Violation of Art. 6-2;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was charged ( under ORG CARDINAL , first alternative , and Articles CARDINAL and CARDINAL , first and second sub - paragraphs of LAW ) of having committed on DATE , CARDINAL DATE , offences of violent assault , sexual assault and homicide against his cousin PERSON ( aged DATE ) .

NORP ORG ( herredsrett ) , sitting with CARDINAL professional judges and CARDINAL lay judges , held a hearing from DATE to DATE , during which CARDINAL witnesses and CARDINAL experts were heard . On DATE ORG convicted the applicant of the charges and sentenced him to CARDINAL years’ imprisonment . Moreover , under LAW DATE , ORG ordered the applicant to pay ORG CARDINAL in compensation to PERSON parents for pain and suffering and additional inconvenience .

NORP The applicant appealed to ORG ( lagmannsrett ) , which held a hearing DATE and DATE , during which it took oral evidence from CARDINAL witnesses , CARDINAL of whom were experts appointed by ORG . Statements by CARDINAL expert witnesses were submitted . Giving its verdict , the jury answered all the questions put to it in the negative . When the jury ’s verdict is that the person is not guilty , but the court finds that he is undoubtedly guilty , the court may unanimously decide that the case shall be retried before other judges . The professional judges withdrew and deliberated for TIME , before they came back to announce that they accepted the jury ’s verdict . ORG thence acquitted the applicant of the charges .

On DATE , after hearing the pleas of counsel for the applicant and for the victim ’s parents lasting TIME , but without further evidence being submitted by the parties or taken by the court , the ORG judges unanimously upheld the ORG decision to award ORG CARDINAL in compensation to PERSON parents . On this point ORG relied on the following considerations :

“ It has been established in case - law that in such a serious case as the present one , and where the question of guilt has been decided in favour of the accused , a condition for making an award of compensation for non - pecuniary damages is that it must be clear on the balance of probabilities that the accused has committed the infringements specified in the indictment , see PERSON CARDINAL:CARDINAL .

Considering the evidence adduced in the case as a whole , the High Court finds it clearly probable that [ the applicant ] has committed the offences against PERSON with which he was charged and that an award of compensation to her parents should be made under LAW ( CARDINAL ) of LAW .

With respect to the compensation matter the High Court finds the following circumstances established .

On DATE , CARDINAL DATE the applicant went to the cinema in GPE with some of his friends . Around TIME he was in the centre of town . TIME PERSON had attended a NORP event at NORP . After this event she hitchhiked to the centre of GPE , where she arrived TIME . She talked to some friends who were in the main street of GPE and then left the centre at TIME About the same time [ the applicant ] left the main street and went for a short while to CARDINAL of his friend ’s house . Thereafter he cycled towards his home . He caught up with his cousin , PERSON , and they continued together . [ They ] lived QUANTITY from one another . They took a road called LOC . This is a short cut to PERSON home , but a detour for [ the applicant ] . ...

When they approached the habitation in PERSON they stopped . [ The applicant ] stroked PERSON breasts . She rejected him , kicked his bike , yelled at him and continued on her own . [ The applicant ] feared that , should PERSON find his conduct completely unacceptable , it would have disastrous consequences for him when his conduct would be known . He thought about earlier incidents of flashing and obscene behaviour and got scared of the consequences . He charged after her and performed the acts described in the indictment . ORG considers that his acts had their origin in an explosion of emotion , combined with a sexual attraction to PERSON According to forensic expert statements , it is established that by the time she was on the road she had already suffered lethal injury . It has not been fully ascertained whether she was dead when he dragged her from the road to the bushes in a field . Here he lifted a CARDINAL stone and hit her at least twice on the head . There was blood on both sides of the stone . The accused himself stated that he had the evil idea to conceal her face , so she could not tell anyone , by any means , what he had done .

He then left the scene , washed himself clean from the blood and earth in [ a lake ] nearby and then cycled at random towards ORG . After a while he cycled towards his home and encountered a witness . ... She stated that this was at TIME

A neighbour , who was the owner of the field , found PERSON the next morning . ... The police were called .

An extensive investigation was carried out and [ the applicant ] was summoned for questioning at an early stage . He was considered suspect , particularly because the police had some knowledge about his previous sexual acts , of which one incident had led to a formal complaint . At DATE [ the applicant ] gave a new statement to the police and changed his version as to the time of his arrival at home and his choice of roads from the town centre back home . It was inter alia against this background that [ the applicant ] was apprehended on DATE . On DATE he was placed in custody with a prohibition on correspondence and visits . At the court hearing he accepted his remand in custody . DATE [ the applicant ] delivered to his defence counsel at the time CARDINAL notes stating that he had killed Ms T. Counsel is thought to have asked the defendant whether he could recall this . He denied it and counsel handed the notes back to [ the applicant ] . DATE he confessed and gave detailed information about the course of events and the background . During questioning on DATE , after having gone through the statements with his counsel , he declared that he was guilty of a crime in accordance with the confession . Approximately DATE the confession was repeated to psychiatric experts . After having been transferred to GPE regional prison , he began to doubt the accuracy of his confession . ... During a police inquiry on DATE , his counsel gave notice that [ the applicant ] would not maintain his previous statement . ”

The applicant sought to appeal against the High Court order that he pay compensation , according to the rules of LAW DATE ( tvistemålsloven ) . PERSON parents and the applicant , represented by their respective counsel , took part in these proceedings , but not the prosecution .

On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) refused the applicant leave to appeal in so far as it concerned the High Court ’s assessment of the evidence , but granted leave in so far he was challenging ORG procedure and interpretation of the law .

By a judgment of DATE ORG , by CARDINAL votes to CARDINAL , rejected the appeal .

NORP The majority , Mr Justice Skogstad , joined by PERSON and PERSON , stated :

“ Appeal concerning the procedure

Apart from the fact that neither the wording of LAW nor the preparatory works suggest that an authorisation to pass judgment on civil claims in spite of a defendant ’s acquittal should depend on the reasons for the latter , I can not find any real grounds to support this proposition . Although it is evident that – in cases like the CARDINAL at hand – it must be a condition for passing judgment on compensation for non - pecuniary damage that it is clear on the balance of probabilities that the act has been committed [ handlingen er begått ] , the evidentiary standard is not as strict as that applying to a criminal conviction . I have problems seeing that in cases where the defendant has been acquitted , because it has not been found proven that the act has been committed [ handlingen er begått ] , should be placed in a somewhat different position than where there are other grounds for acquittal – as for example where the conduct is not punishable , where it has not been established that the defendant acted with the required criminal guilt , where the defendant is not found to be liable under the criminal law , or where there is self - defence or any other ground of exemption from criminal liability . Should it not be permissible to adjudicate civil claims in criminal proceedings in which the defendant has been acquitted because it has not been established that he has committed the act that was the factual basis for the indictment [ begått handlingen ] , the consequence would be that the claim must be brought up in separate civil proceedings . However such a lawsuit is both time consuming and expensive [ and ] .... the aggrieved party ’s possibilities to pursue such claims will depend on his economic situation . I find no attraction in such a solution .

I should also point out that if one were to operate a rule whereby an acquittal on the ground that it has not been established that the defendant has committed the act that was the factual basis for the indictment [ har begått den handling han er tiltalt for ] is treated differently than acquittals on other grounds , it might give rise to difficulties in instances where the case has been tried by a ORG sitting with a jury , as in the present case . A verdict of conviction requires that CARDINAL of the CARDINAL jurors have answered ‘ yes’ to the question of guilt and , regardless of whether the jury has answered ‘ yes’ or ‘ no’ , no grounds are given for the verdict . In most instances one will have more or less well - founded perceptions , but never total certainty , as to why the jury has answered in the negative .

On several occasions the courts have had to deal with the question whether a civil claim can be adjudicated in spite of the defendant having been acquitted in the criminal case . On those occasions , where the question has been submitted to ORG or ORG , it has not been a condition for dealing with the civil claim in connection with the criminal case that the [ criminal ] court ... has found it established that the defendant has committed the act that was the factual basis for the indictment [ har begått den handling tiltalen gjelder ] . ...

In my opinion , in the light of existing legal sources , there can not be any doubt that , under LAW DATE , it is not a condition for adjudicating a civil claim in connection with criminal proceedings that the court in [ the latter ] proceedings has found it proven that the defendant has committed the act that was the factual basis for the indictment [ har begått den handling saken gjelder ] . ...

Consequently , no procedural errors were committed when ORG , in spite of [ the applicant ’s ] acquittal in the criminal proceedings , passed judgment on the civil claim . ...

Appeal concerning the application of the law

The appellant has based his appeal on law on the argument that it would be contrary to the presumption of innocence in LAW if the court , after the defendant has been acquitted in the criminal case , passes judgment for compensation for non - pecuniary damage in the same case . In any event , he submits , it must be contrary to the presumption of innocence to give such reasoning on the compensation matter as done by ORG . ...

[ LAW ] is primarily addressed to judges in criminal proceedings and its main message is that judges shall not prejudge the defendant as having committed the crime of which he is indicted , or that there shall be no prejudgment through statements by public authorities ( see Frowein / Peukert : “ Europäische Menschenrectskonvention ” , “ ORG ” , CARDINAL . edition ( DATE ) page CARDINAL and following , and ORG : PERSON – Human Rights ( DATE ) , page CARDINAL ) . Both according to legal doctrine and the case - law of the GPE institutions , the provision may also have importance after the criminal case has been terminated ( see LAW : “ PERSON of the ORG ” ( DATE ) , pages CARDINAL - CARDINAL with further references to practice ) . For instance , in the GPE v. GPE judgment , the ORG stated that if the defendant has been acquitted by a final judgment , the courts might not , in a subsequent case concerning compensation for unjust prosecution , base its judgment on the fact that the accused is guilty . However , how far these points of view go is somewhat uncertain . While it is the accused and the ORG who are parties to the compensation proceedings regarding unjust prosecution , such proceedings can be seen as a prolongation of the criminal case . In my view , however , the presumption of innocence can hardly apply to civil proceedings between the accused and the person who has been prejudiced or has suffered damage by the act [ which was ] the factual basis for a criminal charge in respect of which the defendant has been acquitted [ en handling som siktede er frifunnet for ] . In any event , it must be evident that LAW can not bar the courts – in a civil case ( for example a case for compensation ; on dismissal or parental responsibilities ) DATE from establishing facts regarding the course of events in question , even if it should disclose the occurrence of a criminal offence and even if the person against whom the claim is directed has been acquitted of the offence in a preceding criminal case ( see , inter alia , PERSON : “ ORG med kommentarer ” “ The ORG with comments ” ( DATE ) , page CARDINAL , and ORG , op . cit . page CARDINAL ) . Should the presumption of innocence apply at all to civil proceedings between the aggrieved party and the accused , it must at any rate be a condition for finding a violation of LAW that a decision establishing criminal guilt has been taken . Were the court in a civil case not permitted to base its decision on the fact that the person acquitted of a criminal offence , has in fact committed the act [ begått handlingen ] , the acquittal would deprive the victim , or the person who has suffered damage , of the possibility to obtain a judicial review of claims that he or she might have against the accused . This would , in my view , be contrary to the fundamental right to a fair hearing in LAW .

[ The applicant ] has argued that a distinction must be made between cases where a civil claim is being reviewed together with the criminal matter and cases where the claim is examined in separate civil proceedings . I do not agree that there is any basis for making such a distinction . The system whereby civil claims may be raised in the criminal case is based upon well - founded considerations of procedural economy and ... can also benefit the defendant . In criminal proceedings the accused is , as a main rule , entitled to defence counsel paid for by the ORG and , bearing in mind also the thoroughness with which evidence is presented in a criminal trial , the accused , in the event of a civil claim being determined together with the criminal matter , enjoys particular protection against being wrongly judged . If the defendant is acquitted in the criminal case but is ordered to pay compensation for non - pecuniary damage , the accused will be left with a feeling of not having been ‘ totally ORG . But it should not matter to him whether the compensation claim is determined in connection with the criminal proceedings or in ensuing civil proceedings .

As mentioned above , the presumption of innocence under LAW can , in my view , hardly be applied in a civil case between the person acquitted and the aggrieved party . Bearing in mind the nature of this case , I do not , however , find it necessary to take a definite stance on this question , ORG did not in my view base its decision in the compensation claim on a finding of criminal guilt , which under any circumstance must be a condition for a violation of LAW . ...

The appellant has pleaded that the courts in practice will have difficulties in applying different evidentiary standards to criminal conviction and compensation . Moreover , he has submitted that when , as in this case , it is a requirement for making an award of compensation for non - pecuniary damage that it is clear on the balance of probabilities that the the accused has committed the act [ begått handlingen ] , the evidentiary requirement is so close to that applying to a criminal conviction that this in itself contributes to casting a suspicion of criminal liability . I have difficulties in understanding these arguments . The fact that the evidentiary requirements are different in various relations is nothing special for cases such as the present one . ... [ I]t is based on the general view that a qualified probability is required in order for the court to ground its decision on a fact that is strongly incriminating ... The fact that a stricter standard of proof applies in order to protect the interests of the defendant can not entail a breach of the LAW . ”

The minority of the court , Mr Justice Flock joined by Mr Chief Justice PERSON in the main reasoning and the conclusion , expressed the following opinion :

“ I am ... of a different opinion as to the main issue in the case . In my view , the appeal on procedure ... should be upheld . When a court primarily has found that the defendant was not the perpetrator of ‘ the act with which the case is concerned’ , the court may not , in my opinion , in the same judgment order the defendant to pay compensation for non - pecuniary damage on the ground that he nevertheless has performed the same ‘ act’ .

Under the DATE Code of Criminal Procedure – as noted by the first voting ORG – it was authorised to pass judgment on civil claims even though the defendant had been acquitted of the criminal act . ... The former [ limitation in this respect ] was repealed . However , in my view , the far reaching application of the new rule made by ORG in this case does not necessarily follow from the statute or from former ORG rulings . Besides , it would be more consistent with the presumption of innocence under LAW , now incorporated into NORP law , if the court did not both brand the defendant as the perpetrator of the act under civil law and acquit him of criminal liability in the same judgment . Against this background , the best solution would be to interpret the possibility DATE and the corresponding duty for the courts DATE under the statute to adjudicate civil claims in the criminal case with the qualification that the most extreme consequences should be avoided .

Below I shall deal with each of the reasons for my position .

When the DATE Code improved the possibilities of the aggrieved party to have civil claims determined in connection with the criminal proceedings , some instances were mentioned in the preparatory work of claims that could be adjudicated even though the defendant had been acquitted . This was , inter alia , where the purpose , intent or gross negligence required by LAW had not been proved but where it had been shown that the defendant had displayed sufficient negligence to be held liable to pay compensation . However , the preparatory works did not include ... those instances where the defendant had been acquitted because it had not been established that he or she had performed the act as cited in the indictment . This would be the most frequent reason for acquittal in , for example , cases of aggravated sexual assault against minors ... and where compensation for non - pecuniary damage is a recurrent issue .

Special questions arise in this kind of acquittal . A conviction and an order to pay compensation are not only different legal consequences based on different aspects of the case , but also , in the same case and on the same evidence , the court assesses the evidence twice with the possibility of reaching different results . Legally , this would be justified by the fact that the evidentiary requirements for criminal conviction are stricter than those with respect to an order to pay compensation for non - pecuniary damage . However , this situation is so special DATE and was excluded under the former legislation DATE that one would expect that the subject be discussed , or at least be explicitly mentioned , in the preparatory works . As this was not the case , it can be deduced that the legislators probably did not have such cases in mind , or at least did not regard them as essential when the rules were amended in DATE .

It is undoubtedly correct that ORG – and other courts in our country – in certain rulings have noted that an award can be made for pecuniary and non - pecuniary damage even if the defendant has been acquitted in the same case . ... However , ... I can hardly see ... that there is such an established case - law in this area as to prevent certain limitations being made in the interpretation of the law .

As regards the presumption of innocence in LAW , it is somewhat uncertain how far this requirement extends in NORP law . ...

When taking a decision in the present case , one is faced with the need to strike a balance between , on the one hand , the accused ’s interests and , on the other hand , those of the victim and his or her closest relatives . It is important to take into account the fact that the DATE revision was intended to strengthen the victim ’s position . However , I find that an acquittal for having committed the incriminated act DATE and in particular an act of murder – must clearly appear from the judgment . This is such a prominent consideration that it should in my view be predominant in the interpretation of the law .

In following this reasoning , some issues of delimitation will arise as to when the court should abstain from determining civil claims together with an acquittal . The limitation , that is implied in my opinion , on the possibility to adjudicate such claims is inter alia that it must be ascertainable that the acquittal is based on a finding that there is insufficient evidence to show that the accused committed the offence of which he / she was charged . This might be a problem in all cases before ORG where the question of guilt is decided by a jury , without a reasoned verdict . ”

NORP Under NORP criminal law there are CARDINAL basic conditions that must be met in order to establish criminal liability :

( CARDINAL ) the accused has committed the proscribed act or omission ( actus reus ) which is contrary to a provision of LAW or to a special statutory penal provision in force at the time when the act was committed ;

( CARDINAL ) there are no exonerating circumstances ( e.g. self - defence ) ;

( CARDINAL ) the accused has acted with intent ( mens rea ) , unless otherwise expressly stated in the relevant penal provision ; and

( CARDINAL ) the accused was of sound mind at the time of the commission of the offence .

As a general rule , the prosecution has to prove these CARDINAL elements beyond reasonable doubt . Any reasonable doubt shall benefit the accused ( in dubio pro reo ) .

NORP Under the NORP jury system , when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion , and no records are kept which could disclose that a negative answer as to the applicant ’s guilt was not unanimous . The criminal system knows CARDINAL conclusions in a criminal case — guilt or acquittal ( see Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW ) . There is no third alternative , which was known in some other NORP countries , where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt .

In so far as is relevant , LAW reads :

“ If the jury ’s verdict is that the person is not guilty , but the court finds that he is undoubtedly guilty , the court may unanimously decide that the case shall be retried before other judges . At the new trial the High Court shall be constituted as a composite court ( meddomsrett ) ... ”

Composed of CARDINAL new judges and CARDINAL lay judges , the “ composite court ” examines the case afresh . In contrast to a trial court sitting with a jury , it gives reasons not only for its decision on civil liability to pay compensation , but also with regard to criminal liability .

Article CARDINAL of the same Code provides :

“ If the jury ’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to LAW , it shall render a judgement of acquittal . ”

No reasons are given for an acquittal .

Regardless of whether the accused has been acquitted or is convicted , ORG is to determine any civil claim made in the criminal proceedings , for instance claims for compensation , without the participation of any members of the jury . That is , civil claims are decided exclusively by the CARDINAL professional judges who have taken part in the criminal case .

The court will determine the claim on the basis of the evidence adduced during the trial but may receive or order the submission of further evidence if necessary . Evidence already produced in the criminal case but relevant to the compensation issue will not be heard again .

Reasons are given for the judges’ decision on compensation .

Under LAW Procedure DATE , a civil claim may be pursued in connection with a criminal trial , provided that the claim arises from the same set of facts . Consequently , the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings . Article CARDINAL reads :

“ Any legal claim that the aggrieved person or any other injured person has against the person charged may , in accordance with the provisions of LAW , be pursued in connection with such cases as are mentioned in LAW , provided that the said claim arises from the same act that the case is concerned with . On the said conditions the following claims may also be pursued :

The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter CARDINAL ... ” .

Other provisions concerning civil compensation claims may be found in LAW of LAW , notably the following :

“ § CARDINAL . In a public case the prosecuting authority may on application pursue such civil legal claims as are specified in LAW . ...

When civil legal claims are pursued against a person other than the person charged , the person concerned assumes the position of a party to the case in so far as this issue is concerned . ...

§ CARDINAL . Any person who has any such civil legal claim as is specified in DATE may himself pursue it in connection with a public case if a main hearing is held . ...

§ CARDINAL . A separate appeal against the decision of civil legal claims shall be brought according to the provisions of LAW . The same applies to a reopening of the case . ”

Under LAW DATE , the purported victim may , regardless of the outcome of the criminal proceedings , claim compensation for pecuniary and non - pecuniary damage .

LAW , as in force at the relevant time , read as follows :

“ Anyone who , with intent or gross negligence has

a. Caused personal injury or

b. Committed ... an act of misconduct as mentioned in LAW , may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation ( oppreisning ) for the pain and suffering and other non - pecuniary damage caused thereby . ...

A person who with intent or gross negligence has caused the death of another person , may be ordered to pay such compensation to the deceased ’s ... parents . ”

LAW , referred to in the above provision , expressly applies to misconduct mentioned in , amongst others , LAW .

A claim for compensation for nonpecuniary damage submitted by a victim under LAW , is subject to his or her showing that the alleged perpetrator , with intent or gross negligence , committed the wrongful act . The test is normally the balance of probabilities and the burden of proof lies with the claimant . This burden may be heavier where liability may have serious consequences for the respondent ’s reputation , though it will be less than for criminal liability . The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case .

The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same . The subjective constitutive elements in principle differ : normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence . There may be exonerating circumstances – such as self - defence , necessity , provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation . A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation ( see PERSON GPE ORG ) CARDINAL “ Erstatning til ofrene hvor tiltalte frifinnes for straff ” ( Compensation to Victims in Cases where the Accused has been Acquitted of ORG ) , study by Mr PERSON , Professor of LAW , sub - chapter CARDINAL.CARDINAL.CARDINAL ) .

The purposes of the criminal law and the law on compensation are not identical . While deterrence and restoration are important considerations in both areas of law , the former places emphasis on retribution and the latter on the spreading of financial loss . The CARDINAL systems also supplement one another in important respects . While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences , those of the law of compensation are particularly designed to meet the aggrieved person ’s need for economic redress ( ibidem , LAW , sub - chapter CARDINAL.CARDINAL.CARDINAL ) .


Violation of Art. 6-1;Just satisfaction reserved

The applicant , a NORP national born in DATE , is a gunsmith . He is in the process of serving in Mons prison a sentence of DATE hard labour imposed on him on DATE by ORG for murder .

During TIME DATE , QUANTITY NORP , Mr. PERSON and Mr. PERSON , were killed by revolver shots in GPE whilst they were in a motor - car with Mr. PERSON , Mr. PERSON ( against whom proceedings were subsequently discontinued ) and a NORP national , Mr. PERSON .

On DATE , Mr. PERSON , an investigating judge at ORG , issued a warrant for the arrest of the applicant , who was suspected of having caused both deaths . He was in GPE at the time , but was arrested by the NORP authorities who , after agreeing to grant his extradition , handed him over to the NORP police ( gendarmerie ) on DATE . ORG ( public prosecutor ) so informed his colleague in GPE by a letter of DATE . Mr. PERSON , a senior deputy procureur , initialled the letter and forwarded it to the official in the public prosecutor ’s department ( parquet ) who was dealing with the case , one Mrs. PERSON . She transmitted it to Mr. PERSON with a covering note ( apostille ) dated DATE .

On DATE , the investigating judge wrote to the GPE procureur du Roi to enquire whether , as regards the co - accused PERSON , the public prosecutor ’s department intended to report the facts to the NORP authorities , those authorities apparently being no longer willing to grant his extradition . On his covering note , the judge added in manuscript , between brackets , the words " for the attention of Mr. PERSON " . Mrs. PERSON replied to Mr. PERSON on DATE .

On DATE , the procureur général ( ORG prosecutor ) attached to ORG sent to the procureur du Roi the results of letters rogatory executed in GPE concerning Mr. PERSON . After initialling the covering note , Mr. PERSON forwarded it to Mr. PERSON , the deputy who had taken over from Mrs. PERSON in dealing with the case ; Mr. PERSON transmitted the note to the investigating judge on DATE .

On DATE , Mr. PERSON took his oath as a judge on ORG , to which office he had been appointed on DATE . Most of the investigations had been completed by that time , although some further formal steps were taken at DATE .

On CARDINAL DATE , the deputy , Mr. PERSON , signed an application for an arrest warrant ( réquisitoire de prise de corps ) ; prior to that , in a report of CARDINAL pages , he had referred the matter to the procureur général attached to ORG , who had replied on DATE By judgment of DATE , ORG ( Chambre des mises en accusation ) of ORG remitted the applicant for trial before ORG on charges of voluntary and premeditated manslaughter of Mr. PERSON and Mr. PERSON . The procureur général drew up the formal indictment on DATE .

The trial took place from DATE before ORG which was presided over by Mr. PERSON . After the court had heard , amongst others , numerous prosecution and defence witnesses , the CARDINAL members of the jury withdrew to consider their verdict . Mr. PERSON had maintained throughout that he was innocent . On the third question put to them , concerning the " principal count " , they arrived at a verdict of guilty , but CARDINAL votes to CARDINAL . After deliberating on that question in private , the President and the CARDINAL other judges ( assesseurs ) declared that they agreed with the majority .

In the final event , ORG convicted the applicant of the murder of Mr. PERSON and acquitted him as regards the other charges ; it accepted that there were mitigating circumstances and sentenced him on DATE to CARDINAL years’ hard labour . It also recorded that on account of his nationality it had not been possible to obtain the extradition to GPE of Mr. PERSON , who had been arrested in GPE .

The applicant then appealed on points of law to ORG . His sixth ground of appeal , the only ground that is relevant in the present case , was that there had been a violation of LAW , which provides that " proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as public prosecutor ( ministère public ) ... " . He contended that the words " for the attention of Mr. PERSON " appearing in manuscript on the covering note of CARDINAL DATE ( see paragraph CARDINAL above ) showed that Mr. PERSON , and not some other judicial officer in the public prosecutor ’s department , had been dealing with the matter at the relevant time and had , accordingly , taken some part or other in the investigation of the case . Mr. PERSON made no mention of the letter of DATE and the note of DATE ( see paragraphs CARDINAL and CARDINAL above ) , since at that stage neither he nor his lawyer had identified the author of the initials marked thereon ; the Government on their own initiative supplied this information to the Commission in their written observations of DATE on the admissibility of the application .

In his submissions , Mr. PERSON , an avocat général , retraced developments in the relevant NORP legislation and judicial decisions , distinguishing CARDINAL periods :

( a ) Before DATE , although there were no written rules on the subject , ORG had delivered CARDINAL judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and , in particular , on the assize court bench . ORG founded this prohibition on a general and absolute principle that was said to derive from the very nature of the functions . The avocat général summarised the judgments as follows :

" It is of little moment - that the judicial officer in the public prosecutor ’s department intervened in the case only occasionally or by chance ... ;

- that his intervention did not implicate one or more of the accused by name ;

- that his intervention did not involve a formal step in the process of investigation .

It suffices that the judicial officer in the public prosecutor ’s department personally played some part in the conduct of the prosecution in the case in question .

There is incompatibility as soon as the judicial officer , during the course of the prosecution , has personally intervened in the case in the capacity of member of the public prosecutor ’s department . "

( b ) The second period ( DATE ) , during which ORG apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge , was marked by CARDINAL new factors : the incorporation of the Convention into the NORP domestic legal system and the developments in domestic case - law with regard to the general principle of law whereby cases must be impartially examined by the court .

The litigant ’s right to " an impartial tribunal " , within the meaning of LAW ( article DATE ) of the LAW , could imply either that a judge was simply obliged to withdraw if he were at all biased as regards the case or , alternatively , that he was under the more extensive duty of withdrawing whenever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartiality . The avocat général rejected the first interpretation , which he described as " restrictive " , in favour of the second , the " extensive " , interpretation ; he relied notably on LAW ( account to be taken of the object and purpose ) and on the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL , pp . CARDINAL , § CARDINAL in fine ) . As regards the general principle of law whereby cases must be impartially examined by the court , he also referred to judgments of ORG and the NORP Conseil d’État . In addition , he cited the following passage from an inaugural address of DATE to ORG : " any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision " .

( c ) The third period saw the entry into force of Articles CARDINAL and CARDINAL of the Judicial Code ( see paragraph CARDINAL below ) and the application by ORG second of these ORG to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor ’s department . According to the avocat général , the CARDINAL judgments that he listed followed the same approach as those delivered in the first period and established that :

( i ) notwithstanding LAW , the general principle of law whereby cases must be impartially examined by the court had retained its full force ;

( ii ) for the purposes of that Article , the expression " dealing with a case in the exercise of the functions of public prosecutor " signified intervening therein in the capacity of prosecuting party ;

( iii ) there could not be said to have been such an intervention if , in the case concerned , a judicial officer in the public prosecutor ’s department had simply

- appeared at a hearing at which the court did no more than adopt a purely procedural measure ; or

- taken some step which was manifestly without effect on the conduct of the prosecution .

In the light of the foregoing , the avocat général concluded that ORG should " set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground , to be taken into consideration by ORG of its own motion , of violation either of LAW ( article DATE ) of the Convention ... or of the general principle of law whereby cases must be impartially examined by the court " .

The avocat général stressed that the covering note of CARDINAL DATE emanated from the investigating judge , the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor ’s department who were dealing with the prosecution . And Mr. PERSON had added to the covering note , in manuscript , the words " for the attention of Mr. PERSON " , thereby indicating the specific addressee for whom the note was personally intended :

" If the investigating judge marked this covering note as being for Mr. PERSON ’s attention , it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution .

What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the CARDINAL officers had been in contact regarding the investigation of the case ?

It is of little moment that other judicial officers in the public prosecutor ’s department intervened in the case , for example to follow up the investigating judge ’s covering note , or that Mr. PERSON intervened only by chance or occasionally , or that such intervention has not been shown to have implicated the appellant or a co - accused by name or ... to have involved a formal step in the process of investigation .

Finally , there would be no reasonable explanation for the handwritten words ... if Mr. PERSON ’s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution . "

Even if ORG were not to allow the appeal on the sixth ground , which was based on LAW , the circumstances described above were , in the opinion of the avocat général , Mr. PERSON , sufficient to give rise to legitimate doubts as to whether the President of ORG had offered the guarantees of impartiality required both by LAW ( article LAW and by the general principle whereby cases must be impartially examined by the court .

ORG dismissed the appeal on DATE .

As regards the sixth ground of appeal , ORG observed firstly that the mere despatch of the covering note of CARDINAL DATE did not necessarily show that Mr. PERSON had " acted in the case as public prosecutor " , within the meaning of Article CARDINAL of the Judicial Code .

ORG also took into consideration of its own motion LAW ( article DATE ) of the LAW and the general principle of law establishing the right to the impartiality of the court . It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled . However , the ORG held that the documents which it could take into account did not reveal that after the public prosecutor ’s department had received the covering note mentioned in the ground of appeal , Mr. PERSON , who was then a senior deputy to the GPE procureur du Roi , had taken any decision or intervened in any manner whatsoever in the conduct of the prosecution relating to the facts in question . Admittedly , for a judge ’s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor ’s department , it was not essential that such intervention should have consisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation . Nevertheless , it could not be assumed that a judicial officer in the public prosecutor ’s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case . In this connection , ORG noted finally that it was not the senior deputy PERSON who had replied to the covering note .

In criminal matters , the public prosecutor ’s department " conducts prosecutions in the manner specified by law " ( Article CARDINAL , first paragraph , of LAW ) . In that capacity , it investigates , and institutes proceedings in respect of , offences and then , if appropriate , appears at the trial in order to argue the case for the prosecution .

All the judicial officers in the public prosecutor ’s department form a hierarchical body which is generally recognised as being characterised by unity , indivisibility and independence .

In addition to the departments of the procureur général at ORG and of the procureurs généraux at ORG , there is a procureur du Roi for each district ; subject to the supervision and directions of the procureur général attached to ORG , a procureur du Roi acts as public prosecutor before ORG , ORG , ORG and ORG ( LAW ) . He is aided by one or more deputies who are subject to his personal supervision and directions , including one or more senior deputies appointed by LAW who assist him in the management of the public prosecutor ’s department ( LAW ) .

In the GPE public prosecutor ’s department , there are CARDINAL judicial officers all of whom are answerable to the procureur du Roi . The department is divided into sections , with a senior deputy at the head of each section . As a strict matter of law , the individual deputies come under the sole authority of the procureur du Roi who himself comes under the authority of the procureur général attached to ORG , but in practice a senior deputy exercises certain administrative powers over the deputies . In particular , he revises their written submissions to the courts , discusses with them the approach to be adopted in a specific case and , if the occasion arises , gives them advice on points of law .

CARDINAL of the above - mentioned sections - section B - deals with indictable and non - indictable offences ( crimes et délits ) against the person . Mr. PERSON was the head of this section during the period in question , until his appointment to ORG ( see paragraph CARDINAL above ) . According to the Government , the procureur du Roi regarded himself at that time as personally responsible for cases - like Mr. PERSON ’s - involving an indictable offence , the number whereof was actually fairly small ; he worked on those cases directly with the deputy in charge of the file - on this occasion , Mrs. PERSON and then Mr. PERSON - , rather than through the intermediary of the senior deputy whose principal role was to countersign documents , if not to act as a " letter - box " . The applicant contested this version of the facts , maintaining that the Government were giving an exaggerated view of the " autonomy " enjoyed by the deputies vis - à - vis the senior deputies .

Under LAW , a jury has to be constituted in all cases involving an indictable offence . PERSON are held , as a rule at the chief town in each province , in order to try accused persons remitted for trial there by ORG ( ORG CARDINAL to CARDINAL of the Judicial Code and LAW ) .

Each assize court is composed of a President and CARDINAL other judges ( assesseurs ) ; for criminal matters , it sits with a jury of CARDINAL members ( Articles CARDINAL to CARDINAL of the Judicial Code ) .

The President ’s duties include directing the jurors in the exercise of their functions , summing - up the case on which they have to deliberate , presiding over the whole of the procedure and determining the order in which those wishing to do so shall address the court ; he also keeps order in court ( LAW ) . He is entitled by law to take , at his discretion and on his own initiative , any steps which he may consider expedient for the purpose of establishing the truth , and he is bound in honour and conscience to make every effort to that end , for example by ordering of his own motion the attendance of witnesses or the production of documents ( Articles CARDINAL and CARDINAL ) .

After closing the hearings ( LAW , last paragraph , of LAW ) , the President puts to the jury the questions arising from the indictment and hands the text of those questions to the foreman of the jury ( Articles CARDINAL to CARDINAL ) . The jurors then retire to their room to deliberate together , in the absence of the President and the other judges ; they may return only when they have arrived at their verdict ( Articles CARDINAL and CARDINAL ) .

To be valid , the jury ’s verdict must be adopted by a majority for or against the accused ; if the voting is equal , he is acquitted ( Article CARDINAL ) . However , if he is found guilty on the principal count by no more than the simple majority of CARDINAL votes to CARDINAL - as was the case for Mr. PERSON ( see paragraph CARDINAL above ) - , the President and the CARDINAL other judges deliberate together on the same question ; if a majority of them does not agree with the majority of the jury , the accused is acquitted ( Article CARDINAL ) . If there is a finding of guilt , the judges retire with the jurors to the jury - room and they deliberate as a single body , under the chairmanship of the President of the ORG , on the sentence to be imposed in accordance with the criminal law ; the decision is taken by an absolute majority ( LAW .

LAW prohibits the concurrent exercise of different judicial functions , except where otherwise provided by law ; it lays down that " any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function " shall be null and void . LAW that " proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as ... public prosecutor ( ministère public ) or has delivered rulings on the conduct of the investigations " .