Violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE , the mother of A. , a then DATE boy , filed a criminal complaint with the police alleging that on DATE had been sexually assaulted by an unknown man at a playground . On DATE Mr PERSON , an officer of the Juvenile and Vice Police ( jeugd- en zedenpolitie ) , took a statement from PERSON , as well as from his mother .

On DATE , the mother of B. , a then DATE boy , informed the police that on CARDINAL DATE an unknown man had sexually assaulted B.

On DATE , on the basis of descriptions given to the police by A. and B. , the applicant was arrested in GPE and detained on remand .

On DATE , A. was confronted with the applicant through a CARDINAL - way mirror and identified him as the man who had assaulted him . According to the record of this confrontation drawn up by PERSON , an officer of the ORG and Vice Police , A. had slightly recoiled when he saw the applicant , saying “ That is him ” . A. was also shown a rucksack , which he identified as belonging to the applicant . A. further declared that a woman from the neighbourhood had spoken with the man and that she had told him that the man spoke LANGUAGE .

On DATE , PERSON a maternal aunt of PERSON – gave a statement to the police in which she stated that on DATE , directly after having been told by her son PERSON that a man had touched the genitals of his cousin PERSON , she had left her house in order to find this man , that she had found a man who matched the description given by her son and who was identified by PERSON and PERSON who had accompanied her , that he was sitting with some children and that this man had run away from her . CARDINAL of these children , C. , had told her that the man had stuck his hand into LOC 's pants and that C. had then slapped the man 's hand . When confronted with the applicant through a CARDINAL - way mirror , she stated that she believed that he was the man whom she had seen on DATE . However , as he no longer had a beard and was looking neater and cleaner , she did not dare to say that she recognised him with PERCENT , rather with PERCENT certainty .

Also on CARDINAL DATE , PERSON 's mother filed a criminal complaint with the police against the unknown man who had sexually assaulted her son . On DATE , PERSON , an officer of the ORG and Vice Police , took a statement from B. When subsequently confronted with the applicant through a CARDINAL - way mirror , he identified the applicant as the man who had sexually assaulted him . PERSON was further shown a rucksack , which he identified as belonging to the applicant .

On DATE , the mother of C. , a then DATE boy , filed a criminal complaint with the police against an unknown man who had sexually assaulted her son on DATE . In his statement to the police officer PERSON , PERSON gave a description of the man . According to the record drawn up by PERSON , C. visibly reacted in fright when he was subsequently confronted with the applicant through a CARDINAL - way mirror , identified him as the man who had sexually assaulted him and started crying . C. was further shown a rucksack , which he identified as belonging to the applicant . According to the police record drawn up on DATE , the description given by C. of the pants worn by the perpetrator corresponded to pants found in the applicant 's possession .

A statement was also taken from ORG 's mother , who declared that her son had told her on DATE that a man had touched his private parts .

On DATE , the police took a statement of PERSON who was living on a houseboat near to a playground where , on DATE , she had seen , met and spoken with the applicant . When subsequently confronted with the applicant through a CARDINAL - way mirror , she stated :

“ That is the boy with whom I have spoken . I am fully , PERCENT , certain ; no mistake is possible . I recognise the boy 's face . ”

On DATE , the mother of NORP , a then DATE boy , filed a criminal complaint with the police against an unknown man who had sexually assaulted her son NORP DATE . On DATE , the police took a statement from NORP in which he described how a man had touched his private parts , that this man had stopped this when he had started to scream , that he had then gone to his mother and told her what had happened , that later on DATE he had seen this man again , and that an angry woman had then approached this man who then ran away .

On DATE , NORP was confronted with the applicant through a CARDINAL - way mirror . According to the record drawn up by PERSON , NORP identified the applicant as the man who had sexually assaulted him .

NORP The applicant was subsequently summoned to appear before ORG ( arrondissementsrechtbank ) on DATE in order to stand trial on charges of sexual assault and acts of indecency with persons younger than DATE .

On DATE the applicant 's lawyer requested the public prosecutor to summon the CARDINAL boys , PERSON to appear before ORG in order to be heard as witnesses , stating :

“ In his conversations with me , my client has repeatedly and with force indicated that he is innocent of the facts he has been charged with . Under these circumstances my client has the right and has an interest in being confronted in court with [ these CARDINAL ] witnesses and to be given the opportunity to put ( or have put ) questions to them . My client and I have no objections to that hearing being held in camera . ”

The public prosecutor rejected this request by letter of DATE , considering that it would be particularly difficult , given their young age , to hear the CARDINAL boys . Moreover , the defence had failed to indicate in any way – apart from a mere denial of the facts by the applicant – on what grounds it doubted the reliability of the confrontations which had taken place and the statements which had been given at the investigation phase .

At the hearing of DATE before ORG , the defence reiterated its request to hear the CARDINAL boys , if appropriate in camera , as well as PERSON , stating :

“ My client denies wholeheartedly the charges against him . Therefore I wish to hear the victims [ A. , B. , C. and NORP ] in court , as a mistake in identity is possible . It is very well possible that the CARDINAL victims , under the stress that reigns at a police station , identified my client as the perpetrator because they have only been confronted with him . It is therefore in my client 's interest to be confronted again [ and ] in court with the victims . ... PERSON has only seen my client talking and has seen nothing punishable . Yet in the records she is presented as an important witness . I would therefore like to hear her , in particular about the impression my client made on her while he [ roller]skated away . I finally wish to hear [ PERSON in court . Although she is an indirect witness , as she has no own knowledge of the perpetrator 's physical features , she can contribute to exculpating my client . During the mirror - confrontation she has not recognised my client for PERCENT as the person she had seen . ”

NORP The prosecution opposed the request to hear the CARDINAL boys , but not the request to hear the other QUANTITY witnesses .

Having deliberated , ORG rejected the request to hear the CARDINAL victims , holding :

“ A CARDINAL - to - one identification through a CARDINAL - way mirror ( enkelvoudige spiegelconfrontatie ) has taken place at the police station , the value of which is now challenged by the defence . Now counsel asks for a new one - to - CARDINAL confrontation ( enkelvoudige confrontatie ) in court between the victims and the accused . On this point , the court considers that such a confrontation between the witnesses and the accused can not change or add anything to the confrontations that have taken place previously . ”

ORG granted the request of the defence to hear PERSON In order to allow the prosecution to comply with a request from ORG to provide the latter with a photograph of the applicant as well as his fingerprints so as to compare these with materials held by the NORP police , ORG adjourned its further examination of the case for a maximum period of DATE .

ORG resumed its examination on DATE . The applicant was present . ORG noted that the following items had been added to the applicant 's case file : photographs of the applicant taken by the NORP police , a fax message dated DATE from ORG concerning pending preliminary judicial investigations against the applicant in GPE in respect of , inter alia , exhibitionism and the sexual provocation of minors , and a formal record dated DATE of the forensic bureau of the GPE - Amstelland police , according to which the applicant 's fingerprints matched those taken from him by the police in GPE on DATE .

The applicant accepted that he was the man in the police photographs , and confirmed that the NORP police had taken his fingerprints on DATE . He further confirmed that , on DATE in GPE ( GPE ) , he had been convicted for the sexual assault of minors and sentenced to DATE imprisonment . He further denied the facts with which he had been charged in the GPE .

Upon the request of the defence , ORG then heard PERSON Although both witnesses identified the applicant as the man they had seen at the material time , the applicant denied ever having seen the CARDINAL women .

After having heard the parties ' final pleadings , ORG closed the trial proceedings and set a date for judgment .

In its judgment of DATE , ORG convicted the applicant of sexual assault and of acts of indecency with persons younger than DATE and sentenced him to DATE imprisonment . The applicant filed an appeal with ORG ( gerechtshof ) .

On DATE , a hearing was held before ORG in the course of which the applicant made both oral and written submissions in which , inter alia , he denied the charges against him and challenged the reliability of his confrontation with the various witnesses and the credibility and reliability of the latter 's statements . ORG further took note of a request filed by the defence to refer the case back to the investigating judge ( rechter - commissaris ) in order to hear the CARDINAL boys as witnesses and for an identification of the applicant by putting a selection of photographs of different persons to the witnesses ( meervoudige / keuze - foto - confrontatie ) . In this connection , the lawyer acting for A. and his mother submitted that A. had been quite shocked by the events , that he no longer did certain things alone , asking to be accompanied , and that it was very difficult for him to come to terms with what had happened to him .

The applicant also submitted written pleadings prepared by himself in NORP in which , inter alia , he challenged the reliability of his confrontation with the various witnesses and the latter 's statements , and in which he stated that a second confrontation in the form of an identity parade would be pointless as the victims had already seen and identified him as the perpetrator in the course of a CARDINAL - to - one identification through a CARDINAL - way mirror . The President of ORG ordered that this document be translated into NORP and be added to the applicant 's case - file .

After having heard the parties ' pleadings , ORG closed the trial proceedings , stated that it would determine the requests made by the defence in its judgment and set a date for judgment .

In its interim judgment of CARDINAL DATE , ORG stated that it had appeared during its deliberations that its investigation was incomplete . It found it necessary , therefore , to take evidence from the police officers X. , Y. and PERSON in relation to the manner in which the victims had been questioned and confronted with the applicant . To this end , it fixed a hearing for DATE . It further ordered that the applicant was to be released from pre - trial detention on DATE .

On DATE , ORG reopened the trial proceedings . The applicant , who had been released in the meantime , did not appear . His lawyer , who was present , informed ORG that the applicant was being detained in GPE , and that he had instructed his lawyer by telephone to request ORG to proceed with the trial proceedings in his absence .

The Court of Appeal heard the police officers X. , NORP and PERSON After having heard the parties ' final submissions , ORG closed the proceedings and set a date for judgment .

In its judgment of DATE , ORG quashed ORG judgment of DATE , convicted the applicant of sexual assault and acts of indecency involving persons DATE and sentenced him to DATE imprisonment of which DATE suspended pending a DATE period , and less the time spent in pre - trial detention . It also ordered the applicant to pay ORG , who had joined the criminal proceedings as a civil injured party ( benadeelde partij ) and who had filed a claim for compensation , an amount of CARDINAL Netherlands Guilders ( “ NLG ” ; i.e. MONEY ; “ EUR ” ) for non - pecuniary damage .

It based the applicant 's conviction on a statement he had made before ORG , the criminal complaints filed containing a description of the perpetrator given by the CARDINAL victims , the statements made by the CARDINAL victims to the police , the record of the QUANTITY police officers who arrested the applicant and considered that the applicant corresponded to the description of the perpetrator , the records on the mirror - confrontations between the applicant and the QUANTITY victims , and the statements given by PERSON and by PERSON

As regards the evidence ORG held , in so far as relevant , as follows :

“ CARDINAL . ... during the hearing of CARDINAL DATE ... the accused requested to be allowed , relying on [ the LAW ] to question the CARDINAL minor children .

NORP In its interim judgment of CARDINAL DATE , the court [ of appeal ] has lifted the pre - trial detention of the accused . It also reopened the trial proceedings , which had been closed on DATE , in order to hear the reporting police officers [ X. , NORP and PERSON on the manner in which the minor children had been questioned and the manner in which the confrontations had been conducted . These reporting police officers were heard as witnesses during the hearing of DATE . The accused did not appear at this hearing . His lawyer has indicated that he had had a contact by telephone with his client who was in GPE . [ The applicant ] had told [ his lawyer ] that he did not object to the further continuation of the trial proceedings in his case in his absence .

It follows from the above that the court , in its interim judgment of CARDINAL DATE , has not as yet granted the accused 's request to hear the CARDINAL minor children . The court heard the above - cited reporting police officers during the hearing of CARDINAL DATE in order to obtain additional information about the manner in which the CARDINAL children have been questioned and confronted with the accused . Also noting what has been stated by the reporting police officers [ X. , NORP and PERSON at the hearing of QUANTITY DATE ] , the court considers that there is no necessity to hear the CARDINAL children as witnesses . In so far as the request [ to hear the CARDINAL children ] made by the defence is maintained – the applicant 's lawyer having indicated at the hearing of DATE that he did not wish to hear any further witnesses DATE the court rejects it . In balancing all interests involved , the court is of the opinion that the interests of the CARDINAL still very young children in not being forced to relive a , for them , possibly very traumatic experience must be given priority over the interests of the suspect in hearing these children .

The court must now address the question whether the statements of the CARDINAL children , having regard to the manner in which they have been questioned and confronted with the suspect , are sufficiently reliable to be used in evidence ... It must also be examined whether their statements may be used in evidence although the suspect has never been given the opportunity to question them .

In relation to the first question the court considers as follows : Although in general it is preferable for a witness to be given a choice between various options in a confrontation for identification purposes ( meervoudige keuzeconfrontatie ) instead of being confronted with CARDINAL person ( enkelvoudige confrontatie ) , it can not be said as a rule that the result of [ the latter method ] can only be used in evidence when it has appeared that the [ former method ] could not be used . There may be cause to exclude such a result when the manner in which a confrontation with CARDINAL person has taken place is incompatible with the fair conduct of proceedings or where the result finds insufficient support in other evidence .

Altogether QUANTITY persons have been confronted with the suspect via a CARDINAL - way mirror . Apart from the minor witnesses [ A. , B. , C. and NORP ] , adult witnesses [ PERSON ] were involved here . A reading of the records of questioning and confrontation makes it clear that , in CARDINAL of the CARDINAL cases , a questioning in which the witness was asked to give a description of the suspect preceded the confrontation . ... Only in the case of PERSON this sequence was apparently different . In CARDINAL of the CARDINAL cases the most important procedural condition for obtaining reliable results in carrying out a confrontation has thus been complied with . In addition , it does not appear from the [ police ] records or from the reporting officers ' oral evidence in court that these officers would have acted in a leading manner in the confrontations at issue .

The descriptions given by the CARDINAL witnesses to the police show a high level of similarity . It transpires from the totality of the descriptions given that the person described was a young man , that he spoke another language than NORP , had particular eyes , wore a cap and carried a ( black - and - white ) rucksack . The different witnesses each time mentioned QUANTITY or more of these features ... In the [ witnesses ' ] description of the suspect there are no points of contradiction . In the confrontation , CARDINAL witnesses recognised the suspect on the basis of the features previously indicated by them . In their recognition of the suspect the witnesses demonstrated either as , in the case of PERSON , little doubt , or a definite certainty .

On grounds of the above , the court does not doubt that the witnesses have wished to indicate the suspect as the person who has committed the facts [ at issue ] and that a mistake in identity can not have arisen . The recognition by each separate witness each time finds support in the recognition by the CARDINAL other witnesses . This entails that , from the point of view of reliability , the result of the confrontations carried out can be used in evidence .

Also noting the above the court finds no necessity to have an identification of the perpetrator by putting a selection of photographs of different persons to the witnesses ( meervoudige fotoconfrontatie ) carried out . The accused himself has – not incomprehensibly– indicated [ during the appeal trial proceedings ] that , after the mirror - confrontations already carried out , he did not consider this now useful anymore . In so far as the defence would maintain this request – the applicant 's lawyer having indicated at the hearing of DATE that he had no objection to the closure of the trial proceedings – the court rejects this request .

The remaining question is whether the statements of the CARDINAL children can be used in evidence although the suspect has not had the opportunity to question them himself . The court 's first consideration is the fact that Article CARDINAL [ of the Convention ] , particularly in the light of some recent [ GPE ] decisions given on applications brought against the GPE , does not unconditionally oppose the use in evidence of statements given by witnesses whom a suspect has not been able to question . There is room for the balancing of interests . In its judgment of DATE in the case of PERSON v. the GPE , ORG [ of Human Rights ] considered in this respect that the principles of a fair trial also require that , in appropriate cases , the interests of the suspect in questioning [ witnesses ] are to be balanced against the interests of witnesses and victims in the adequate protection of their rights guaranteed by LAW of the Convention ] . In the opinion of ORG , briefly summarised , in balancing these interests much weight must be given to the question whether the handicaps under which the defence labours on account of the inability to questioning a witness in an indirect manner are compensated , and whether a conviction is based either solely or to a decisive extent on the statement of this witness . In its report of CARDINAL DATE [ in the case of GPE v. the GPE , no . CARDINAL ] , ORG [ of Human Rights ] adopted an essentially similar opinion .

In the light of these decisions , the following can be said . As already found by the court , the interests of the CARDINAL children in not being exposed to reliving a possibly traumatic experience weighs heavily . With that , as also already found by the court , stands the fact that the confrontations of these QUANTITY witnesses with the suspect have been carried out with the required care , and that the results thereof , as already found earlier , are particularly reliable . As regards the acts themselves of which the suspect stands accused , the court finds it established that the CARDINAL children have all been questioned by ( or assisted by ) investigation officers of ORG and ORG with extensive experience in questioning very young persons . It has become plausible from the records drawn up by them and from the oral evidence given in court by these civil servants that the CARDINAL children have been questioned in an open , careful and non - suggestive manner . What these children have stated , independently of each other , finds corroboration ... in what the other children have declared . In addition , important support for the veracity of their accounts is also to be found in the statements of the witnesses PERSON , witnesses whom the defence has been able to question at the hearing held before ORG on DATE . It does not appear from the record of this hearing that their statements were challenged by the defence , only that the suspect did not recognise these witnesses . [ The court further notes that ] no request for their appearance in the proceedings on appeal has been made . Taking into account these circumstances as a whole , the court does not find a violation of the suspect 's right to question witnesses in using as evidence ... the statements of the CARDINAL children .

On the above grounds , the court is of the opinion – with the required cautiousness DATE that the statements of the children , as set out in the means of evidence , are reliable and credible and , furthermore , eligible to be used in evidence . ”

On DATE , the applicant 's lawyer filed an appeal in cassation , which is limited to points of law and procedural conformity , with ORG ( PERSON ) .

On DATE , the applicant 's lawyer completed the applicant 's appeal in cassation by submitting the grounds of the appeal , in which it was denied that the applicant had dropped his request to hear the CARDINAL children . In this connection it was , inter alia , pointed out that , in its ruling of DATE , also ORG had assumed that this request had not been withdrawn .

On DATE , the applicant 's lawyer further submitted a response to the advisory opinion of ORG to ORG who , in that opinion , did not address the question whether or not the applicant had withdrawn or maintained his request to hear the CARDINAL children but who did find that the reason given by ORG for rejecting the applicant 's request to hear the CARDINAL children was insufficient in that it had failed to establish or consider whether and why an adapted manner of questioning was not possible . In this respect , the Advocate General referred to the possibility to question the witnesses in the absence of the accused , the latter being in another room where he could follow the questioning on a television screen and , from there , have questions put to the witnesses .

In its judgment of CARDINAL DATE , ORG rejected the applicant 's appeal , subject to the correction of a clerical oversight in ORG judgment of DATE . In so far as the applicant complained that ORG had used in evidence the statements given by the QUANTITY boys , although they had never been heard by a judge and/or in the presence of the defence , and despite a request thereto filed by the defence , ORG held that it was not necessarily contrary to Article CARDINAL to use in evidence statements of such witnesses where such evidence was sufficiently supported by other evidence . Having regard to the manner in which ORG had set out in its judgment , as regards each separate offence of which the applicant had been convicted , the evidence given by each of the boys and other pertinent evidence , ORG noted that the other evidence related each time to those parts of the boys ' statements that were disputed by the applicant . ORG concluded that it was implicit in ORG findings that it had found the supporting evidence to be sufficient and that this finding , in itself not incomprehensible , could not be examined further in cassation proceedings .

ORG also rejected the applicant 's argument that ORG had unjustly found that it was not necessary to hear the CARDINAL minors as witnesses . It did not deal with the question whether or not the applicant had withdrawn or maintained his request to hear the CARDINAL children . As regards the reasons given by ORG for not acceding to this request , ORG held :

“ In rejecting the request to hear the CARDINAL minors as witnesses , ORG ... has applied the correct standard . Nor is this decision [ of ORG ] incomprehensible , since it follows logically from the establishment of the interest of the CARDINAL still very young children in not being forced to relive a , for them , possibly very traumatic experience , that every confrontation with these experiences in pursuit of the criminal investigation , however organised , must be avoided . ”

The finding that an accused has committed the act with which he or she is charged must be based on “ legal means of evidence ” ( “ wettige bewijsmiddelen ” ) within the meaning of LAW ; “ ORG ” ) . “ Legal means of evidence ” include , inter alia , the personal observations of the judge , the statements of the accused , the statements of witnesses relating to facts or circumstances which they themselves have witnessed , the formal minutes and records and other written documents ( LAW LAW CARDINAL and CARDINAL of the ORG ) .

The public prosecutor has the power to call witnesses and experts to the trial court hearing ( LAW ORG ) . In the summons to the accused the public prosecutor gives a list of the witnesses and experts to be brought forward by the prosecution . If the accused wishes to call witnesses , he or she can submit a request to the public prosecutor to summon a witness before the court . Such a request must be filed DATE before the court hearing ( Article CARDINAL § CARDINAL of the ORG ) .

As a rule , the public prosecutor should summon the witness , but –according to LAW ORG as in force until DATE the public prosecutor could refuse to do so if it could be reasonably assumed that no prejudice to the rights of the defence would be caused if the witness was not heard in court . The public prosecutor had to give a reasoned decision in writing and at the same time inform the defence of its right under LAW CCP – as in force until DATE to renew the request to the trial court at the hearing .

If the public prosecutor had failed to summon a witness at the request of the accused , or declined to do so , the defence could , at the opening of the trial court proceedings , ask the court to have that witness summoned ( LAW ORG ) . The trial court would accept such a request , unless it considered that the non - appearance of the witness could not reasonably be considered prejudicial to the rights of the defence ( Article CARDINAL § CARDINAL of the ORG as in force until DATE ) .

A request by the defence to hear a witness who has not been placed on the list of witnesses , who has not been convened to attend the trial and whose summons the defence has not sought in accordance with ( former ) Article CARDINAL , fell under LAW ORG . Under this provision the trial court has the power to order , of its own accord , where it finds this to be necessary for the determination of the charges , the production of evidence , including the summoning of witnesses whom it has not yet heard .

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

Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case . Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again ; they may also produce new evidence and request the hearing of witnesses not heard at first instance ( LAW ORG ) . The defence enjoys the same rights as it does at first instance ( LAW ORG ) .

Although the provisions of the ORG , as in force until DATE , in respect of witnesses did not provide for a possibility to take account of their interests , it was accepted in the case law that a trial court , in its determination of a request by the defence to hear a witness , could take into account , to a certain extent , the latter 's interests . In a judgment given on DATE , ORG accepted the reasons given by ORG to refuse a request under LAW ORG by the defence to take ( further ) evidence from the victim of a sexual offence , a DATE woman with PERSON 's syndrome . ORG had considered that , given her mental condition and her clear distress in response to questioning , followed by an inability to provide any further answers to the investigating judge , it could not reasonably be expected of her to be exposed to the stress of a hearing . Moreover , the failure to take further evidence from her would not harm the accused in his defence to such a degree that – after having balanced the interests of the defence against those of the witness – the proceedings could not longer be considered as fair within the meaning of LAW . However , ORG did take into account the fact that the defence had been given an opportunity to provide the investigating judge with written questions and that these questions had in fact been put to the witness ( PERSON ( GPE Law Reports ) DATE , no . CARDINAL ) .

On DATE , an amendment to a number of provisions of the ORG entered into force . According to the amended LAW ( b ) and ( c ) of the ORG , the public prosecutor may refuse the request of an accused to summon a witness in order to give evidence in court , where the prosecutor considers that there are well - founded reasons to believe that such oral testimony would entail a serious risk for the witness 's health , or when the refusal of such a request , in all reasonableness , can not be regarded as harming the accused 's defence . On the same grounds , a trial court may decide not to hear a witness proposed by the defence ( LAW CARDINAL ( b ) and ( c ) of the ORG ) .

Only in very rare cases are young children heard as witnesses before a court . In most cases , such witnesses are heard by an investigating judge . Witnesses younger than DATE when heard before an investigating judge – are exempted from the obligation to testify under oath , but are urged to speak the whole truth and nothing but the truth ( Article CARDINAL § CARDINAL of the ORG ) .

When a trial court uses such a statement in evidence , it should give special reasons in its judgment for doing so ( LAW ORG ) . This requirement does , however , not apply where it concerns a statement of a child set out de auditu in a written record ( proces - verbaal ) drawn up by an officer with powers of investigation ( opsporingsambtenaar ) ( PERSON , DATE , PERSON , no . CARDINAL ) .

On DATE , an amendment to LAW ORG , which provision governs the possibilities to obtain revision ( herziening ) of final judgments , entered into force . This amendment extended the existing grounds on which a revision of a final conviction can be sought by including as a ground for revision a ruling by the ORG that the criminal proceedings having led to that conviction had been in violation of the LAW . The amended text of LAW ORG reads , in so far as relevant , as follows :

“ CARDINAL . An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res iudicata can be filed : ...

on grounds of a ruling of ORG in which has been established that [ the ORG or one of its Protocols ] has been violated in the proceedings having led to the conviction ... if revision is necessary with a view to reparation within the meaning of LAW of [ the LAW ] . ”

A request for revision can be filed with ORG by the Procurator - General , the convicted person or the latter 's lawyer within DATE after the convicted person has become aware of the ORG 's ruling referred to in LAW under CARDINAL ( LAW .


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

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

In DATE , the applicant set up a limited liability company , ORG , with another person . He purchased MONEY of the shares . He also became the chairman of its ORG . The company 's business activities ended in DATE .

On DATE , the applicant applied for an income - related unemployment benefit . ORG ( työttömyyskassa , arbetslöshetskassan ) rejected his application on DATE , as he was not assessed as being unemployed . The decision was based on ORG ( työvoimatoimikunta , arbetskraftskommissionen ) written statement , according to which , taking into account the applicant 's position and partnership in the company , he was regarded as being employed by his own company . The applicant 's appeals were subsequently rejected .

In DATE , the applicant instituted proceedings before ORG of GPE ( käräjäoikeus , tingsrätten ) against ORG ( työvoima- ja elinkeinokeskus , arbetskrafts- och näringslivscentralen ) , i.e. formally against ORG , claiming compensation for his financial loss . He argued that before setting up the company , he had called his local ORG ( työvoimatoimisto , arbetskraftsbyrån ) , enquiring about the possibilities of receiving unemployment benefits as a shareholder of a company . An official at ORG , X , had allegedly told him that he could receive unemployment benefits , provided he owned MONEY of the company 's shares .

Before ORG , the applicant argued that as his application for an unemployment benefit had been rejected , it meant that X had provided him with incorrect information .

ORG contested the action , arguing that X had not said that the applicant could own MONEY of a company 's shares , which information was incorrect . Moreover , the applicant had failed to make reference to his position in the company during his discussion with X.

The applicant and CARDINAL witnesses , who had overheard the conversation between the applicant and X as the telephone had been switched to the “ hands - free ” system , gave testimony in FAC . The witnesses verified that X had said that the applicant would still be entitled to unemployment benefits , provided he owned MONEY of the shares .

On DATE , ORG rejected the action , finding that ORG decision was based both on the applicant 's ownership in the company and on his membership of its ORG . ORG also found that the applicant and X had not discussed whether the membership of ORG had any effect on the grant of the benefit . Thus , there was no causal link between the incorrect information given by X and the rejection of the application for an unemployment benefit .

The applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting an oral hearing and that he and his CARDINAL witnesses be reheard . He also invoked as new evidence ORG decision , arguing that ORG had drawn the wrong conclusions from the wording of the decision . He claimed that his application had not been rejected due to the fact that he was a member of ORG , but solely on grounds of ownership . Due to this misinterpretation by ORG , it was essential that ORG hold an oral hearing .

On DATE , ORG upheld ORG judgment . As to the request for an oral hearing , it noted that the applicant admitted not having informed X about his membership of ORG . Thus , ORG found that it was not necessary to evaluate the testimonies concerning the telephone conversation between the applicant and X. Insofar as the applicant argued that ORG had drawn the wrong conclusions from ORG decision , it noted that the issue concerned interpretation of and drawing conclusions from written evidence and that the applicant had not proposed any oral evidence on this point . ORG rejected the request for an oral hearing as being manifestly unnecessary , as the examination of the case did not depend on the credibility of oral evidence .

The applicant sought leave to appeal from ORG ( korkein oikeus , högsta domstolen ) , requesting an oral hearing with a view to hearing all CARDINAL witnesses that had been heard before FAC , including the opposing party 's witness , and a new witness . He also wanted to be heard in person . He argued that ORG had wrongly evaluated the evidence and refused his request to rehear his witnesses . On DATE ORG refused him leave to appeal .

Under chapter CARDINAL ( PERSON ) , section CARDINAL ( CARDINAL ) of LAW , the applicant was in principle entitled to a hearing once he had requested CARDINAL , but this request could be refused , if a hearing would have been manifestly unnecessary .

According to subsection CARDINAL , if ORG rejects the appellant 's request for an oral hearing , he or she shall , where necessary , be reserved an opportunity to supplement the appeal .

According to chapter CARDINAL , section CARDINAL ( CARDINAL ) , ORG shall hold an oral hearing regardless of whether one has been requested , if a decision on the matter turns on the credibility of the testimony admitted in ORG , or the findings of ORG in an inspection , or on new testimony to be admitted in ORG .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

The applicant is a single mother of CARDINAL children . Prior to her application for an earlyretirement pension she had been employed by the same company for DATE and paid social security contributions to the ORG .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an earlyretirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the socalled “ EWK ” pension ” .

Along with her application for a pension , the applicant submitted , among other documents concerning her son ’s health condition , a medical certificate issued on DATE by a specialist medical centre . The certificate stated that the child ( born in DATE ) suffered from asthma and allergy to pollen and that he had been in need of his parent ’s constant care .

On DATE ORG ( “ the FAC ” ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( ORG ) .

ORG initially suspended the payment of the pension until DATE due to the fact that the applicant was still working on the date of the decision . The applicant resigned from her job where she had been working since DATE . Afterwards , the payments of the pension were resumed .

On DATE the ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s daughter required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the ORG ’s Ordinance of CARDINAL DATE on the right to early retirement of employees raising children who require permanent care ( ORG PERSON z dn . CARDINAL maja DATE w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) ( “ the DATE LAW ) .

The applicant appealed against the respective decisions divesting her of the right to an earlyretirement pension . She submitted that she should receive the benefit because her child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights .

On DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence , including expert medical opinions , that while indeed the applicant ’s child suffered from asthma and allergy he did not require his mother ’s permanent care since his health condition did not significantly impair his bodily functions . The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care .

The applicant further appealed against the firstinstance judgment .

On DATE the ORG ( Sąd Apelacyjny ) dismissed the appeal .

On DATE ORG ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant .

Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by ORG , despite the revocation of her right to an earlyretirement pension .

The applicant submitted that after the revocation of the EWK pension she had not received any unemployment or other benefits from the ORG . Given her age she had no chance to find a job again . Moreover , all her CARDINAL children had medical problems which put additional strain on her difficult financial situation . The applicant also submitted that her plot of land was occupied by a small house in which she lived and a vegetable garden .

The Government acknowledged that the applicant had been unable to find employment after the revocation of the EWK pension in DATE . However , the applicant received child support benefit for her CARDINAL children which in DATE amounted to ORG CARDINAL . It is not clear how long she has been receiving such payment . Her son K , the child in respect of whom the applicant had been granted the EWK pension , started working in DATE , aged DATE . The applicant ’s other son has been employed since DATE . In addition , the ORG maintained that the applicant owned a small piece of land ( QUANTITY ) .

In addition , the Government submitted information as regards the various types of social benefits available in GPE . However , they did not specify which of those benefits , if any , were available in the applicant ’s situation .

Under the relevant laws currently in force , it appears that the applicant will qualify for a regular retirement pension in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

Out of all applications lodged with the ORG , about twentyfour applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In eightyone applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .

The reopening of the proceedings concerning the earlyretirement pension is regulated in section CARDINAL ( CARDINAL ) of of LAW December CARDINAL on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) , which at the relevant time read as follows :

“ The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

On DATE a new subparagraph CARDINAL ( CARDINAL ) ( a ) was added , which reads as follows :

“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Pursuant to Article CARDINAL¹³ ORG , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for reexamination . Where ORG failed to find nonconformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was wellfounded ORG could also amend the impugned judgment and adjudicate on the merits .

On DATE the ORG made an application to ORG , asking for section CARDINAL § CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an agelimit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .

On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL § CARDINAL of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .

On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .

On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted .