Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses)

Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and , as far as the ORG is aware , lives in GPE .

On DATE ORG ( rechtbank ) found the applicant guilty of being a co - perpetrator of the offence of transporting a shipment of tablets containing a psychotropic substance the trade of which is illegal in all countries concerned , namely CARDINAL,CARDINAL-methylenedioxy - N - methylamphetamine ( “ MDMA ” for short , known in its street pill form as “ ecstasy ” or “ XTC ” – the latter designation will be used in this judgment hereafter ) from the GPE to GPE with the intention of ultimately shipping it to GPE . According to the judgment , the ORG was to be hidden in the cylinders and crankcases of motor car engines that would then be shipped to a business , PERSON , in GPE , GPE , which company had been set up by the applicant with a view to importing engine parts from LOC . The applicant was sentenced to DATE imprisonment .

The proceedings against the applicant were held separately from the proceedings against his co - accused , amongst whom were PERSON and the applicant ’s father , PERSON . The suspects PERSON and PERSON were in fact put on trial in GPE . On DATE they were convicted and given prison sentences by ORG ( Landgericht ) of GPE in GPE for their part in the crimes . They had both made full confessions and given detailed statements to the NORP prosecutors , a fact that was taken into account in sentencing .

At no point throughout the criminal proceedings against him did the applicant deny that he had been involved in shipping motor car engines to his business in GPE . However , he denied all knowledge of the use of those engines to smuggle ORG and hence any criminal intent directed towards that end . His defence was focused on this point .

Virtually all the evidence presented before ORG to prove the applicant ’s intent and participation in committing the offence was taken from the statements given by PERSON to the NORP prosecutors and later on to GPE police investigators during the pre - trial stage of the proceedings against the applicant . Particular weight was given to statements PERSON had made with regard to a handwritten note , found in his dwelling , which contained the address of PERSON in GPE .

The applicant had repeatedly requested to be allowed to question PERSON since neither he nor his counsel had been present when PERSON had given these statements . At a hearing on DATE ORG noted that both parties had , in the meantime , been to GPE to question the witnesses PERSON and NORP The applicant however specified that the NORP investigating judge had done all the questioning and that he himself had not been able to put any questions to the witnesses . It also appeared that PERSON had refused to answer questions or repeat the statements he had made previously . Furthermore , the prosecutor stated that there had appeared to be a problem with the interpreter assisting the witness PERSON The applicant requested further questioning of the witnesses so that he would actually be able to put his own questions to them .

At the same hearing ORG decided that the statements given to the NORP prosecutor by PERSON and PERSON would be added to the case file together with the records of their NORP trial .

In its judgment of DATE , ORG , finding that the applicant had been able to put questions to PERSON twice ( though without specifying when or where ) , considered that the use in evidence of the statements given by PERSON in GPE did not violate the provisions of LAW . The fact that PERSON had chosen to avail himself of his right not to testify did not alter this situation . ORG also found that PERSON ’s statements were sufficiently supported by other evidence to be allowed to serve as the basis for the applicant ’s conviction .

On DATE the applicant lodged an appeal against the judgment of ORG with ORG ( gerechtshof ) . At a hearing on DATE , ORG granted the applicant ’s request for PERSON to be summoned to appear before the court so that they could be heard , given the importance of their statements .

On DATE and PERSON were both questioned as witnesses at a hearing before ORG . A. stated that he knew the applicant but in general denied ever having talked to him about the XTC . On more specific questions he invoked his right not to testify ( verschoningsrecht ) . A. also declared that everything PERSON had stated was a lie .

M. acknowledged that he had been questioned by GPE police investigators and admitted that he had been convicted of perjury DATE . He refused however to answer any substantive questions , invoking his right not to testify in connection with pending proceedings for his extradition to the GPE to stand trial on a charge of participation in a criminal organisation .

In his closing argument the applicant ’s counsel submitted that none of the evidence presented disclosed the applicant ’s intention to commit or participate in the commission of the criminal offence , save only the statement made by PERSON The applicant ’s counsel argued , with reference to the ORG ’s case - law ( including PERSON v. GPE , no . CARDINAL , ORG CARDINAL ) , that ORG had based its judgment solely or to a decisive extent on statements made by a witness whom the applicant had not been able to question , thus violating his right to a fair trial under LAW .

On DATE ORG dismissed the applicant ’s appeal . It considered that the mere fact of PERSON ’s refusal at the hearing to answer any substantive questions did not constitute a violation of the applicant ’s right to have witnesses against him examined . The court noted that PERSON had initially made a confession to the GPE police investigators and had given a full account of events , including about the involvement and extent of participation of his fellow perpetrators . In the course of interviews held at a later stage and at the hearing before ORG on DATE , PERSON had invoked his right not to testify . The court noted , however , that PERSON had not invoked this right in respect of all questions put to him . Thus , he had in any event confirmed that he had indeed said what had been noted down by the GPE police investigators . The question nevertheless arose whether in these circumstances PERSON ’s confessions could be used as evidence in the criminal proceedings against the applicant . For that to be the case , it was required that these statements be largely corroborated by other items of evidence relating to elements which were disputed by the applicant and in respect of which he had wanted to put questions to the witness M.

ORG reasoning included the following :

“ The defence has argued – in substance – that PERSON ’s initial statements to the police can not be admitted as evidence because he subsequently withdrew them and because the defence has had insufficient opportunity to question PERSON as a witness because DATE in connection with criminal proceedings pending against him in the GPE ... he had , at the hearing of DATE , repeatedly invoked the right not to testify .

The court finds as follows as regards the reliability of the witness and fellow suspect PERSON and the right of the defence to question him . Initially , PERSON made a confession and gave a complete description of the facts , also relating to the involvement and participation of his fellow suspects . Later , questioned under letters rogatory and at the hearing of this court on DATE , PERSON invoked his right not to testify . PERSON ’s refusal to testify at the hearing does not , in itself , violate the right of the defence to question him . In any case , PERSON has not invoked his right not to testify in response to all the questions put and he has at least confirmed that he has made to the GPE investigators the statement which they set down on paper . The question remains , however , to what extent in these circumstances the earlier confessions made by PERSON can and may be admitted as evidence in the present criminal case . For that , it will be required that these statements be largely corroborated ( in belangrijke mate worden bevestigd ) by other evidence on those aspects which [ the applicant ] contests and about which he would have wished to question the witness .

The court notes that the suspects PERSON and PERSON were sentenced to imprisonment for DATE and DATE , respectively , for the illegal import and the illegal trade in psychotropic substances by the Landgericht of GPE . In arriving at a conviction , the NORP court has , in its judgment of CARDINAL DATE ... , held as follows concerning A. :

‘ ... In this connection ... it has to be noted in the suspect ’s favour that he made a complete confession at the trial , which made it easier especially for the suspect PERSON to repeat at the hearing the confession which he had already made already following his arrest , which moreover was thus confirmed . This chamber holds in favour of the suspect A. that he has made his confession in spite of a concrete threat to his person and his family by the people in the background of this drugs deal . A. ’s confession additionally has the effect of LAW of the [ NORP ] GPE , ... The statement of the suspect PERSON , which has already led to considerable success in clearing up this case and also in the GPE investigation , is strengthened ( bekrachtigd ) by the additional and confirming statement of the suspect A. ... ’

In sentencing PERSON , the NORP court has held as follows :

‘ Because , as in the case of the suspect A. , the primary standard sentence of DATE imprisonment ... must be mitigated ... pursuant to section CARDINAL of the [ NORP ] Narcotics Act . It must , however , be counted considerably in favour of the suspect PERSON that he has made a complete confession at an early stage of the investigation , although his family and he himself have received specific threats . This confession is also inspired by contrition and insight ... ”

At this court ’s hearing of DATE M. first stated that there had been a deal in his case and afterwards that there had never been any mention of a deal . On this ground , the court finds – contrary to what the defence has argued DATE that it is not established that there was a deal agreed between PERSON as suspect and the NORP prosecution service to make statements incriminating ( also ) his fellow suspects in exchange for a reduction of sentence . Conversely , the NORP court gave reasons for applying the mitigating factor contained in DATE of the [ NORP ] GPE . PERSON ’s confessions are also corroborated by the statement of ORG and even extended despite threats to his person and family . This reinforces the credibility of PERSON ’s confessions . The court does not give credence to the suggestion that A. had no choice , in view of the procedural attitude adopted by PERSON , but to make a confession of his own , the less so since in so doing he has broadened PERSON ’s statements .

At the court ’s hearing of DATE , PERSON stated that he had not felt at liberty to make [ his own ] statements before the NORP court and that the statements which he had made before the GPE investigators had been put into his mouth after they had driven him crazy by raising the case of PERSON , whom he had known well . The court does not , however , consider it likely that PERSON did not make his confessions in complete freedom and in so doing takes into account what the NORP court found in its criminal judgment concerning the way in which PERSON had made his statements at the hearing in GPE and the fact that this statement confirmed what PERSON had earlier stated before the GPE investigators . In contrast , this court ’s own observation at the hearing has given it the impression that PERSON did not feel at liberty to make a true statement or in any case to confirm what he had earlier stated before the GPE investigators and the NORP criminal judge without further incriminating himself in view of the prosecution for which the GPE public prosecutor has requested his extradition . The court sees no circumstances on the basis of which it should be doubted that the statements initially taken from PERSON by the GPE investigators had lawfully come about ; nor has the defence asked for the GPE investigators concerned who questioned PERSON to be called as witnesses . Finally , the statements of both PERSON are supported in various stake - outs and the recordings of private communication ( opnemen van vertrouwelijke communicatie , ‘ OVC’s’ ) .

Considering the connection with ORG ’s confession before the NORP court and the other items of evidence the court concludes that PERSON ’s statement about the involvement of [ the applicant ] in the facts charged ... is sufficiently corroborated by other evidence and can therefore be admitted as evidence by the court . ”

The evidence used by ORG to ground the applicant ’s conviction was the following :

an official police record reflecting , among other things , a tipoff to the effect that A. , the proprietor of a snack bar , dealt in ORG and maintained contacts with PERSON and “ PERSON ( PERSON ) ;

an intercepted telephone conversation in which PERSON tells a co - conspirator to send “ the goods ” to PERSON in GPE , GPE ;

an official police record to the effect that the applicant had arrived in GPE ( ORG linked this with item b ) ;

an intercepted private conversation between A. , PERSON and PERSON in which they discuss the preparation of the motor car engines for shipping ;

an intercepted private conversation between A. , PERSON , PERSON and CARDINAL PERSON in which they discuss how to disguise the smell of the ORG so as to foil sniffer dogs ;

an intercepted private conversation between A. , PERSON and PERSON , apparently in a motor car , from which it appears that they are in a car park waiting for a police car to leave ;

an official record reflecting the positive identification of CARDINAL of the voices involved in the conversation listed above under e. as that of PERSON ;

a translation from NORP into NORP of an official NORP police record describing the finding of QUANTITY packages containing small tablets in the crankcase of a motor car engine found in a car breaker ’s yard in GPE ;

a translation from NORP into NORP of an official NORP police record describing the finding of ORG in CARDINAL other engines in the same car breaker ’s yard and the seizure of QUANTITY of tablets identified provisionally as ORG ;

a translation from NORP into NORP of an official NORP police record positively identifying a sample of the tablets as ORG after testing ;

an official record drawn up by a GPE police officer covering a list of objects seized by the NORP police and the handing over by the latter of a small quantity of pills ;

an official police record describing the provisional identification of CARDINAL small sample of the above pills as ORG ;

an official police record in which the first of the CARDINAL small samples is positively identified as ORG ;

an official police record in which the second of the CARDINAL small samples is positively identified as ORG ;

an official record of a search of M. ’s dwelling , where a handwritten note was found giving the address of ORG in GPE ;

a translation from NORP into NORP of an interview of PERSON conducted by a NORP police officer on DATE , containing the following :

“ Question : You are now being shown a copy of the back of a page reading EXACARDINAL - CARDINAL - CARDINAL/CARDINAL and the text ‘ H.’ . Who wrote that ?

Answer : It is not my handwriting .

Question : What does PERSON mean ?

Answer : PERSON refers to PERSON . That is the address to which the engines seized in E. [ where the car ORG yard was located ] were going to be shipped .

Question : Where is H. Autosport located ?

Answer : It is in GPE in GPE .

Question : Who wrote this note ?

Answer : I suspect that PERSON [ the applicant ’s father ’s nickname ] or PERSON ’s son [ i.e. the applicant ] wrote the note . The first name of his son is PERSON . Vidgen is PERSON ’s last name . ”

Question : How long have you had the note with the text H. Autosport ?

Answer : I reckon that I was given that note DATE before my arrest . CARDINAL of us , that is to say A. , PERSON , his son PERSON , and I , went for dinner at a NORP restaurant in GPE . I do n’t know whether PERSON or PERSON wrote the note with the address , but at any rate PERSON then gave the note to me .

Question : What did you do with the NORP address ‘ H. Autosport’ ?

Answer : I phoned it through to H.

Question : What was the real intention of shipping engines to GPE in shipping containers ?

Answer : To transport XTC pills to GPE in the engines . ”

a translation from NORP into NORP of an interview of PERSON conducted by the same NORP police officer on DATE , from which it appears that a recording of a conversation held inside a motor car is played back to PERSON , after which the following is said :

“ Question : Where were you going when you held the conversation to which we have just listened ?

Answer : We were on our way to a NORP restaurant .

Question : Who attended the meeting ?

Answer : I , A. , PERSON and the aforementioned PERSON . Later on we were joined in the restaurant by H.

Question : What did you discuss there ?

Answer : We discussed the engines .

Question : What is the relationship between these people ?

Answer : I will now describe it as follows : A. is in touch with Grandpa . A. is also in touch with PERSON needs PERSON because PERSON can supply the pills . PERSON has the address where the pills have to be delivered . PERSON ’s son then knows where to pick up the stuff . PERSON and his son are in this together .

Question : Did PERSON ’s son know what was in the engines ?

Answer : Yes , he just did not know how much was in them . Neither did I.

Question : Whose idea was it to organise the transport in this way ?

Answer : A. had the contact and the address in GPE . PERSON knows PERSON , who has a car breaker ’s yard . I believe it was their idea .

Question : Who were you going to meet on DATE ?

Answer : A. had an appointment DATE with PERSON and PERSON . had asked Ba . whether Q. could drive a white van . A. had asked me to phone PERSON was to drive along in his black car . He was to drive in front of the van . We had all arranged to meet in front of FAC . Q. was there already with PERSON A. and I had already gone to FAC with the white ORG A. and I got into L. ’s car . The white van was meant to follow us . Next we went to FAC near the town of H. [ in the GPE ] . There we parked the cars . PERSON was already there . A. and Q. joined PERSON at his table . They were later joined by PERSON then went outside and drove off with the white van . It was his job to load the engines into the van . I do n’t know where he wanted to collect the engines , that kept changing all the time . Sometimes from ORG . , then from He . , PERSON . ’s brother . Q. had to go with him .

The next meeting was in the industrial area of the town of H. It was TIME before H. arrived with the white van . The engines were on board . I reckon that there were CARDINAL . The XTC tablets were inside the engines . After PERSON had come back with the van , Q. got into it . H. and PERSON got into the ORG and L. , A. and I got into the black Opel . We followed PERSON and H. Then H. and PERSON drove into the breaker ’s yard . I later understood from the file that the yard was called NORP and was located in PERSON ( a location in GPE ) . After PERSON and PERSON had driven into the yard , A. and I turned back and retraced our route and drove past the yard CARDINAL more time . We then drove back to the GPE .

I later overheard PERSON talking with A. in a low voice and I heard them say that it had all gone well .

A. and I then took the ORG Bora to drive back to the town of PERSON was adamant that he wanted to go back to the town of PERSON , because there were CARDINAL more things to transport to E. the following day and he wanted to make the arrangements . It was agreed with PERSON that he would come to FAC in DATE towards CARDINAL or TIME We then got into the car with PERSON and went with him to PERSON It was agreed that Q. would drive the van to E. at least once more . There was a question whether PERSON might perhaps come along . PERSON and I drove to PERSON [ the proprietor of the breaker ’s yard ] . I seem to remember that Q. would be paid MONEY ( NLG ) for the trip to E.

PERSON wanted CARDINAL Netherlands CARDINAL ( NLG ) in total ( the court understands this to be the price per pill ) , that is NLG CARDINAL for himself and NLG CARDINAL for his son . A. was going to get NLG CARDINAL for each pill . When I say ‘ Grandpa’ I mean PERSON . ”

a translation from NORP into NORP of an interview of PERSON again conducted by the same NORP police officer , this time on DATE , in which PERSON describes how the engines were bought in GPE to be prepared by PERSON for shipping from GPE ;

a translation from NORP into NORP of an interview of PERSON conducted by the same NORP police officer on DATE , describing the transport of the engines to ORG ’s breaker ’s yard to be cleaned ;

a translation of an official record of an interview of the witness ORG , conducted in GPE under letters rogatory , describing how , with his father ’s assistance , the applicant set up PERSON in GPE , GPE , GPE with financial support from his father and how the applicant intended to receive a shipment of motor car engines from GPE ;

finally , a statement made by the applicant at the hearing of ORG of GPE to the effect that he had met PERSON in the GPE ; that he had financed his business in GPE with his wife ’s money and a loan from his father ; and that the address on the note was that of his business in GPE .

On DATE the applicant lodged an appeal in on points of law ( cassatie ) with ORG . He submitted CARDINAL ground of appeal ( cassatiemiddel ) raising CARDINAL complaints : firstly , that ORG had failed to present proper reasoning as to why it relied on CARDINAL particular statement by PERSON ; and secondly , that it had mistakenly concluded that the statements given by PERSON were sufficiently supported by other evidence to prove the applicant ’s intent to commit and participate in the commission of the crime .

On DATE the Procurator General ( PERSON ) to ORG expressed as his advisory opinion that the second leg of the applicant ’s ground of appeal should be upheld . He considered that the evidence that had led to the applicant ’s conviction had been based solely or to a decisive extent on the statements made by PERSON at the pre - trial stage , thus leading to a violation of LAW ( d ) of the LAW . In particular , the Procurator General found that ORG had merely sought to determine whether PERSON ’s statements could be relied upon in the face of corroborating evidence ; it had not , however , determined whether the applicant ’s conviction was based solely or to a decisive extent on PERSON ’s statements .

On DATE ORG dismissed the applicant ’s appeal on points of law and confirmed the judgment of ORG . In its reasoning ORG did not deal directly with the first leg of the applicant ’s ground for appeal . As relevant to the case before this Court , ORG considered that ORG had been entitled to rely on the statements made by PERSON since that witness had appeared at the hearing and the applicant had been able to put questions to him as well as present arguments relating to the validity of PERSON ’s statements . The fact that PERSON had invoked his right not to testify did not lead to a violation of LAW ( d ) of the LAW . Ex proprio motu , ORG held that the cassation proceedings had lasted too long , for which it compensated the applicant by reducing his prison sentence by DATE . The judgment was published in GPE Law Reports ( PERSON , “ GPE ” ) DATE , no . CARDINAL .

Articles of the Code of Criminal Procedure relevant to the case are the following :

“ A witness shall be excused the duty to answer a question put to him if in so doing he would expose himself or CARDINAL of his relatives in the ascending or the descending line ex transverso [ i.e. siblings , uncles , aunts , nieces and nephews , etc . ] , whether connected by blood or by marriage , in the second or third degree of kinship , or his spouse or former spouse , or registered partner or former registered partner , to the risk of criminal prosecution . ”

“ CARDINAL . The following only shall be recognised as legal evidence :

the court ’s own observation ;

NORP statements made by the defendant ;

NORP statements made by witnesses ;

statements made by experts ;

written documents .

No proof is required of generally known facts or circumstances . ”

“ CARDINAL . ...

NORP The court shall not hold it proven on the evidence of CARDINAL witness that the suspect has committed the act with which he is charged . ”

“ The expression ‘ written ORG means :

documents drawn up by public bodies or civil servants concerning matters coming within the competence entrusted to them , including documents drawn up by a person in the public service of a foreign state or an international intergovernmental organisation ;

all other documents ; but these shall only be valid in connection with the content of other items of evidence . ... ”

In its judgment of CARDINAL DATE , GPE DATE , no . CARDINAL , ORG held that the use in evidence of an official report containing an incriminating statement not made at the trial hearing was not ipso facto impermissible , and in particular not incompatible with LAW and CARDINAL ( d ) . There would in any case be no incompatibility if the defence had had the opportunity to test the reliability of the statement and challenge it by questioning the person who had made it as a witness . Moreover , even if such an opportunity was lacking , the use in evidence of such a report was permissible if there was “ considerable support ” for the statement in other items of evidence ( die verklaring in belangrijke mate steun vindt in andere bewijsmiddelen ) .

In its judgments of DATE , GPE DATE , no . CARDINAL , and CARDINAL DATE , GPE DATE , no . CARDINAL , ORG clarified the expression “ considerable support ” by construing it in the sense that it was already sufficient if the suspect ’s involvement in the act charged was sufficiently confirmed by other evidence .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in LOC .

During the works on a nearby motorway , some plots of the applicant ’s land were damaged by the investor DATE ORG of Ljubljana ( “ the ORG ” ) .

On DATE the applicant instituted civil proceedings against the ORG in ORG ( PERSON sodišče v GPE , Enota v Radovljici ) , seeking compensation in the amount of CARDINAL NORP tolars ( MONEY ) .

On DATE the court held a hearing and decided to appoint an expert to assess the damage sustained by the applicant .

On DATE the ORG entered into force with respect to GPE .

On DATE the applicant appealed against the court ’s decision on the expert ’s costs . On DATE he also appealed against the subsequently issued correcting decision concerning these costs . On DATE ORG ( PERSON ) rejected the second applicant ’s appeal .

In the meantime , the NORP judicial system was reorganized and ORG ( Okrožno sodišče v GPE ) , on DATE , obtained jurisdiction in the present case .

On DATE the applicant made a request that a date be set for a hearing .

Of the CARDINAL hearings held on DATE and DATE , neither was adjourned at the request of the applicant .

At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG . The PERSON cross - appealed .

On DATE the applicant made a request to expedite the proceedings .

On DATE , ORG upheld both appeals and the case was remitted to the first - instance court for re - examination . The decision was served on the applicant on an unspecified date .

In the re - examination proceedings , DATE and DATE , the applicant filed CARDINAL written submissions .

The court appointed a new expert to asses the damage .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant . However , CARDINAL hearing fixed for DATE was called off on the applicant ’s request .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG .

On DATE the court upheld the applicant ’s appeal regarding the costs of the proceedings and in this part remitted the case to the first instance court . The court rejected the remainder of the appeal .

The judgment was served on the applicant on DATE .

On DATE ORG issued a new decision on the costs of the proceedings , which was served on the applicant on DATE .

On DATE the applicant appealed also against this decision .

On DATE , ORG rejected the applicant ’s appeal .

The decision was served on the applicant on DATE .


COOPERATIVE DES AGRICULTEURS DE MAYENNE AND COOPERATIVE LAITIÈRE MAINE-ANJOU v. FRANCE [Extracts]

The applicants , Coopérative des agriculteurs de la Mayenne and Coopérative laitière ORG , are farm cooperatives under NORP law whose registered offices are in ORG and ORG respectively . They were represented before the ORG by Mr J .- C. Cavaille , a lawyer practising in GPE .

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

DATE the first applicant , PERSON , was the subject of an inspection by ORG ( ORG ) aimed in particular at checking that its activities complied with ORG of DATE and DATE and DATE of DATE ( see “ Relevant law ” below ) .

In CARDINAL letters of DATE , the first applicant was informed that , following the inspection , it had come to light that the milk production quotas for DATE had been exceeded . The letters informed the applicant that it was required to pay ORG the sums of MONEY ( ORG ) , ORG and ORG ORG , corresponding to each of DATE covered by the inspection .

By CARDINAL enforceable orders dated DATE , the Director of ORG served notice on Coopérative des agriculteurs PERSON , requiring it to pay the above sums to LOC .

On DATE the cooperative applied to ORG seeking to have the enforceable orders set aside .

On DATE the cooperative handed over its milk collection operations to another cooperative , ORG laitière ORG ( the second applicant ) .

On DATE Coopérative laitière ORG intervened in the proceedings before ORG and , relying on the same grounds as the first applicant , requested the court to uphold the conclusions set out in the latter ’s application .

On DATE the Director of ORG sent a demand for payment to the first applicant , seeking payment of the sum of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , corresponding to the additional levy for the DATE milk marketing year . On DATE the Director of ORG issued an enforceable order to secure payment of the sum in question .

Meanwhile , on DATE , the applicants requested ORG to set aside the payment demand of DATE . They subsequently also requested the setting - aside of the enforceable order of DATE .

In a first judgment of CARDINAL DATE , ruling on the application of CARDINAL DATE seeking to have the enforceable orders of DATE set aside , ORG granted the second applicant ’s request to be joined to the proceedings and dismissed the first applicant ’s application , in particular on the following grounds :

“ ... The applications ... lodged on behalf of Coopérative des agriculteurs de la Mayenne and PERSON laitière ORG raise the same issues and have been the subject of a joint investigation ; they should therefore be joined and dealt with in a single judgment .

... The judgment in this case ... is likely to be prejudicial to the interests of ORG laitière ORG . Accordingly , [ its ] application to be joined to the proceedings is admissible . ...

The investigation has shown that ORG , CARDINAL DATE , inspected the accounts for DATE . This inspection revealed deliveries of milk that had not been declared by Coopérative des agriculteurs de la Mayenne , which are the subject of the impugned requests for payment . ...

As to the argument that the basis on which the sums were calculated was not indicated

In submitting that ORG did not indicate to it the exact amounts by which the quotas had been exceeded , PERSON must be deemed to have claimed that the basis for calculating the amounts to be recovered under the enforceable orders in question was not indicated to it .

While any enforceable order must indicate the basis on which the amounts payable have been calculated , this requirement does not apply where the person liable has already been informed of the basis for calculation in an earlier document .

The investigation has shown that , contrary to the assertions of Coopérative des agriculteurs de la Mayenne , which was given notice by ORG of the reference quantities allocated to it at the beginning of the CARDINAL/CARDINAL , DATE and DATE milk marketing years , the cooperative was informed by this ORG agency in CARDINAL letters dated DATE of the corrections to the basis of assessment arising out of the checks carried out DATE ] and of the resulting additional levies . It follows that PERSON des agriculteurs PERSON Mayenne which , in its capacity as purchaser – which it can not seriously dispute – was required to identify the producers whose deliveries were in excess of the quotas , may not validly argue that the basis on which the amounts owing were calculated was not made sufficiently clear .

As to the argument that the manner in which the cost of the additional levy was to be passed on to producers was not set out in a prefectoral order

Contrary to what has been asserted by the applicant cooperative , which does not rely on any specific text , it is not stated in any legislative or regulatory provision , or elsewhere , that the manner in which the cost of the additional levy is to be passed on to producers should be set down in a prefectoral order . Accordingly , this argument must be rejected .

As to the argument alleging unequal treatment between producers

While the provisions of the decree of CARDINAL DATE , reiterated in the decree of CARDINAL [ DATE , make the levies payable by producers partly subject to the situation of the purchaser whom they supply , the difference which may result is inherent in the mechanism of “ Formula B ” , as defined in LAW ( ORG ) No CARDINAL/CARDINAL . Accordingly , the ORG must reject the argument that the impugned enforceable orders , which arose out of the imposition of additional levies triggered by the high level of deliveries , applied rules that were discriminatory .

As to the argument that the ORG objectives were not complied with

The applicant cooperative submits that the enforceable orders in question did not comply with the objective of curbing the increase in milk production laid down in the ORG rules , on the grounds that the corrections were made late , after DATE in question , and that the enforceable orders did not make it possible to determine how the levies were to be allocated subsequently .

In confining itself to these criticisms DATE which , moreover , are shown by the foregoing to be unfounded – Coopérative des agriculteurs de la Mayenne has failed to provide any evidence to demonstrate that the enforceable orders were contrary to Community objectives , as it alleges . Accordingly , the ORG must reject this argument also . ... ”

In a second judgment of CARDINAL DATE , ORG rejected the application lodged on DATE , in particular on the following grounds :

“ ... the applications ... challenge CARDINAL measures taken in the same set of recovery proceedings instituted by ORG against the first cooperative ... and were the subject of a single investigation . They should therefore be joined and dealt with in a single judgment ...

As to the argument that the basis on which the amounts were calculated was not indicated

... It is clear from the investigation that the demand for payment in question referred expressly to the provisions of Regulation ( ORG ) No CARDINAL/CARDINAL on the common organisation of the market in milk and milk products , cited above , which provides the legal basis for the impugned levies . In addition , the demand for payment presented in sufficient detail the figures for excess production observed at DATE CARDINAL milk marketing year and arising out of the inspection conducted in DATE , and the means of calculating the amounts in question , thus enabling the person liable to assess the validity of the claim and the amount thereof . It follows that there is no foundation for the assertion made by PERSON , whose capacity as purchaser – which it can not seriously dispute – required it to identify those producers whose deliveries exceeded the quotas , and by PERSON [ laitière ] ORG , to the effect that the basis on which the amounts to be recovered were calculated was not made sufficiently clear .

Furthermore , while any enforceable order must indicate the basis on which the amounts payable have been calculated , this requirement does not apply where the person liable has already been informed of the basis for calculation in an earlier document .

The investigation showed that the enforceable order at issue had been preceded by the above - mentioned demand for payment , which gave details both of the legislation forming the legal basis for the claim and the elements used to calculate it . Accordingly , the requirement referred to above must be regarded as having been fulfilled in the present case ...

As to the argument that the manner in which the cost of the additional levy was to be passed on to producers was not laid down in a prefectoral order

Contrary to what has been asserted by the applicant cooperatives , which do not rely on any specific text , it is not stated in any legislative or regulatory provision , or elsewhere , that the manner in which the cost of the additional levy is to be passed on to producers should be set down in a prefectoral order . Accordingly , this argument must be rejected . ... ”

On DATE the applicants lodged an appeal against the CARDINAL judgments of ORG .

In a judgment of DATE , ORG rejected the ORG appeal against the first judgment , in particular on the following grounds :

“ ... having regard to the requirement for ORG , pursuant to the ORG rules and Decree no . CARDINAL of DATE , to seek payment of the additional levy owed by purchasers , the decisions in accordance with which ORG imposes the levy on purchasers can not be regarded as unfavourable individual administrative decisions for which reasons must be given pursuant to section CARDINAL of the Act of DATE , cited above ...

As stated above , Coopérative des agriculteurs de la Mayenne was in a position to challenge all the elements in the correction carried out . In a letter of CARDINAL DATE , ORG sent it a copy of the findings of the on - site inspection conducted lawfully in DATE by officials of ORG [ ... ] on the basis of Decree no . CARDINAL of DATE and LAW of CARDINAL DATE , cited above , and gave it DATE to reply . The cooperative was able throughout the proceedings to submit its observations , which were taken into account in order to reduce the correction . Hence , the cooperative in question has no basis for arguing a violation of the adversarial principle or of its defence rights . There was no provision of ORG or domestic law , or any general legal principle , requiring the cooperative to be informed of its right to be assisted by a lawyer . Nor is there any foundation for the ORG allegation of a violation of LAW , CARDINAL and CARDINAL of LAW , as these provisions do not lay down any rule or principle whose scope extends beyond proceedings before the courts to encompass ORG , which is not a court for the purposes of those provisions ...

LAW ( ORG ) No CARDINAL/CARDINAL , as amended by the abovementioned Regulation No CARDINAL/CARDINAL , states that under PERSON , which GPE decided to apply , the additional levy is payable by purchasers of milk and that ‘ the purchaser liable to the levy shall pass on the burden in the price paid to those producers who have increased their deliveries , in proportion to their contribution to the purchaser ’s reference quantity being ORG . However , this provision does not have the effect of requiring member PERSON to introduce a procedure for passing on the cost of the levy under the supervision of the authorities but , on the contrary , states that it is for purchasers to pass on the cost of the levy to the producers . Accordingly , the ground of appeal arguing that the NORP rules are in breach of Regulation No CARDINAL/CARDINAL can not succeed .

GPE ’s decision to opt for Formula B was based on the provisions of LAW ( ORG ) No CARDINAL/CARDINAL , as amended by Regulation No CARDINAL/CARDINAL of DATE , to which the NORP rules simply gave effect in this regard . Consequently , the grounds of appeal to the effect that those rules are in breach of the principles of equality and proportionality are in any case ineffective .

... An administrative court , in examining submissions challenging an enforceable order or a collection order as in the present case may , after checking the facts relied upon and their characterisation by the authorities and depending on the outcome , decide to uphold or reduce the amount payable by the person concerned or , where appropriate , to discharge him or her from liability . On the other hand , the provisions concerning the additional levy do not permit the court or the authorities to adjust the rate of the levy . Nor does the need to comply with the provisions of LAW of LAW imply that the court should adjust the amount of the levy . Accordingly , the ground of appeal based on a breach of the right to a fair hearing must fail . ... ”

In a further judgment of DATE , ORG dismissed the appeal lodged by the applicants against the second judgment , on similar grounds to those outlined above , adding :

“ ... The fact that the order of DATE on arrangements for collection of the additional levy for the CARDINAL milk marketing year came into effect after DATE in question does not mean that it should be regarded as retrospective , in breach of the law , since the levy , which is based on excess production during DATE and the basis and amount of which were laid down by the orders of CARDINAL DATE and CARDINAL DATE which came into force before DATE , can not be collected until DATE .

Since ORG ( ORG ) No CARDINAL/CARDINAL of DATE applied only from DATE onwards , the ground of appeal to the effect that the decree of CARDINAL DATE on controlling cow ’s milk production was in breach of that ORG is ineffective in the context of the present case , which relates to the CARDINAL milk marketing year ... ”

On DATE the applicants lodged an appeal on points of law with the ORG d’Etat against the CARDINAL judgments delivered by ORG on DATE . They argued in particular that the levy at issue was in breach of the provisions of LAW No . CARDINAL .

In a judgment of DATE , the ORG d’Etat joined the CARDINAL cases but dismissed the appeal on the following grounds :

“ ... The applications referred to above both relate to the same issue and should therefore be dealt with in a single decision .

... In addressing the grounds of appeal arguing that the inspection carried out concerning PERSON des agriculteurs de la Mayenne had been unlawful , the court observed that the latter , in accordance with the overall principle of due process , had been in a position to challenge all the elements in the correction notified to it by ORG in its letter of CARDINAL DATE setting out the findings of the on - site inspection conducted lawfully in DATE by officials of ORG , and that it had been able throughout the proceedings to submit its observations , which were taken into account , among other things , in order to reduce the correction . The court dismissed the grounds of appeal alleging that the NORP rules were in breach of the Community rules or contrary to the principles of equality and proportionality . Accordingly , the court addressed adequately those grounds of appeal submitted to it which were not inoperative .

... An enforceable order must indicate the basis on which the amounts payable have been calculated , even where it is issued by a public agency other than the ORG , for which the requirement is expressly laid down in LAW of the decree of CARDINAL DATE . In accordance with this principle , ORG can not request payment of an additional levy without indicating , either in the order itself or by reference to a document attached to it or previously addressed to the person liable , the basis for and the elements contained in its calculation of the amounts due . ORG satisfied this requirement in the instant case by making reference in the impugned enforceable orders to the letters of DATE to the applicant cooperatives , which the latter do not deny having received and which , in the context of the adversarial procedure which the authorities were obliged to conduct before correcting the declared bases , set out clearly the basis on which the amounts payable had been calculated . Consequently , ORG did not commit any error of law in finding the enforceable orders in question to be lawful . ... ”

Whereas the operation and development of the common market in agricultural products must be accompanied by the establishment of a common agricultural policy to include in particular a common organisation of agricultural markets which may take various forms depending on the product ;

Whereas the aim of the common agricultural policy is to attain the objectives set out in LAW ; whereas , in the milk sector , in order to stabilise markets and to ensure a fair standard of living for the agricultural community concerned , it is necessary that the intervention agencies continue to take intervention measures on the market , such measures however to be standardised so as not to impede the free movement of the goods in question within the Community ;

Whereas the market in milk products in the ORG is suffering from structural surpluses as a result of an imbalance between supply and demand for the products ...

Whereas a careful examination of the different possible ways of re - establishing balance in the milk sector shows that , despite the administrative difficulties which its implementation may involve , the most effective method , and the one having the least drastic effect on the incomes of producers , is the introduction for an initial period of DATE of an additional levy on quantities of milk delivered beyond a guarantee threshold ;

Whereas , in view of the diversity of milk production structures in the different regions of the ORG , the administrative problems arising and considerations of regional development policy , the possibility must be provided for of a choice between a formula of a reference quantity per producer and a reference quantity per purchaser ;

Whereas , where the levy is to be paid by the purchaser , provision should be made for ensuring that the purchaser passes on the burden in the price paid to those producers who have increased their deliveries , in proportion to their contribution to the purchaser ’s reference quantity being exceeded ;

Whereas the purpose of the levy provided for by this ORG is to regulate and stabilise the market in milk and milk products ; whereas revenue from the said levy should therefore be used to finance expenditure in the milk and milk products sector ;

Regulation ( ORG ) No CARDINAL/CARDINAL is hereby amended as follows : CARDINAL . The following LAW is inserted :

‘ LAW

During CARDINAL consecutive periods of DATE beginning on DATE , an additional levy payable by producers or purchasers of cows’ milk shall be introduced . ...

The levy system shall be implemented in each region of the territory of the member States in accordance with CARDINAL of the following formulas :

Formula B – A levy shall be payable by every purchaser of milk or other milk products on the quantities of milk or milk equivalent which have been delivered to him by a producer and which , during DATE concerned , exceed a reference quantity to be determined .

– The purchaser liable to the levy shall pass on the burden in the price paid to those producers who have increased their deliveries , in proportion to their contribution to the purchaser ’s reference quantity being exceeded .

Whereas LAW ( ORG ) No CARDINAL/CARDINAL instituted a levy payable by every producer or purchaser of milk or other milk products on quantities exceeding an DATE reference quantity ; whereas the amount of this levy should normally cover the cost of disposal of the milk exceeding the reference quantity ; whereas , however , when the levy is charged to the purchaser , its application does not necessarily cover all the quantities of milk delivered by each producer and exceeding a quantity corresponding to that adopted in order to establish the purchaser ’s reference quantity ; whereas , in order to obtain equivalence of results , a higher levy should be fixed when it is payable by the purchaser ;

Whereas the reference quantity should be fixed on the basis of the quantity which corresponds to the DATE calendar year ... , plus PERCENT ; whereas , however , for reasons to do with their production or collecting conditions , member GPE should be enabled to adopt as a basis the quantity corresponding to DATE or to the DATE calendar DATE , weighted by a percentage enabling the same results to be achieved ;

The levy referred to in LAW ( ORG ) No CARDINAL/CARDINAL is hereby fixed at :

– PERCENT of the target price for milk , where Formula A is applied ,

– PERCENT of the target price for milk , where Formula B is applied ,

– PERCENT of the target price for milk , where there is direct sale to consumption .

“ Regulation ( ORG ) No CARDINAL/CARDINAL is hereby amended as follows :

in LAW first and second indents , ‘ CARDINAL%’ is replaced by ‘ CARDINAL ; ”

“ This Regulation ... shall apply ... from the beginning of the seventh period of application of the additional levy arrangements with regard to LAW .

“ ORG ( ‘ Onilait’ ) shall be responsible for the following tasks relating to cow ’s milk :

Determining the reference quantities within the meaning of LAW ( ORG ) No CARDINAL/CARDINAL ... for purchasers of milk and milk equivalent ; the purchasers shall inform the producers which deliver to them of the reference quantities which have been allocated ;

Determining directly the reference quantities for producers selling direct to consumption ;

Collecting the additional levy introduced by ORG CARDINAL/CARDINAL , amended , and CARDINAL ... ”

“ The additional levy referred to in LAW shall be payable by any purchaser of milk or other milk products on the quantity of milk or milk equivalent delivered to him in excess of the reference quantity allocated by ORG .

The purchaser liable for the levy shall pass on the cost of the levy only to those producers which have exceeded the reference quantity , in proportion to their contribution to the purchaser ’s reference quantity being exceeded . ”


Remainder inadmissible;Violation of Art. 6-1;No-violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

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

On TIME a murder took place in a bar in PERSON , committed by CARDINAL persons wearing motorcycle helmets ( kokore ) .

In TIME of the same day , the applicant was arrested on suspicion of premeditated murder while walking on a secondary road . The applicant fitted the description given to the police , namely that CARDINAL of the perpetrators had long hair . The applicant was placed in pre - trial detention . The other perpetrator of the murder remained unidentified and could not be traced .

Witnesses J. , PERSON and PERSON made statements to the investigation team on DATE in the absence of the applicant 's counsel . Whereas the content of such statements was not submitted by the parties , it would appear that they implicated the applicant in the commission of the murder .

The police searched the route the applicant had travelled and they found a red motorcycle with a flat front tyre QUANTITY away .

On DATE the prosecutor requested the validation of the applicant 's arrest . On DATE ORG ordered the applicant 's release for lack of reasonable suspicion and evidence . The applicant was represented by his lawyer A.

On DATE the prosecutor appealed .

On DATE ORG quashed ORG decision and remanded the applicant in custody . The applicant could not be arrested as he had fled the country after his release on DATE , fearing a vendetta by the victim 's relatives . It would appear that DATE prior to the murder , the victim had murdered the applicant 's brother .

A report on the examination and collection of material evidence of CARDINAL DATE ( proces - verbal për kqyrjen dhe sekuestrimin e provave materiale ) contained information about the finding of CARDINAL bullet cartridges at the crime scene which were taken for ballistics examination . It was reported that the perpetrators had been on a red motorcycle and CARDINAL of them had long hair .

A body search report ( process - verbal i kontrollit personal ) of the applicant , at the time of the arrest , stated that he was found to have “ ... CARDINAL belt with a metal stud ( me një tokëz metalike ) . ” No other items were recorded in the body search report .

Another report on the examination and collection of material evidence contained information about a red ORG motorcycle found on the side of the road between PERSON and PERSON .

There is no documented information regarding any developments from DATE to DATE . It appears that on an unspecified date the proceedings were transferred to ORG ( “ the ORG ” ) .

On DATE the applicant was declared a fugitive , following unsuccessful efforts by the police to find him . The court assigned lawyer PERSON to represent him .

All hearings scheduled DATE and DATE were adjourned . CARDINAL hearings scheduled DATE and DATE were also adjourned owing to the absence of the prosecutor . No witnesses , including police officers , even though they had been summoned by the court , appeared . No other procedural measures were taken .

On DATE ORG decided to continue the proceedings in absentia . It was decided that B. would continue to defend the applicant . On DATE PERSON requested the court to declare the detention report ( proces - verbal i kapjes në flagrancë ) , the personal search report ( proces - verbal i kontrollit personal ) and the reports on the examination and collection of material evidence null and void . He maintained that the detention report was forged , had been signed at a later stage by police officers and did not bear the signature of the applicant . Moreover , he suggested that the personal search report and the reports on the examination and collection of material evidence had not been prepared by judicial police officers in accordance with LAW . No witnesses appeared on DATE and no other evidence was considered by the court .

At the hearing of DATE , witness PERSON , a police officer , testified . He stated that the applicant had been arrested at random together with a number of other young people as CARDINAL of the suspects . While the other youngsters had been released on the strength of recognition assurances provided by the nearby villagers , the applicant had been taken to the police station as no one could vouch for his identity . PERSON stated that the applicant was carrying a shopping bag . The applicant was not searched by the police at the time of his arrest . He was not aware of any motorcycle such as had been entered into the record in which his name and signature appeared . The applicant 's lawyer questioned the witness .

At the hearing of DATE CARDINAL witnesses appeared before the court .

Witness PERSON testified that he was working at a petrol station when CARDINAL people he did not know , who were on a motorcycle and wearing helmets , had enquired from a distance about petrol . He stated that he did not remember the colour of the motorcycle or the helmets . Nor had he noticed any particular details about the persons . He could not observe from a distance whether or not the front tyre of the motorcycle was flat .

Witness PERSON testified that he was QUANTITY away from the crime scene when he saw CARDINAL people with helmets , CARDINAL of whom had committed the murder of DATE . There is no mention that he indicated the applicant as CARDINAL of the perpetrators .

Witness PERSON testified that while she had been having her TIME coffee on the terrace of the café - bar where the crime occurred , she had heard the waitress scream and had run away . She had neither seen anyone behaving conspicuously nor heard the roar of a motorcycle .

At the hearing of DATE witness PERSON gave his testimony . As a police officer , he testified that the applicant had been selected at random , following information the police had received on the radio . It was confirmed , on the basis of a statement by the head of a nearby village , that the applicant had been riding a red motorcycle . The red motorcycle was found CARDINAL or QUANTITY from the place where the applicant had been arrested . The witness testified that he had not participated personally in the search for the applicant .

DATE and DATE hearings were adjourned . None of the witnesses , including former police officers , appeared , while the applicant 's representative was absent from CARDINAL of them .

At the hearing of DATE , noting the repeated absence of lawyer PERSON , the court assigned lawyer PERSON to the applicant . The prosecutor stated that the identity of the head of the village , as mentioned in the testimony of witness F. on DATE , had been discovered , but he was abroad and could not give his testimony before the court .

At the hearing of DATE the court rejected the applicant 's lawyer 's request of CARDINAL DATE , which referred to the invalidity of several reports . It allowed the prosecutor to proceed with the reading out of the statements of PERSON who had never been questioned by the applicant or his representative as regards their statement . The prosecutor and the applicant 's representative made their final submissions .

On DATE the ORG found the applicant guilty of premeditated murder , acting in collusion with others and illegal possession of firearms . The judgment , which was given in absentia , relied on the above reports and testimonies of witnesses PERSON , NORP and statements of ORG The court sentenced the applicant to DATE imprisonment .

On an unspecified date the applicant 's father was informed of ORG judgment . On DATE he appointed a lawyer to lodge an appeal against that judgment . On an unspecified date the lawyer lodged an appeal with ORG . According to LAW , the time - limit for lodging an appeal against a district court 's decision is DATE .

On DATE ORG dismissed the appeal , finding that it did not comply with the prescribed time - limits . It also noted that the date of notification of ORG judgment to the applicant 's father could not be determined .

Meanwhile , on DATE the applicant was extradited from GPE , where he had been arrested on the strength of an extradition order from the NORP authorities .

On DATE , after being granted leave to appeal out of time , the applicant lodged an appeal against ORG judgment . He was represented by NORP , a lawyer of his own choosing . The applicant complained that ORG judgment was not adequately reasoned . He pointed out that none of the witnesses had accused him of having committed the crime of DATE . He questioned how he could have been identified if he had been wearing a motorcycle helmet . He also objected to the reading out of the statements of witnesses PERSON , K. and PERSON who had never been questioned or examined before ORG .

On DATE ORG ( “ the Court of Appeal ” ) upheld ORG judgment . It dismissed the applicant 's request by relying on the witnesses ' testimonies and the reading out of statements , which it found to be valid . Of the CARDINAL judges who decided the case , CARDINAL ( Gj . PERSON and TIME ) had been members of the panel which had dismissed the applicant 's appeal on DATE .

On DATE the applicant lodged an appeal with ORG . He complained that the personal search report , the reports on the examination and collection of material evidence taken at the investigation stage , and the reading out of statements of witnesses who had not been questioned during the criminal investigation , were invalid . He also argued that it was impossible for the witnesses to have identified him as the perpetrator of the crime , since the offender had allegedly been wearing a helmet . As regards the charge of the illegal possession of firearms , he claimed that there was no evidence to prove that he had used any weapons .

On DATE ORG declared his appeal inadmissible , using standard wording ( “ the grounds of the appeal fall outside the scope of LAW of LAW ” ) .

On DATE the applicant lodged a constitutional complaint . In addition to complaining of the unfairness of trial and appeal proceedings , he also complained that ORG bench of DATE was not impartial .

On DATE ORG , sitting as a bench of CARDINAL judges , declared the applicant 's complaints inadmissible . It held that the applicant 's complaints did not raise any fair trial issues , but mainly concerned the assessment of evidence , which was the function of the lower courts .

Article CARDINAL § CARDINAL

“ In the protection of his or her constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

Article CARDINAL

“ The Constitutional Court shall decide : ...

( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

Article CARDINAL § CARDINAL

“ Judicial decisions must be reasoned . ”

On DATE ORG examined an appellant 's constitutional appeal for breach of his right to a fair hearing within a reasonable time as a result of the delayed enforcement of a final ruling in his favour . In a reasoned decision , ORG , sitting as a full bench , dismissed the appellant 's constitutional appeal finding that there had been no breach of the right in question .

There is no reported case - law in which ORG has examined the length of criminal proceedings .

Article CARDINAL : Identification of persons

“ CARDINAL . When the need arises to conduct the identification of a person , the proceeding authority invites the person who must conduct the identification to describe the person ( to be identified ) , relating all the features he or she remembers and that person is asked whether he / she has been previously summoned to do the identification and about other circumstances , which may contribute to the accuracy of the identification .

Actions provided for by paragraph CARDINAL and statements made by the person who does the identification are entered in the records .

Non - compliance with the provisions of DATE and CARDINAL is a cause for the invalidity of the identification . ”

Article CARDINAL : Performing identification

The proceeding authority , after taking away the person who will do the identification , ensures the presence of CARDINAL persons , looking as alike as possible , to the person to be identified . It invites the latter to choose his or her place in relation to others , taking care to be portrayed , as much as possible , in the same circumstances under which he or she would have been seen by the person called to do the identification . After the person who will do the identification has appeared , the court asks the latter whether he or she knows any of those presented for identification , and if yes , to point out the person he or she knows and to specify whether he or she is sure .

When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified , the proceeding authority orders the act to be performed without the latter seeing the former .

The records must describe how the identification was performed , failure to do so invalidates the identification . The proceeding authority may order , for records purposes , the performance of the identification to be photographed or filmed .

Article CARDINAL : Identification of items

When the identification of material evidence or other items relevant to the criminal offence must be performed , the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable .

After finding , when possible , CARDINAL similar items to the one to be identified , the proceeding authority asks the person called to identify whether he / she recognises any of them and , if the answer is yes , invites him / her to state which of them he / she recognised and to specify whether he / she is sure .

Article CARDINAL : Identification of or by several persons

When several persons are called to do the identification of the same person or item , the proceeding authority performs it CARDINAL by CARDINAL separately , prohibiting any communication between the one who has done the identification and those who will do it subsequently .

When a person must identify several persons or items , the proceeding authority orders the person or item to be identified to be placed among different persons or items .

The provisions of Articles CARDINAL , CARDINAL and CARDINAL of the ORG are applicable .

Article CARDINAL establishes the scope of the examination of the appeal by ORG . It provides that the examination of the case by ORG is not limited to the grounds of appeal , but extends to the whole case .

Under LAW , at the party 's request , ORG shall be empowered to directly re - examine previous evidence and additional new materials , if it considers necessary .

Article CARDINAL establishes which decisions may be taken by ORG . It provides that ORG may decide to dismiss the appeal and uphold the judgment , to amend the judgment , to quash the judgment and terminate the criminal proceedings , or to quash the judgment and remit the case for a fresh trial .

ORG judgments may be appealed to ORG under Article CARDINAL in the event that : a ) the criminal law has not been respected or has been erroneously applied ; b ) there have been breaches which result in the court 's judgment being declared invalid in accordance with Article CARDINAL of this Code ; c ) there have been breaches of procedural rules that have affected the adoption of the judgment .

Article CARDINAL provides that ORG examines the appeal in so far as points of law have been raised therein .