Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

In DATE the applicant was convicted of extortion and aggravated murder and sentenced to DATE imprisonment . On DATE he was transferred to a correctional colony in LOC to serve his sentence .

On DATE the applicant sued the investigator for compensation , claiming that he had been ill - treated to make him confess . In his statement of claim he alleged that on CARDINAL DATE the investigator had beaten him and injured his lips , forehead and ears . The investigator had also threatened to kill him . After he had confessed to the murder , he had been placed in a detention facility . He had applied for medical assistance , which had been refused . On DATE he had been questioned and the questioning had been videotaped . In his statement of claim he asked the court to watch the videotape , in which it could be seen that his lips were cut . He also asked the court to hear his counsel , PERSON , who had seen marks of beatings on his face . He finally indicated that he wanted to give oral submissions and requested to be brought to the hearing .

On DATE the Leningradskiy District Court of GPE rejected the applicant ’s requests to be brought to the hearing and to summon PERSON It stated that domestic law did not give a detainee the right to be brought to a hearing in a civil case . Referring to legal professional privilege , it held that PERSON could not be questioned about the information that had become known to her in the performance of her duties as counsel . It further requested the prosecutor ’s office of LOC to make available the video record of the applicant ’s questioning .

On DATE the prosecutor ’s office of GPE informed the court that the record of the questioning had been erased as unnecessary .

On an unspecified date the prosecutor ’s office of LOC and the local department of ORG made written submissions in support of the respondent .

On DATE the applicant repeated his request to attend the hearing . On DATE the ORG rejected his request , giving the same reasons as before . It added that the applicant was entitled to appoint a representative .

On DATE the ORG heard the investigator , who denied beating the applicant . The applicant was not brought to the hearing .

On DATE the Leningradskiy ORG gave its judgment . It rejected the applicant ’s claim for compensation as unsubstantiated .

On DATE the applicant received the decision of DATE and a notification stating that the hearing before LOC was scheduled for DATE . On DATE the applicant complained to ORG about the belated notification . He also submitted that he did not have a representative and that his personal attendance was important because his claim was based on his personal experience . He asked that a new hearing be scheduled and that he be brought to that hearing .

On DATE the applicant received a copy of the judgment of DATE . In his appeal submissions he complained , in particular , that he had not been brought to the hearing , and about the court ’s refusal to summon PERSON He further complained that , despite his many requests , he had had no opportunity to study the materials submitted by the respondent , or to comment on them .

On DATE the applicant received the transcript of the hearing of DATE and copies of written submissions by the prosecutor ’s office of GPE and the local department of ORG .

On DATE the applicant received the remaining materials from the case file .

On DATE ORG upheld the judgment on appeal . The applicant was not brought to the appeal hearing .

On an unspecified date the administration of the applicant ’s correctional colony applied to a court , asking it to order the applicant ’s transfer to prison for DATE .

On DATE the ORG of LOC granted the request . It held that the applicant had often disrupted the colony regime or infringed colony regulations , and had frequently been placed in a punishment or solitary cell . It concluded from this that the applicant was of an unruly character and was a bad influence on the other inmates .

On DATE the applicant was transferred to prison .

On DATE the ORG quashed the decision on appeal as having no basis in domestic law .

On DATE the applicant was transported back to the colony .

On DATE the applicant sued the judge who had ordered his transfer to prison and ORG of ORG for compensation . He claimed that the judge had unlawfully ordered his transfer to prison and that her unlawful decision had caused him mental suffering for which he should be compensated by ORG .

On DATE ORG declared the claim inadmissible in the final instance . It held that Article CARDINAL of LAW , which provided for compensation for damage caused by unlawful judicial decisions , contained an exhaustive list of cases in which such compensation could be paid . The applicant ’s situation did not fall within the cases specified .

Before DATE the civil procedure was governed by LAW DATE ( “ the old ORG ” ) . On DATE the Code of Civil Procedure of GPE ( “ the ORG ” ) entered into force .

Individuals may appear before the court in person or act through a representative ( LAW of the old ORG and CARDINAL § CARDINAL of the ORG ) . A court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for damage to health ( section CARDINAL § CARDINAL ) .

NORP Parties to the case must be notified of the time and place of court hearings ( LAW ORG and LAW ORG ) . Summons are to be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case ( LAW ORG and LAW ORG ) . If a party to the case fails to appear and there is no evidence that the party has been duly summoned , the hearing must be adjourned ( LAW ORG and LAW ORG ) .

A court may hold a session outside the court - house if , for instance , it is necessary to examine evidence which can not be brought to the court - house ( Articles CARDINAL and CARDINAL of the old ORG and ORG CARDINAL and CARDINAL of the ORG ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( Article CARDINAL ) . The Code does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has examined complaints by convicted persons whose requests for leave to appear in civil proceedings have been refused by courts . It has consistently declared those complaints inadmissible , finding that the contested provisions of LAW and LAW do not , as such , restrict the convicted person ’s access to court . It has emphasised nonetheless that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving his sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant ’s submissions or to take any other procedural steps ( decisions CARDINAL of DATE , CARDINAL of DATE , and CARDINAL of DATE ) .

Parties to civil proceedings are entitled to study the case file and make copies of documents , submit evidence , and ask questions of the other party and the witnesses ( LAW ORG and LAW ORG ) .

NORP Parties must submit evidence in support of their submissions . If they are unable to obtain a certain piece of evidence , the court may , at their request , order that the person , organisation or State body in possession of that piece of evidence make it available to the court ( Articles CARDINAL , CARDINAL and CARDINAL of the old ORG and LAW ORG ) .

Each party must send the other party a copy of its submissions and supporting evidence ( LAW ORG ) . All evidence must be examined by the court at the hearing in the presence of the parties . The parties must be provided with copies ( Articles CARDINAL and CARDINAL of the old ORG , ORG CARDINAL of the ORG ) .

NORP Parties may ask the court to examine witnesses . They must explain to the court which relevant facts that witness may confirm . The court then decides whether that witness should be summoned to testify ( Articles QUANTITY and CARDINAL § CARDINAL ( CARDINAL ) of the old ORG and LAW CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of the ORG ) . Counsel in criminal , civil or administrative proceedings may not be questioned about the circumstances that have become known to them as a result of the performance of their duties ( LAW ( CARDINAL ) of the old ORG and LAW ( CARDINAL ) of the ORG ) .

The Civil Code provides that damage inflicted on the person or property of an individual shall be reimbursed in full by the person who inflicted the damage ( Article CARDINAL § CARDINAL ) .

Damage caused through unlawful conviction , unlawful prosecution , unlawful placement in custody or order not to leave the place of residence , unlawful administrative arrest or correctional work , shall be compensated by the federal or regional treasury , irrespective of any fault by the judges or law - enforcement officials ( Article CARDINAL § CARDINAL of LAW ) . The federal or regional treasury shall also be liable for damage sustained by an individual as part of the administration of justice , provided that the judge ’s guilt has been established in a final criminal conviction ( LAW § CARDINAL ) .

By a ruling of DATE , ORG provided an interpretation of Article CARDINAL § CARDINAL of LAW . It held that a judge ’s criminal conviction was a necessary element of a claim for damages on account of an unlawful judicial decision issued by that judge in the context of civil proceedings . It reasoned as follows :

“ CARDINAL ... This special precondition for State liability for damage caused as part of the administration of justice is justified by the criteria for the activities of the judiciary , established by LAW and detailed in the legal provisions on [ civil ] procedure ( including adversarial proceedings , wide margin of appreciation of the judges , and so on ) , and by the existence of a special procedure for review of judicial decisions . Review of judicial decisions , that is assessment of their lawfulness and justification , must be carried out through special procedures established by law : appeal , cassation and supervisory review proceedings . Review of a judicial decision in separate tort proceedings would have amounted to an additional review of its lawfulness and justification ...

This is unacceptable ... because it would have led to a situation where a party to judicial proceedings which considers that it has been a victim of unlawful actions by a judge would have recourse not only to appeal proceedings , but also to a tort action , and the judges would have had to prove each time absence of fault on their part . This would have undermined the existing system of review of judicial decisions by higher courts , which is intrinsic to the judiciary and is established by law .

Administration of justice is a special type of ORG power . When applying a general legal rule to the circumstances of a given case , a judge provides an interpretation of the rule , takes a decision within the scope of his ( at times wide ) margin of appreciation provided by the law and , often , assesses the circumstances without the benefit of sufficient information ( sometimes concealed from him ) ...

Article CARDINAL § CARDINAL not only excludes a presumption of fault on the [ judge ’s ] part , but also requires the establishment of the judge ’s guilt in a criminal judgment as an additional condition of ORG liability . Thus , Article CARDINAL § CARDINAL links State liability to a criminal act by a judge , which is premeditated ( pronouncement of a deliberately unlawful conviction , judgment or another decision , an offence under LAW of GPE ) or negligent ( improper exercise of his powers by a judge as a result of a negligent or careless attitude to his duties , which results in a substantial breach of ORG rights or legitimate interests , an offence under LAW of GPE ) .

It follows from Article CARDINAL § CARDINAL of LAW , taken together with its LAW and the above - mentioned and other provisions of LAW on the basis of which a judge may be held criminally liable , that the ORG is liable for damage in all cases where it has been caused by a criminal act committed by a judge as part of judicial proceedings .

The specific nature of the disputed provision which provided for an exception to the general rules governing compensation for damage warrants a conclusion that the term “ administration of justice ” does not cover judicial proceedings in their entirety , but only extends to judicial acts touching upon the merits of a case ... ”

The Constitutional Court further held that other judicial acts , mainly those of a procedural nature , fell outside the scope of the notion of “ administration of justice ” . State liability for damage caused by such procedural acts or failures to act , such as a breach of the reasonable length of court proceedings , could arise even in the absence of a final criminal conviction of a judge , if the fault of the judge has been established in civil proceedings . An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of LAW . ORG held that ORG should legislate on the grounds and procedure for compensation by the ORG for damage caused by unlawful acts or failures to act on the part of a court or a judge in such cases , and should determine territorial and subject - matter jurisdiction over such claims .


Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

On DATE a mother contacted the police on account of a suspicion that her child NORP , a girl born in DATE , had DATE been sexually abused by a relative , the applicant . On DATE the police took a statement from the mother . On DATE the police questioned the applicant . NORP was interviewed by the police on DATE in the presence of a social worker . No other person was present at the interview , nor was it recorded .

The applicant was subsequently charged before the GPE ORG ( käräjäoikeus , tingsrätten ) with having sexually abused NORP , who was DATE at the time , by touching her sexual organs . The applicant denied the charge . The court received testimony from NORP ’s mother and the applicant as well as CARDINAL witnesses who testified on the applicant ’s behalf . The prosecutor submitted a video recording of CARDINAL interviews with NORP conducted by a medical expert , PERSON , on CARDINAL and DATE . PERSON was heard as a witness in this connection . The prosecutor also submitted a medical statement containing an assessment of the interviews in question and another medical certificate containing findings relating to NORP ’s physical examination . The prosecutor further produced a statement given on DATE by a rehabilitation centre for intellectually disabled persons . From the statement it transpired that NORP had the intelligence level of a child aged DATE . Written evidence of NORP ’s need for professional help was submitted on her behalf .

On DATE ORG convicted the applicant of sexual abuse of a child and sentenced him to a suspended term of CARDINAL months’ imprisonment . As evidence , the court relied firstly on the testimony of NORP ’s mother , which it found more credible than that of the applicant and his witnesses and secondly , on the video recording along with PERSON ’s testimony . The court noted that NORP had given similar accounts of the events to her mother and to H. It further noted that during the interviews NORP had talked to PERSON openly and with confidence , but her behaviour had clearly changed when the issue of the alleged abuse had been broached . NORP had , nevertheless , been able to give an account of the events in a rather versatile and detailed manner . The recording gave the court no reason to suspect that NORP had been repeating some other person ’s words or that she had imagined the events .

The applicant appealed against the judgment to ORG ( hovioikeus , hovrätten ) , arguing , inter alia , that ORG should not have decided the case without hearing NORP in person . He had not been given the opportunity to put questions to NORP at any point of the proceedings . Nor had he been given an opportunity to watch the video recording of her interviews before the main hearing , yet the recording had been an essential part of the evidence leading to his conviction . The applicant requested that ORG hold an oral hearing and that NORP be heard in person .

On DATE ORG refused the applicant ’s request to hear NORP in person as it might be detrimental to her , taking into account her level of development and the nature of the issue in question . The court relied on the principle contained in section QUANTITY ) of the LAW on ORG ( laki oikeudenkäynnin julkisuudesta , lag om offentlighet vid rättegång , Act No . CARDINAL/CARDINAL ) , which provided that a person below DATE could not attend a hearing if the court found that this could be detrimental to him or her , and to section CARDINAL(CARDINAL ) of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lag angående vårdnad om barn och umgängesrätt , Act No . CARDINAL/CARDINAL ) , which provided that a child could be heard in court only if it was clear that this would not be detrimental to him or her . This decision was not subject to separate appeal .

In the subsequent oral hearing , ORG was presented with the same evidence as had been before ORG , with the addition of CARDINAL photographs and the floor plan of the applicant ’s apartment . On DATE the court upheld the lower court ’s judgment finding no reason to deviate from its assessment of the evidence .

The applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) maintaining , inter alia , that his Convention right to examine witnesses against him had been breached . He requested , inter alia , that the court refer the case back to the lower courts for re - examination and that he be granted an opportunity to put questions to NORP , either in an oral hearing or by using other arrangements . In the alternative , the applicant requested that an oral hearing be held in ORG and that testimony be obtained from the applicant and the CARDINAL witnesses on his behalf .

On DATE ORG refused leave to appeal .

NORP The pre - trial investigation

The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; Act No . DATE ) provides that when questioned during a pre - trial investigation a child must be treated with due respect having regard to his or her age and level of development . Where possible , the interview should be carried out by a police officer acquainted with that task . If need be , a doctor or an expert must be consulted before the interview ( LAW ) .

LAW ( esitutkintalaki , förundersökningslagen , Act No . CARDINAL/CARDINAL ) provides that the investigator may permit a party and his counsel to be present during the questioning of another party or witness , provided this does not hinder the investigation of the offence ( section CARDINAL(CARDINAL ) , Act no . CARDINAL/CARDINAL ) . A party and his or her counsel may , with the permission of the investigator , put questions to the person being questioned in order to clear up the case . The investigator may decide that the questions are to be put through him or her . A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times as well ( section CARDINAL , Act No . CARDINAL/CARDINAL ) .

As of DATE , FAC provides also that the questioning of a victim or a witness ( from now on referred to as a witness ) must be recorded on videotape , or by using other comparable audio - visual means of recording , if there is an intention to use the statement given in the interview as evidence in court proceedings , and where it is not possible to hear the witness in person , due to his or her young age or disturbed mental state , without causing him or her harm . The special requirements set by the level of that person ’s development for the methods used , for the number of participating persons , and for other conditions , must be taken into account . The person in charge of the investigation may also allow other authorities , under supervision of the investigator , to put questions to the witness . The suspect must be provided with an opportunity to put questions to the witness . The suspect may also put the questions through legal counsel or another representative . However , the investigator may order that the questions be put through his or her intermediary ( section LAW No . CARDINAL/CARDINAL ) .

B. The receipt of evidence in court

At the time of the proceedings in question , apart from the leave to appeal proceedings in ORG , there were no legal provisions concerning the use as evidence of a video recording of testimony given by a child during the pre - trial investigation .

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) lays down the applicable rules on receiving testimony . The relevant provisions at the time of the proceedings in question , as regarded the proceedings in the lower courts , provided as follows .

A statement included in a pre - trial investigation report or another document , or a statement recorded by other means , may , as a rule , not be admitted as evidence in court . The court may , exceptionally , admit such a statement as evidence , if the witness in question can not be questioned before the court ( LAW , sections CARDINAL(CARDINAL)(CARDINAL ) and ORG ) , Act No . CARDINAL ) .

If a person called as a witness is DATE , is mentally ill or mentally retarded , or his or her mental capacities have otherwise been impaired , the court shall , taking into consideration the circumstances , assess whether or not he or she may be heard as a witness ( LAW , LAW No . DATE ) .

The Code of Judicial Procedure was amended with effect from DATE .

According to the current provisions , the testimony of a person DATE , or a mentally disturbed person , recorded on audio or videotape during the pre - trial investigation , may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , section CARDINAL ) , Act No . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( No . CARDINAL/CARDINAL ) , this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to , inter alia , a child and on the importance of respecting the rights of the defence .

As to hearing a child under DATE , or a mentally disturbed person , LAW , section CARDINAL ( Act No . DATE ) provides that he or she may be heard as a witness , or for the purpose of obtaining evidence , if the court finds it appropriate , and if the hearing in person is of significant relevance for the establishment of the facts of the case , and the hearing is not likely to cause such suffering or other harm as could be detrimental to the person concerned ( from now on referred to as the witness ) or to his or her development . Where necessary , the court shall designate a support person for the witness . The witness shall be questioned by the court , unless it finds particular reason to entrust the questioning to the parties . The parties shall be provided with an opportunity to put questions to the witness through the intermediary of the court or , if the court finds it appropriate , directly to the witness . Where necessary , the hearing may take place on LOC other than the court room .


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

On DATE , in the middle of the night , the applicant and his friend stole a car and used it in a burglary . During their escape from the crime scene at high speed the applicant , who was under the influence of alcohol and drugs , shunted the car of the security guard who was trying to stop them . Some time later the police arrived with CARDINAL vehicles and tried to stop the applicant by shunting his car off the road , CARDINAL vehicle hitting the car sideways and one at the rear . The applicant tried to escape by driving at the police cars from the front and behind . When the applicant ’s car became stuck in bushes , police officer GPE stepped out of his car , which was in front of the applicant ’s car , and started to approach him on foot , moving towards the front of the car . When he was QUANTITY from the applicant ’s car , the applicant managed to free his car from the bushes and drove suddenly towards PERSON quickly side - stepped in order not to be run over and fired a total of CARDINAL shots at the car in an attempt to stop the applicant . CARDINAL of the shots hit the upper edge of the front wheel on the driver ’s side , and the last three shots were fired at the side of the vehicle as it passed . CARDINAL of these shots hit the applicant in the back of the shoulder , making him lose control of the car . The car hit first the police car , then a nearby building . Initially , the applicant suffered from varying degrees of muscular weakness on his left side but he quickly regained mobility and later made a full recovery . His most recent medical check - up was in DATE .

During the investigation of the shooting , a reconstruction of the events was organised , based on sound recordings . In the context of the investigation , all the persons involved in the incident as well as some tactical and operational experts were questioned .

On DATE the GPE ORG ( käräjäoikeus , tingsrätten ) found GPE guilty of negligent breach of official duty and of causing bodily harm . He was sentenced to DATE - fines , totalling ORG CARDINAL,CARDINAL . The applicant was convicted of violent resistance to a civil servant and a person upholding order , stealing a vehicle , driving under the influence of alcohol and without a valid licence , theft and aggravated endangering of road safety . He was sentenced to imprisonment of DATE and DATE and ordered to pay substantial to several parties .

The court noted that GPE had been in a situation which he could have perceived as dangerous for himself and for others and that he had only had approximately TIME in which to react . He had known that the applicant had earlier driven at QUANTITY / h and he had seen the applicant shunt the police vehicles violently with his car when trying to escape . ORG intention , after the applicant ’s car had become stuck in the bushes , had been to force the applicant out of the car but as the events developed very suddenly , he had acted instinctively and in self - defence . The court found that as PERSON had perceived the situation as being one of self - defence , the use of firearms had been justified . However , as the applicant had been injured , GPE was convicted of negligent breach of official duty and of causing bodily harm .

On DATE ORG ( hovioikeus , hovrätten ) , after having held an oral hearing , acquitted GPE of all charges . The court found that even though , according to the internal rules , the stopping of a vehicle should be carried out by methods other than by using firearms , that rule did not cover situations qualifying as self - defence . Although in theory the policemen may have had other less drastic means available to them to stop the applicant’

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

LAW , section CARDINAL , of LAW ( rikoslaki , strafflagen , Act no . CARDINAL/CARDINAL ) provides about self - defence the following :

“ An act that is necessary to defend against an ongoing or imminent unlawful attack is lawful as self - defence , unless the act manifestly exceeds what in an overall assessment is to be deemed justifiable , taking into account the nature and strength of the attack , the identity of the defender and the attacker and the other circumstances .

However , if the defence exceeds the limits of self - defence ( excessive self - defence ) , the perpetrator is exempt from criminal liability if the circumstances were such that the perpetrator could not reasonably have been expected to have acted otherwise , taking into account the dangerousness and sudden nature of the attack and the situation also otherwise . ”

LAW , section CARDINAL , of the same LAW provides the following :

“ Separate provisions in an Act apply to the right to use forcible measures in the performance of official functions or for another comparable reason and to the right to assist persons appointed to maintain order .

In the use of forcible measures , recourse may be had only to such measures necessary to perform the function and that can be deemed justifiable when assessed as a whole , taking into account the importance and urgent nature of the task , the dangerousness of the resistance and the situation also otherwise .

If the limits provided in subsection CARDINAL have been exceeded in the use of forcible measures , the perpetrator is nonetheless free of criminal liability if there are very weighty grounds to deem that the perpetrator could not reasonably have been expected to have acted otherwise , taking into account his or her position and training , the importance of the function and the unexpected nature of the situation . ”


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

Mr PERSON was born in DATE and lives in GPE . At the material time , he was a lieutenant – colonel in the infantry and attached to the Spanish Legion .

By an order ( auto de procesamiento ) of CARDINAL DATE investigating judge no . CARDINAL ( juez togado militar central ) at ORG ( tribunal militar central ) charged the applicant with having set up , to the detriment of ORG and contrary to LAW , an unregulated private fund that was not subject to tax or audit by the tax authorities .

On the applicant ’s appeal , ORG set aside the order on DATE and then on DATE held that there was no case to answer .

The public prosecutor 's office appealed on points of law . In a judgment of DATE ORG ) allowed the appeal and quashed ORG decision that there was no case to answer , holding that the facts of the case “ could be considered , solely for the purposes of the investigation ... and without prejudice to whatever subsequent classification might be adopted , to constitute an offence against ORG under LAW ” . ORG added , however , that that conclusion , while sufficient to justify its quashing the impugned decision , was not to influence the courts below in their decisions on the merits .

The applicant ’s constitutional appeal ( recurso de amparo ) against the judgment of DATE was dismissed by ORG on DATE .

Consequently , on CARDINAL DATE the investigating judge issued a fresh order in which he charged the applicant with the same offence .

On CARDINAL DATE the applicant appealed against that second order . Repeating the submissions he had made in his first appeal to ORG , the applicant contended in particular that the decisions in his case had been inconsistent , despite the fact that they had been based on the same facts and there was no new evidence . He said that the decision of DATE had been final ( see paragraph CARDINAL above ) and submitted that by charging him a second time contrary thereto the investigating judge had acted arbitrarily , as had ORG in quashing ORG decision that there was no case to answer ( see paragraph CARDINAL above ) without considering the merits .

On DATE ORG dismissed the applicant ’s appeal and upheld the order of DATE There were QUANTITY military judges ( vocales togados generales militares ) in the chamber that heard the appeal , including ORG , the president ( auditor presidente general consejero togado ) , and ORG , a judge ( vocal togado general auditor ) . In its decision , the chamber held in particular :

“ ... It suffices to read [ ORG judgment of DATE ] to infer that it found , in the ‘ as to the law’ section , that there was sufficient evidence to allow of the conclusion that a military offence has been committed , that there were no grounds in law for invalidating the classification ( tipicidad ) of the offence adopted in the original proceedings and insufficient grounds for setting aside [ the charges ] and disregarding the prima facie evidence of the commission of an offence ... on which [ the charges ] had been based . ”

In the light of ORG judgment and the constitutive elements of the offence under LAW of LAW , the chamber held that the order appealed against satisfied the conditions as to validity laid down by Organic Law no . DATE and that the investigating judge ’s findings on the facts of the case had been reasonable and not arbitrary .

On DATE the CARDINAL military judges sitting in ORG ( see paragraph CARDINAL above ) made an order ( providencia ) setting the applicant ’s case down for trial on DATE It was also indicated in the order that the names of the CARDINAL officers ( vocales militares ) who were to complete the trial chamber would be drawn by lot ( insaculación ) , it being a statutory requirement that the chamber be mixed ( escabinado ) , comprising QUANTITY military judges ( vocales togados ) and CARDINAL officers .

The order was served on the applicant ’s lawyer that DATE and on CARDINAL DATE he was given the name of the CARDINAL officers on the bench .

On DATE the chamber of ORG sitting in the applicant ’s case found him guilty of the offence as charged and sentenced him to DATE imprisonment . The chamber was presided over by ORG and included the military judge , ORG , who acted as the reporting judge .

The applicant appealed on points of law to ORG . He maintained that the chamber that had tried him could not be considered impartial as CARDINAL of the judges , ORG and ORG , had previously sat in the chamber that had heard his appeal against the order of DATE by which he had been charged .

On DATE ORG ) dismissed the appeal . In so deciding , it found in particular that the applicant had failed to challenge the judges whom he accused of bias even though he had had an opportunity to do so , his lawyer having been informed of the composition of the chamber when it was constituted and before the trial began on DATE ( see paragraphs CARDINAL–CARDINAL below ) .

Nevertheless , ORG considered the merits of the argument that ORG had not been impartial . It held that the decision to dismiss the applicant ’s appeal could not be regarded as being part of the investigation of the case . In its reasons for dismissing the appeal , ORG had confined itself to noting that ORG did not disagree with the investigating judge ’s finding that there was evidence of guilt . ORG took the view that the dismissal of the appeal accordingly could not be considered to have been an investigative measure capable of undermining the objective impartiality of the chamber that had ruled on the merits of the case .

The applicant then lodged an amparo appeal with ORG relying , inter alia , on his right to a fair hearing by an independent and impartial tribunal , as guaranteed by LAW ( see paragraph CARDINAL below ) .

On DATE ORG , entirely agreeing with the reasoning of ORG ) , dismissed the applicant ’s appeal .

DATE LAW provides :

“ CARDINAL . Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests ; in no circumstances may there be any denial of defence rights .

Likewise , everyone has the right to [ be heard by ] an ordinary judge determined beforehand by law ; everyone has the right to defend himself and to be assisted by a lawyer , to be informed of the charge against him , to have a trial in public without unreasonable delay and attended by all the safeguards , to adduce the evidence relevant to his defence , not to incriminate himself or to admit guilt and to be presumed innocent ... ”

The relevant provisions of Organic Law no . DATE of CARDINAL DATE concerning grounds for challenge read as follows :

“ Judges , presidents and members of military tribunals ... shall not take part in judicial proceedings if any of the grounds set out in section CARDINAL applies ; if they do take part [ they ] may be challenged . ”

“ [ A judge ] shall withdraw or , if he does not do so , may be challenged on any of the following grounds :

if he has acted as counsel for or has represented CARDINAL of the parties , has as a lawyer drawn up a report in the proceedings or similar proceedings , or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness ;

if he is or has been a complainant against or accuser of CARDINAL of the parties ; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection ;

if he has taken part in the same proceedings in another capacity . ”

If the tribunal or the judge considers that there is no justification for withdrawal , it or he shall order the person who has offered to withdraw to continue in the case , without prejudice to the parties’ right of challenge .

No appeal shall lie against such an order . ”

Under section QUANTITY challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event DATE before the hearing unless the ground comes to light subsequently .

As regards orders by which an accused is charged ( auto de procesamiento ) and appeals against such orders , LAW provides :

“ Where there is reasonable evidence of guilt on the part of CARDINAL or more identified persons , the investigating judge shall charge them ...

The charges shall be brought by an order ( auto ) , in which shall be mentioned the punishable acts the accused is alleged to have committed , the presumed offence constituted by those acts and the [ relevant ] statutory provisions ... followed by the charges and the measures relating to the accused ’s release or detention pending trial ... ”

“ ... The accused and the other parties may lodge an appeal , which shall have no suspensive effect , against the order by which the accused is charged within DATE after [ its ] service ... ”

“ ... If the appeal against the order by which the accused is charged is allowed ... , an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include on the case file or which were referred to in the initial pleading on appeal . ”

In a judgment of CARDINAL DATE ORG decided a case in which the trial court had been presided over by a judge who had previously made the order by which the accused had been charged . ORG held :

“ ... Consequently , if a judge , after sitting in the court that made the order by which the accused was charged DATE which order undoubtedly presupposes an assessment , albeit a provisional one , of the issue of guilt – and , in order to do so , having earlier had to hear the accused or thoroughly examine the [ result of the ] investigative steps taken in order provisionally to assess whether there was criminal liability , subsequently sits in a court that has to hear and decide the merits of the same case ... , it is [ legitimate ] to consider that [ the person ] charged and later tried by [ that judge ] may be concerned that his case will be considered and tried without the maximum guarantees of impartiality ... ”


Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , born in DATE , is disabled in that he is blind in CARDINAL eye and his sight in the other is severely impaired .

On DATE at TIME the applicant , with the dog he uses as a guide dog , went to ORG no . CARDINAL to check his post - office boxes . He was accompanied by PERSON The applicant 's post - office boxes had been opened and were empty . The applicant complained to the post - office clerks who subsequently called the police , alleging that the applicant was drunk and behaving offensively .

On DATE , at TIME , the applicant was taken by police officers to the PERSON sobering - up centre ( PERSON ) and detained there for TIME . The staff of the centre filled out a form recording the applicant 's stay .

The form was pre - printed . It bore the number CARDINAL/CARDINAL and was entitled “ Card recording a stay in a sobering - up centre ” . It had been filled out by hand . After details of the applicant 's identity , the form was divided into CARDINAL sections . The first section , entitled “ Request for admission ” , indicated that the applicant had arrived at the centre at TIME The reason for the arrest was partly typed and partly handwritten . The operative part of section CARDINAL(CARDINAL ) of the PERSON of DATE ( cited below in paragraph CARDINAL ) was typed in . The handwritten note read :

“ [ The applicant ] made a row at the post office in GPE . ”

The second section , entitled “ Doctor 's assessment ” and signed by a doctor , read :

“ CARDINAL . Anamnesis :

( CARDINAL ) Circumstances , kind and quantity of alcohol drunk , facts surrounding intoxication : [ handwriting ] evident smell of alcohol DATE refused to take a breath test

Examination of the person brought in :

( CARDINAL ) Behaviour : lucid ; unconscious ; somnolent ; talkative ; calm ; rowdy ; reticent ; composed [ the words “ lucid ” and “ talkative ” were underlined by hand ]

( CARDINAL ) Mood : cheerful ; depressed , average ; excited [ the word “ average ” was underlined by hand ]

( CARDINAL ) Walk : steady ; unsteady ; lack of balance [ the word “ unsteady ” was underlined by hand ]

( CARDINAL ) Speech : clear ; blurred ; mumbling [ the word “ blurred ” was underlined by hand ]

( CARDINAL ) Traces of vomit : visible ; invisible [ the word “ invisible ” was underlined by hand ]

( CARDINAL ) Pulse : regular ; irregular ; strong ; weak [ the words “ regular ” and “ strong ” were underlined by hand ]

( CARDINAL ) Heart : regular beat ; irregular beat ; clear tones ; unclear [ the words “ regular beat ” and “ clear tones ” were underlined by hand ]

( CARDINAL) Pupils : wide ; normal ; abnormal ; narrow ; slow to react ; no reaction [ the word “ normal ” was underlined by hand ]

( CARDINAL ) Skin : pale ; red ; normal supply of blood ; blue [ the words “ normal supply of blood ” were underlined by hand ]

( CARDINAL ) Lungs : [ illegible handwriting ]

( CARDINAL ) State of abdominal cavity : [ handwriting ] abdomen [ illegible adjective ]

( CARDINAL ) Injuries : [ handwriting ] none

( CARDINAL ) Other ailments : [ handwriting ] sight seriously impaired

( CARDINAL ) Description of the state of the person examined : [ handwriting ] state of moderate intoxication

[ Print ] As a result of the examination I find that the person brought in :

( CARDINAL ) is in a state of intoxication justifying keeping him in a sobering - up centre for [ handwriting ] CARDINAL [ print ] TIME [ that entry was underlined by hand ]

( CARDINAL ) should be taken to a public health - care establishment [ not selected ]

( CARDINAL ) should not be placed in a sobering - up centre [ not selected ] ”

The subsequent sections were entitled “ III . Decision of the head of the centre / shift ” and “ IV . Objects to be kept in the centre 's custody ” . This section listed the objects taken from the applicant as follows :

“ ... identity card [ no . ] DB CARDINAL ; [ illegible description of other documents ] ; CARDINAL [ old ] MONEY ( PLZ ) ; ORG watch [ made of ] golden metal ; tear - gas gun ; [ illegible description of other items ] ; keys ( CARDINAL ) ; purse ; jacket ; shirt ; trousers ; belt ; shoes . ”

Section V , entitled “ Alcohol taken from [ the person concerned ] ” , contained no entry . Section VI , entitled “ Stay in the sobering - up centre ” , contained a list of the measures which could be applied to an intoxicated person ( they included administering medicines , a warm or cold bath , solitary confinement , physical restraint by means of belts or a strait - jacket ) and a description of his behaviour . The applicant 's behaviour , mental and physical state were assessed as “ good ” . The last section , “ VII . Release from the sobering - up centre ” , recorded that after TIME the applicant had been assessed by the doctor as “ sober ” and released at TIME A handwritten note indicated that the applicant had refused to sign the card .

On DATE the applicant requested ORG ) to institute criminal proceedings against the police officers who had arrested him on DATE and against the staff of the PERSON sobering - up centre . He alleged that the policemen had beaten him and complained about the behaviour of the staff of the centre .

On DATE the applicant sued the ORG in ORG ( Sąd Wojewódzki ) , seeking compensation “ for unlawful attacks by agents of the ORG on CARDINAL DATE and theft of personal possessions ” . The court considered that the applicant 's claim should be examined as a claim for compensation for manifestly unjustified arrest , under LAW .

On DATE ORG dismissed the claim , finding that the applicant 's arrest had been justified . That decision reads as follows :

“ On the basis of [ the applicant 's ] testimony , written information from ORG and the [ materials ] contained in file no . CARDINAL DS CARDINAL/CARDINAL of ORG , that is , the detention form ... no . CARDINAL containing the request for admission , we find that on DATE [ the applicant ] , being under the influence of alcohol , caused a disturbance of public order [ zakłócił porządek publiczny ] in ORG no . CARDINAL ... in GPE . The police intervened at the request of the postal clerks . Since the arrestee smelt of alcohol , he was taken to the sobering - up centre , where , following a medical examination , he was assessed as being ' moderately intoxicated ' and admitted .

The above facts indicate that [ the applicant 's ] arrest was justified . There is therefore no basis for awarding him compensation under the provisions of LAW of LAW . ”

On DATE FAC , on suspicion that offences of assault , theft and infringement of the applicant 's personal rights had been committed , opened an investigation relating to the applicant 's complaint of DATE .

On DATE the applicant appealed against the decision of ORG of DATE . He argued that this decision was not based on any sound evidence , but only on the statements of the policemen . He further stated that he had been assaulted by the policemen and that his personal belongings had been stolen . The applicant relied on Articles CARDINAL , CARDINAL § DATE and CARDINAL of the Convention .

On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal . The reasons for its decision read :

“ The [ applicant 's ] appeal is not justified . Contrary to his submissions , on the material date , that is , on DATE [ the applicant ] was under the influence of alcohol ; his state was described as ' moderate intoxication ' . While in that state , he went to ORG no . DATE , where he disturbed public order . Employees at that office called the police ... [ T]he policemen , finding that the applicant smelt of alcohol , took him to the sobering - up centre . As a result of the [ medical ] examination it was found that he was in a state of ' moderate intoxication ' and detained until he sobered up . The applicant refused to take a breath test .

The [ applicant 's belongings ] were taken from him in the presence of the policemen and placed in the centre 's custody . ... In that connection it must be said that the policemen did not rob the applicant . The policemen 's intervention and the placing of the applicant in the sobering - up centre were justified .

[ We ] can not therefore share [ the applicant 's ] view that the policemen committed robbery and that the applicant was arrested and placed in the sobering - up centre groundlessly . ”

On DATE FAC discontinued the investigation opened at the applicant 's request . However , on DATE ORG ( Prokurator Wojewódzki ) , upon the applicant 's appeal , quashed this decision and ordered a supplementary investigation .

On DATE a policeman from the ORG police heard evidence from PERSON , who had witnessed the events of CARDINAL DATE at the post office . The relevant part of the latter 's testimony read :

“ I have known [ the applicant ] since DATE but we do not have regular contact and do not meet frequently . DATE , on a date which I can not [ now ] specify , I met [ the applicant ] in PERSON [ a district of GPE ] . We went together to an optician and , then , to the post office . He did not tell me why he was going to the post office . He had his dog with him and , since no dogs were permitted to enter the office , I remained outside the building , holding the dog on the leash [ at the applicant 's request ] . [ The applicant ] went into the building . After some time he came back , in a state of agitation , and said that either his post - office boxes had not been locked [ by the postal clerks ] or someone had broken into them . He immediately went back into the office . Out of curiosity , I followed him with the dog . Immediately afterwards , CARDINAL policemen entered the building and approached [ the applicant ] . He told me to get the dog out of the building . At the same time , CARDINAL of the policemen approached me and checked my identity card . I then left the building . When I was standing outside , I saw the policemen taking [ the applicant ] out of the building , escorting him to a patrol car and leaving . In my view , [ the applicant ] remained calm throughout this incident ; therefore , I do not know why he was taken away by the policemen . I did not see the policemen hitting him while escorting him ; they were holding him with their hands . I can not recall whether or not [ the applicant ] told the policemen that the dog I was holding on the leash was his ... ”

On DATE the ORG police discontinued the investigation , finding that no offence had been committed . The relevant parts of the reasons for the decision read :

“ Accordingly , evidence was heard from the policemen [ involved in the incident of CARDINAL DATE ] . They stated that [ the applicant ] had been brought to the [ PERSON ] sobering - up centre in connection with a row made by him and his state of intoxication . They did not hit him ; they merely kept hold of him while taking him to a patrol car and putting him inside . They stated that [ the applicant ] had not had a dog with him and that , inside the post office , there was a man holding a dog [ on a leash ] , namely PERSON However , nobody knew that this dog belonged to [ the applicant ] . ... A doctor from the [ PERSON ] sobering - up centre confirmed that [ the applicant ] had been intoxicated ... ”

This decision was confirmed by FAC on DATE .

On DATE PERSON , having been acquainted with the reasons for the above decision , made a statement before a notary . The relevant part of this statement read :

“ I , PERSON , hereby declare before a notary that , after being acquainted with [ the decision to discontinue the investigation ] , I disagree with the description [ given therein ] of events which I witnessed .

When evidence was taken from me , I entirely denied the insinuation that [ the applicant ] had been drunk ; ... I spent TIME with him prior to the incident and I [ still ] totally exclude such a possibility .

[ The applicant ] did not make a row at the post office ; he raised his voice merely in order to be heard above the clamour being made by a large number of clients ... CARDINAL persons queuing at the post office counters at the same time . ... He loudly demanded to speak to the postmaster in order to obtain an explanation of why his post - office boxes had been unlocked ... and [ why ] CARDINAL of these boxes had been broken . ... His dog remained outside because the building was overcrowded so the dog could not have been inside ... as the policemen claimed ; they [ simply ] lied . The postmaster did not come to see [ the applicant ] ; instead , the policemen appeared and demanded that we show them our identity cards . I gave them my card and [ the applicant ] , calmly , gave his . They checked the cards thoroughly and made notes in their notebooks . By checking [ the applicant 's ] documents they must have learnt that he was an invalid [ i.e. that his sight was severely impaired ] ... They gave me back my identity card but [ the applicant ] was taken to a patrol car and taken away . During his arrest [ the applicant ] behaved in a calm manner ; he only requested the policemen either to let him take his dog with him or to ensure [ that it would be taken by someone else ] . I witnessed this . They did not respond to his request and left ... ”

On DATE FAC reopened , ex officio , the investigation into the events of CARDINAL DATE but discontinued it on DATE , finding that no offence had been committed .

The PERSON of DATE on ORG in GPE and the Fight against Alcoholism ( LOC o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi – “ the PERSON of DATE ” ) lays down measures which may be applied in respect of CARDINAL categories of persons : those “ addicted to alcohol ” and those who are “ intoxicated ” . Sections CARDINAL to CARDINAL deal with voluntary or compulsory treatment of “ persons addicted to alcohol ” , whereas sections DATE and CARDINAL set out measures which may be applied to “ intoxicated persons ” .

Pursuant to section CARDINAL of the PERSON , sobering - up centres shall be set up and managed by the authorities of municipalities with CARDINAL inhabitants .

Section CARDINAL of the Law ( in the version applicable at the material time ) provided , in its relevant part :

“ CARDINAL . Intoxicated persons who behave offensively in a public place or a place of employment , are in a condition endangering their life or health , or are themselves endangering other persons ' life or health , may be taken to a sobering - up centre or a public health - care establishment , or to their place of residence .

NORP In the absence of a sobering - up centre , such persons may be taken to a [ police station ] .

[ Intoxicated ] persons who have been taken to a sobering - up centre or a [ police station ] shall remain there until they are sober but for no longer than TIME ...

Where it is justified to institute proceedings [ in respect of an intoxicated person ] with a view to [ his undergoing ] compulsory treatment [ for addiction to alcohol ] , [ the authorities concerned ] shall immediately report [ this fact ] to the relevant committee for fighting alcoholism ... ”

A person arrested and subsequently confined in a sobering - up centre under section CARDINAL of the PERSON is not entitled to bring proceedings challenging the lawfulness of the deprivation of his liberty since , according to LAW , only a person arrested on suspicion of having committed an offence may appeal against a decision to arrest him ( see ORG judgment ( no . I ORG CARDINAL/CARDINAL ) of CARDINAL DATE reached by a bench of CARDINAL judges , OSNKW CARDINAL/CARDINAL - CARDINAL/CARDINAL ) .

The Ordinance of ORG CARDINAL DATE on taking intoxicated persons to sobering - up centres , the organisation of those centres , the medical care provided by them and the fees for transportation to and staying in soberingup centres or police stations ( repealed by an Ordinance of the Minister of ORG of DATE ) set out detailed rules relating to detention in a sobering - up centre .

Article CARDINAL of the Ordinance ( in the version applicable at the material time ) provided :

“ CARDINAL . A person taken to a sobering - up centre shall promptly be given a medical examination .

Following the medical examination , a doctor shall ascertain whether such person should be placed in a sobering - up centre ... , or should be placed in a hospital or other medical establishment ... , or whether there are no signs of intoxication justifying a placement in a sobering - up centre . ”

No provision obliged the authorities to carry out in addition any tests ( such as blood or breath tests ) to establish whether or not a given person was intoxicated . The relevant part of LAW provided :

“ An alcohol - level test shall be carried out at the request of the intoxicated person ... ”

According to LAW , a person placed in a sobering - up centre was to be charged for both lodging and transportation there , at rates estimated to amount to , respectively , PERCENT of an average DATE salary in the public sector . If the person concerned did not have sufficient money , a sobering - up centre was entitled , under LAW , to take a lien over his possessions .

Disturbance of public order ( zakłócenie porządku publicznego ) was at the material time a minor offence punishable under LAW . That Article , in the version applicable at the material time , provided :

“ CARDINAL . Anyone who , by shouting or by noisy , alarming or other unruly behaviour disturbs the public peace or the public order , or a [ citizen 's ] TIME rest or who behaves offensively in a public place , shall be liable to a maximum of DATE imprisonment or a fine of [ between PLZ CARDINAL,CARDINAL and ] CARDINAL ...

NORP If the behaviour in question is of a hooligan nature or the person concerned was intoxicated , he shall be liable to [ a maximum of DATE ] imprisonment ... or a fine [ of MONEY ] . ”

On DATE ORG adopted LAW . The text of the draft provision of the future DATE was contained in LAW as follows :

“ In this Convention , the Member GPE shall undertake to ensure to all persons residing within their territories :

( CARDINAL ) Security of person , in accordance with Articles CARDINAL , CARDINAL and DATE of LAW ;

( CARDINAL ) Freedom from arbitrary arrest , detention , exile and other measures , in accordance with Articles CARDINAL , CARDINAL of LAW ... ”

On DATE the following amendment to LAW as drafted in LAW was presented by PERSON ( GPE ) :

“ LAW : add at the end :

' This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism or to ensure respect of obligations to pay a family upkeep allowance . ' ”

On DATE , PERSON withdrew his amendment ,

“ provided that the statement of reasons , incorporated in the Report of ORG , stated clearly :

' ... that the text of LAW [ at this point , a general clause authorising the limitation of guaranteed rights and freedoms in order to ensure the recognition and respect of rights and liberties of others and to satisfy the requirements of morality , public order and security in a democratic society ] covers also the right of Member States to take the necessary measures to fight vagrancy and alcoholism and to ensure respect for the obligation to pay family upkeep allowance . ' ”

The following commentary on LAW preliminary draft Convention was then recorded :

“ The NORP representative further requested that it be put on record that the text of Article CARDINAL covered , in particular , the right of signatory GPE to take the necessary measures for combating vagrancy and drunkenness [ l'alcoolisme in the NORP text ] or to ensure respect of obligations to pay alimony costs ; the ORG [ of Experts ] had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order . ”

DATE , at the Second Session of the Committee of Experts , the counterpart of the present LAW was discussed and redrafted eventually as draft LAW . The following draft LAW was presented :

“ CARDINAL . No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law :

( a ) the lawful detention of a person after conviction by a competent court ;

( b ) the lawful arrest and detention of a person for non - compliance with the lawful order of a court , or in order to secure the fulfilment of any obligation prescribed by law ;

( c ) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or which is reasonably considered to be necessary to prevent his committing a crime , or fleeing after having done so ;

( d ) the lawful detention of minors by lawful order for the purpose of educational supervision ;

( e ) the lawful detention of persons for the prevention of the spreading of infectious diseases , of persons of unsound mind , alcoholic or drug addicts or vagrants ;

( f ) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or a person against whom deportation or extradition proceedings are pending . ”

At this point , the NORP version of sub - paragraph ( e ) read as follows :

“ e ) s'il s'agit de la détention régulière d'une personne susceptible de propager une maladie contagieuse , d'un aliéné , ORG alcoolique , d'un toxicomane ou d'un vagabond ; ”

Finally , on CARDINAL DATE , following the last examination of the text of the Convention by ORG , the above text was replaced by the provision of the present LAW ; the changes made by ORG were described as “ formal corrections and corrections of translation ” . It was on this occasion that in the LANGUAGE text the word “ alcoholic ” in sub - paragraph ( e ) was replaced by “ alcoholics ” .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON U.Väänänen , a lawyer practising in GPE .

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

The applicant is a professional race horse trainer who participates in trotting races with his own horses and/or horses trained by him . On DATE a horse called PERSON , which was trained by the applicant , tested positive in a doping - test at ORG .

On DATE ORG of Hippos ( Suomen Hippos r.y . , LOC r.f ; ORG for NORP Horse Racing and Breeding . ) suspended the applicant and PERSON from racing for DATE ( from DATE until DATE ) . The suspension order included racing , training a horse as its official trainer and enrolment of a horse in a race . The prize money of CARDINAL NORP Marks ( ORG ) won by PERSON in PERSON was withdrawn and the prize money of CARDINAL ORG won by the same horse in the Vermo Race earlier was ordered to be refunded to the race organiser . The applicant ’s request to be heard before ORG and to hold an oral hearing was refused .

On DATE the applicant appealed against the ORG of ORG decision to ORG ( ravituomioistuin , travdomstolen ) , requesting an oral hearing . The applicant insisted that it would have been important to hear witnesses about the circumstances in which the doping - test was taken and the methods used .

On DATE ( i.e. DATE before the suspension order ended ) ORG rejected the applicant ’s appeal without holding an oral hearing .

The applicant has not instituted any proceedings before ordinary courts .

B. Relevant domestic law and practice

Horse racing ( in the present case , in particular , trotting ) is administered in GPE by ORG , a registered association to which LAW ( yhdistyslaki , föreningslag ; CARDINAL/CARDINAL ) is applied . ORG of Hippos ratifies the trotting regulations to be followed in the trotting races in GPE . Rule CARDINAL of the above - mentioned regulations deals with questions concerning doping , medical substances and punishment for breaching the rule . According to Rule CARDINAL , the punishment for a breach of the said rule is determined by ORG of Hippos . If the length of such a punishment exceeds DATE , the decision may be appealed against to ORG . The Members of ORG are appointed by ORG .

According to LAW , an association must have rules which fulfil all the conditions given in the LAW . The lawfulness of the rules of an association are examined by ORG ( yhdistysrekisteri , föreningsregistret ) at the time of the registration of the association . According to LAW , a member of an association may institute proceedings against the association before ordinary courts if he considers a decision of the association to be unlawful .

Hippos only allows other associations as it members . Private persons are members of such associations instead of being members of ORG itself and have , thus , no right to institute proceedings against ORG .

In its decision of DATE ORG ( ORG CARDINAL:CARDINAL ) observed that a manifest and sufficient need for legal protection constitutes a ground for bringing a case concerning a suspension order given by a sports association before a court to obtain a decision on merits . ORG further reasoned that such a need for legal protection arises when the suspension order has “ such significant financial and other effects as are usually not involved in the membership of an association ” . In the said case ORG had issued its decision on CARDINAL DATE and ORG on DATE .

The decision of DATE of ORG ( ORG ) did not concern the legitimacy of a suspension order but a request to have enforcement of a suspension order repealed as an interim measure in the ordinary court . ORG found that the repealing of the enforcement of a suspension order fell within the scope of application of LAW , LAW on Judicial Procedure , providing for interim measures . In the said case ORG had issued its decision on DATE .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE , respectively . They are represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

On DATE the applicants entrusted their merchandise to a third party for transportation from GPE to GPE . On DATE , the third party was arrested at the NORP customs on charges of smuggling and the applicants’ merchandise was seized by police as evidence .

By a final judgment of DATE ORG acquitted the third party and ordered the restitution of the applicants’ merchandise . Since a part of the seized merchandise had been stolen from the police station the applicants brought an action against ORG ( “ the Ministry ” ) seeking compensation for the stolen goods .

By a final judgment of DATE ORG ruled in favour of the applicants and ordered the Ministry to pay Mr FAC United States dollars ( ORG ) ( CARDINAL Moldovan lei ( ORG ) at the time ) in compensation for the stolen merchandise and LAW ( MONEY ( ORG ) at the time ) in respect of legal costs . It also ordered ORG to pay PERSON the equivalent in the national currency of ORG CARDINAL ( MDL CARDINAL ) in compensation for the stolen merchandise and MDL CARDINAL ( EUR CARDINAL ) in respect of legal costs .

On DATE the bailiff received the enforcement warrant .

On DATE a bailiff instituted administrative proceedings against the competent administration of the ORG which had failed to comply with the final judgment in favour of the applicants .

Following the communication of the applications , on DATE the Government informed the ORG that on DATE and on DATE Mr Lozinschi had been paid MDL CARDINAL ( ORG CARDINAL ) and MDL CARDINAL ( EUR CARDINAL ) , respectively , representing the amounts awarded by the judgment of DATE . They also informed that on DATE and on DATE PERSON had been paid MDL CARDINAL ( ORG CARDINAL ) and MDL CARDINAL,CARDINAL.CARDINAL ( ORG CARDINAL ) , respectively , representing the amounts awarded by the judgment of DATE . The ORG also attached copies of receipts signed by the applicants .

The Government further informed the ORG that after having received those amounts the applicants brought separate actions against the ORG , seeking compensation for pecuniary damage suffered as a result of their impossibility to use their money DATE . By a final judgment of DATE ORG ruled in favour of PERSON and ordered the Ministry to pay him MDL CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) in compensation for pecuniary damage suffered as a result of his impossibility to use his money . On DATE ORG ruled in favour of PERSON and awarded her compensation in the sum of ORG CARDINAL,CARDINAL ( EUR CARDINAL ) . In DATE a bailiff received the enforcement warrants in respect of the judgments of DATE and DATE , respectively , and on CARDINAL DATE the applicants have been paid the amounts due . The ORG also submitted copies of the relevant documents .


Violation of Art. 6-1+6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and is currently detained in ORG Prison GPE , GPE .

On DATE at ORG the applicant was convicted of the murder of PERSON and sentenced to life imprisonment .

Mr PERSON had been the applicant ’s business partner . He was shot and killed at their business LOC on DATE by PERSON , who left the scene of the crime in a car driven by PERSON .

Runham and Gray were arrested in DATE and the applicant was arrested in DATE . He was charged with murder jointly with GPE , Gray and CARDINAL other men who had allegedly provided money to pay for the killing of PERSON .

The ORG ’s case was that the applicant had paid Runham and Gray MONEY ( ORG ) to kill PERSON , because PERSON knew too much about the applicant ’s involvement in mortgage fraud .

The applicant ’s defence was that he had hired LOC and Gray to break CARDINAL of PERSON ’s limbs in order to put him out of action for DATE while the applicant effected his own transfer to another branch of the firm . He alleged that he had paid LOC and Gray GBP CARDINAL for the assault , but that after Gray had killed PERSON , Gray blackmailed the applicant into paying him more money . The applicant claimed that he would have had no motive for killing PERSON , since the latter was himself involved in the fraudulent activities being perpetrated through the business . The applicant submitted , however , that his representatives felt unable to pursue this line of argument satisfactorily because of lack of evidence of PERSON ’s dishonesty ; the jury were asked to accept the applicant ’s word alone on this issue .

Runham and Gray pleaded guilty to murder . Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy . The CARDINAL alleged co - conspirators , who according to the prosecution had , together with the applicant , paid for PERSON to be murdered , were acquitted .

Following his conviction , the applicant complained to ORG ( ORG ) about ORG refusal to disclose material evidence . After investigation , in a letter of DATE to the applicant , the ORG reported that it could not support any allegation of perversion of the course of justice but had found various instances of negligence .

According to the applicant , in DATE he was informed that there were CARDINAL boxes of hitherto undisclosed material . The applicant contended that some of this evidence would have supported his defence that he had had no need to murder PERSON to ensure his silence since it showed that the latter was also deeply involved in the fraudulent activities perpetrated through the business . The applicant claimed that some of the material from the CARDINAL boxes was disclosed to him in DATE prior to his appeal hearing , while other material from the boxes remained undisclosed .

According to the Government , the evidence which was not disclosed at first instance , but which was disclosed prior to the applicant ’s appeal , fell into CARDINAL categories . The first type of evidence derived from the PERSON computer system used by the police officers conducting the murder inquiry to store and cross - reference all the information obtained in the course of the inquiry . The computer data included documents known as “ messages ” which recorded information when first received by an officer , and documents known as “ actions ” which recorded the steps to be taken by an officer in response to a message and the result of any such further inquiry . At the time of the trial , the prosecution took the view that the computer system was being used as a tool for the police investigation and that the data contained in it was not subject to disclosure under the Attorney - General ’s Guidelines ( see “ Relevant domestic law and practice ” below ) , although any witness statements or exhibits obtained in response to a message or action should be , and were , disclosed as “ unused material ” .

The Government submitted that , following the applicant ’s conviction , and in the light of developments in the common - law duty of disclosure ( see below ) , the prosecution reviewed their position and decided that the data stored on the computer system did amount to disclosable material . Prior to the applicant ’s appeal , therefore , the prosecution disclosed the messages and actions held by the police . CARDINAL actions had been disclosed , CARDINAL of which was referred to by the applicant in support of his appeal .

In the ORG ’s submission , the second category of evidence undisclosed at first instance related to the parallel investigation into mortgage fraud by a number of people , including the applicant and PERSON . At an early stage , the prosecution decided to keep the murder and fraud investigations separate and that there was no duty under the Attorney - General ’s Guidelines to disclose the material gathered in the fraud inquiry to the defendant charged with murder . Following the applicant ’s conviction and the development of the common law , the prosecution reconsidered their decision and , prior to the applicant ’s appeal , made full disclosure of the material obtained in the fraud inquiry .

Prior to the hearing before ORG , the prosecution served on the applicant a schedule indicating what material was still being withheld following the review of the prosecution ’s duty of disclosure . In respect of some of the items in the schedule , the reason given for non - disclosure was “ legal and professional privilege ” ; in respect of other items it was “ public interest immunity ” ; and in respect of certain other items , for example document no . CARDINAL , no reason was given to explain the decision to include the document in the list of withheld evidence . Counsel for the defence was in contact with the prosecution concerning possible further disclosure . A letter dated DATE from the Branch ORG indicated that a number of documents , including document no . CARDINAL , were on the list of withheld material .

Document no . CARDINAL subsequently came into the applicant ’s possession . It is a letter , dated DATE , from a firm of solicitors acting for Gray addressed to Detective Chief Inspector PERSON of ORG , and reads as follows :

Further to our several discussions concerning PERSON , you will of course be aware that I did visit him in FAC on DATE .

He has requested a transfer either to ORG or FAC if this is at all possible and I should be grateful if you would let me know whether there is any possibility of PERSON receiving a transfer .

Secondly I now understand that apparently PERSON understands that you would be willing to support him receiving a straight term of life imprisonment and an application for early parole .

Obviously I have explained to Mr Gray the position concerning sentencing but perhaps you would set out your position so far as possible concerning these matters .

Thirdly I understand that PERSON wife is to be produced at DATE intervals to FAC for visits and perhaps again you could clarify the position .

I look forward to hearing from you ... ”

The hearing of the applicant ’s appeal took place on CARDINAL and DATE . Non - disclosure of evidence at trial , particularly evidence discovered in the parallel mortgage fraud investigation , was CARDINAL of the applicant ’s grounds of appeal to ORG , but no mention was made of document no . CARDINAL or of the other documents which continued to be withheld by the prosecution . The applicant also relied on the fact that the trial judge had omitted to direct the jury that a person may lie for reasons unconnected with his guilt in relation to the offence with which he is charged ( a “ FAC direction ) , and that the fact that , during interviews with the police the applicant had denied all knowledge of any plot to harm PERSON , did not mean that he had been involved in his murder .

Dismissing his appeal on DATE , ORG remarked that in the course of his summing - up the judge had not suggested that the applicant ’s lies could amount to corroboration of the other evidence , and had reminded the jury of defence counsel ’s submissions in relation to the applicant ’s lies . Although the summing - up should have included a “ LOC direction , no miscarriage of justice had occurred . On the question of non - disclosure the court observed :

“ ... As the trial was conducted , PERSON ’s dishonesty was made perfectly plain to the jury . The appellant himself had admitted being dishonest , and had said in the course of his evidence that PERSON was party to all the dishonest resorts to which he had lent himself in making false representations and forging documents . Accordingly it was fully before the jury that Mr PERSON was dishonest . ...

We have been taken through various parts of the evidence ... and we are quite satisfied that ... PERSON involvement in the deep dishonesty of this business was fully canvassed before the jury . ... Accordingly , although ... the stricter regime of prosecution disclosure which now prevails might well have required further disclosure than was actually made , we do not consider that this ground is one which has any substance in regard to the outcome of the case . ... ”

ORG concluded :

“ There was overwhelming evidence that the appellant initiated a plot against the victim PERSON . There was likewise strong evidence that he had indicated what he wanted was to get rid of PERSON . The money actually paid , and indeed even the sum mentioned by the appellant was in our view out of proportion to a plot simply to ‘ duff up’ the victim . Moreover , on analysis such a plot made no sense . Each member of ORG is of the clear opinion , despite the blemishes in an otherwise impeccable summing - up , that no miscarriage of justice has actually occurred . ... ”

The applicant believed that an inducement was promised to Gray by the prosecuting authorities in exchange for his testifying against him . In addition to the above letter , which the applicant claimed supported his hypothesis , he referred to the fact that his tariff of imprisonment ( that is , the period to be served before review by ORG ) under the life sentence had been set at DATE , but was subsequently reduced to DATE . LOC , who had provided the murder weapon and drove the get - away car , received a tariff of DATE . Gray , who had shot and killed PERSON , had his tariff set at DATE and was released in DATE . In DATE ORG wrote to ORG , refusing to reduce his tariff :

“ The Secretary of ORG holds PERSON to be as culpable as you are , even though he fired the murder weapon and you did not . When the tariff was set for PERSON , the then Secretary of ORG took into account that he had , like you , pleaded guilty to murder but had in addition been ‘ ... a very important witness for the GPE . ... ”

The Government denied that any inducement was offered to Gray . Under cover of a letter dated DATE , they sent to the ORG undated statements from CARDINAL senior officers in ORG who had been involved in the murder investigation .

( a ) The statement of Chief PERSON reads :

“ I have seen a copy of the letter dated DATE from ORG ... to my then colleague , Mr ORG . I can confirm that this letter is genuine and was recorded as Document D-CARDINAL during the course of the investigation into the murder of PERSON .

I have no recollection of this letter after DATE and I can not remember ever discussing it with Mr GPE . At no time was I ever involved in any debate regarding the issue of Mr Gray receiving a ‘ straight term of life imprisonment and an application for early ORG .

I can confirm that I did not offer PERSON any form of inducement to give evidence against Mr LOC or other defendants . To the best of my recollection , Gray ’s motives were that he was simply attempting to ‘ clear his ORG

I would like to emphasise that I spent DATE with Mr Gray at FAC during the preparation of his statement and can categorically state that all CARDINAL pages of the document were written with PERSON consent and without any form of inducement . ”

( b ) The statement of Detective Chief Inspector PERSON , now retired , reads :

“ This murder happened in DATE and is not now fresh in my memory .

However I do remember clearly that I gave no indications to interviewing officers or to Gray himself that in return for his support we would aid an application for a shorter sentence . Gray was a very dangerous murderer who I considered enjoyed carrying out his ‘ murder’ contract with Mr Dowsett . This matter was so grave that no such undertaking could honestly have been given .

I do remember that Gray at one time was on hunger strike in prison and that we helped his wife to visit him in prison . How this help was given I do not remember - it may have been in the role of carrying messages to and from . ”

( c ) Detective Chief Inspector PERSON , also now retired , said in his statement :

“ Concerning the letter Document ORG I can categorically state that I did not personally offer Gray any inducement or arrangement relating to his sentence . Nor did I have any discussions with his legal representative with regard to his sentence . Equally , I did not instruct any of my subordinate officers including the interview team questioning Gray so to do .

As far as I am aware Gray throughout his detention and taped questioning was dealt with in accord with LAW .

I have been unaware of this letter until now but I am sure Chief Inspector PERSON ( now retired ) may be of some help to you .

I would point out that Gray was arrested at FAC on DATE after which the murder management team was joined by Mr PERSON of ORG , GPE , who advised on all legal aspects of the case . He was later joined by PERSON ( now Sir and a ORG Judge ) PERSON and Mr PERSON of Counsel , who advised on what was to be a complex case not only involving murder , conspiracy to murder but also large scale mortgage fraud .

I am not aware that any representations were made to the trial judge concerning any reduction in Gray ’s tariff . If this had been the case then the application would have had to be made through prosecuting counsel .

For your information I include below some relevant dates and points that you may already be aware of in relation to the murder , but I think they are worth emphasising :

DATE : PERSON found murdered at his business premises that he owned with his partner LOC .

DATE : Gray gave himself up at FAC and admits the offence naming LOC , LOC and others as part of a murder conspiracy .

DATE : PERSON arrested for the murder . He admits the offence naming GPE , Gray and others . ORG did the groundwork in planning PERSON ’s murder and propositioned Gray at a later stage to do the actual killing .

CARDINAL DATE : Dowsett and others arrested for the murder .

CARDINAL DATE : I was withdrawn from the DATE management of the inquiry and returned to ORG . ORG took over this role .

DATE : Gray and Runham appear at ORG , plead guilty to the murder and are sentenced to life imprisonment .

DATE : Gray agrees to become a witness for the prosecution and Detective Inspector Green ( now Chief Superintendent ) obtains a witness statement .

DATE : Trial of Dowsett and others commences . ...

Gray appeared as a prosecution witness . Runham did not . The jury unanimously found LOC guilty of murder and he was sentenced to life imprisonment .

Prosecution witness ORG gave evidence to the fact that LOC admitted the murder to him and stated that LOC had said that ‘ if PERSON gets too close then he ’ll get the ORG ( or words to that effect ) .

DATE Dowsett made a formal complaint against me , other officers and Mr PERSON [ ORG ] that we perverted the course of justice in relation to his trial . The matter was investigated by an outside ORG and was found by the ORG [ Director of Public Prosecutions ] and the ORG to be totally unsubstantiated .

Dowsett latter appealed against his conviction to ORG but the ORG were unanimous in their judgment to disallow his application .

The above is to the best of my recollection . I do not know what tariffs were set by the Judge in his sentencing of all CARDINAL defendants but I assume credit was given for Gray and LOC ’s guilty pleas . ”

At common law , the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial . The duty also extends to statements of any witnesses potentially favourable to the defence .

In DATE the Attorney - General issued guidelines , which did not have the force of law , concerning exceptions to the common - law duty to disclose to the defence certain evidence of potential assistance to it ( ( DATE ) CARDINAL Criminal Appeal Reports DATE “ the Guidelines ” ) . According to the Guidelines , the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within CARDINAL of the categories set out in paragraph CARDINAL . CARDINAL of these categories ( CARDINAL ) ) was “ sensitive ” material which , because of its sensitivity , it would not be in the public interest to disclose . “ Sensitive material ” was defined as follows :

“ ... ( a ) it deals with matters of national security ; or it is by , or discloses the identity of , a member of ORG who would be of no further use to those services once his identity became known ; ( b ) it is by , or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger ; ( c ) it is by , or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known ; ( d ) it contains details which , if they became known , might facilitate the commission of other offences or alert someone not in custody that he is a suspect ; or it discloses some unusual form of surveillance or method of detecting crime ; ( e ) it is supplied only on condition that the contents will not be disclosed , at least until a subpoena has been served upon the supplier – e.g. a bank official ; ( f ) it relates to other offences by , or serious allegations against , someone who is not an accused , or discloses previous convictions or other matters prejudicial to him ; ( g ) it contains details of private delicacy to the maker and/or might create risk of domestic strife . ”

Subsequent to the applicant ’s trial in DATE but before the appeal proceedings in DATE , the Guidelines were superseded by the common law .

In NORP v. Ward ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG dealt with the duty of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity . It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case :

“ ... [ When ] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings . Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence . If , in a wholly exceptional case , the prosecution are not prepared to have the issue of public interest immunity determined by a court , the result must inevitably be that the prosecution will have to be abandoned . ”

ORG described the balancing exercise to be performed by the judge as follows :

“ ... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against , on the other hand , the interests of justice . Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life , the weight to be attached to the interests of justice is plainly very great indeed . ”

ORG judgment in NORP v. PERSON , PERSON and PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) set out the procedures to be followed if the prosecution wished to withhold unused material from disclosure on grounds of public interest immunity including , where appropriate , making an application to the court ex parte .

In NORP v. PERSON ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) , ORG emphasised that , since the ex parte procedure outlined in NORP v. ORG was “ contrary to the general principle of open justice in criminal trials ” , it should be used only in exceptional cases . It would , however , be an abdication of the prosecution ’s duty if , out of an abundance of caution , it were simply “ to dump all its unused material in the court ’s lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential ” . Thus , the prosecution should put before the court only those documents which it regarded as material but wished to withhold . The test of “ materiality ” was that an item should be considered as disclosable if

“ [ it ] can be seen on a sensible appraisal by the prosecution :

( i ) to be relevant or possibly relevant to an issue in the case ;

( ii ) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use ; or

( iii ) to hold out a real , as opposed to fanciful , prospect of providing a lead on evidence which goes to ( i ) or ( ii ) ” .

If the prosecution was in any doubt as to the materiality of any such evidence it should ask the court to rule on the question .

In DATE a new statutory scheme covering disclosure by the prosecution came into force in GPE and GPE . Under ORG , the prosecution must make “ primary disclosure ” of all previously undisclosed evidence which , in the prosecutor ’s view , might undermine the case for the prosecution . The defendant must then give a defence statement to the prosecution and the court , setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution . The prosecution must then make a “ secondary disclosure ” of all previously undisclosed material “ which might reasonably be expected to assist the accused ’s defence as disclosed by the defence statement ” . Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court .