Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award

The applicant was born in DATE and lives in PERSON . In DATE he retired from military service .

In DATE he sued ORG of LOC ( “ the Military Commission ” ) , seeking to recover the unpaid pension for the period from DATE to DATE .

On DATE the ORG of Lipetsk granted him claim in full and awarded him MONEY ( “ RUR ” ) in respect of the unpaid pension . In DATE ORG paid him the amount awarded .

The applicant lodged a new claim against ORG , seeking to recover damages incurred through belated payment of the pension .

On DATE the ORG granted his claim and awarded him ORG in damages .

ORG did not lodge an ordinary appeal against the judgment and it became binding and enforceable on DATE .

On DATE the bailiffs’ service of the LOC instituted enforcement proceedings .

On DATE ORG filed an application for supervisory review of the judgment , claiming that the civil - law provisions relating to compensation for damages were not applicable to pensions .

On DATE the Presidium of ORG held a supervisory - review hearing . It held that the first - instance court had correctly established the facts but erroneously applied the substantive law because the damages could only be recovered for DATE immediately preceding the judicial decision . On that ground it quashed the judgment of DATE and rejected the applicant ’s claim in full .

The Code of Civil Procedure of GPE provides as follows :

“ CARDINAL . The grounds for quashing or altering judicial decisions by appeal courts are :

( CARDINAL ) a violation or incorrect application of substantive or procedural law . ”

“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”

“ CARDINAL . Having examined the case by way of supervisory review , the court may ...

( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ...

( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if the substantive law has been erroneously applied or interpreted . ”

Interim Resolution Res DH ( DATE ) concerning the violations of the principle of legal certainty through the supervisory review procedure ( “ nadzor ” ) in civil proceedings in GPE , adopted by ORG on DATE , reads , in its relevant parts , as follows :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of the Convention ...

Welcoming the reforms of the supervisory review ( “ nadzor ” ) procedure introduced by LAW entered into force on DATE ;

Noting with satisfaction , in particular , that some of the problems at the basis of the violations found in these cases have thus been remedied ...

Expressing , however , particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “ nadzor ” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “ nadzor ” becomes truly exceptional , if necessary at all ;

Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances , while under the current “ nadzor ” procedure such a judgment may be quashed for any material or procedural violation ;

Emphasising that in an efficient judicial system , errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable , thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions ;

Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand - in - hand with improvement of the court structure and of the quality of justice , so as to limit the need for correcting judicial errors currently achieved through the “ nadzor ” procedure ...

CALLS UPON the NORP authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the LAW , as interpreted by the ORG ’s judgments ;

ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final ...

ENCOURAGES the authorities , pending the adoption of this comprehensive reform , to consider adoption of interim measures limiting as far as possible the risk of new violations of LAW same kind , and in particular :

- continue to restrict progressively the use of the “ nadzor ” procedure , in particular through stricter time - limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law ...

- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case ;

- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law ;

- to adopt measures inducing the parties adequately to use , as much as possible , the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable ... ”


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

The first applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained at FAC Full Sutton . He is represented before ORG , a firm of lawyers practising in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained at FAC . He is represented before the ORG by PERSON and PERSON , a firm of lawyers practising in PERSON .

s , may be summarised as follows .

On DATE , firemen attended a fire at a house in GPE and discovered the body of GPE , a heroin addict and dealer . He had been shot in the throat and stabbed with CARDINAL different knives a minimum of CARDINAL times . The fire had been started deliberately and burns to ORG body occurred after his death .

The applicants were acquaintances of ORG There was evidence that they had access to a shotgun on TIME in question and the second applicant was seen with a shotgun wound to his finger and a burn to his abdomen TIME after the murder . Both applicants lied to their acquaintances about how the second applicant had injured himself .

The applicants were subsequently arrested in connection with the murder .

The first applicant was interviewed twice by the police under caution in connection with the murder of ORG and CARDINAL times , again under caution , on DATE . In the course of the interviews , he was asked to account for his movements in TIME of CARDINAL DATE , to explain the items found in his car and to account for gun damage to , and ORG ’s blood found in , the car . He made no reply to the questions asked , except to say that he did not know what the police officers were “ going on about ” and “ it ’s nowt [ nothing ] to do with me ” . His solicitor made it clear in the interview that he had advised the first applicant to exercise his right to silence . The second applicant was similarly interviewed , under caution , CARDINAL times in DATE and also made no comment , again on legal advice .

Both men were charged with murder . The prosecution case against the applicants was that ORG had been given heroin prior to his death in order to pacify him . Heroin was found in the car used by the applicants on TIME of the murder . The second applicant ’s blood was found in the same room as ORG ’s body and ORG ’s blood was found on a pair of glasses belonging to the first applicant which were recovered from the first applicant ’s car . A stain on the ceiling of the car was composed of a mixture of material including the first applicant ’s DNA and DNA allegedly from GPE

On DATE , both applicants were interviewed again under caution . The purpose of the interviews was to give them the opportunity to comment on forensic evidence regarding the blood staining which had only recently become available and was therefore not put to them in the DATE interviews and to comment on the blood found on the glasses . Both applicants instructed different solicitors from those representing them in the DATE interviews . Both applicants answered questions in relation to the blood staining . They gave the same explanation for how ORG ’s blood came to be on his glasses and the ceiling of the car , namely that on the DATE preceding the murder PERSON had injected himself with amphetamines while in the car and had subsequently tried on the first applicant ’s glasses . The second applicant explained that he had visited ORG house DATE or CARDINAL before the murder with the first applicant and that he had , while there , injected himself with amphetamines . He assumed that any trace of his blood at the house came from that injection .

At trial , both applicants gave evidence in accordance with the account given to the police during the DATE interviews . They both explained that their silence in the DATE interview was based on legal advice . Both gave evidence that they had been together at the time of the murder on an aborted expedition to catch a badger and denied any knowledge of or involvement in the murder .

In addition to the evidence outlined above , the prosecution also relied on a witness , PERSON , who claimed that the first applicant had confessed to the murder when they had been in adjoining cells in DATE . The evidence of PERSON had not been put to the applicants during either of the interviews as he did not come forward until DATE , after the interviews had been conducted .

In his summing up , the judge began by emphasising to the jury that the burden lay on the prosecution to prove the charge against the applicants :

“ ... It is a basic principle of any criminal trial that the Prosecution brings the charge and the Prosecution must prove it . It is for the Prosecution to establish each defendant ’s guilt . The Defence do not have to prove anything ... ”

As regards the silence of the applicants in the DATE interviews , the judge gave the following direction :

“ ... [ W]hen the defendants were interviewed during DATE they refused to answer any questions put to them . Consequently , they did not mention any of the matters now relied upon in their Defence during those interviews . The defendants say that this refusal to answer questions was because of legal advice which they were receiving . It appears from the transcripts of the interviews that they were , indeed , receiving legal advice to that effect .

In DATE , as I shall remind you when I come to review the factual evidence , the GPE stance changed . The defendants say that this was because their new solicitors were giving them different legal advice . It certainly appears from the transcripts in DATE the GPE legal advice became that they should answer questions . Indeed the answers which the defendants gave in and after DATE were consistent with their evidence in court . It is for you to decide whether the facts which the defendants failed to mention during the early interviews were facts which , in the circumstances , they could reasonably have been expected to mention . If they were then the law is that you may draw such inferences as appear proper from the GPE failure to mention these matters at the time . In considering whether the defendants could , reasonably , have been expected to mention during the early interviews the facts upon which they now rely in their defence you must consider all the circumstances . These circumstances include the legal advice which the defendants were receiving . If you are sure that the defendants could reasonably have been expected to mention those matters then what inferences can you draw ? Failure to mention a fact can not , on its own , prove guilt . But depending on the circumstances you may hold it against a defendant when deciding whether he is guilty . That is take it into account as some additional support for the Prosecution ’s case . You are not bound to do so . It is for you to decide whether it is fair to do so . ”

Subsequently , in summarising the evidence against the applicants and their own explanations regarding the evidence , the judge reminded the jury of the applicants’ answers to the questions put to them in the DATE interviews . He further reminded them that the first applicant had explained that he had refused to answer questions in the DATE interviews because his solicitors had advised him to remain silent . His explanation for his responses in the DATE interview was that he had changed solicitors and his new solicitors had advised him to answer questions . He had accordingly done so .

On DATE , the applicants were convicted of murder and were sentenced to life imprisonment .

The applicants appealed to ORG for leave to appeal against conviction . The grounds of appeal made no reference to any alleged deficiencies in the adverse inferences direction . Instead , the grounds complained of , inter alia , reliance by the prosecution on the confession of PERSON , alleged deficiencies in the conduct of the police and alleged inadequate prosecution disclosure . Leave to appeal was refused on DATE .

On DATE , the first applicant applied to ORG ( “ CCRC ” ) for a referral of his case back to ORG . It is not clear whether the second applicant also made an application to the ORG at this time . No complaint about the adverse inferences direction was raised in the ORG application . On DATE , the ORG decided not to refer the convictions back to ORG .

On DATE , the first applicant re - applied to the ORG alleging that the trial judge ’s adverse inferences direction was deficient . On DATE , his conviction was referred to ORG by the ORG . The second applicant applied to the ORG on DATE . On DATE , his conviction was also referred back to ORG .

Before ORG , the applicants argued that the directions to the jury were defective in that the jury was not directed that adverse inferences could only be drawn if the jury was satisfied that the real reason for the applicants’ silence was that they had no answer at the time or none that would stand up to scrutiny . They further argued that the trial judge had erred in not identifying the precise facts to which the adverse inferences direction related and leaving it open to the jury to draw adverse inferences in relation to some facts relied upon in respect of which adverse inferences should not have been drawn . The ORG accepted that there had been a material misdirection on both grounds but argued that the convictions were safe and that any appeal should therefore be dismissed .

On DATE , ORG handed down its judgment . PERSON noted ( at DATE ) :

“ It is even at this stage worth putting that direction into context . First , it was a direction discussed between the judge and counsel before the summing up commenced . Prosecuting counsel approved the same and leading counsel acting for each of the appellants also approved the same . Following the conviction there was an application for leave to appeal against conviction to ORG . In the grounds no reliance was placed on the inadequacy of the s.CARDINAL direction , and the application was refused on DATE . The appellant PERSON applied to the ORG for a review of his conviction on DATE . We assume the appellant ORG did likewise . It would seem that in those applications there was no suggestion that the s.CARDINAL direction was inadequate and on DATE the ORG decided not to refer either conviction to ORG .

It was only on DATE that there was a re - application to the ORG , based on the direction under s.CARDINAL and an assertion that it was insufficient and called into question the safety of the convictions . ”

As to the appropriate approach to its review of the convictions , he commented ( at paragraph CARDINAL ) :

“ We are troubled as to what should be the right approach of ORG in a case such as the present . We follow the argument based on the absolutist approach . But if an absolutist approach must be adopted in all cases where a misdirection is now identified in respect of cases where it has never previously been suggested that a trial was unfair , or a conviction unsafe , that would seem to leave it open to appellants on the advice of lawyers to bring before the ORG cases where permission to appeal out of time might not have been given . It is relevant , as it seems to us , in considering a s.CARDINAL case , and indeed this case , to recognise that all the points taken as to the inadequacy of the direction , are points taken in other cases . In other words it is important to recognise that it was open to the appellants in this case to take the points now taken , if anyone had thought of them at the trial or immediately after the trial , if it were thought that there was force in any argument that the trial had been unfair . ”

PERSON concluded ( at paragraph CARDINAL ) :

“ We believe that an absolutist approach , particularly to a reference , is not called for . The essential question is whether any misdirection identified has caused an injustice and whether ORG is satisfied that the verdict was safe . In reaching a decision as to the safety of the verdict it may assist to analyse first how the case was left to the jury by virtue of the direction given and then second to analyse how it would have been left to the jury if a proper direction had been given . The court should then assess , whether having regard to the jury ’s verdict on the direction as given , the jury would have been bound to convict if a proper direction had been given . Only , of course , if the court is sure that the jury would have been bound to convict can the verdict be said to be safe . ”

As to the adverse inferences direction given by the trial judge , PERSON noted ( at paragraphs DATE ) :

“ As we previously indicated that direction was discussed between counsel and the judge . A transcript of that discussion was placed before us , demonstrating that counsel for the appellants , Mr GPE QC for ORG and Mr PERSON for PERSON , were content with a direction on those lines and they had no submission to make .

He continued :

The direction is on any view defective in certain significant respects . First it does not give the direction that:—

An adverse direction could only be drawn if the jury were satisfied that the real reason for silence was that the appellants had no answer at the time , or none that would stand up to scrutiny .

It was deficient in that the judge did not identify the precise facts to which the direction related . ”

He commented ( at paragraphs CARDINAL - CARDINAL ) :

“ [ Counsel for the prosecution ] ’s submission was that so far as legal advice was concerned , the appellants received a favourable direction . He submits that the inference to be drawn from the judge ’s direction that the transcripts indicated that they did receive legal advice that they should not answer questions , and his drawing attention to the fact that that advice changed and that once they had advice to the contrary in DATE they gave evidence in accordance with that advice , are all directions which would have steered the jury to the view that reliance on the advice in DATE was reasonable .

We accept that the [ trial judge ’s ] steer was in the appellants’ favour , but the direction still left it open to the jury to draw adverse inferences , and the submission is not a complete answer to [ counsel for the appellants’ ] submissions . ”

As to the second criticism concerning the failure of the trial judge to specify the facts to which his adverse inferences direction referred , he noted ( at paragraphs CARDINAL - CARDINAL )

“ So far as the second criticism is concerned , i.e. the failure to specify the facts to which the direction applied , [ counsel for the prosecution ] had to accept the criticism made . But would a direction setting out all the facts with which the appellants failed to deal in DATE have assisted the appellants ? In the respondent ’s skeleton first produced for ORG the argument was that if the judge had highlighted all the facts which the appellants might have referred to in their first interviews that would have been enormously damaging to the appellants ... There is , as we would see it , force in that submission and the fact that all facts which might have been referred to were not set out seems to us to have been of benefit to the appellants . However , in considering what direction to give and , on the basis that key facts in relation to which an adverse inference might be drawn should be specified , the judge would have been likely to concentrate on one , or possibly CARDINAL , of the facts . The key fact of which the appellants gave no explanation until they came to give evidence was that they were innocently going on a badger hunt TIME and that that accounted for the gun and other items they had in the car and accounted for their movements that morning .

It was also put to the appellants that the deceased ’s blood had been found on the ceiling of the ORG and , again , no explanation was given as to how that had happened .

Therefore the direction should have contained words to the following effect:-

‘ As part of their defence the defendants have relied upon the fact that they were going on a badger hunt in TIME of DATE and on the fact that there was an explanation for the deceased ’s blood being in the ORG , i.e. that the deceased had injected himself in that motorcar . The prosecution say and indeed the appellants admit that they did not mention those facts when they were interviewed about the offences in DATE . This failure may count against them . This is because you may draw the conclusion from that failure that they have since invented those matters and had no answer to the case being put to them by the police , or no answer that would stand up to scrutiny . If you do draw that conclusion you must not convict them wholly or mainly on the strength of it , but you may take it into account as some additional support for the prosecution ’s case , when deciding whether the ORG evidence about these facts is true . However , you may draw that conclusion only if you think it is a fair and proper conclusion and you are satisfied CARDINAL things : first , that when they were interviewed they could have reasonably been expected to mention the facts on which they now rely ; second , that the only sensible explanation for their failure to do so is that they had no answer at the time or none that would stand up to scrutiny ; third , that apart from their failure to mention those facts the prosecution ’s case against them was so strong that it clearly called for an answer by NORP ”

He continued ( at paragraph CARDINAL ) :

“ It seems to us clear from the jury ’s finding that they must have been sure that the explanation given by the appellants for their whereabouts was a lie , and that the explanation given for the blood of the deceased in the [ car ] was a lie . The argument for the appellants has to be that the jury may have been ‘ tipped’ to forming that conclusion by their failure to answer questions in DATE . ”

PERSON concluded ( at paragraphs DATE ) :

“ In our view the position is as follows . First , on the direction that the jury were given it is most unlikely that they held the silence in DATE against the appellants , the judge stressing their reliance on the advice of a solicitor at that time . If , however , because , as we must accept , the possibility of drawing an adverse inference was left open to the jury , then , in this case , there is absolutely no basis on which it can legitimately be said there was good reason , even relying on solicitors’ advice , for not saying where they were on that TIME or giving the explanation for how the deceased ’s blood came to be in the [ car ] . Thus to have drawn an adverse inference from the failure in the DATE interviews to mention where they were and how blood got on the ceiling of the [ car ] could not , in the circumstances of this case , in any way be unfair . Furthermore , in our view , the jury would inevitably have been sure that the explanation given in the witness box was made up and not produced at the DATE interviews because it was an explanation that would not stand up to scrutiny .

Our overall view is that the s.CARDINAL direction given was not in fact unfair to the appellants , indeed , if anything , it steered the jury away from drawing any adverse inference . If a fuller direction had been given it would have emphasised that which the appellants could have disclosed in the DATE interviews and it would have emphasised that reliance on the advice of the solicitor was not necessarily good enough . It would indeed have made it more likely that the jury would have drawn an adverse inference than the direction that was in fact given . Furthermore , it seems to us that one can be sure that in rejecting the evidence of the appellants , the jury were in fact sure that the appellants did not have an explanation which they could have given in DATE which would have stood up to scrutiny . ”

Section CARDINAL of ORG LAW DATE provides that :

“ ( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused–

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ;

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL ) provides that :

“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

A number of domestic cases have considered the application of section CARDINAL in practice . In NORP v PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , Lord PERSON set out CARDINAL “ essentials ” when making a direction on adverse inferences :

“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :

The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .

It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .

An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .

Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant ’s silence .

NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant ’s having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”

Subsequently , in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) , Lord PERSON added a sixth condition that had to be met before section CARDINAL of the DATE Act would allow inferences to be drawn :

“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ‘ in the LOC restrictively : matters such as the time of day , the defendant ’s age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...

Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”

ORG has considered a number of cases in which the defendant ’s alleged that the adverse inferences direction was deficient on one the basis that it failed to include a direction to the effect that adverse inferences could only be drawn where the jury was satisfied that the real reason for the defendant ’s silence was that they he no answer to the questions asked , or no answer that would hold up to scrutiny , including R v. ORG and ORG ( [ DATE ] PERSON ) ; R v. PERSON ( [ DATE ] EWCA Crim CARDINAL ) ; R v. GPE ( DATE ] EWCA Crim CARDINAL ) ; and R v. PERSON and ORG [ DATE ] PERSON ) . In all these cases , with the exception of ORG , the court granted the appeals on the basis of this ORG ’s judgment in ORG , cited above .

Guidance as to the direction which the judge should give the jury in respect of section CARDINAL of ORG LAW DATE are provided by ORG , which provides specimen directions . At the time of the ORG trial , the relevant part of the specimen direction read as follows :

“ If he failed to mention [ a fact ] ... when he was questioned , decide whether in the circumstances which existed at the time , it was a fact which he could reasonably have been expected then to mention . The law is that you may draw such inferences as appear proper from his failure to mention it at that time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such a fact at that time can not , on its won , prove guilt , but depending on the circumstances , you may hold that failure against him when deciding whether he is guilty , that is , take into account as some additional support for the prosecution ’s case . It is for you to decide whether it is fair to do so . ”

The specimen direction was updated and revised in DATE but it is not clear whether the amended direction was available to the judge at the time of the ORG trial . It included the following section :

“ ... [ if ] you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case , you may hold it against him . ”

The present specimen direction , last updated in DATE , further amended the previous version . It reflects the domestic case - law on jury directions as well as the judgments of this ORG in PERSON v. the GPE , DATE , Reports of Judgments and Decisions DATE and ORG v. GPE , no . CARDINAL , ORG CARDINALV ) . It provides as follows :

“ CARDINAL . Before his interview(s ) the defendant was cautioned ... He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .

As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies ... ) . But [ the prosecution say][he admits ] that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ... from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution ’s PERSON refer to any other reasonable inferences contended for ... ) ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ... ; but you may take it into account as some additional support for the prosecution ’s case ... and when deciding whether his [ evidence / case ] about these facts is true .

However , you may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third , that apart from his failure to mention those facts , the prosecution ’s case against him is so strong that it clearly calls for an answer by him ...

( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant ’s silence , on the basis of the following evidence ( here set out the evidence ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so .

( Where legal advice to remain silent is relied upon , add the following instead of paragraph CARDINAL : ) The defendant has given evidence that he did not answer questions on the advice of his solicitor / legal representative . If you accept the evidence that he was so advised , this is obviously an important consideration : but it does not automatically prevent you from drawing any conclusion from his silence . Bear in mind that a person given legal advice has the choice whether to accept or reject it ; and that the defendant was warned that any failure to mention facts which he relied on at his trial might harm his defence . Take into account also ( here set out the circumstances relevant to the particular case , which may include the age of the defendant , the nature of and/or reasons for the advice given , and the complexity or otherwise of the facts on which he relied at trial ) . Having done so , decide whether the defendant could reasonably have been expected to mention the facts on which he now relies . If , for example , you considered that he had or may have had an answer to give , but reasonably relied on the legal advice to remain silent , you should not draw any conclusion against him . But if , for example , you were sure that the defendant had no answer and merely latched onto the legal advice as a convenient shield behind which to hide , you would be entitled to draw a conclusion against him , subject to the direction I have given you . ”


Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3

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

The applicant was born in DATE and is serving a prison sentence in LOC .

On DATE the applicant was arrested on suspicion of manslaughter .

On DATE the prosecutor 's office authorised the applicant 's detention pending investigation . The applicant 's detention was extended on several occasions . The parties did not submit copies of the relevant court orders . According to the Government , when deciding on the applicant 's pretrial detention , the domestic authorities noted that he had been charged with very serious offences , including CARDINAL counts of manslaughter , and that he might abscond or interfere with administration of justice if released .

On DATE ORG authorised the applicant 's detention pending the study of the case - file . In particular , the court noted :

“ ... [ the applicant ] is charged with several criminal offences , including very serious ones . It is still necessary to keep him in custody . The court does not consider it possible to apply any other restrictive measure ...

The materials submitted show that ... at school [ the applicant ] received satisfactory references concerning his character . He had a criminal record . In DATE he was found guilty by ORG of Ivanovo of robbery , extortion and theft and received a conditional sentence . His criminal record was erased by virtue of the amnesty decree . He also has a history of administrative misdemeanours . The references concerning his character obtained from the place of his residence are negative . His parents can not control his behaviour . His conduct is socially dangerous . He has [ repeatedly ] failed to comply with internal regulations at the remand centre .

In such circumstances , the court concludes that the applicant should be detained pending the study of the case - file ... ”

On DATE ORG of PERSON concluded the trial of CARDINAL defendants . ORG found the applicant guilty of trespassing and manslaughter and sentenced him to DATE and DATE imprisonment .

On DATE ORG upheld the applicant 's conviction on appeal . The applicant and PERSON , CARDINAL of his co - defendants , sought supervisory review of the judgments .

NORP On DATE ORG of GPE granted their request for supervisory review .

On DATE ORG quashed the judgments of CARDINAL DATE and CARDINAL DATE in respect of the applicant and PERSON and remitted the matter to the lower courts for fresh consideration . It further extended , without specifying the grounds , the defendants ' detention pending trial until DATE .

On DATE ORG of PERSON received the case file .

On DATE ORG scheduled the hearing of the case for DATE and dismissed a request by the defendants for release . In particular , the court noted :

“ F. and [ the applicant ] are charged with ... a very serious criminal offence against life and health .

In view of the above , the restrictive measure used in respect of F. and [ the applicant ] should remain unchanged . ”

On DATE ORG stayed the proceedings owing to ORG 's counsel 's failure to appear . On DATE ORG found the decision of CARDINAL DATE unlawful and quashed it on appeal .

The decision of CARDINAL DATE was upheld on appeal by ORG on DATE .

On DATE ORG issued an order authorising the defendants ' pre - trial detention until DATE . In particular , the court noted :

“ [ The court ] does not discern any grounds , as established by law , to change or lift the restrictive measure earlier applied in respect of [ the defendants ] since the circumstances taken into account by the court at the time the restrictive measure was applied have not ceased to exist . [ The defendants ] are charged with a very serious criminal offence ... ”

On DATE ORG upheld the decision of DATE on appeal . The court dismissed , inter alia , the applicant 's complaint that his detention after DATE had been unlawful . In particular , the court noted as follows :

“ The supervisory - review court quashed the verdict and subsequent judicial decisions in respect of [ the applicant ] and PERSON and decided to remit the criminal case for fresh consideration to ORG of GPE . In accordance with ORG of Russia no . CARDINAL as of DATE , it also decided to extend the pre - trial detention in respect of [ the applicant ] and F. for DATE . This decision remained in force until the preliminary hearing of the case [ by the trial court ] .

When the trial court received the case - file , it considered the issue of the [ defendants ' pre - trial detention ] in accordance [ with applicable laws ] . Pursuant to Article CARDINAL § CARDINAL of LAW , the pre - trial detention in respect of [ the applicant ] and F. shall be calculated as of the date when the trial court received the case - file , that is , as of DATE . As a general rule , the period of detention in question shall not exceed DATE , notably DATE . Article CARDINAL § CARDINAL of LAW stipulates that the court may , upon expiry of the DATE period , extend the defendants ' pre - trial detention if the defendants are charged with serious and particularly serious criminal offences . Each extension in that case can not exceed DATE . ORG as of DATE confirmed that Article CARDINAL § § CARDINAL and CARDINAL of LAW was not in breach of LAW . The [ defendants ' ] complaints in respect of [ the alleged unlawfulness of their pre - trial detention ] are based on an erroneous interpretation of the applicable rules of criminal procedure . ”

On DATE ORG further extended the defendants ' pre - trial detention until DATE , noting as follows :

On DATE ORG extended the defendants ' pre - trial detention until DATE . The court reiterated verbatim the reasoning of the previous detention orders . On DATE ORG upheld the decision of DATE on appeal .

On DATE ORG found the applicant guilty of manslaughter and sentenced him to DATE imprisonment .

Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) . Under the old ORG , a decision ordering pre - trial detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) . The new ORG requires a judicial decision by a court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

Before DATE , pre - trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment ( Article CARDINAL ) . The amendments of DATE repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

Under the new ORG , “ preventive measures ” include an undertaking not to leave a town or region , personal surety , bail and detention ( LAW ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( LAW ) . When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Before DATE the old ORG set no time - limit for detention pending trial . On DATE a new Article , CARDINAL - CARDINAL , entered into force which established that the period of detention pending trial could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences . The new ORG provides that the term of detention pending trial is calculated from the date the court receives the file up to the date on which the judgment is given . The period of detention pending trial may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

As regards the rule set forth in Article CARDINAL § CARDINAL of the new ORG , ORG noted that , when deciding on extension of a defendant 's detention pending trial , the court should indicate the grounds justifying the extension and its time - limit ( paragraph CARDINAL ) .


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

On DATE the applicant , a truck driver , was interrogated as a suspect for having negligently caused , in a multiple road accident , the death of CARDINAL people and the serious injury of CARDINAL others , CARDINAL of whom became permanently disabled . In the ensuing proceedings , the applicant was assisted by defence counsel of his choice . On DATE a bill of indictment was preferred .

After several hearings at which numerous witnesses testified and the opinions of CARDINAL medical and CARDINAL technical experts were obtained , on DATE ORG acquitted the applicant . On DATE the FAC ORG quashed this judgment as unfounded ; the bench included PERSON , PERSON and PERSON

In the resumed proceedings ( megismételt eljárás ) , ORG held QUANTITY hearings . On DATE it found the applicant guilty as charged . It held that , apart from the responsibility of another driver who had died in the multiple collisions , the accident had essentially been caused by the applicant ’s failure to maintain the brakes of his truck and his grossly negligent driving . The applicant ’s offence was punishable with CARDINAL years’ imprisonment . ORG took account of the protraction of the proceedings as an important mitigating factor ( nyomatékos enyhítő körülmény ) and sentenced him to CARDINAL half GPE imprisonment and a DATE prohibition on driving .

The applicant appealed , seeking an acquittal , pleading that the judgment was ill - founded .

On DATE ORG , again with the participation of PERSON and NORP , upheld the applicant ’s conviction but reduced his sentence to CARDINAL half years’ imprisonment and a DATE prohibition on driving . The court reviewed the entirety of the proceedings and the first - instance judgment , and held that the first - instance proceedings had been lawful . Furthermore , it considered that the findings of fact were not ill - founded , within the meaning of section CARDINAL(CARDINAL ) of LAW , and were thus suitable for appellate review without taking further evidence . This consideration enabled the court to hold deliberations in camera , in application of section CARDINAL(CARDINAL ) of LAW , without the attendance of either the defence or the prosecution .

The applicant states that this judgment was served on his lawyer only on DATE . However , on DATE he had already been called upon to start serving his sentence on DATE . His request to have the commencement of his sentence postponed on the grounds of his impaired health , as a consequence of the injuries he himself had suffered in the accident , was to no avail .

Act no . ORG of DATE on the [ New ] Code of Criminal Procedure provides insofar as relevant as follows :

“ ( CARDINAL ) c ) In first or second - instance proceedings which must be repeated because of having been quashed , any judges shall be ineligible ( kizárt ) who participated in the adoption of the decision to quash or in the adoption of the decision which has been quashed because of ill - foundedness . ”

“ ( CARDINAL ) An appeal may concern questions of fact or law . ”

“ ( CARDINAL ) The second - instance court shall base its decision on the facts as established by the first - instance court unless the first - instance judgment is ill - founded ....

( CARDINAL ) The first - instance judgment is ill - founded if :

a ) the facts have not been explored ;

b ) the first - instance court has failed to establish the facts or the findings of fact are deficient ;

c ) the findings of fact are in contradiction with the contents of the documents ;

d ) the first - instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact . ”

“ ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . ”

“ ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tanácsülés ) , a public session ( nyilvános ülés ) or a hearing ( tárgyalás ) . ... ”

“ ( CARDINAL ) The second - instance court shall hold a public session , if – the first - instance judgment being ill - founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .

( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... ”

“ ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned – ... the defendant and his lawyer of the public session . ... ”

“ ( CARDINAL ) In order to take evidence , a hearing ( tárgyalás ) ... shall be scheduled . ”

“ ( II ) b ) [ The second instance court ] ... shall quash the judgment of the first instance court and order that court to repeat the proceedings if ... a statutorily ineligible ( kizárt ) judge ... has participated in its adoption ... ”

“ ( CARDINAL ) The court ’s final decision on the merits is susceptible to a [ ORG ] review ( felülvizsgálat ) if ...

c ) the decision has been adopted amidst procedural irregularities within the meaning of section CARDINAL(CARDINAL ) subparagraphs II to PERSON . ”


András Baka;Antonella Mularoni;Françoise Tulkens;Irakli Adeishvili;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE , GPE .

In a judgment of CARDINAL DATE ORG ordered the applicant to discharge the debt of USD MONEY ( EUR CARDINAL ) in favour of another private individual . On DATE ORG of GPE upheld this judgment in cassation and it became binding .

On an unspecified date , the applicant filed with ORG a request for the supervisory review of the final judgment of DATE , seeking the re - opening of the case . On CARDINAL DATE the Vice - President of ORG dismissed that request as unsubstantiated .

On CARDINAL DATE LAW DATE ( “ the ORG ” ) , annulling the system of supervisory review , entered into force . Pursuant to its LAW , supervisory proceedings which had not been finalised before the entry into force of that Code were to be maintained by ORG .

On an unspecified date , the applicant requested ORG to resume examination of her supervisory review request on the basis of LAW ORG . On DATE ORG replied that her request was manifestly ill - founded , insofar as the relevant supervisory proceedings had been terminated on DATE , i.e. prior to the ORG 's entry into force .

The applicant brought another court action , requesting that ORG be ordered , as “ an administrative organ ” , to resume the supervisory proceedings under LAW ORG . This action was dismissed as unsubstantiated several times and , lastly , on DATE by ORG of ORG .

As the applicant refused to discharge the judgment debt of CARDINAL DATE , enforcement proceedings were initiated against her . Subsequently , an enforcement officer attached the applicant 's house , located at CARDINAL FAC in GPE ( “ the house ” ) , which was put up for public auction .

On DATE the auction was held but no buyer appeared . In the course of the rescheduled auction on DATE , the house was initially offered for the price of GEL CARDINAL ( EUR CARDINAL ) , this amount corresponding to its market value according to an auditor 's report of DATE . However , as no bids were made , the enforcement officer started decreasing the price and , ultimately , the creditor , being the sole bidder , purchased the house for GEL CARDINAL ( EUR CARDINAL ) . On DATE the certificate confirming the creditor 's property title to the house was issued and ORG amended accordingly .

As the applicant continued living in the house , the creditor brought a court action for her eviction . On DATE the Zestafoni ORG allowed the action on the basis of both parties ' written and oral submissions . The court found it established that the creditor had acquired ownership of the house through the public auction of DATE . It reasoned that , insofar as the applicant had never challenged the lawfulness of that auction in separate proceedings , the house was to be vacated .

On DATE the applicant lodged an appeal . She claimed to have been discharging the judgment debt in instalments and complained that the forced sale of her house had therefore been unjustified . She also contended that the house had been her husband 's registered property and that the enforcement officer had no competence to conduct the auction .

In a decision of DATE , ORG , after having heard both parties ' oral pleadings , dismissed the appeal and upheld the judgment of DATE . It reiterated the lower court 's findings that the applicant had never disputed the results of the public auction and that the creditor had acquired ownership of the house in good faith .

On DATE the applicant lodged a cassation claim , reiterating her previous appeal arguments .

On DATE ORG declared the applicant 's cassation claim admissible and dispensed with an oral hearing on the merits under LAW of the ORG . By the same decision , the applicant was exempted , as an indigent person , from the court fees for cassation proceedings .

On DATE ORG sent its decision of DATE to the parties ; the creditor was also served with a copy of the applicant 's cassation claim . The PERSON postal services notified ORG on DATE that this decision had been delivered to the applicant on DATE .

On DATE the creditor submitted comments in reply . Those were not transmitted to the applicant . In a decision of DATE , ORG dismissed the applicant 's cassation claim . It found , in the light of the case materials , that the applicant had been the owner of the disputed house before the public auction . It reasoned that , since the results of the auction had never been the subject of an examination by the lower courts , either in separate proceedings or by way of a counter - claim within the same proceedings , the applicant was absolved from raising certain arguments for the first time before the cassation court . However , as no “ additional and well - founded cassation argument ” ( sakasacio pretenzia ) had been made , the findings of the lower courts concerning the binding on the cassation court .

NORP In its decision of DATE , ORG did not take into account the arguments contained in the respondent 's submissions of DATE ; it solely addressed the issues raised in the applicant 's cassation claim .

On DATE ORG sent this last decision to the parties . According to the applicant , she never received that dispatch ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the applicant requested ORG to stay the cassation proceedings , in view of the fact that the supervisory proceedings were pending ( see paragraph CARDINAL above ) . In a letter of DATE , ORG replied that its decision of DATE , dismissing her cassation claim , was final and that no appeal lay against it . This letter was delivered to the applicant on CARDINAL DATE .

According to the applicant , the letter of CARDINAL DATE enclosed ORG decision of DATE , and that was how she learned first about the termination of the eviction proceedings .

On DATE the applicant , along with other persons , lodged a constitutional claim with ORG , requesting the annulment of LAW of the ORG for being unconstitutional .

On DATE ORG examined this claim . As the vote of the sitting judges was tied , the claim , pursuant to section QUANTITY of LAW , was dismissed ( for more details , see paragraph CARDINAL below ) .

Articles DATE prescribed the procedure for serving court summons on a party to the proceedings . This procedure required an acknowledgement of delivery to be returned to the dispatching court ( LAW ) .

Pursuant to LAW , the parties had equal procedural rights . They could consult the case file and make extracts from or take copies of all the materials therein .

Pursuant to LAW , only the lawfulness of an appellate decision could be challenged in a cassation claim . The disputed decision could be found to be unlawful if the appellate court had wrongly applied or interpreted legislative provisions .

Pursuant to LAW , which regulated the time - limit for lodging a cassation claim , appellate decisions were considered to be delivered when handed to a party in court or communicated under the procedure envisaged by Articles DATE .

Article CARDINAL § CARDINAL ( f ) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was challenging not only substantive but also procedural legal provisions .

According to LAW , unless LAW , which contained special rules for cassation proceedings , stated otherwise , the provisions regulating appellate proceedings should equally apply in cassation .

Chapter PERSON did not contain any provisions overruling or contradicting Articles DATE and CARDINAL .

Article CARDINAL stated that a copy of the cassation claim with all the supporting documents should be forwarded to the adversary . Neither this nor any other provision of the Code required the adversary 's reply to be transmitted to the appellant or that any further exchange of comments was possible .

Article CARDINAL § CARDINAL

“ The cassation court shall review the [ disputed ] judgment only in so far as challenged in the cassation claim . The cassation court can not go beyond the facts referred to under LAW ( f ) or inquire of its own motion into other procedural breaches . ”

“ The cassation court shall take into account the party 's submissions only in so far as disclosed by the case file or the appellate judgment ; only the facts submitted under LAW ( f ) can be taken into account .

The establishment of the facts [ by the appellate court ] is binding on the [ cassation ] court , unless an additional and well - founded cassation argument has been raised . ”

“ If the cassation court finds it appropriate ... , it can decide the case without an oral hearing . The parties shall be notified of such a decision . ”

“ Enforcement , when related to immovable property , is carried out by a public auction , mortgage or sequestration . ”

“ ... the final price offered during [ the first ] public sale shall not be PERCENT of the object 's market value and shall include the costs of the auction ... ”

“ If an appropriate price was not offered in the course of the first public sale , the enforcement officer shall schedule a repeat auction ...

During the repeated auction , the final price shall be of at least such an amount as to cover the creditor 's claims and the costs of the sale ... ”

Section CARDINAL § CARDINAL ( as amended on DATE )

“ If the vote of ORG ) [ of ORG ] is tied , the constitutional claim is considered to have been dismissed . ”

The provisions on the nature of NORP constitutional proceedings were summarised in paragraph CARDINAL of the ORG 's judgment in the case of PERSON v. GPE ( no . DATE , ECHR DATE ... ) .

ORG dismissed the applicant 's complaint , challenging LAW of the ORG , which provided for the possibility to dispense with an oral hearing in cassation proceedings .

ORG noted that , unlike an appellate court which established facts , the cassation court could only review the application of legal provisions . It could however examine , on the basis of ORG CARDINAL § CARDINAL ( f ) and QUANTITY of the ORG , the facts which had been explicitly raised by the appellant in relation to the alleged violations of procedural law .

Consequently , whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law , ORG concluded that the right to an oral hearing in cassation proceedings was not absolute .

In its judgment of DATE in the case of “ NORP ” v. “ NORP ” ORG , ORG defined the notion of an “ additional and well - founded cassation argument ” ( LAW ORG ) , as follows :

“ ... ' An additional and well - founded cassation argument ' is ... a reference to those procedural breaches which , having been committed by the appellate court during the examination of the case , have resulted in an erroneous assessment of matters of fact and/or the incorrect interpretation and application of substantive legal provisions . ”


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON and PERSON , both NORP citizens , were detained on remand in DATE in connection with separate criminal proceedings brought against them before ORG ( PERSON , " ORG " ) . The present case is not concerned with the proceedings against the second applicant .

On CARDINAL DATE Judge PERSON , an investigating judge at the said court , issued a warrant for Mr PERSON ’s arrest .

He was suspected of having committed various offences , including aggravated fraud , professional burglary , forgery and suppression of documents , receiving stolen goods and unlawful possession of firearms . The reasons cited by the judge in support of his detention were the danger of his absconding and the risks of collusion and repetition of offences ( LAW ) , sub - paragraphs DATE , of LAW ) .

PERSON was arrested in GPE on DATE . On DATE he was brought before Judge PERSON , the duty judge ( GPE , LAW ) , who informed him of the reasons for his arrest . On being questioned in the absence of his lawyer , he admitted unlawful possession of firearms , but denied having committed any other offence . The judge remanded him in custody .

Also on CARDINAL DATE Judge PERSON ordered the applicant ’s transfer to GPE , where ORG ( PERSON für PERSON ) had on DATE issued a warrant for his arrest on suspicion of having taken part in an armed robbery in GPE . The GPE proceedings were joined to those instituted in GPE , and PERSON remained in the GPE remand prison from CARDINAL DATE to CARDINAL DATE .

The proceedings were severed on DATE and ORG recovered jurisdiction over the proceedings which are the subject of the present case .

The case was assigned to Judge PERSON , who on DATE opened a judicial investigation ( Voruntersuchung ) and ordered the applicant ’s detention to be continued ( LAW ) , sub - paragraphs CARDINAL to CARDINAL , of LAW ) . ORG ( Oberlandesgericht ) twice authorised the extension of his detention on remand , for a maximum period of DATE in all .

On DATE Mr PERSON challenged the investigating judge , alleging bias , but on CARDINAL May the challenge was held to be unsubstantiated by the President of ORG . On DATE the applicant brought a criminal complaint against Mr PERSON for abuse of public powers , on the ground that he had refused to allow a visit by Mr PERSON ( see paragraphs CARDINAL and CARDINAL above ) . As the public prosecutor ’s office had decided not to bring a prosecution , PERSON brought an alternative private prosecution himself ( PERSON , see paragraph CARDINAL below ) .

In the main proceedings , counsel for PERSON had submitted a memorial on DATE . On DATE the public prosecutor filed an indictment , in which the only charges were receiving stolen goods and illegal possession of firearms . An objection ( PERSON ) by the applicant against this indictment was dismissed by ORG on DATE .

PERSON was sent for trial before ORG , composed of CARDINAL professional judges , PERSON ( the presiding judge ) and PERSON , and CARDINAL lay assessors ( Schöffen ) .

On DATE , Judge PERSON summoned him to inform him that he had acted as investigating judge in the case until DATE ( see paragraphs CARDINAL and CARDINAL above ) and was accordingly prevented from sitting in the trial under LAW ( CARDINAL ) of LAW . In the course of the interview PERSON waived his right to lodge a plea of nullity on this ground ( LAW , first sentence , of the LAW ; see paragraphs CARDINAL and CARDINAL below ) .

On DATE , the presiding judge informed him that Judge PERSON was also disqualified under LAW ( CARDINAL ) , since he had , as duty judge , questioned him on DATE ( see paragraph CARDINAL above ) . PERSON likewise waived his right to lodge a plea of nullity on this point .

In both cases , the relevant records were signed by him in the absence of his counsel , who had not been summoned on that occasion ; the applicant had stated that he did not think it necessary to consult him .

The hearings took place on DATE and DATE with the participation of the CARDINAL above - mentioned judges .

Defence counsel did not object to the composition of ORG or challenge Judges PERSON and PERSON .

Neither did he draw the court ’s attention , at the hearing of DATE , to the fact that , in the criminal proceedings instituted against Judge PERSON , the third investigating judge ( see paragraph CARDINAL above ) , the applicant had on DATE challenged all the judges of ORG , including Judges PERSON and PERSON . This challenge was eventually allowed by ORG on DATE , the judges concerned having declared themselves disqualified . The case was therefore referred to ORG and later discontinued .

Also on DATE , the court convicted PERSON of aggravated receiving of stolen goods ( LAW ) and unlawful possession of firearms ( section CARDINAL of LAW , GPE ) and sentenced him to CARDINAL years’ imprisonment .

The applicant lodged a plea of nullity ( PERSON ) and an appeal against sentence ( GPE ) , which were dismissed by ORG ( Oberster Gerichtshof ) on DATE .

On the plea of nullity , the court observed that the defence had not raised at the proper time the issue of the participation of Judges PERSON and PERSON , who had been challenged in earlier proceedings , otherwise ORG would have been obliged to give an interlocutory decision . The fact that the challenge relating to the other case was subsequently allowed ( see paragraph CARDINAL above ) did not justify the conclusion that the CARDINAL professional judges were also biased in the criminal proceedings against PERSON . Furthermore , the latter could no longer argue that Judges PERSON and PERSON should in principle have withdrawn under LAW ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , because prior to the trial he had expressly waived his right to challenge them on this ground .

ORG also confirmed the sentence .

During their detention on remand the applicants corresponded with each other . In DATE , the investigating judge censored a letter from PERSON to PERSON by crossing out and making illegible certain passages . They were not reconstructed in the national proceedings , but their content was said to have been as follows ( translation ) :

" I wonder whether there is anybody left in this monkey house who is still normal ... In life they are nobodies , here they think they are gods . Some of the officers are guests like us . They are always spying on the women , these monkeys are proper peeping toms ! I hate it ! "

PERSON complained to ORG ( Ratskammer ) of ORG . She claimed that the form of censorship used was unlawful , since LAW authorised the stopping of letters , but not making them illegible . Besides , it allowed censorship only in respect of letters likely to interfere with the purpose of detention , or giving rise to the suspicion of a criminal offence where the offender could be prosecuted ex officio , with or without the victim ’s authorisation . The relevant passages contained remarks critical of prison officers but were not , in her opinion , such as to fall within the scope of the above rules .

The complaint was considered in camera in the absence of the applicant and her counsel . After hearing the prosecution and studying a report by the investigating judge , ORG rejected her complaint on DATE .

The crossing out of part of a letter was in its opinion a less severe measure than stopping the letter . It was therefore within the investigating judge ’s powers under LAW ( see paragraph CARDINAL below ) , and did not infringe PERSON rights . It had moreover been justified , because the passages in question , described in the report as " jokes of an insulting nature against prison officers " , had constituted defamation ( üble GPE ) of officials in the exercise of their duty ( LAW in conjunction with LAW ) , an offence capable of justifying a censorship measure under LAW ) .

After the Commission had communicated the application to ORG , the Attorney - ORG ( PERSON ) brought a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) before ORG . CARDINAL grounds of appeal were submitted .

It was argued , firstly , that the rendering illegible ( GPE ) of certain passages and ORG decision thereon were not covered by LAW . Under that provision all letters from a person detained on remand to a private individual had to be stopped if they gave rise to the suspicion of a criminal offence subject to public prosecution ex officio ( PERSON wegen ) . This was not the case with the passages in question . If they were to be regarded as an offence under LAW ( CARDINAL ) or CARDINAL ( CARDINAL ) of LAW , in principle only the victim could act , and public prosecution ( with the victim ’s authorisation and that of his superior authority ) under LAW was possible only if the insults were made " person to person " and not if they were in a letter .

Secondly , LAW ) authorised only the stopping of letters , not the deletion of specific passages .

On DATE , after a public hearing , ORG dismissed the first ground of appeal but upheld the second .

( a ) On the assumption that the passages in issue contained " jokes of an insulting nature against prison officers " , the court considered that there were grounds for suspecting the applicant of insulting behaviour ( Beleidigung - Article CARDINAL of LAW ) rather than defamation ( LAW . Such an offence , if committed against an official in the exercise of his duty , required public prosecution with the victim ’s authorisation ( LAW , see paragraph CARDINAL below ) . In the present case , the offence resulted from the handing over by PERSON of an unsealed letter to a prison officer for the purpose of transmitting it to the investigating judge . It had thus been possible for the letter ’s content to become known to several prison or court officers in the exercise of their duty . Article CARDINAL ( CARDINAL ) of LAW being applicable , the measure in question was covered by LAW .

( b ) The investigating judge and ORG had , however , misapplied this provision , which authorised the stopping of letters but not the deletion of passages from them . The investigating judge had in fact not taken a " less severe measure " under an implied power , but a different measure which interfered with the interests of the prosecution authorities and the prison officers concerned , as they had the possibility of bringing criminal proceedings against PERSON on account of her remarks in the letter . The law had been violated in this latter respect , but PERSON had not been injured thereby and could therefore not complain of the dismissal of her complaint by ORG .

According to LAW :

" A person shall be disqualified from participating or deciding in the trial proceedings if he has acted as investigating judge in the same case ... "

The following provisions of LAW govern the disqualification ( PERSON ) of judges :

" A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ... "

" From the moment when grounds for his disqualification come to his knowledge , every judicial officer ( ORG ) shall refrain from all judicial acts , on pain of nullity of such acts . The judicial officer concerned may carry out judicial acts which are urgent , but only where there is danger in delay and if another judge or registrar can not be appointed immediately ... "

Furthermore , under LAW the parties to the proceedings may challenge ( ablehnen ) a judge if they can show that there are reasons for doubting his complete impartiality . Although LAW refers expressly to grounds other than disqualification , it is the practice of the courts to apply LAW also in cases where a party raises an issue relating to a judge ’s disqualification . In fact , the disqualification of a first - instance judge can not subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party ( LAW , sub - paragraph CARDINAL , of LAW ) . The procedure applicable in this respect is the following :

" An application by a party to challenge a judge shall be submitted to the court of which the person challenged is a member or declared orally before the registrar , at any time but not later than TIME before the start of the hearing in the case of a challenge to a member of the trial court , and not later than three days after service of the summons to appear at the hearing in the case of a challenge to the whole court . In the application the grounds of challenge must be stated precisely and , as far as possible , supported by evidence . "

The control of correspondence of remand prisoners is governed by LAW , which provides :

" ( CARDINAL ) Remand prisoners may ... correspond in writing with all persons , provided that there is no danger that such persons may interfere with the purpose of the detention ...

( CARDINAL ) ... Letters from detainees which give rise to the suspicion that an offence , not being an offence which can be prosecuted only at the request of a person concerned , is being committed by means of them , are always to be stopped , unless they are addressed to a national general representative body , a national court or other national authority , or to ORG .

( CARDINAL ) ... "

Decisions concerning the persons with whom the detainee may correspond and the surveillance of correspondence are the responsibility of the investigating judge . A complaint against such a decision lies with ORG ( Article CARDINAL of LAW ) .

For the purposes of LAW ) , public prosecution offences ( PERSON ) may justify the stopping of a letter , whereas private prosecution offences ( Privatanklagedelikte ) may not . In addition , it follows from ORG judgment of DATE ( see paragraph CARDINAL above ) that such measures may also be justified in the case of offences qualifying for public prosecution with the authorisation of the injured party ( Ermächtigungsdelikte ) , for instance offences committed against officials in the exercise of their duty . In this latter respect LAW provides :

" Where an offence against honour is committed against an official ... during the exercise of his duties ... , the public prosecutor shall , with the authorisation of the injured party and his superior authority , institute proceedings within the time - limit which would otherwise be available to the injured party for the lodging of a request for prosecution . The same shall apply where such an offence against [ an official ] in connection with one of his professional activities is committed in a printed publication , in a broadcast , or in some other manner whereby it becomes accessible to the general public . "


Violation of Art. 6-1;Violation of Art. 6-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

Mr PERSON , a NORP national who was born in DATE , lives in ORG in the GPE département .

ORG On DATE the applicant and his father were summoned to appear before ORG under the direct committal procedure ( LAW see paragraph CARDINAL below ) . They were charged with having used insulting and threatening words and behaviour towards public - service employees - CARDINAL national game and wildlife wardens - on CARDINAL DATE in Fontenai - sur - Orne . This offence is classified as a fifth - class minor offence under LAW , punishable by a term of imprisonment of DATE and by a fine of MONEY ( ORG ) , or by one of these penalties only .

ORG The applicant decided to conduct his own case and his mother went to the police court registry on DATE to consult the case file and procure copies of the documents it contained . In a note that DATE the ORG public prosecutor stated that copies could not be issued to individuals except through a lawyer or an insurance company .

On DATE the applicant and his father went to the registry for the same purpose . In a second note , dated DATE , the public prosecutor informed them that copies of official reports could not be issued to individuals .

ORG At the police court hearing on DATE the applicant and his father argued that the proceedings against them were unlawful . They relied on a breach of LAW ( article CARDINAL ) in that they had been denied access to the criminal file and had been refused copies of the documents from the file .

ORG In a judgment of CARDINAL DATE the police court upheld their submissions and set aside the proceedings against the applicant and his father on the ground that the rights of the defence had been infringed . It declared inadmissible applications by ORG and the CARDINAL game wardens to join the proceedings as civil parties . It gave the following reasons :

Article CARDINAL ( article CARDINAL ) of LAW provides that everyone charged with a criminal offence has the right , among other things , to be informed in detail of the accusation against him , to have adequate time and facilities for the preparation of his defence , and to defend himself in person . In the instant case the public prosecutor ’s office in no way disputed the fact that the defendants were not allowed access to their case file when they requested it prior to the hearing . That the defendants attempted to secure such access is confirmed by CARDINAL notes of CARDINAL and CARDINAL DATE , although these documents refer only to the refusal to hand over copies .

The defendants should have been allowed access to their case file in order to prepare their defence . The value of such access is sufficiently demonstrated by the use legal representatives make of it . No discrimination adversely affecting the rights of the defence can be justified by the fact that a defendant prefers to conduct his own defence . Furthermore , however detailed the inquiry into the facts carried out at the hearing is , the defendant can not be deprived of the opportunity to see and actually to familiarise himself with the documents concerning him .

It follows that the rights of the defence were infringed during the criminal proceedings against Mr PERSON and Mr PERSON and that the proceedings must accordingly be set aside . "

ORG On DATE the public prosecutor ’s office and the civil parties appealed against this judgment .

ORG On DATE a summons was served on the applicant at his home . He did not , however , appear at the hearing in ORG on DATE .

According to him , his mother went to the registry of ORG to obtain information on how to gain access to the case file , but met with the registrar ’s refusal .

ORG In a judgment of DATE , given after proceedings that were adversarial in the case of the applicant ’s father and deemed to have been adversarial in the case of the applicant , ORG reversed the judgment of DATE and refused the application for the proceedings to be set aside for having violated the rights of the defence . It ruled as follows :

PERSON [ the applicant ’s father ] has pleaded that the proceedings should be set aside as they are in breach of the rights of the defence .

He argued that he had not had access to the case file in order to prepare an effective defence and that this constituted a violation of LAW .

However , although LAW ( article CARDINAL ) of that LAW states that everyone charged with a criminal offence has the right , among other things , to be informed in detail of the nature and cause of the accusation against him , the right to have adequate time and facilities for the preparation of his defence and the right to defend himself in person , the LAW does not require that the case file be made available to the applicant himself .

Moreover , PERSON was informed , by means of the summons in due form , of the offences with which he was charged and of the legal provisions relating thereto .

Under these circumstances the objection that the proceedings were vitiated fails . "

Relying on the official report drawn up on DATE by the CARDINAL game wardens and on the statements made by another hunter , ORG fined the applicant and his father ORG CARDINAL,CARDINAL each for insulting the game wardens .

ORG On DATE the applicant lodged an appeal on points of law against the judgment of DATE . In his grounds of appeal , which he drafted himself , he cited LAW ( article CARDINAL ) . His father did not appeal .

ORG On DATE ORG ) dismissed the applicant ’s appeal on the following ground , among others :

" In holding that LAW did not require that the case file be made available to the defendant himself , and that he had been informed , by means of the summons in due form served on him , of the charges against him and the relevant legal provisions , ORG did not breach the provisions of that LAW . "

ORG The relevant Articles of LAW concerning institution of proceedings in the police court and the rules of evidence as regards minor offences are as follows :

" Cases concerning offences within the jurisdiction of the police court shall be brought before it by referral from the investigating authority , by the parties’ voluntary appearance or by the direct committal of the defendant and of the person civilly liable for the offence . "

" Minor offences shall be proved by official reports or , where there are no such reports , or in support thereof , by evidence taken from witnesses .

Save where the law provides otherwise , official reports by law - enforcement officers or their deputies , or by public servants responsible for carrying out certain police duties and authorised by law to draw up reports of minor offences , shall be good evidence in the absence of proof to the contrary .

Proof to the contrary must be established by either written or witness evidence . "

ORG According to LAW , it is only compulsory for a defendant to be represented by a lawyer in ORG ( Article CARDINAL ) . In all other criminal courts the person placed under investigation - Law no . CARDINAL - CARDINAL of DATE reforming criminal procedure substituted the expression " mise en examen " ( placing under judicial investigation ) for " inculpation " ( charging ) - can choose whether or not to be represented by a lawyer .

ORG There are no regulations in LAW governing consultation of the case file or the release of documents to lawyers except in relation to the investigation :

" The case file shall be made available [ to lawyers ] CARDINAL DATE prior to each examination of the person under investigation or each interview with the civil party . Following the first appearance of the person under investigation or the first interview with the party claiming damages the case file shall likewise be made available to lawyers at any time on DATE , in so far as this does not interfere with the smooth running of the investigating judge ’s office . Pursuant to the final paragraph of LAW , the case file shall be made available to the lawyer , in so far as this does not interfere with the smooth running of the investigating judge ’s office , DATE after dispatch of the registered letter or after serving of the statement of charges , where a first appearance has not been made in the interim .

Following the first appearance or the first hearing , the parties’ lawyers may request , at their expense , copies of the documents , or parts of documents , in the case file , exclusively for their own use and subject to a ban on copying . "

" During this period , the case file shall be lodged with the registry of ORG and shall be made available to the accused ’s counsel and to the civil parties . On a written request , they shall receive copies forthwith , at their expense . These copies may not be made public . "

ORG In a judgment of DATE ( PERSON DATE , PERSON ) ORG ( full court ) clarified the scope of LAW , fourth paragraph , of LAW as regards a preliminary inquiry :

" However it is clear from both LAW , paragraph CARDINAL , of LAW , which is not contrary to the provisions of LAW ) already cited , and from LAW of the decree of CARDINAL DATE governing the ORG profession that , although a lawyer is authorised to receive copies of the investigation file and may examine these in the presence of his client in order to prepare his defence , he may not , on the other hand , entrust his client with these documents which he received ` exclusively for his own use’ and which must remain subject to the requirement of confidentiality of the investigation . "

ORG In police court proceedings , there are no particular rules governing consultation of the case file at the registry . However , LAW has CARDINAL ORG governing the release of documents to the parties and to others :

" In proceedings relating to serious crimes or major or minor offences , and without prejudice to the provisions of Articles CARDINAL and D.CARDINAL ( where applicable ) , the following documents may be released to the parties at their expense :

At their request , a copy of the criminal complaint filed by the victim or a third party , ` orders that have become final , judgments and fixed penalty and enforcement orders provided for under Article L. CARDINAL - CARDINAL , paragraph CARDINAL , of the FAC Code’ .

With the authorisation of ORG ( as applicable ) , a copy of any of the other documents on the file , including those relating to an inquiry resulting in a decision to take no further action . "

" In proceedings relating to serious crimes or major or minor offences , no copy of any document other than judgments , final fixed penalty orders and enforcement orders may be released to any person not party to the proceedings without the authorisation of ORG or ORG ( as applicable ) , including those documents relating to an inquiry resulting in a decision to take no further action .

However , in the cases referred to in this LAW and in the previous Article the authorisation of ORG is required where the documents sought have been filed with the court registry or relate to proceedings terminated by a finding that there was no case to answer or to a case which is to be heard in camera .

In the cases referred to in this LAW and the previous Article , where authorisation is withheld , the judicial officer concerned shall give notice of his decision in due form and shall state the reasons for his refusal . "

ORG In a judgment of DATE reproduced by the Government in the annex to their memorial ORG ( full court ) gave a new interpretation of the ORG in question , based on Article CARDINAL para . CARDINAL of the Convention ( article CARDINAL ) , in relation to proceedings in which the case has already been sent for trial :

" Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , according to which only the parties’ lawyers are entitled to receive a copy of the documents contained in the file of a case under investigation , are not applicable to proceedings where the case has already been sent for trial , which are therefore not subject to the rule of confidentiality of the inquiry or investigation laid down in LAW .

Everyone charged with a criminal offence thus has the right , under LAW para . CARDINAL ( article CARDINAL ) of LAW , not to the immediate communication of the documents on the file but to the release , at his expense and , where appropriate , acting through his lawyer , of copies of the documents submitted to the court he has been summoned to appear before .

According to the impugned judgment , PERSON was directly committed before the criminal court for misleading advertising ;

Having refused the assistance of an officially appointed defence counsel and as he had not been authorised by the public prosecutor ’s office to receive a copy of all the evidence in the case file , before putting forward any defence on the merits the defendant raised an objection complaining that the proceedings were vitiated because they were in breach of LAW and asked the trial court to order that he receive a copy of the case file .

The appellate court ’s judgment upheld the lower court ’s decision and dismissed PERSON objection and request , both repeated on appeal . Referring to new grounds and to grounds cited from the earlier decision , it stated that it had not been established that failure to issue copies of the documents on the case file to the defendant constituted an infringement of the rights of the defence where lawyers , successively appointed to act for the defendant who had inspected the case file and obtained a copy of it had suggested the defendant consult it in their presence , an offer the latter had declined . It found that the provisions of the ORG cited ( article CARDINAL ) did not require that the defendant receive a copy of the case file where he could gain access to it through the intermediary of a lawyer . It also stated that the caution observed in issuing copies to the parties could be justified by the ‘ requirements of civil liberties and of ORG .

However , in ruling in this way and given that the relevant provisions of LAW , requiring the authorisation of the public prosecutor ’s office for the release of copies of the documents on the case file to the parties , may not impede the exercise of the rights of the defence , ORG misdirected itself as to the provisions and principles reiterated above .

The judgment should therefore be quashed . "


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

Detained at Unit II of ORG from DATE until DATE , the applicant was finally convicted of aggravated murder and sentenced to DATE of imprisonment on DATE ( case no . CARDINAL ) .

Subsequently he has been detained at FAC . At this prison , he has spent altogether over DATE in various cells of QUANTITY ground surface ( accommodating CARDINAL inmates , i.e. QUANTITY per person ) , DATE in various cells of QUANTITY ground surface ( accommodating CARDINAL inmates , i.e. QUANTITY per person ) , over DATE in a QUANTITY cell with single occupancy , and DATE in a cell of QUANTITY ground surface ( accommodating CARDINAL inmates , i.e. QUANTITY per person ) . In the material period , the average rate of occupancy of FAC was PERCENT ; the national rate was PERCENT in DATE and PERCENT in DATE .

The applicant ’s complaint about the overcrowding addressed to the prosecutorial authorities in charge of the lawfulness of detention was to no avail . In reply to his similar complaint , ORG admitted in its letter of DATE the existence of the problem of overcrowding but pointed out that the prison authorities had no influence on the number of detainees to be held in the penitentiary institutions .