Violation of Art. 6;Just satisfaction reserved

In DATE Mr PERSON was a warder at FAC ( GPE ) , having previously worked at FAC until DATE .

On DATE Mr PERSON , an inmate of ORG serving a life sentence imposed by ORG , attempted to escape . Using a revolver which he had managed to obtain clandestinely , he took the chief warder hostage , but another warder succeeded in disarming him . A note signed by PERSON was found on him ; it was undated and read as follows :

" I hereby promise to pay the sum of MONEY by CARDINAL or DATE . "

When questioned by the GPE police and an investigating judge , he first refused to disclose where the weapon had come from , and then stated that he had been given it by the applicant .

Mr PERSON was charged on the following day by the investigating judge of ORG ( tribunal de première instance ) .

He was detained on DATE and denied that he had provided the weapon . He admitted having written and signed the document , but claimed that he had given it to another inmate , PERSON , from whom he said he had borrowed the sum of MONEY to pay gambling debts .

The detention order was confirmed on several occasions in DATE .

Mr Derriks , the Deputy Director of ORG , indicated that he had new information for the investigators , and was interviewed on DATE by the police inspector assigned to the inquiry . He stated as follows :

" For DATE there have been rumours among the prisoners in C wing suggesting that the former warder , PERSON , was not the person who brought into the prison the revolver used by PERSON .

More recently , on DATE , I saw the inmate PERSON in an office of our prison . I had to inform him of an internal administrative decision . On that occasion PERSON told me that he wished to give me information confided in him by other inmates of C wing . He said that the weapon used by PERSON had been introduced into the prison initially for the use of the prisoner PERSON by a certain PERSON , a visitor of the prisoner PERSON . After she had smuggled the weapon into the prison and hidden it in the visitors’ lavatory , PERSON had escaped when , on DATE , he had been taken for a medical examination at FAC . The weapon remained in the prison and finally ended up in the hands of PERSON , who had planned to escape with PERSON using the weapon .

According to PERSON , after it had been brought into the building , the weapon was hidden at the bottom of a dustbin , which PERSON alone , as a server , had the possibility of using as a hiding place for DATE .

I must inform you that PERSON made this statement spontaneously , but hoping to increase his chances of release on licence .

I would add that PERSON has still not been re - arrested since his escape on DATE and that PERSON , nicknamed the ‘ C wing FAC , was provisionally released , with a view to deportation , on DATE .

The latter ’s visitor may be identified as : PERSON ... , or her sister PERSON , ...

Again according to PERSON , PERSON is totally unconnected with the bringing into the prison of these weapons .

The investigators tried to question the persons referred to in the above statement .

On DATE Mr PERSON reaffirmed before the investigating judge that the applicant had provided him with the weapon , in exchange for payment of MONEY .

PERSON , who was questioned in prison on DATE , refused to say anything , for fear of provoking animosity from the other inmates . He added that he would report of his own accord to the investigating judge once he had obtained his release on licence , and that he would give evidence in ORG if , by then , he was back with his family so that he could protect them from any reprisals by Mr PERSON .

On DATE the police questioned Miss PERSON , who denied the accusation that she had introduced a weapon for the use of Mr GPE , a close friend of her sister PERSON . She stated that , although they used her address , Mr PERSON and her sister lived elsewhere .

Mr PERSON and Miss PERSON were summoned to appear on DATE . They telephoned the investigators on DATE to tell them that for personal reasons they were unable to appear for the time being but they were willing to come forward at DATE . They did not comply with CARDINAL further summonses . On DATE the investigators informed the investigating judge that the CARDINAL persons concerned had left their residence for an unknown destination , and that Mr GPE , a foreign national , had been released provisionally shortly before and was subject to a deportation order .

On DATE ORG ( chambre du conseil ) rescinded the detention order concerning the applicant . Its decision was confirmed by ORG ( chambre des mises en accusation ) on DATE .

Mr PERSON was sent for trial before ORG , charged with :

" A. on DATE ... as an accessory ... having procured weapons which were used to commit a criminal offence , knowing that they were intended to be so used , or having knowingly aided or abetted the perpetrator of the offence ... in respect of action which prepared or facilitated the offence or which carried it out , having attempted to take a hostage , by holding , detaining or seizing PERSON , a prison warder , in order to ... prepare or facilitate the escape [ of PERSON , the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards the perpetration of the offence and which conduct was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrators .

B. ... having , between CARDINAL DATE and DATE , being the officer on duty with responsibility for an inmate convicted of a criminal offence , namely , PERSON , facilitated the latter ’s escape by supplying him with a weapon , the said escape having been attempted using violence or threats .

C. ... having , in DATE , prior to DATE , over an unspecified period , had in his possession a firearm without having duly registered it .

D. ...

E. ... having , in DATE or DATE , at a date as yet undetermined , sold a firearm to a person who was neither a manufacturer nor an arms dealer nor in possession of an authorisation to purchase it .

On DATE the court acquitted him on the following grounds :

It is not possible on the basis of the case - file or the evidence adduced at the hearing to form , beyond all possible doubt , a conviction as to the ... defendant ’s guilt ; the statements , albeit categorical , [ of PERSON ] can not in fact be verified by any specific objective evidence in the case - file ;

In the same judgment , it convicted Mr PERSON and sentenced him to CARDINAL years’ imprisonment .

At the hearing on DATE the court had heard the applicant and PERSON , and had also taken evidence from CARDINAL prison warders and QUANTITY police officers .

The prosecution and the civil party seeking damages appealed . By a unanimous judgment of DATE , ORG sentenced Mr PERSON to CARDINAL GPE imprisonment , the part of the sentence exceeding the time spent in detention on remand being suspended for DATE .

It found that :

" ... the co - defendant ’s accusations have remained consistent although he had no interest in ... securing [ the applicant ’s ] downfall , and in addition to other information in the case - file concerning the defendant ’s financial circumstances and conduct , the latter having admitted borrowing money from a prisoner , they give rise to serious , precise and concurring presumptions which constitute proof of the charges ... "

At the same time it confirmed the sentence imposed on PERSON at first instance .

Mr PERSON appealed , and ORG quashed the judgment on CARDINAL DATE , on the grounds that ORG had been presided over by a judge who had on CARDINAL DATE presided over ORG when it had confirmed a decision of ORG refusing to order the appellant ’s release , and , having regard to Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , on which he had relied , such a circumstance could arouse in the appellant " a legitimate doubt as to the ability of ORG ... to hear the case in an impartial manner . "

On an application by PERSON , the principal public prosecutor of ORG , to which the case had been remitted , sent the public prosecutor of ORG ) a letter of request on DATE asking him to question PERSON , who had in the meantime been arrested in GPE and was being held at FAC . He was questioned by the NORP police on DATE and denied having lent the applicant MONEY . The record of his statements was added to the applicant ’s case - file .

On DATE ORG , by a unanimous decision , sentenced Mr PERSON to CARDINAL years’ imprisonment . The court gave the following reasons for its decision :

A detailed examination of the evidence in the case - file and of the evidence adduced at the hearing has enabled the court to form the conviction that the defendant is guilty of the offences as charged ;

This conviction is based on CARDINAL items of evidence which are complementary :

( CARDINAL ) the statements of PERSON ; ( CARDINAL ) the promissory note signed by PERSON ;

( CARDINAL ) The statements of PERSON

Notwithstanding the caution with which the statements of a person such as ORG should be treated , the court is bound to observe that the accusations which he levelled against PERSON have remained consistent throughout the investigation and that the statements which he made on numerous occasions both when questioned by the police and on examination by the investigating judge are precise and coherent ;

In addition it should be stressed that the case - file contains no evidence to support the claim that there was between PERSON and PERSON a matter of dispute or disagreement capable of explaining or justifying the accusation made by the latter against the former ;

PERSON himself has not cited in this respect any reason for his accuser to bear ill - feelings against him ;

The defendant unsuccessfully alleged in his submissions that ORG statements were improbable in numerous respects and contained discrepancies ;

The court is bound to note that , as regards the essential question , namely the allegation that PERSON supplied PERSON with the firearm which was used to carry out the escape attempt , PERSON has never altered his statements ;

In short , these statements at no time appeared improbable or incoherent ; on the contrary , they are highly believable and capable of sustaining the conviction formed by the court ;

( CARDINAL ) The promissory note signed by PERSON

It is established that a document constituting a promissory note for a sum of MONEY , signed by PERSON , was discovered in the search made of PERSON after his abortive escape attempt ;

The court notes that the existence of this document accordingly constitutes an objective fact which corroborates PERSON accusations and shows that there existed between the CARDINAL men business relations of which the least that can be said is that they were unacceptable as far as PERSON was concerned because of his duties as a prison warder and that these relations were such as to undermine his independence vis - à - vis prisoners ;

Although he is unable to deny that he had contracted a debt , he has unsuccessfully alleged that he had borrowed the sum from another inmate ;

This statement , in the first place , is formally contested both by PERSON and the other prisoner , a certain PERSON , and secondly , is not at all consistent with the fact that the disputed document was found in PERSON hands ;

It is hard to see why the promissory note should be among the documents in PERSON possession if PERSON had not been his debtor ;

These CARDINAL objective items of evidence , which are in no way incompatible with all the other evidence regarding the defendant ’s conduct in relation to the inmates ( borrowing sums of money from them , abnormal familiarity , serious failures to carry out proper surveillance ) , are sufficient to lead the court to form its conviction ;

The first - instance court wrongly found that charges A , B and E were not established ; it did not rule on charge C ;

These CARDINAL charges [ see paragraph CARDINAL above ] are established ; the offences referred to therein are a manifestation of a single criminal intention and justify the imposition of CARDINAL sentence , the heaviest of those applicable ;

The offences committed by the defendant are extremely serious ones ;

By facilitating by supplying a weapon the escape of a prisoner serving life imprisonment , even though the escape failed because of circumstances outside his control , the defendant PERSON endangered the lives of certain of his fellow - warders who , like him , were on duty with responsibility for prisoners ;

Such actions must be punished by a sentence commensurate with their seriousness , and the imposition of any suspended sentence is consequently out of the question ;

In submissions of CARDINAL DATE counsel for the defence had asked the court :

As principal submission

To hold that each and every charge brought against the defendant PERSON is not established , to find him not guilty and acquit him .

In the alternative

To carry out all appropriate additional investigative measures , and in any event to order PERSON , PERSON , PERSON and PERSON , all detained in FAC at the time of the alleged offences , to be called as witnesses ... "

With respect to PERSON , the application was based on the following considerations ( pp . DATE and CARDINAL of the said submissions ) :

Short statement of the facts

During the investigation ...

In DATE , following rumours which had circulated persistently for DATE in C wing of ORG ( PERSON had not been inside this prison since being arrested on DATE , hence no contact with the prisoners in that wing ) , it had turned out , according to these rumours among prisoners , that it had not been PERSON who had introduced the revolver ‘ used by PERSON Hernandez’ ...

On DATE prisoner PERSON reported these rumours and gave full details as to how the weapon had been introduced and the persons involved - directly or indirectly : PERSON , another server in C wing when being visited by his friend PERSON of the weapon , passing it to PERSON , finally reaching PERSON .

PERSON escaped on DATE .

PERSON released on licence and deported in DATE .

N.B. No detailed investigation took place regarding these facts .

PERSON was not even questioned by the investigating judge , although he had promised [ the police ] that he would give evidence ( i.e. on oath ) before ORG if necessary ...

Critical appreciation of the investigation ...

The Deputy Director of ORG , Mr Derriks , considered it his duty to bring to the attention of the judicial authorities certain facts ( which he thus considered to be sufficiently important ) , rumours of long standing and statements made by a prisoner PERSON , all of direct relevance to the PERSON / PERSON - file .

Rumours ( persistent ones ) had been circulating for DATE among the inmates of C wing ( the wing of ORG , a server , of PERSON , often in the workshop , of PERSON , another server ... )

according to which the former warder PERSON had not been the person who had introduced the revolver used by PERSON ...

Commentary

This literal quotation from the beginning of the statement by the Deputy Director itself demonstrates uncontradictably that there was a ‘ ORG item of evidence here , to be verified and checked in an exhaustive and thorough manner of course , as to the introduction of the revolver into the prison by some person other than PERSON .

The saying ‘ no smoke without fire’ which applies here is a vivid expression of popular wisdom .

Statements made by prisoner PERSON ( to Mr Derriks on CARDINAL )

These statements are precise enough as to how the weapon was introduced :

( a ) by a woman visitor ... in the lavatory ( b ) PERSON , the deported ‘ FAC ( c ) PERSON , escaped on DATE ... ( d ) PERSON these CARDINAL were known as having made plans to escape ... ( e ) the weapon was hidden at the bottom of a dustbin .

Commentary

These CARDINAL facts mentioned above would on their own have deserved a thorough investigation ( the third fact appears believable since PERSON stated it himself ) .

PERSON ’s offer to give evidence on oath - possibly at the PERSON , with reference to the correctness of the content of his statements ...

Commentary

Even if this declaration appears from his point of view to favour his request for release on licence , nothing prevented such statements and such an offer of sworn evidence at the very least engaging the attention of an impartial investigator , always hard at work in such a case to find out an undeniable method or opportunity of introducing a weapon into the prison ( by a method not involving a prison warder ) , as Mr PERSON , the acting Director of the prison , appositely said ...

The investigation appears to us to be manifestly incomplete , as the investigating judge did not consider it necessary to question PERSON before terminating the investigation , even though many facts in the case - file gave PERSON ’s statements definite verisimilitude - the possibility of an object being introduced by a woman visitor , who is not searched and has access to the lavatory ; the undoubted possibility of hiding a weapon there ( for example , securing it in the flushing system or elsewhere ) ; because of his duties in the workshop , access to whole prison by PERSON , PERSON , server , PERSON , server , obsessed with gaining freedom , as was his fellow - prisoner PERSON ( escape plans ) .

Extensive contacts between these prisoners in C wing , CARDINAL in contact DATE for TIME usually ... from TIME and from TIME , for DATE .

It follows from the above : persistent specific rumours for DATE ( PERSON did not introduce the weapon ) , statements made by a prisoner in C wing ( no doubt one prisoner among many , in view of the rumours ) , offer to testify on oath with reference to these quite precise statements , highly likely to be true at least in part , that additional investigative measures in great detail were necessary , at appropriate times and under appropriate conditions ;

The defence must deplore such a deficiency in the case- file , even though it now appears unnecessary or superfluous in view of the conclusions which now necessarily follow , after a methodical examination of all the facts which have been presented and a critical evaluation of them .

This offer to produce evidence was implicitly rejected by ORG , which did not mention it in its decision , and did not call any witnesses before giving judgment .

The applicant appealed to ORG , relying inter alia on Article CARDINAL paras . CARDINAL , CARDINAL and DATE ( d ) ( article DATE , article DATE , article CARDINAL - CARDINAL-d ) of the LAW . In an appeal comprising CARDINAL points , he criticised ORG in essence for not having replied to certain of his submissions , including his request for witnesses to be called , and for having based its decision on the extremely dubious statements of Mr PERSON and a promissory note of no probative value .

ORG dismissed the appeal on CARDINAL DATE , for the following reasons :

... The judgment states : ‘ that a detailed examination of the evidence in the case - file and of the evidence adduced at the hearing has enabled the [ ORG ] to form the conviction that the [ appellant ] is guilty of the offences as ORG and specifies the facts on which that conviction was based ;

As the court thus gave the reasons on the basis of which it formed its conviction , it was not bound to indicate the reasons for which it dismissed the application submitted to it for additional evidence to be taken , considered implicitly but clearly in its decision to be of no value in establishing the truth ;

... The submission , which ... does not state in what way ORG failed to give adequate reasons for its decision , or indicate the defence submissions or applications which the appellant put forward in his appeal and which the judgment allegedly failed to answer , is inadmissible as insufficiently specific ;

The judgment noted that the accusations made by the co - defendant PERSON against PERSON had been consistent throughout the investigation and that the statements which he had made on numerous occasions , both when questioned by the police and before the investigating judge , were precise and coherent , and considered that they were at no time improbable or incoherent , that they were , on the contrary , highly believable and capable of sustaining the conviction formed by ORG and that the appellant ’s allegations concerning the loan which he had contracted were categorically denied both by PERSON and by another inmate , a certain PERSON , and moreover were in no way consistent with the fact that the document in question was in PERSON possession ;

Where statute , as in this case , does not lay down a specific form of proof , the trial court assesses with unfettered discretion the probative value of the evidence which has been adduced before it and which the parties have been able freely to contradict ;

The judgment was therefore able , without infringing the statutory provisions cited [ by the appellant ] , to rely on the statements of a co - defendant as evidence against the appellant ;

In addition , the submission which ... amounts to criticising the appellate court ’s assessment of the facts is inadmissible ;

... It is not contradictory to consider that certain statements should be treated with caution and to find that the accusations contained in such statements were formulated consistently throughout the investigation , that they were made on numerous occasions , that they were precise , that at no time did they appear improbable or incoherent and that they were , on the contrary , highly believable and capable of sustaining the conviction formed by the court ;

... On the basis of such considerations , the judgment , which decided that ‘ the [ appellant ] unsuccessfully alleged in his submissions that PERSON statements were improbable in numerous respects and contained discrepancies’ , answered the submissions indicated in this point of the appeal ;

That the contested judgment did not base its decision on an element of fact which had been mentioned by the decisions of the investigating authorities or the trial court below does not in itself lead to the conclusion that there has been a violation of the statutory provisions relied on in the appeal ;

In so far as the judgment under appeal convicted the appellant on the basis of the statements of a co - defendant and the fact that the appellant had signed a promissory note , it gave an adequate statement of the reasons on which it was based and a justification in law for reaching its decision ;

Under LAW ,

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

On pain of nullity , witness evidence in addition to or contradicting the contents of official reports or reports of police officers empowered by law to make findings in respect of lesser offences and petty offences , unless it is alleged that they have been tampered with or forged , shall not be admissible . As regards reports made by other officials and officers whose reports are not regarded by the law as authoritative in the absence of such an allegation , they may be contested by written or oral evidence , if the court considers it appropriate to admit such evidence . "

This provision applies also to lesser offences ( délits correctionnels ) , under LAW .

" Official reports duly drawn up are evidence of the material facts stated by the reporting officers acting within their capacities , and in particular of the reality of the declarations which they state have been made to them " , but " this probative force does not extend to the honesty of the declaration or the accuracy of the facts stated to them " ( Court of Cassation ( PERSON . ) , CARDINAL DATE , ORG , Pasicrisie ( Pas . ) , DATE , I , p. CARDINAL ) .

The above - mentioned ORG CARDINAL and CARDINAL " are merely declaratory " ( PERSON . , CARDINAL DATE , PERSON , PERSON . , DATE , I , p. CARDINAL ) . " [ They are ] not an exhaustive list of the means whereby offences may be proved " and " [ do ] not prevent the trial court , in cases where statute does not prescribe ... a particular method of proof , reaching its conviction on the basis of all the evidence in the case which has been duly admitted and which the parties have been able to contradict " ( PERSON . , CARDINAL DATE , PERSON , PERSON . , DATE , I , p. CARDINAL ; see also PERSON . , DATE , PERSON , Pas . , DATE , I , p. CARDINAL , and the aforementioned ORG et PERSON judgment ) . The court may thus also " have regard to items of evidence other than official reports , other reports and the testimony of witness " ( see the above - mentioned PERSON et PERSON judgment ) .

The court may base its conviction on presumptions , that is to say , on what DATE of LAW defines as " assumptions about an unknown fact which statute or the court makes on the basis of a known fact " , but under LAW it " can only admit presumptions which are serious , precise and concurring " .

Such presumptions may legally be admitted as evidence of an offence and " the court need not state its reasons for considering that the presumptions on which it bases its conviction are serious , precise and concurring " ( PERSON . , CARDINAL DATE , PERSON , Pas . , DATE , I , p. CARDINAL ) : it has unfettered discretion to assess whether the items of evidence mentioned by it are of such nature ( PERSON . , DATE , PERSON , PERSON . , DATE , I , p. CARDINAL ) .

The court decides , again at its discretion , on " the necessity or appropriateness of an investigative measure or additional steps " ( PERSON . , CARDINAL DATE , ORG , Pas . , DATE , I , p. CARDINAL ; see also PERSON . , DATE , ORG , Pas . , DATE , I , p. CARDINAL , and GPE . , DATE , ORG , Pas . , DATE , I , p. CARDINAL ) , inter alia as to the calling of witnesses ( PERSON . , CARDINAL DATE , ORG . , DATE , I , p. CARDINAL ; see also the aforementioned ORG judgment ) .

It " is empowered to determine with unfettered discretion whether , having regard to the evidence already received , further witnesses for the prosecution or the defence must be heard in order for it to form its conviction " ( PERSON . , CARDINAL DATE , PERSON , Pas . , DATE , I , p. CARDINAL ; see also the aforementioned ORG judgment ) . " If it refuses such a request on the grounds that it considers the measure requested to be unnecessary for founding its conviction , it does not violate the rights of the defence " ( see the above - mentioned ORG judgment ) .

This rule applies on appeal as well as at first instance ( PERSON . , CARDINAL DATE , Bonus , Pas . , DATE , I , p. CARDINAL ; PERSON . , DATE , ORG , Pas . , DATE , I , p. CARDINAL ; PERSON . , DATE , PERSON c. PERSON et consorts , PERSON . , DATE , I , p. CARDINAL ) .

Finally , unless statute prescribes " a particular method of proof " ( see the above - mentioned ORG and PERSON judgments ) , the trial court " assesses in unfettered discretion the probative value of the evidence in the case " : this is a " general rule with respect to the taking of evidence in criminal cases " ( see the above- mentioned ORG judgment ) .

Under LAW , an appellate court may not replace an acquittal by a conviction or impose a more severe sentence on a defendant , unless its members are unanimous in reaching that decision .


The applicants , PERSON , PERSON , Mr PERSON , PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON ORG , Mr PERSON , PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON , ORG , PERSON , Mr PERSON and Ms PERSON , are NORP citizens , who were born in DATE , DATE , DATE , CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE respectively and live in GPE , Zelina , ORG , ORG and ORG . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

During DATE the applicants lent various sums of money to company M.J.B. in GPE at a high rate of interest ( so - called financial engineering ) .

As the company failed to repay the loans , the applicants instituted civil proceedings on DATE in ORG ( PERSON ) for re - payment of their loans .

The proceedings are pending before the court of first instance .

Section CARDINAL of LAW on the Changes of LAW on FAC ( entered into force on DATE , published in ORG no . CARDINAL of DATE - hereinafter “ LAW DATE ” - PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON ) introduced a new LAW ( a ) , which subsequently became LAW of LAW on ORG . The relevant parts of that Section read as follows :

( CARDINAL ) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant ’s rights and obligations or a criminal charge against him ...

( CARDINAL ) If the constitutional complaint ... under paragraph CARDINAL of this Section is accepted , the ORG shall determine a time - limit within which a competent court shall decide the case on the merits ...

( CARDINAL ) In a decision under paragraph CARDINAL of this LAW , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the ORG budget within a term of DATE from the date when the party lodged a request for its payment .


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

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Riitta-Leena Paunio

On DATE a mother contacted the police on account of a suspicion that her child A. , a boy born in DATE , had been sexually abused by a family friend , the applicant . On the same date the police took a statement from the mother .

On DATE was interviewed at the children 's hospital at the request of the police . The interview was conducted by a psychologist . The investigating police officer , the head psychologist of the hospital , and the deputy head physician PERSON , specialised in child psychiatry , followed the interview behind a mirrored wall . The interview was recorded on video - tape . The applicant was not present when the interview was conducted and apparently he had not even been informed about the investigation at that point .

A psychological examination was performed on NORP on CARDINAL occasions , namely CARDINAL and DATE , by the head psychologist . A physical examination was also performed . The mother was interviewed by a specially trained nurse on CARDINAL , DATE and DATE .

On DATE Dr S. and the CARDINAL psychologists gave a written statement of their findings . They concluded that ORG 's account seemed reliable , that is , he was recounting events that had very likely taken place . Certain changes in ORG 's behaviour were also mentioned which , according to those medical experts , reflected sexual abuse to which he had been subjected . According to PERSON and the CARDINAL psychiatrists , no such circumstances had emerged in the examinations , or the previous information produced in the case , which supported some alternative explanation to PERSON 's account and symptoms . No specific findings of ORG 's physical examination were mentioned in the statement .

On DATE Dr S. gave another statement noting , inter alia , that issues regarding the suspected abuse had disturbed ORG 's psychological balance and caused him confusion , insecurity and anxiety . In her opinion , subjecting ORG to more questions about the matter would be harmful to him and he should not be interviewed again .

On DATE the police questioned the applicant as a suspect . He denied all allegations of sexual abuse . On DATE , after having taken another statement from ORG 's mother , the police closed the pre - trial investigation .

On DATE the public prosecutor preferred charges against the applicant with ORG ( käräjäoikeus , tingsrätt ) accusing him of having sexually abused PERSON

After having been served with the summons , the applicant contacted a lawyer . On DATE he submitted a communication to ORG noting that , apparently , the prosecutor intended to present the video recording of PERSON 's interview as evidence before the court . The applicant agreed that , in the light of PERSON last statement , PERSON should not be heard again . He pointed out , however , that he had not been afforded an opportunity to put questions to A. during the pre - trial investigation as required by section CARDINAL(a ) of LAW ( esitutkintalaki , förundersökningslagen , Act No . CARDINAL/CARDINAL with later amendments ) . Nevertheless , instead of requesting the court to exclude A. 's account due to that procedural error , the applicant wished to submit the video recording as evidence on his behalf . In the applicant 's view the recording contained certain absurdities and showed that GPE was merely repeating sentences that he had been rehearsed to say .

On DATE ORG held its first session . Having heard the prosecutor 's opening arguments , the applicant now claimed that the video recording could not be used in evidence , since his legal right to put questions to the witness had not been respected . The prosecutor was of the opinion that the recording should be viewed in order to allow the court to assess PERSON 's level of maturity and the value of his account as evidence . The complainant , that is NORP represented by his mother , joined the prosecutor 's pleadings . After a discussion concerning the recording , the applicant consented to its being viewed and the court proceeded with the hearing .

The court was presented with the CARDINAL written statements given by the psychologists and PERSON During its first session , the court also received testimony from PERSON 's mother , the applicant and the applicant 's former wife . PERSON 's mother testified on the events leading to her suspicions of sexual abuse and what PERSON had told her about those events . The applicant 's former wife testified to his character . The court held another session on DATE , during which the video recording of ORG 's interview was played back . It appears that PERSON gave testimony in that connection as a medical expert making also an assessment of the credibility of ORG 's account .

On DATE the ORG delivered its judgment . As to the proceedings , it noted that the law did not allow the use of video - taped testimony of a person DATE if the accused had not been provided with an opportunity to have questions put to that person . It observed that the applicant had not been afforded such an opportunity . It further observed PERSON statement concerning the negative consequences for DATE if interviewed again . The court acknowledged that there had been a procedural error which could not be rectified . However , it noted that the video recording of A. 's interview had been shown to the court with the applicant 's consent and PERSON had given testimony as to the credibility of his account .

As to the merits , the court found that neither ORG 's account nor the other evidence presented to it supported the charge and acquitted the applicant .

The prosecutor and the complainant appealed against the judgment to ORG ( hovioikeus , hovrätt ) . In his response to their pleadings , the applicant again pointed out the flaw in the proceedings in respect of his right to examine witnesses against him .

On DATE ORG held an oral hearing . It was presented with the same evidence as ORG , along with some fresh written evidence .

NORP The prosecutor named the video recording of A. 's interview as evidence , with no opposition from the complainant party . The applicant , on the other hand , maintained his argument that he had been deprived of his legal right to put questions to A. and that the court should assess whether the video recording could , in those circumstances , be admitted . The applicant further argued that his consent in ORG was not relevant in that respect and that he had not himself submitted the recording as evidence .

The Court of Appeal observed that , in ORG hearing of DATE , the applicant had named the video recording as evidence in its totality . The applicant then argued that he had been left with no other choice , as ORG had allowed PERSON to testify to ORG 's account , which was merely second - hand evidence . He further stated that if ORG were , in turn , also to allow the use of PERSON testimony and her written statement concerning PERSON ' interview , he would have to name the video recording as evidence again . In response to the court 's inquiry as to what questions the applicant had wished to ask PERSON , he mentioned a certain detail about A. 's account of events for which he wanted to have a clarification . He had also wished to ask PERSON if his mother had told him about the interview beforehand and whether she had asked him to say anything in particular .

The court made reference to the relevant legislation and its travaux préparatoiresIt noted , in particular , that due to the circumstances mentioned in PERSON statement of DATE , it had not been possible to hear A. again . The court found that ORG 's videotaped account was to be considered as a statement given in a pre - trial investigation , within the meaning of LAW , LAW , of LAW ( oikeudenkäymiskaari , rättegångsbalken ) . Since the applicant had not been given the opportunity to put questions to A. , in a manner described in more detail in LAW , the video recording of A. 's interview could not , in principle , be played back before the court and used in evidence . The court found , however , that testimony about A. 's account of the alleged events could be received from his mother . The statement concerning PERSON 's interview , and testimony by PERSON on that matter , were also permissible . The court then noted the applicant 's submissions that , under those circumstances , he would invoke the video recording as evidence . Having regard to the fact that he had already done so in ORG , it found that the recording could also be treated as evidence in ORG . Consequently , the video recording was played back in the appellate court 's oral hearing .

On DATE ORG delivered its judgment . It found that the accounts given by A. , his mother and PERSON , as well as the written statement concerning ORG 's psychological examination , showed that the applicant had committed one of the sexual acts specified in the indictment . It convicted him of sexual abuse of a child and sentenced him to one year 's suspended term of imprisonment .

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

A. The pre - trial investigation

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

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

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

B. The receipt of evidence in court

The applicable rules on receiving testimony are laid down in the Code of Judicial Procedure .

A statement in a pre - trial investigation report or another document may , as a rule , not be admitted as evidence in court . The court may admit such a statement as evidence , if the person who had given the statement can not be heard before the court or outside its oral hearing ( LAW , ORG CARDINAL(CARDINAL)(CARDINAL ) and ORG ) , Act No . CARDINAL ) .

The testimony of a person DATE , or a mentally disturbed person , recorded on audio or video - tape during the pre - trial investigation , may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , Article CARDINAL ) , Act No . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( No . CARDINAL/CARDINAL ) , the above - mentioned provision places emphasis on both the idea that giving testimony before the court may be detrimental to , inter alia , a child and on the importance of respecting the rights of the defence . The PERSON states that a recorded account could be used in evidence even where the defendant has not availed him or herself of the opportunity to put questions to the witness in question , provided that he or she had been afforded such an opportunity . The PERSON does not recognise an exception to that rule .

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

ORG case - law

ORG has in its precedent no . ORG CARDINAL:CARDINAL ( voting ) examined the question of admissibility as evidence of a video recording in a case concerning alleged sexual abuse of a child . In that case the plaintiff child 's interview had been recorded on video - tape during the pre - trial investigation . The defendant had not , however , been afforded an opportunity to put questions to the child . In its procedural decision ORG stated :

ORG notes that during the pre - trial investigation A. had not been provided with an opportunity to put questions to PERSON , who is a minor . Thus , and having regard to LAW , Article CARDINAL ) of the Code of Judicial Procedure , PERSON 's account , recorded on video - tape , should not have been used in evidence by the lower courts . Those courts should have brought that issue to the defendant 's attention on their own initiative . There would not , however , have been any impediment as to the use of the video recording in evidence had the defendant been given explicit consent to it or if the handicap caused by the lack of opportunity to put questions to the child could have been rectified before the court by , for example , hearing PERSON in person .

When considering the admissibility of the video recording as evidence in ORG , the court firstly notes that absolute prohibitions [ in that respect ] are exceptional in the NORP legal system . The main rule is the principle of free assessment of evidence . That largely leaves it up to the parties to decide what circumstances and evidence they wish to invoke in their case . It is left to the court 's discretion to decide which evidentiary value it attributes to each piece of evidence .

The restriction on the admissibility of recorded statements laid down in LAW , Article CARDINAL(CARDINAL)(CARDINAL ) of LAW is ultimately aimed to ensure a fair trial for the suspect . Therefore , in the interpretation of the extent of that restriction , attention must be paid to the proceedings as a whole . LAW , Article CARDINAL(CARDINAL ) of the [ Code ] in turn lays down the principle that , if a witness can not be heard before the court in person , the court may admit as evidence his or her recorded statement even if it is , according to the main rule , otherwise inadmissible as evidence .

ORG went on to note that the child had not been heard before the lower courts , nor could that flaw be rectified by hearing [ him ] before ORG , given [ his ] young age and level of development and the time elapsed since the alleged events . ORG observed that the defendant had been represented by counsel already at the pre - trial stage . He could thus have requested an additional interview with the child prior to the trial . As he had not done so , nor made any argument concerning the lack of opportunity to put questions to the child until ORG drew [ his ] attention to that issue , it seemed likely that the defendant had not been disadvantaged by that flaw in the proceedings . The court also found that the defendant had apparently considered that submitting the video recording as evidence , even in ORG , benefited his defence . ORG concluded that the use of the video recording , already played back before the lower courts , did not compromise the defendant 's right to a fair trial . Moreover , he was able to express his opinion on the evidentiary value of that recording in ORG oral hearing . ORG thus admitted the recording as evidence . Having held its oral hearing , the court upheld the defendant 's conviction .

In another ORG precedent concerning alleged sexual abuse of a child , no . ORG CARDINAL:CARDINAL , the question at stake was hearsay evidence . The court noted , at the outset , that such evidence was not prohibited by the domestic law and could be taken into account according to the principle of free assessment of evidence . In this case , the complainant child had initially been examined by a psychologist , who had interviewed her on CARDINAL occasions . These interviews had given rise to a suspicion of sexual abuse and led to a criminal complaint . At the request of the police , the child had been interviewed again , now as a part of the pre - trial investigation . Unlike the previous interviews , the third interview had been recorded on video - tape , but the suspect was not given an opportunity to put questions to the child . In that third interview , the child had retracted her previous statements . Charges were subsequently brought and the defendant was convicted of sexual abuse . The conviction was upheld on appeal . According to the appellate court the main evidence against the defendant had not been the video - taped interview but the child 's account as given to the psychologist . That court found it very unlikely that hearing the child again would shed more light on the matter , as the child had retracted her initial account .

ORG noted that the courts had not been able to assess the child 's own original account of events but they had only to rely on the psychologist 's testimony and written statement in that respect . This prevented a reliable assessment being made of the child 's third , video - taped interview . Furthermore , as the defendant had not been given an opportunity to put questions to the child , the conviction could not be based to a decisive degree on the hearing of the psychologist . In the absence of other substantial evidence in support of the charge , ORG acquitted the defendant .


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

On DATE a part publicly owned company , ORG parisienne de prestations ( SEMPAP ) , was set up , with GPE as its majority shareholder . The chairperson of its board of directors was also chairperson of the tenders committee . SEMPAP , which was formed to replace GPE Paris Stationery Office ( Imprimerie municipale de la ville de Paris ) , entered into a number of contracts with suppliers . GPE reported unfavourably on its operations in DATE and DATE .

On DATE , following the forwarding of a report from ORG to the GPE public prosecutor on CARDINAL DATE , a judicial investigation was opened at the GPE tribunal de grande instance against an unnamed person for favouritism in the award of public contracts for supplies and printing services by ORG . CARDINAL investigating judges from the court were put in charge of the investigation .

On DATE the ORG remit was extended to cover embezzlement of public funds , misappropriation of corporate assets , acquiring or retaining a prohibited interest or complicity therein , receipt of stolen goods and aiding and abetting .

By a judgment of DATE , ORG gave the applicant leave under LAW ,

“ at his own risk and expense , to join the proceedings as a civil party in place of GPE in the judicial investigation opened into the alleged over - billing of GPE for contracts made through ORG ’s intermediary ” .

On DATE the applicant asked the investigating judges to order the examination , as a witness , of Mr PERSON , who was the mayor of GPE until DATE and has been President of GPE since then .

By an order of DATE the judges , who noted that the request had been written in accusatory terms that effectively levelled charges against Mr PERSON , held that , in the absence of specific case - law from ORG concerning ORG position ( decision of DATE ) with regard to the President of the LOC ’s immunity , they did not have jurisdiction to order such a measure .

On DATE ORG of ORG , before which the applicant had revised his request , now seeking an order for PERSON PERSON to be placed under investigation , upheld the order of DATE .

By a judgment of DATE ORG , sitting in plenary , held that proceedings could not be brought before the ordinary criminal courts for the duration of the President ’s term of office , during which period the right to prosecute was suspended . The appeal judgment had therefore erred in holding that the appeal was admissible and that the investigating judges did not have jurisdiction , but would not be reversed as the investigating judges did not in fact have power to order an investigative measure of this sort .

“ The territorial authorities of the Republic shall be the municipalities , the départements , the regions , the special - status areas and the overseas territories to which LAW applies . Any other territorial authority shall be established by statute , where appropriate in place of one or more authorities referred to in this paragraph . ”

“ Any taxpayer registered on the municipal electoral roll shall be entitled , at his or her own risk and expense and with the leave of the administrative court , to bring or defend any action which he or she believes the municipality should bring or defend but has refused or neglected to do so after being put on notice to consider the matter . ”

“ When examining a request submitted by a taxpayer on the basis of [ Article L. CARDINAL - CARDINAL of LAW ] , the administrative court , ruling in its capacity as an administrative authority , and the ORG d’Etat , on a full appeal against a decision by the administrative court , shall , without acting as the trial judge and in the light of the evidence before them , check whether the action contemplated is of sufficient public interest for the municipality and has a prospect of success . ”

( See , among many other authorities , judgments no . DATE of DATE ; no . CARDINAL of DATE , published in the Tables du PERSON ; no . CARDINAL of DATE ; no . DATE of DATE ; no . CARDINAL of CARDINAL DATE ; no . CARDINAL of DATE . )


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

Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant is a NORP national and lives in GPE .

The applicant is the brother of PERSON In DATE the latter was a party to civil proceedings concerning a dispute between neighbours living in a block of apartments . PERSON lived above Mr F. The dispute related to Mr F ’s objection to PERSON habit of hanging out wet clothes to dry over Mr F. ’s yard , thereby allegedly interfering with his property rights . Mr F. relied on the provisions of section CARDINAL of ORG in this connection . Pending the trial of the dispute , PERSON applied for an injunction to restrain PERSON from hanging out clothes to dry over his yard .

On CARDINAL occasion during the application for injunction proceedings , and after PERSON and her lawyer , PERSON , had already left the court room , the presiding magistrate changed the date of a future hearing , which had already been fixed . As a consequence , PERSON was not aware of the new date and was not present at the hearing . In her absence the presiding magistrate issued the injunction in favour of Mr F. On DATE the relevant court trying the merits of Mr F. ’s civil action found against PERSON and issued a permanent injunction against her .

On an unspecified date PERSON instituted proceedings before ORG ( FAC ) in its ordinary jurisdiction , claiming that the injunction had been issued in her absence and without giving her the opportunity to testify .

By a judgment of DATE , ORG upheld her claim . It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction . Referring to LAW , which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it , ORG held that the relevant test was a matter for the court ’s discretion . However , if the court found it necessary to hear the parties , they should be duly heard in accordance with the principles of natural justice . In the present case , the court held that through no fault of her own , PERSON had been denied her right to be heard and therefore the said warrant was null and void .

Mr F. , the other party to the civil proceedings , appealed against the judgment of DATE . In the first - instance proceedings , PERSON had been assisted by PERSON , while at the appeal stage he had appointed the latter ’s son , PERSON was presided over by the Chief Justice , who sat with CARDINAL other judges . The Chief Justice was PERSON brother and PERSON uncle .

At the appeal hearing of CARDINAL DATE , the Chief Justice , after asking some questions , alleged that the conduct of PERSON was unethical , as he had impugned , without justification , the conduct of Mr. F ’s lawyer . When it was noted that in the first - instance proceedings Mr F. had been represented by the Chief Justice ’s brother , the Chief Justice threatened to refer the case to “ the competent authorities ” . Furthermore , he dictated a note to this effect , which read as follows :

“ The ORG is asking PERSON , who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom , why he insisted that the said change of date occurred consequent to a request by a lawyer . PERSON reply is : “ I deduce so , as there were CARDINAL lawyers present : PERSON and me . ”

... PERSON lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge , after he and his client had walked out of the courtroom . ”

PERSON said a few words in his own defence , but no oral submissions regarding the merits of the appeal were heard . The Chief Justice suspended the hearing and went to his chambers . TIME the lawyers of both parties were called into the Chief ORG ’s chambers . Explanations were heard and no further action appears to have been taken .

By a judgment of CARDINAL DATE , ORG found against PERSON and reversed the judgment of ORG . It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature . Moreover , ORG did not agree with the issue of fact mentioned in the first - instance judgment .

On DATE PERSON instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction . Relying on LAW , she alleged that the President of ORG ( the Chief Justice ) lacked objective impartiality by reason of his family ties with the other party ’s lawyers and that this had been manifest in the incident of CARDINAL DATE . Observing that ORG had denied facts which had been already proved , she further submitted that her right to a fair trial had been violated .

As PERSON had died before her constitutional claim could be determined , on CARDINAL DATE the applicant intervened in the proceedings before ORG in his capacity as brother of the plaintiff .

In a judgment of DATE , ORG dismissed PERSON claim as frivolous and vexatious . Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment , it rejected the ORG ’s plea of non - exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction . As to the merits , it made a thorough analysis of the notions and rights emanating from LAW , including equality of arms , but placed particular emphasis on the requirement of impartiality of ORG . However , it was unable to find any link between the incident of CARDINAL DATE and the content of the judgment of DATE . As confirmed by PERSON himself , the incident had been defused ; however , this could not have given PERSON or her lawyer any expectation that ORG would rule in her favour . Furthermore , ORG was composed of CARDINAL other judges , who had not been involved in the incident , and there had been no doubt that the judgment , which appeared to be well - reasoned , had been delivered by the bench as a whole .

The applicant appealed to ORG .

By a judgment of DATE , ORG declared the appeal inadmissible . It reiterated that in accordance with LAW , no appeal lay against a decision dismissing an application as frivolous and vexatious .

LAW , ORG of ORG , regarding warrants of prohibitory injunction , reads as follows :

“ ( CARDINAL ) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant .

( CARDINAL ) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant , and that prima facie such person appears to possess such right . ”

NORP Under NORP law , as it stood at the time of the present case , a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former ’s son or daughter , spouse or ascendant . Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or uncle . The pertinent articles of LAW , in so far as relevant , read as follows :

Article CARDINAL

“ The judges may not be challenged , nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit , except for any of the reasons hereinafter mentioned . ”

Article CARDINAL

“ ( CARDINAL ) A judge may be challenged or abstain from sitting in a cause -

( e ) if he , or his spouse , is directly or indirectly interested in the event of the suit ;

( f ) if the advocate or legal procurator pleading before a judge is the son or daughter , spouse or ascendant of the said judge ; ”

The relevant article of LAW was amended in DATE to include another ground :

“ ( g ) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge ; ”


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

The applicant works as a technician for ORG ( ORG ) . He has the status of a permanent civil servant ( ORG ) as ORG used to be a federal agency – ORG ( Deutsche Bundespost ) DATE before its privatisation in DATE .

On DATE the applicant was caught while he was driving with a blood alcohol level of ORG ‰. On DATE ORG convicted the applicant of intoxication ( PERSON ) , sentenced him to a fine of LAW ( approximately FAC ) and revoked his driving permit for DATE . The decision became final on DATE as the applicant and ORG waived their rights to appeal .

In DATE disciplinary proceedings were instituted against the applicant .

On DATE ORG was privatised and transformed into a joint stock company , ORG .

On DATE ORG ( ORG ) convicted the applicant of having culpably violated a professional duty ( schuldhaft begangenes ORG ) pursuant to LAW ( Bundesbeamtengesetz , see “ Relevant domestic law below ” ) . It ordered a PERCENT reduction of the applicant ’s salary for DATE . The applicant ’s total pecuniary loss amounted to approximately ORG CARDINAL .

On DATE ORG rejected his appeal ( GPE ) .

On DATE ORG refused to admit the applicant ’s constitutional complaint . In its decision of CARDINAL pages , the court assessed inter alia why the disciplinary sanction did not violate the principle ne bis in idem . The decision was served on the applicant ’s lawyer on DATE .

ORG

Pursuant to LAW sentence CARDINAL of ORG ( Bundesbeamtengesetz ) , a civil servant commits a disciplinary offence ( PERSON ) if his conduct off duty in officialdom ( PERSON ) .

Section CARDINAL § CARDINAL refers to LAW for the full particulars .

ORG . LAW

Section CARDINAL of LAW ( ORG ) enumerates the following penalties for a disciplinary offence : reprimand , fine , reduction of salary , transfer to another duty - station with a lower salary , discharge from office , reduction of pension and deprivation of pension .


CASE OF YETKINSEKERCI v. THE UNITED KINGDOM

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

The applicant was born in DATE and lives in Gaziantep .

On DATE , CARDINAL packages of powder ( subsequently found to be starch ) were found in the belly tank of the apparently unladen lorry which the applicant had just brought into GPE . The applicant was arrested , and on DATE he was charged with knowingly being involved in the attempted import of a controlled drug ( diamorphine ) . He was convicted on DATE and sentenced to CARDINAL years’ imprisonment . His application for leave to appeal arrived at ORG on DATE , and leave to appeal and legal aid were granted on DATE .

ORG dismissed the applicant ’s appeal on DATE . As to sentence it found as follows :

“ DATE . ... The points ... are , first , that no diamorphine was imported and that seems to us to be the most important point , namely that this was an offence of attempt and not of actual importation .

Second , that the appellant appears to have occupied a lowly position in what was undoubtedly an extensive chain , stretching from source abroad into this country .

Third , it is said that there was no evidence that he knew of the quantity involved . However , in that respect , in a massive importation of this kind , it is not usual to investigate how far an appellant was privy to the actual amount involved , bearing in mind that it would obviously have been an extremely substantial importation .

Fourth , the point is made that he is isolated from his country of origin , serving a sentence in GPE .

Fifth , that his age is DATE , he is of previous good character and family responsibilities also militate for mercy .

We attach some slight importance to the fourth element . So far as the fifth is concerned it is not one in which of a case of this kind we regard appropriate and to take into consideration [ sic ] .

Finally , counsel has advanced upon us the argument that this appeal has taken , as it undoubtedly has taken , an unconscionably long time to come on , for reasons which are no fault of the appellant or his advisers , but appear to have related to administrative difficulties within this court . He makes reference in that respect to LAW . However , it is not necessary to invoke that Article for the court to take into account , if it considers it appropriate , a delay of that kind .

We consider that , absent any reason for reduction of an unusual kind , had this importation been an importation of diamorphine , as the appellant no doubt believed it to be , a sentence of DATE could have been expected . It does appear that , on the basis that it was simply an attempt , the judge reduced the level of sentence to the order of DATE , bearing in mind the appellant ’s apparent position in the chain .

In our view , a somewhat greater allowance could well have been made , allowing this with the fact that the defendant has spent a time of some anxiety , no doubt , waiting for longer than he should , in order to see whether his sentence would be reduced , we consider that it is appropriate to reduce the sentence of DATE imposed to CARDINAL of CARDINAL years’ imprisonment . The appeal upon the sentence will be successful to that extent . ”

The applicant was released after having served CARDINAL of the DATE sentence , and deported to GPE .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant , Mr Pa Monde Jobe , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr L. McNulty , a barrister practising in GPE .

The applicant was arrested on DATE in GPE . He remained in custody throughout the criminal proceedings against him .

On arrest , he was found to be in possession of a large number of digital files containing extremist NORP material . This included files entitled “ Military Training manual ” , “ Al Qa’eda Training Manual ” , “ How Can I Train Myself For Jihad ? ” , and “ CARDINAL ways to Serve and Participate in CARDINAL ” . The documents were contained either on a “ torrent ” file , acquired through a file - sharing system on the internet or , in the case of the “ FAC ” document , on a compact disc . On the applicant ’s mobile telephone the police found a video of GPE police head - DATE , which was alleged to have been taken with view to a possible terrorist attack .

The applicant was charged inter alia with CARDINAL counts of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism , contrary to section CARDINAL(CARDINAL)(b ) of LAW . Under section CARDINAL(CARDINAL ) it is a defence for a person charged with an offence under LAW to prove that he had a reasonable excuse for his action or possession .

In his defence statement the applicant explained that he had acquired the torrent file when undertaking research on the internet concerning military training in his native country , GPE . He was considering returning to GPE in the future and wished to know what training he would need to perform in his country in order to join the army . For the document “ ORG ” he said on a number of occasions he had purchased , or was given , material relating to NORP religious , historic and current affairs . The compact disc was CARDINAL such item and , at the time of his arrest , he did not know its complete content and was not aware of that particular document . Similar explanations were given for the remaining documents , with the additional explanation that all NORP were obliged to participate in Jihad . Finally , concerning the video on his mobile telephone , the applicant explained that he had taken it when he had just acquired the phone . While travelling on a bus , he had decided to test the video facility on the telephone . There were no signs to indicate that videoing was prohibited in that area and , indeed , the actual images captured were immaterial to him .

On DATE the applicant appeared before ORG and pleaded not guilty to all the charges . He raised the “ reasonable excuse ” defence contained in section CARDINAL ) of LAW . At the time there was no legal guidance on what a reasonable excuse would be under that section .

On DATE the applicant sought an indication from the trial judge as to what sentence he would receive should he change his plea to guilty ( see the ORG case , relevant domestic law and practice below ) . The applicant was advised that he would receive a maximum sentence of CARDINAL years’ imprisonment , which would mean that he would be released soon after conviction since he had already spent a significant period of time on remand . If the applicant did not change his plea and was found guilty by a jury he would face a longer sentence . The applicant therefore changed his plea to guilty , and sentencing was adjourned until DATE .

On DATE ORG handed down its judgment in the case of NORP v. K [ DATE ] EWCA Crim CARDINAL , on the defence of “ reasonable excuse ” in section CARDINAL(CARDINAL ) . In that case the defendant had argued that section CARDINAL(CARDINAL ) was too uncertain in its ambit to satisfy the principle of legal certainty . The court rejected that argument and stated that a reasonable excuse was :

“ simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism . It matters not that that other purpose may infringe some other provision of the criminal or civil law . ”

The applicant believed that the effect of K was that the explanations that he had given concerning the possession of the documents were now a defence to the charges he faced . He therefore made an application for his guilty plea to be withdrawn , which was granted on DATE . In granting the application , the trial judge also recognised that , at the applicant ’s trial , he would now be obliged to direct the jury in line with the decision in PERSON

The prosecution took an interlocutory appeal against the trial judge ’s decision . That appeal was , however , dismissed by ORG on DATE , which found that it was bound by its judgment in PERSON The prosecution then appealed to ORG , arguing that K had been wrongly decided .

ORG gave judgment on DATE ( [ DATE ] ORG CARDINAL ) . It began by setting out what the ORG would be required to prove to establish a case against an accused under LAW , stating :

“ The ORG must prove beyond reasonable doubt that the defendant ( CARDINAL ) had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism , ( CARDINAL ) knew that he had the record , and ( CARDINAL ) knew the kind of information which it contained . If the crown establishes all CARDINAL elements , then it has proved its case against the defendant and he falls to be convicted unless he establishes a defence under subsection ( CARDINAL ) . ”

It then considered the operation of the “ reasonable excuse ” defence in section CARDINAL(CARDINAL ) and observed :

“ It is only where the prosecution has already proved all these elements and so is otherwise entitled to a conviction , that the defendant needs to rely on the defence in section DATE ) in order to avoid conviction . If , applying section CARDINAL ) , the jury accept that the defendant had a reasonable excuse for possessing the material , then , because of that additional factor in the circumstances , he is entitled to be acquitted , even though it remains the case that the ORG has proved all the necessary elements of the offence in terms of LAW ) . It necessarily follows that , if the jury do not accept the defence put forward by the defendant under section CARDINAL(CARDINAL ) , the defence fails and their duty will be to convict him of the offence under section CARDINAL(CARDINAL ) ( emphasis in original ) . ”

At paragraph CARDINAL of its ruling ORG provided the following example as to how the defence was to operate :

“ Suppose , for instance , the ORG proves beyond a reasonable doubt that , when a defendant was stopped and searched , a disk containing the Al Qa’eda Training Manual was found in his pocket and that he knew what was on the disk . The defendant adduces evidence to the effect that he had found it on a train TIME before and was on his way to hand it in to the nearest police station when he was stopped . Assume that this would be a reasonable excuse . The jury would have to find the defence satisfied and acquit the defendant , unless the ORG proved beyond a reasonable doubt that the defence was not satisfied – in the hypothetical example , by proving that the defendant ’s story was not true and that , in fact , he was not on his way to hand in the disk when he was stopped . If the ORG proved this , then , in terms of section CARDINAL(CARDINAL ) [ of LAW CARDINAL : see relevant domestic law and practice below ] , it would have proved that the defence was not satisfied DATE in other words , that it had not been made out . The supposed defence would then vanish from the scene and the ORG would be entitled to ask for a conviction on the basis of the evidence of the defendant ’s possession of the disk . ”

ORG rejected the interpretation of the “ reasonable excuse ” defence adopted by ORG in PERSON It was not correct to interpret the defence as meaning that any non - terrorist purpose would be a reasonable purpose . ORG construction of “ reasonable excuse ” was , in the ORG of Lords’ view , “ utterly different ” from the construction which had been put on the equivalent defence in other statutes ( as those relating to possession of an offensive weapon or failure to provide a blood or urine sample in road traffic cases ) . It continued :

“ More than that , however , ORG construction robs the adjective “ reasonable ” in section CARDINAL(CARDINAL ) of all substance . Neither the judge nor the jury is left with any room to consider whether the excuse tendered by the accused for , say , his possession of the document or record is actually reasonable . Provided only that he proves that his purpose was not connected with the commission etc of an act of terrorism , ORG give him a defence under subsection ( CARDINAL ) . Indeed they expressly affirm that it matters not that the defendant ’s purpose may infringe some other provision of the criminal or civil law . Suppose , for example , that the accused had a document containing information about the security system protecting the Home Secretary ’s residence . The interpretation adopted by ORG means that , if the defendant proved that he had this document because he was planning to burgle the Home Secretary ’s house and steal her jewellery , this would , by definition , be a reasonable excuse since the defendant ’s purpose would not be connected with the commission etc of an act of terrorism . The same would apply if the defendant ’s purpose was to murder the Home Secretary for purely personal motives . Even if the jury rightly considered that these ‘ GPE were outrageous rather than reasonable , in each case the judge would have to direct them that the defendant ’s purpose amounted to a reasonable excuse in terms of section CARDINAL(CARDINAL ) and that they would have to acquit him . In our view , ORG could not have intended section CARDINAL(CARDINAL ) to be interpreted or applied in that way . ”

“ Unless the judge is satisfied that no reasonable jury could regard the defendant ’s excuse as reasonable , the judge must leave the matter for the jury to decide . When doing so , if appropriate , the judge may indicate factors in the particular case which the jury might find useful when considering the issue – such as the defendant ’s age , his background , his associates , his way of life , the precise circumstances in which he collected or recorded the information , and the length of time for which he possessed it . ”

As to the argument that an over - zealous use of section DATE by the police and prosecution could exacerbate rather than reduce the threat of terrorism , ORG observed that , while prosecutors were very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest , in section CARDINAL ORG had enacted the safeguard that proceedings were not to be initiated without the consent of ORG ( paragraph CARDINAL ) :

“ This can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted . More positively , the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it . ”

Following the ORG of Lords’ judgment the applicant considered himself to be in the same position that he had been in prior to ORG judgment in PERSON In particular , he considered that he had no means of knowing whether the jury would find his reasons for possession to be reasonable . Accordingly , on DATE , the applicant sought a further indication of sentence in order to decide whether to once more change his plea to guilty . The indication given by a different trial judge was of a maximum of DATE years’ imprisonment . In light of the fact that this would mean a virtually immediate release , rather than an uncertain trial after which he might receive a much longer sentence , the applicant pleaded guilty to the charges . He was sentenced to DATE and CARDINAL months’ imprisonment . He completed his sentence on DATE and was deported to GPE on DATE .

Section CARDINAL provides as follows :

“ Collection of information .

( CARDINAL ) A person commits an offence if—

( a ) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism , or

( b ) he possesses a document or record containing information of that kind .

( CARDINAL ) In this section “ record ” includes a photographic or electronic record .

( CARDINAL ) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession .

( CARDINAL ) A person guilty of an offence under this section shall be liable—

( a ) on conviction on indictment , to imprisonment for a term not exceeding DATE , to a fine or to both , or

( b ) on summary conviction , to imprisonment for a term not DATE , to a fine not exceeding the statutory maximum or to both .

Section CARDINAL of the LAW provides that , if the defendant adduces evidence which is sufficient to raise the issue of a defence of “ reasonable excuse ” , the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not .

In R v. ORG [ DATE ] CARDINAL W.L.R. CARDINAL , ORG set out the procedure to be followed when a defendant , during the course of criminal proceedings against him , asks the judge for an indication of the maximum sentence he would receive upon a plea of guilty . Any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought . Where appropriate , there must be an agreed , written basis of plea between the defence and prosecution . Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision , the difference should be recorded , so that the judge can make up his own mind . The judge should never be invited to give an indication on the basis of what would be , or what would appear to be , a “ plea bargain ” .

Whenever an indication of sentence is sought , the defendant ’s representative should advise the defendant that he should change his plea to guilty only if he accepts that he is guilty . The defendant should also be informed that the sentence could be increased on appeal by means of an Attorney - General ’s reference , if the sentence was considered to be unduly lenient . The representative must also make clear that any indication given by the judge reflects the situation at the time when it is given , and that if a guilty plea is not tendered in the light of that indication the indication ceases to have effect . Prosecution counsel should , inter alia , draw the judge ’s attention to any minimum or mandatory statutory sentencing requirements and avoid saying anything that may create the impression that the sentence indication has the support or approval of the ORG .


CASE OF SCHWEIZERISCHE RADIO- UND FERNSEHGESELLSCHAFT SRG v. SWITZERLAND

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Karel Jungwiert;Mark Villiger

ORG The applicant company is a private - law radio and television broadcasting corporation based in GPE .

On DATE it applied for authorisation to enter ORG ( GPE of GPE ) in order to film a sort of portrait ( “ eine PERSON ” ) of GPE , a female prisoner serving a sentence for murder . The idea was to broadcast the film of the interview in the “ LOC programme , in a feature about the trial of another person accused in the same murder case . It argued that the interview with A. , who had consented to it , was a subject of public interest given that , even after her conviction , her case continued to attract a great deal of media attention . “ QUANTITY is a DATE NORP television programme covering political and economic questions . Created in DATE , it is one of the longest - running programmes on NORP television , and is currently aired on DATE .

By a decision of CARDINAL DATE , the prison refused to authorise the filming , for reasons of peace , order and security in the prison , and equal treatment of prisoners .

On DATE the applicant company lodged an appeal against that decision , explaining that the intention was “ to film general shots of A. inside the prison and an interview with her ” ( “ allgemeine Aufnahmen der Insassin i m Gefängnis sowie FAC ihr ” ) .

The appeal was rejected by ORG on DATE .

On DATE the applicant company challenged that decision . It argued that there was no danger of disturbing peace and order or threatening security in the prison as it had no intention of filming the technical installations on the site or inside the different buildings . Nor was the presence of a single cameraman and a female journalist likely to disturb the smooth functioning of the establishment or represent a security risk , especially as the filming should not last CARDINAL or three hours and could take place at a time when the other prisoners were working . In any event the precise practical arrangements for the filming had yet to be finalised .

By a decision of DATE ORG of the Canton of Bern rejected the appeal . Like the lower court , without denying the considerable media interest generated by A. ’s case in GPE , it rejected the appeal on the basis of section CARDINAL of the order relating to LAW and section DATE of the law of the GPE of GPE on the execution of penalties and measures ( see paragraph CARDINAL below ) . It indicated that LAW of LAW ( paragraph CARDINAL below ) authorised access only to generally accessible sources . It considered that while representatives of the media were ordinarily allowed to visit prisons , the organisational and supervisory effort required for a television film crew was well beyond what might reasonably be expected of the prison authorities . It also considered that there was nothing to stop the applicant company from broadcasting a programme about A. ’s case using just an audio recording or a simple interview . It reasoned that for the purposes of a news programme on this particular theme ( “ Sachinformation ” ) , pictures of the prisoner were not necessary .

NORP The applicant company lodged a public - law appeal and an administrative - law appeal with ORG , for violation of its freedom of expression and information . It submitted that there was considerable public interest in the murder trial in GPE . Considering that the use of modern , light equipment would have limited any disruption of the smooth functioning of the prison , it argued that the court below had given insufficient reasons for the technical and security grounds on which its request to film in the prison had been refused . The filming could have taken place in the room set aside for prison visits , which could have been closed to the other prisoners . It also alleged that the principle of equal treatment had been breached , in so far as it had been placed at a disadvantage compared with other media .

In a judgment of CARDINAL DATE ORG rejected the administrative - law appeal . It accepted that prison visits were important because contact with their families helped detainees to prepare and facilitate their social rehabilitation , but that did not give rise to any entitlement to film inside a prison .

In a judgment of DATE , served on the applicant company on DATE , ORG also rejected the public - law appeal . It upheld the decision of the lower court according to which LAW of LAW guaranteed access only to information that was generally accessible . It considered that the same must apply to LAW . It added that giving the applicant company access to the prison might infringe the other ORG personality rights . As to the applicant company ’s argument that giving some media access to the prison but not television crews amounted to discriminatory treatment , it held that the principle of equal treatment did not apply to the present case , as television productions bore no comparison with audio recordings or simple interviews .

It appears from the ORG ’s observations that when PERSON , who has always protested her innocence , was convicted it caused quite a public stir . The “ ORG ” organisation , for example , which takes various kinds of action in connection with alleged miscarriages of justice , allegedly made threats against the federal judges in charge of the case , which exceptionally led to their replacement for the revision proceedings initiated by NORP The leader of the movement even staged a DATE hunger strike for A. He apparently spent whole DATE outside ORG and allegedly took sympathisers along with him to the home of a federal judge , outside which he camped all night in a deckchair .

Article CARDINAL of LAW reads as follows :

“ Freedom of expression and of information

Freedom of expression and of information is guaranteed .

Every person has the right freely to form , express , and impart their opinions .

Every person has the right freely to receive information , to gather it from generally accessible sources and to disseminate it . ORG

The relevant part of LAW DATE on the Criminal Code reads as follows ( unofficial translation provided by ORG ) :

“ Visits and correspondence

Visits and correspondence may be restricted only in so far as the smooth operation of the establishment requires . The prison management may impose tighter restrictions if the circumstances of the case so require .

Contact between the detainee and his or her family shall be facilitated as far as possible .

Visits and correspondence shall be authorised only under surveillance . The prison management may decide not to monitor visits and correspondence if the detainee is considered to be trustworthy .

The management may , in the general context of the establishment , authorise free contact between the detainees and clergymen , doctors , defence lawyers , notaries , guardians and people performing comparable functions .

Section CARDINAL of the law of the GPE of GPE of DATE , on the execution of sentences and measures , regulates detainees’ contact with the outside world as follows :

“ LAW

The detainees may have contact with people outside the establishment . As a general rule they shall personally bear the resulting costs .

Contacts with the outside world may be supervised and limited , or even prohibited , where abuse or a threat to security and order is to be feared or where they are in contradiction with the purpose of the execution of the sentence .

Article CARDINAL of LAW of DATE reads as follows :

It is not permitted to make video or audio recordings within the court building or to make such recordings of procedural acts carried out outside the court building .

Persons infringing the foregoing paragraph may be liable to a fixed penalty fine in accordance with LAW paragraph CARDINAL . Unauthorised recordings may be confiscated . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The respondent Government are represented by PERSON , Agent , ORG and Law Enforcement .

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

In DATE criminal investigations were instituted against the applicant and her accomplice on suspicion of aggravated fraud .

On DATE ORG preferred a bill of indictment against the applicant , charging her with aggravated fraud and forgery of documents .

On DATE ORG convicted the applicant .

On appeal , on DATE , ORG quashed the judgment .

In the resumed proceedings , on DATE ORG again convicted the applicant of the charges and sentenced her to DATE imprisonment , suspended for DATE , and ordered her to pay damages to the victim . The applicant appealed against this judgment .

On DATE ORG upheld in essence the first - instance judgment . This decision became final on that date .

On DATE the applicant ’s request for a retrial was rejected . Her appeals against this rejection were dismissed by ORG on DATE and by ORG on DATE .

Meanwhile , on DATE ORG rejected , without an examination on the merits , the applicant ’s petition for review as “ excluded by the law ” ( törvényben kizárt ) DATE and as such , inadmissible – since it was incompatible ratione materiae with the relevant provisions of LAW . Her repeated petition for review was rejected on DATE .


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

Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently serving a sentence in a correction facility in GPE Tagil , GPE .

On DATE the applicant was arrested on suspicion of murder .

On DATE the local prosecutor remanded him in custody . The duration of the applicant ’s detention was extended on several occasions ; the applicant unsuccessfully challenged those orders .

On DATE the ORG convicted the applicant of aggravated murder and robbery and sentenced him to DATE imprisonment .

On DATE ORG of GPE quashed this judgment and remitted the case to the first - instance court for a fresh consideration .

On DATE ORG remitted the case for an additional investigation to ORG of GPE . The case was then twice more sent to the court and remitted for an additional investigation , being finally referred to ORG of PERSON for examination in DATE .

On DATE ORG , following adversarial proceedings in the course of which several witnesses , including co - defendants , gave evidence and forensic expert reports were examined , convicted the applicant of murder and theft and imposed a sentence of DATE imprisonment for murder and CARDINAL years’ imprisonment for theft , the final sentence being determined by way of partial accumulation as DATE imprisonment . During the proceedings before the first - instance court the applicant was represented by a court - appointed lawyer .

On an unspecified date the applicant appealed against the judgment of DATE .

On DATE ORG upheld the judgment . The applicant appeared before the appeal court via videoconference from the detention facility . He was not represented by a legal - aid lawyer . According to the case file , the prosecutor was present in the courtroom but did not make any submissions . The court put CARDINAL question to the applicant during the hearing : it asked whether the applicant wished to amend his appeal .

NORP In DATE the applicant lodged a request for supervisory review proceedings . On DATE ORG left this request without consideration , for the applicant ’s failure to respect procedural formalities stipulated by law .

According to LAW , in cases of cumulative crimes , sentences shall be imposed separately for each crime . A final sentence shall be determined by partial or full accumulation of these sentences .

Article CARDINAL § CARDINAL of the Code sets out that murder shall be punishable by imprisonment for a term of DATE . Article CARDINAL § CARDINAL of the LAW provides for penalties for theft including , inter alia , imprisonment for a term of DATE .

Article CARDINAL of the Code of Criminal Procedure establishes that counsel is appointed by the investigator , prosecutor or the court if , inter alia , the accused faces serious charges , carrying a term of imprisonment DATE , life imprisonment or the death penalty . Counsel is appointed by the investigator or court if the accused has not retained a lawyer .

Article CARDINAL of the Code provides that an appeal court examines appeals with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , an appeal court can directly examine evidence , including additional material submitted by parties .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict ’s right to legal assistance in such proceedings may be restricted . ”

That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in LAW . It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings .

In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented .