosecutor ’s office attached to ORG lodged an appeal on points of law , again seeking the conviction of the applicants . In its grounds for appeal it maintained that even if the applicants could not be convicted as perpetrators they should be convicted as accomplices .

At the last hearing before ORG and Justice held on DATE , all the lawyers representing the defendants submitted oral conclusions on the admissibility of the appeals . No other evidence was adduced before the court . The applicants were invited to speak only before the end of the hearing ( ultimul cuvânt al inculpatului ) . They said that they agreed with the statements submitted by their lawyers .

Public pronouncement of the decision was adjourned until DATE , as the court needed more time for deliberation .

On DATE ORG and ORG allowed in part the appeal on points of law lodged by the prosecutor , set aside the decisions of the first CARDINAL courts with respect to the acquittal of the applicants , and retained the file for fresh consideration without setting a date for a new hearing . It found the applicants guilty as charged and sentenced each of them to CARDINAL years’ imprisonment .

The High Court of Cassation and ORG considered that the findings of fact by the first - instance courts were not ill - founded and were thus suitable for appellate review without taking further evidence . Giving a new interpretation to the facts it found that the applicants’ roles consisted in luring ( ademenirea ) the victim to the headquarters of PERSON ’s company . It also found that the applicants were members of ORG group .

Although it held that the applicants’ role consisted only of luring the victim and that they were present only on TIME of CARDINAL January CARDINAL and the night which followed , they were sentenced to CARDINAL years’ imprisonment , the same punishment received by the other co - defendants , who had kept ORG in captivity for the whole fiveweek period and had subjected him to constant ill - treatment .

The relevant provisions concerning the appeal on points of law of LAW as in force at the material time are described in GPE , no . CARDINAL , § DATE , ECHR CARDINAL-VIII ) , and PERSON v. GPE , ( no . CARDINAL , § MONEY , DATE ) .

Law no . ORG which amended LAW made it mandatory for an appeal court to hear an accused when the firstinstance court had acquitted him or her . Currently , where an appeal court quashes a judgment given by a first - instance court , it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter has not been heard or if he or she was acquitted by the first - instance court ( Articles DATE § DATE , as amended ) .


Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

NORP The applicant , ORG , is a company based in ORG . It was represented before the ORG by Mr D. Joksimović

NORP On an unspecified date the applicant company instituted civil proceedings before ORG against ORG ZASTAVA DATE u restrukturiranju ( the debtor ) , seeking , inter alia , declaratory redress in the property context .

On DATE ORG ruled in favour of the applicant company and , further , ordered the debtor to pay it MONEY for legal costs .

This judgment became final on CARDINAL DATE .

On DATE the applicant company filed a request for the enforcement of the above judgment in respect of the costs awarded , proposing that it be carried out by means of bank transfer .

On DATE ORG rejected this request given that the debtor was “ being restructured ” ( see paragraph CARDINAL below ) .

On DATE this decision was upheld at second instance .

On DATE the applicant filed a constitutional appeal .

The case is currently pending before ORG .

The applicant company and the debtor were companies predominantly consisting of socially - owned capital .

On DATE ORG ordered the restructuring of the debtor , which process is still ongoing .

Article CARDINAL § CARDINAL of this LAW provides that all enforcement proceedings are to be conducted urgently .

Articles CARDINAL - CARDINAL set out the relevant details as regards enforcement by means of a bank account .

Articles DATE set out the details as regards the restructuring of companies about to be privatised . This restructuring , however , is optional and a company may be sold without having been restructured if ORG so decides . Article PERSON provides that companies undergoing restructuring can not be subjected to an enforcement procedure until the end of restructuring process but no later than DATE .

These provisions are set out in the case of PERSON and Others v. GPE ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § DATE ) .


Violation of Art. 14+P1-1;Not necessary to examine Art. 9 and 14+9;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG The applicant , Dr PERSON , is a NORP citizen of NORP origin , born in DATE . In DATE he was employed as a doctor by ORG in GPE , GPE . He rented a flat in the town , but spent DATE with his family on the island of ORG in the neutral and demilitarised NORP archipelago of GPE at the southern end of LOC . From DATE he worked as a doctor in the public health service in another NORP town , PERSON . Since DATE he has been working in GPE .

ORG During the period when the applicant was working in GPE his income from the above - mentioned posts was , in accordance with the convention between GPE and GPE for the avoidance of double taxation ( see paragraph CARDINAL below ) , liable to NORP tax . The applicant was allowed deductions for the cost of maintaining CARDINAL homes as well as for travel expenses to and from GPE . As he was considered not to be permanently resident in GPE , he was , until DATE , taxed in the so - called LOC ( gemensamma distriktet ) and he paid only a reduced municipal tax ( see paragraph CARDINAL below ) .

ORG On DATE the law was amended , with the result that the applicant was no longer taxed in the Common District but in the municipality where he stayed , i.e. in PERSON ( see paragraph CARDINAL below ) . The deductions which had previously been allowed were no longer permitted and he now had to pay the full municipal tax , including a special tax to ORG ( " the church tax " - see paragraphs DATE below ) . He was informed by the tax authorities that he could not claim any reduction of the church tax unless he was formally registered as resident in GPE ( see paragraph CARDINAL below ) .

Dr PERSON appealed to ORG ( mellankommunala skatterätten ) against the decision to treat him for tax purposes as having been resident in PERSON in DATE . He claimed that he should still be taxed in LOC as he was not living in GPE . In a judgment of CARDINAL DATE the court dismissed the appeal .

ORG In the meantime , on DATE , the applicant had obtained a decision from ORG ( riksskatteverket ) to the effect that if he travelled DATE from PERSON to his work in GPE he would not be regarded as a resident for the purposes of section DATE of LAW DATE ( kommunalskattelagen - see paragraph CARDINAL below ) and would thus be taxed in LOC . However , he found DATE commuting to PERSON , and in DATE he accordingly took on less responsible work with lower pay in GPE , to which he could just manage to commute from PERSON . As a result he was again taxed in LOC and was not liable to the church tax .

ORG An appeal by PERSON to ORG ( kammarrätten ) of GPE against ORG judgment was dismissed in a judgment of CARDINAL DATE and on DATE ORG ( regeringsrätten ) refused an application by him for leave to appeal .

ORG In addition to the above - mentioned proceedings , the applicant submitted an appeal to ORG ( länsrätten ) of GPE against the order to pay full church tax on his DATE income , on the ground that he was neither a member of ORG , nor a NORP citizen nor resident in GPE . In a judgment of CARDINAL DATE the court dismissed the appeal , holding that LAW ( lag CARDINAL:CARDINAL om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , " LAW " - see paragraph CARDINAL below ) did not apply to the applicant .

Dr PERSON appealed to ORG of GPE , which in a judgment of CARDINAL DATE confirmed the judgment of the lower court . His application for leave to appeal was refused by ORG on DATE .

ORG The applicant also lodged a complaint with ORG ( justitieombudsmannen ) concerning his obligation to pay tax for the religious activities of ORG . In his decision of DATE the ORG noted that the requirement in LAW that a person be formally registered as resident in GPE ( mantalsskriven , as defined in the GPE on the keeping of population records , folkbokföringsförordningen ) in order to be able to apply for exemption from the church tax had been questioned on several occasions by various bodies , including ORG . Although the problem raised by the applicant was a limited one , the ORG concluded that it showed up an inconsistency in the tax legislation for which there was no objective justification and that it was understandable if this inconsistency caused irritation . In a letter of DATE to the Government , he proposed that the registration requirement should be abolished . As a result of this proposal LAW was subsequently amended accordingly ( see paragraph CARDINAL below ) .

Dr PERSON paid church tax in the amount of MONEY for DATE , MONEY for DATE and MONEY for DATE . If he had been allowed the reduction provided for in LAW , he would have had to pay CARDINAL , CARDINAL and MONEY , respectively ( see paragraph CARDINAL below ) .

ORG The provisions regarding municipal income taxation in general are included in LAW DATE , which has been amended on numerous occasions over DATE . The references below to this LAW and to other enactments are all to the version in force during the relevant period ( DATE ) , unless otherwise stated .

Liability to pay tax in GPE was regulated in section CARDINAL , subsection CARDINAL , of LAW : residents of GPE were taxed on their world - wide income whereas non - residents had a more limited liability , covering , inter alia , income derived from employment in the NORP public service .

Under LAW with GPE for the avoidance of double taxation ( published in GPE författningssamling ( " SFS " - the official journal ) , DATE ) , the right to tax income derived from public service vested in the ORG which paid the remuneration ( with certain exceptions not relevant here ) .

ORG Regarding the place of taxation in GPE , section CARDINAL , subsections CARDINAL and CARDINAL , of LAW provided that income earned by a resident from employment was to be taxed in the municipality where he was formally registered as a resident ( mantalsskriven ) .

According to ORG ( lag om skatt för gemensamt kommunal ändamål ) , income earned by a non - resident from employment in , inter alia , the NORP public service was to be taxed in GPE in the so - called LOC . The tax rate ( MONEY ) applicable in this district was lower than the ordinary municipal tax rate . The tax levied was not destined for any specific municipality but was used for levelling out the burden of taxation between different municipalities or other administrative authorities . It did not include any tax payable to ORG .

ORG As a result of an amendment to LAW of LAW and subsection CARDINAL of the instructions relating to section CARDINAL of the same Act ( SFS CARDINAL:CARDINAL ) , certain non - residents were considered , with effect from DATE , to have sufficient connection with GPE to be liable to pay the full municipal tax . The Government PERSON ( CARDINAL/CARDINAL:CARDINAL ) containing these amendments did not mention the problems which might result for non - residents in relation to LAW .

Henceforth , a non - resident with certain types of income , such as that derived from employment in the public service , and with a temporary abode in GPE was no longer taxed in LOC but in the municipality where he had first lived . This meant that he had to pay municipal tax at the same rate as a resident and also church tax .

ORG The church tax is collected together with the ordinary municipal tax . The rate is determined by the local parish council . This system has a long tradition and is based on the fact that ORG is the established church . Under the transitional provisions of LAW ( regeringsformen ) , its parishes have a status similar to that of the municipalities - including the right of taxation .

ORG LAW was enacted in DATE at the same time as LAW ( lag CARDINAL:CARDINAL om religionsfrihet ) in order to secure better respect for freedom of religion ( see Government Bill CARDINAL:CARDINAL , p. CARDINAL ) . LAW , made the following provision for a reduction in the church tax :

" Church tax which is referred to in LAW on parish administration ( lag CARDINAL om församlingsstyrelse ) and is imposed either by decision of a parish council or otherwise in accordance with the principles that apply to the imposition of municipal tax , shall be levied on a person who was not a member of ORG at the beginning of DATE and who is formally registered as resident ( mantalsskriven ) in this country for DATE at CARDINAL per cent of the amount assessed . "

The registration requirement meant that LAW did not apply to persons who had only a temporary abode in GPE . According to the travaux préparatoires of the LAW , the reasons for this were that the case for reduction could not be argued with the same force in regard to persons who were not resident in GPE as it could in regard to those who were , and that the procedure would be more complicated if the reduction applied to non - residents ( Government PERSON , p.CARDINAL ) .

The MONEY of the church tax that remained after the reduction was supposed to cover the costs borne by the parishes of certain administrative functions such as the keeping of population records and the maintenance of churchyards and other public burial - grounds .

ORG With effect from DATE , LAW was amended in order to take into account the criticism made by ORG ( see paragraph CARDINAL above ) , so that the taxpayer no longer has to be registered as resident in GPE in order to benefit from the reduction of the church tax ( Government PERSON , p. CARDINAL ) .

ORG Under LAW , as worded before DATE , membership of ORG was reserved to NORP citizens and foreigners living in GPE . In DATE an amendment ( SFS CARDINAL:CARDINAL ) opened membership also to other groups of persons . In order to leave the ORG , it is sufficient for the person concerned to notify his resignation to the church authorities of his parish . Special rules apply to minors .


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 ORG . He was represented before ORG , solicitors in GPE . 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 . His claim for widows ' benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows ' benefits because he was not a woman . The applicant appealed and on DATE reconsideration took place and the previous decision was upheld . 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 .


Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

In TIME of DATE the applicant was arrested at GPE , GPE , on suspicion of having killed , shortly before , his friend Ms. PERSON with whom he had gone to GPE on holiday .

On DATE the applicant 's trial commenced before a Court of Assizes ( Geschwornengericht ) of ORG ( PERSON ) , sitting with a jury . The applicant was assisted by his official defence counsel Mr. PERSON An interpreter was present . At the hearing , the court heard the applicant 's statements , the testimony of several witnesses and the explanations of the psychiatric experts Professor PERSON and Dr. PERSON Several requests for the taking of further evidence , inter alia as to the victim 's personality and behaviour in the past , the applicant 's criminal responsibility and his state of mind following the offence , were dismissed .

At the end of the hearing , the court put CARDINAL questions to the jury : a first main question related to the offence of murder , CARDINAL subsidiary questions concerned the offences of unpremeditated homicide , intentionally inflicted grievous bodily harm resulting in death and grievous bodily harm resulting in death , respectively , and a fifth main question about the applicant 's criminal responsibility . The court 's directions to the jury covered the jury 's duties and the general legal notions of intent and negligence . As regards the questions , the jury was inter alia directed that the offence of murder ( PERSON ) consisted in the intentional killing of a human being and that premeditated homicide ( Totschlag ) was the intentional killing of a human being in a comprehensible state of emotion ( in einer allgemein begreiflichen heftigen PERSON ) .

On DATE the jury , by a unanimous verdict , found the applicant guilty of murder . The jury also unanimously found that the applicant was criminally responsible . According to the record of their deliberations , the jury relied in particular on the testimony of the hotel owner , as well as on the expert opinion of Professor P.

The ORG sentenced the applicant to DATE imprisonment . In fixing the sentence , the ORG considered as a mitigating circumstance the applicant 's diminished responsibility ( verminderte PERSON ) , although his offence had not been committed upon provocation and did not obviously contradict his previous behaviour . Moreover , he had not made a repentant confession ( reumütiges PERSON ) , and his statements regarding the offence had not essentially contributed to the establishment of the truth .

The applicant , assisted by his official defence counsel Mr. PERSON , filed a plea of nullity ( PERSON ) with ORG ( Oberster Gerichtshof ) , challenging the order of questions put to the jury , the dismissal of his requests for the taking of further evidence , as well as the conclusiveness of the findings of the jury . He further lodged an appeal ( GPE ) complaining about the severity of the sentence , referring to further mitigating circumstances such as his previous reputable life , his feelings of regret and repentance and his emotional state at the time of the offence .

ORG ) also appealed against the sentence , requesting that a life sentence be imposed . The ORG considered that the fact that the applicant 's responsibility had been diminished at the time of the offence could not be regarded as a mitigating factor . Rather it showed the applicant 's particular dangerousness and aggressiveness towards women intending to terminate their relations with him .

On DATE ORG issued a summons for the hearing on the plea of nullity and the appeals , indicating that , at the hearing on the plea of nullity , the applicant , being incarcerated , could only appear through his official defence counsel and that , at the hearing of the appeals , he would not be brought to court as the conditions of section CARDINAL § CARDINAL of LAW were not satisfied .

On DATE ORG , upon the request of the senior partner of counsel Mr. PERSON , appointed Mr. PERSON as the applicant 's official defence counsel for the purposes of the proceedings before ORG . The applicant received the certificate of appointment on DATE . By letter of DATE , the applicant requested ORG to allow him to be represented by Mr. PERSON at the hearings and to attend them as an observer . On DATE ORG , upon instructions by ORG , informed the applicant , with the assistance of an interpreter , that the conditions of section CARDINAL § CARDINAL of LAW were not satisfied , and that his attendance as an observer was not possible .

On DATE ORG held the hearing on the plea of nullity and the appeals in the absence of the applicant . He was represented by his new official defence counsel , Mr. S. ORG rejected the plea of nullity as well as both appeals .

ORG , in its judgment , found that the rejection by the trial court of the applicant 's requests for the taking of evidence did not impair the rights of the defence . In particular , ORG confirmed in detail the reasoning of the trial court that the requests concerned in part irrelevant issues and in part issues which required expert evidence . Moreover , the applicant had failed to show the necessity of a second expert opinion as to his criminal responsibility . ORG also dismissed the applicant 's argument that the order of questions put to the jury had been incorrect . ORG found that there could be no objection to the findings of the jury . The applicant 's allegation of a discrepancy in the statements of CARDINAL of the main witnesses was unfounded and , in any event , expert evidence had been taken on the relevant issue , namely his mental state at the time of the offence .

As regards the appeals , ORG noted that the applicant 's own statements appeared to indicate that he quickly lost his self - control in his contacts with women . Nevertheless , there was no sufficient reason to exclude the mitigating circumstance that he had been previously of good conduct . ORG further , on the basis of the file , considered that there had been no provocation and that there were no indications of exceptional mental or emotional excitement . Except for the further mitigating circumstance , there was no other reason to amend the evaluation regarding the applicant 's character or his mental state at the time of the offence , or his motive . Taking all the circumstances into account , the sentence imposed by the trial court appeared appropriate .

The decision was received at ORG on DATE and by the applicant 's defence counsel , Mr. PERSON , on DATE .

A first - instance court judgment given by a ORG , at ORG can be challenged by a plea of nullity to ORG on the specific grounds enumerated in section CARDINAL § CARDINAL of LAW . ORG task is mainly to control the acts of the bench and the presiding judge of ORG examining , in particular , whether the trial has been conducted in a manner which complies with fundamental procedural principles , whether the right questions have been put and the right directions given to the jury . ORG may only verify whether the jury has provided unclear , incomplete or contradictory answers to the questions put to it . ORG supervises the correct application of the criminal law , but in so doing is bound by the jury 's findings of fact .

In certain cases ORG may reject a plea of nullity without a public hearing ( section CARDINAL ( c ) of LAW ) . In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence .

As regards the hearing on a plea of nullity , section CARDINAL of LAW provides :

“ CARDINAL . When the date of the public hearing is being fixed , the accused ... shall be summoned ...

If the accused is under arrest , the notice of the hearing given to him shall mention that he may only appear through counsel . ... ”

Section CARDINAL of the Code of Criminal Procedure applies , in principle , the above rules to nullity pleas arising out of jury trials .

However , if the hearing is a combined one on a plea of nullity and an appeal against sentence , an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea .

The sentence as such can be challenged by way of an appeal against sentence . It may concern both points of law ( in particular whether mitigating or aggravating circumstances have been correctly taken into account ) and factors relating to the assessment of the sentence . Where the substance of an appeal is examined , a public hearing must normally be held .

As regards the personal appearance of the accused at a public appeal hearing , section CARDINAL § CARDINAL , second sentence , of LAW provides :

“ An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter - statement , or otherwise if his personal presence appears necessary in the interests of justice . ”

The applicant applied to ORG on DATE . He alleged , inter alia , a violation of LAW and CARDINAL ( c ) of the LAW on the ground that , in criminal proceedings against him , he was not present at the hearing before ORG .

The Commission declared the application ( No . CARDINAL ) partly admissible on DATE . In its report of CARDINAL DATE ( former LAW ) , it expressed by a majority the opinion that there had been a violation of LAW and CARDINAL ( c ) of the LAW .