Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the city of ORG . He is a former share - holder ( PERCENT of shares ) and the head of the board of the joint stock company “ Donservispak ” ( hereinafter “ Donservispak ” ) .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE ORG ( hereinafter “ the Public Prosecutor ” ) instituted criminal proceedings against the applicant on charge of theft of collective property ( LAW of DATE ) . The allegation was that from DATE to DATE the applicant ’s university studies as well as service charges for his apartment were met by PERSON , causing it UAH CARDINAL,CARDINAL ( MONEY ) damage .

On DATE ORG issued an indictment . The applicant was obliged not to leave the place of his permanent residence .

On DATE the investigator of ORG office ordered the applicant ’s dismissal from his position .

On DATE the investigation was suspended as the applicant was ill .

On DATE the investigation was resumed and a witness was questioned . On DATE the investigator suspended the proceedings as the applicant was in hospital .

On DATE the investigator of ORG office put the applicant on the list of wanted persons .

On DATE ORG quashed this decision as unsubstantiated .

On DATE the Deputy Public Prosecutor extended the time - limit for the pre - trial investigation .

On DATE the investigator of ORG office suspended the proceedings because the applicant could not be found at his permanent residence . ORG of the ORG was ordered to find the applicant .

On DATE the prosecutor of ORG office quashed this decision on the ground that the investigator had not taken all procedural measures that could be accomplished in the applicant ’s absence .

On DATE the investigator of ORG office suspended the proceedings in view of the applicant ’s absence .

On DATE the applicant presented himself to ORG office and the proceedings were resumed .

On DATE the applicant was informed that the pre - trial investigation had been completed .

On DATE the criminal proceedings against the applicant were terminated as no crime had been committed .

On DATE the senior prosecutor of ORG office quashed this decision and remitted the case for additional investigation .

On DATE the investigator ordered an accountant ’s report , the results of which were received by ORG office on DATE .

On DATE ORG issued a new indictment under LAW , relating to charges of abuse of position .

On DATE the applicant was arrested . He was released DATE . He was obliged not to leave the place of his permanent residence .

On DATE the criminal case was transferred to ORG of Donetsk ( “ the PERSON Court ” ) .

DATE and DATE CARDINAL out of CARDINAL hearings were adjourned due to the applicant ’s failure to appear before the court , CARDINAL due to the applicant ’s and ORG failure to appear before the court , CARDINAL due to the applicant ’s illness , and CARDINAL due to the witnesses and/or the prosecutor ’s failure to appear before the court .

On DATE ORG convicted the applicant and imposed a suspended sentence of CARDINAL years’ imprisonment .

On DATE the applicant lodged a cassation appeal and on DATE the case - file was transferred to ORG ( hereinafter “ the ORG ” ) .

On DATE ORG returned the case - file to the first instance court for rectification of procedural shortcomings ( the applicant , his representative and the prosecutor had not been informed about the date of hearing before ORG ; the applicant had not been provided with a copy of the judgment ) .

On DATE the case - file was transferred to ORG .

On DATE ORG returned the case - file to the first instance court for rectification of procedural shortcomings ( the civil party , PERSON , had not been informed about the date of hearing before ORG and had not been provided with the copy of the cassation appeal ) .

On DATE the ORG ( former ORG , hereinafter “ the ORG ” ) , following the applicant ’s request , appointed forensic book - keeping examination , which was terminated on DATE .

On DATE ORG returned the case - file to the first instance court for rectification of procedural shortcomings ( PERSON had not been informed about the date of hearing before ORG ) .

On DATE ORG quashed the judgment of DATE and acquitted the applicant .

On DATE the Deputy Public Prosecutor lodged a cassation appeal .

On DATE the hearings were resumed before ORG .

On DATE ORG quashed the judgment of DATE and remitted the case to ORG .

On DATE ORG rejected the applicant ’s appeal and partially modified the judgment of DATE . The applicant was convicted and a suspended sentence of CARDINAL PERSON imprisonment was imposed LAW .

On DATE ORG rejected the applicant ’s cassation appeal against this ruling .

On DATE the applicant addressed ORG with a request to calculate the pecuniary and non - pecuniary damage caused by his criminal prosecution and by alleged violations of the law committed by officials of ORG office and courts .

On DATE the court decided not to deal with the request because the applicant had failed to comply with the formal requirements . It allowed the applicant time to rectify the shortcomings .

On DATE the applicant ’s request was returned as had not lodged a rectified version . The applicant did not appeal against this ruling .

On DATE the applicant lodged a claim with ORG asking for compensation for pecuniary and non - pecuniary damage caused by his criminal prosecution and the alleged violations of the law .

On DATE the court found that the claim fell outside its jurisdiction . The applicant lodged a cassation appeal against this ruling . There is no information about the outcome of the proceedings .

In DATE the applicant instituted proceedings against ORG office and ORG for compensation for pecuniary and non - pecuniary damage caused by the prosecution .

ORG decided not to deal with the claim because the applicant had failed to comply with the formal requirements . It allowed the applicant until DATE to rectify the shortcomings .

On DATE the same court returned without examination the applicant ’s claim for failure to rectify the mistakes . The applicant did not appeal against this ruling .

On DATE ORG , upon the claim of the public prosecutor in the interest of ORG of ORG , annulled the rent contract of ORG ’s office and ordered its eviction .

On DATE the Deputy President of ORG upheld this decision .

On DATE ORG , upon the motion of ORG of ORG in GPE , declared PERSON bankrupt .

On DATE the same court terminated the bankruptcy proceedings and ordered the liquidation of ORG

On DATE the applicant ’s appeal against this ruling was returned without examination for failure to comply with the formalities . The applicant did not pursue the proceedings .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , Mr PERSON , is an NORP national living in PERSON ( GPE ) . He was represented by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant was , at the relevant time , the owner of ORG , a company producing starch from corn and sugar . Due to ongoing ecological problems with effluents emitted by his company , he installed an in - house sewerage plant .

On DATE ORG granted an operating permit .

On DATE it requested the applicant to comment on charges concerning non - compliance with environmental regulations as set out in the operating permit .

On DATE the applicant filed his comments . He submitted that the reason for temporarily exceeding environmental limits was the fact that the sewerage system was still in its early stages . As proof he requested that GPE , LOC ( PERSON ) , PERSON , a Member of ORG ( PERSON ) , and PERSON , the head of ORG ) as well as GPE and GPE be summoned .

On DATE ORG convicted the applicant under LAW ( CARDINAL ) of LAW Gewerbeordnung ) and issued a fine in the amount of CARDINAL , CARDINAL NORP schillings ( ORG ) . It found him guilty of having repeatedly and continuously overstretched the capacity of the sewerage plant at issue , by exceeding the maximum admissible amount of inflow as set out in the operating permit .

On DATE the applicant lodged an appeal .

Having held an oral hearing in which it had heard K. and S. , CARDINAL experts , ORG ( PERSON ) , on DATE , discontinued proceedings . It found that the pollution was due to technical problems which were outside the applicant 's sphere .

On DATE the ORG Governor lodged a complaint with ORG ) . The applicant did not comment on the Governor 's appeal .

By a decision of DATE ORG quashed the decision and remitted the case to the ORG . It found that the significant breach of the inflow limits constituted sufficient reason to believe that the actual deviation from the operating licence 's limits was apt to constitute an environmental risk which the regulations under LAW aimed to keep to a minimum . This was tantamount to an unlawful change to the operation of the plant . Following ORG decision the applicant did not lodge another request for taking of evidence .

Thereupon the ORG , on DATE , partially allowed the applicant 's appeal . While , following the legal opinion of ORG , it upheld the applicant 's conviction by ORG , it reduced the fine imposed on the applicant to CARDINAL ( ORG ) ( ORG CARDINAL ) . As a reason for this reduction the ORG , referring explicitly to LAW , found that the proceedings had lasted an unreasonably long time .

On DATE the applicant lodged a complaint with ORG .

By a decision of DATE ORG refused to deal with the case for lack of prospect of success and , upon the applicant 's request , remitted the case to ORG .

On DATE the latter dismissed the applicant 's complaint , the judgment being served on the applicant 's counsel on DATE .

Section CARDINAL § CARDINAL of LAW , in so far as relevant , reads as follows :

“ The following constitutes an administrative criminal offence , subject to a maximum fine of ORG CARDINAL :

( CARDINAL ) Any change to an existing operation of a plant for which an operating permit had been granted or operation thereof . ”


Violation of Article 6 - Right to a fair trial

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

DATE the applicant , in his capacity as the President of PERSON , facilitated the sponsoring of the ORG by the bank in the production of a book promoting the image of GPE abroad . On DATE the applicant was dismissed from his job .

On DATE the company ORG filed a criminal complaint against the applicant , accusing him of abuse of authority ( abuz în serviciu , under LAW ) and misappropriation of funds ( deturnare de fonduri , under LAW ) in relation to the above - mentioned sponsorship contract .

On DATE the prosecutor attached to ORG took a statement from the applicant in connection with the allegations above .

On DATE the prosecutor decided not to start criminal proceedings as the facts in the case did not disclose the commission of a crime .

On DATE , the applicant was informed of the decision .

On DATE Bank B. filed a criminal complaint against the applicant for fraud ( înşelăciune , under LAW ) and abuse of authority ( under LAW ) in the handling of the same sponsorship contract mentioned above .

On DATE the applicant made a statement to the prosecutor .

Witnesses’ and co - defendants’ depositions were taken in DATE , DATE and DATE , DATE , DATE , DATE and DATE , and DATE and DATE .

On DATE a criminal investigation for fraud was started in respect of the applicant .

On DATE the prosecutor attached to ORG enquired about NORP companies that had been involved in the publication of the book . He asked for evidence to be taken on commission ( comisie rogatorie ) by the prosecutor attached to ORG . The request was reiterated on DATE . The documents were received from GPE on DATE .

On DATE the prosecutor attached to ORG overturned the prosecutor ’s decisions of DATE and DATE . He considered that as long as the decision of CARDINAL November not to prosecute had not been overturned , the prosecutor could not have legally started the criminal prosecution on DATE . He ordered the opening of a criminal prosecution for fraud through contracts .

On DATE the prosecutor attached to ORG changed the legal classification of the offence from fraud to abuse of authority .

On DATE the applicant was questioned by the prosecutor at ORG for the first time in connection with the new classification of the offence . On DATE the applicant was arrested and remanded in custody until DATE on the prosecutor ’s order .

On DATE the applicant ( in the presence of the lawyer of his choice ) was informed of the content of his criminal file .

On DATE the prosecutor attached to ORG issued an indictment for abuse of authority .

The case was registered with ORG . Thirteen hearings took place before this court , from CARDINAL of which the applicant was absent for medical reasons . On CARDINAL other occasions the court postponed the oral hearings for various reasons , including requests made by the applicant ’s counsel .

On DATE ORG declared null and void the prosecution acts , referred the case back to the prosecutor and ordered him to carry out a complete review of the facts under investigation ( refacerea urmăririi penale ) . Upon an appeal by the prosecutor , in a final decision of CARDINAL DATE ORG considered that only the indictment of DATE was null and void and therefore referred the case back to the prosecutor and ordered him to review that act .

The courts found that the prosecutor had not allowed enough time for the applicant to familiarise himself with the prosecution file and to formulate his requests , if any , in connection with it , and that the prosecutor had acted in haste in indicting the applicant DATE after presenting him with the file .

On DATE the prosecutor attached to ORG decided to end the prosecution against the applicant , on the ground that the legal relationships under examination were of a civil and commercial nature and not of a criminal nature .

On DATE he informed the applicant of his decision .

On DATE the applicant contested his detention pending trial . ORG ordered his release on DATE . However , this decision was overturned by ORG in a final decision of DATE . The applicant remained in custody .

He later requested ORG to revoke the order for his detention . On DATE the court ordered his release from custody . The prosecutor appealed and ORG decision was quashed by ORG on DATE . The applicant ’s detention order was extended by DATE .

Upon the applicant ’s request , ORG concluded , on DATE , that his detention order had expired on DATE . In a final decision of DATE ORG dismissed an appeal by the prosecutor .

Consequently , on DATE the applicant was released from custody .

The applicant brought an action against Bank B. claiming compensation for illegal dismissal . In a final decision of CARDINAL DATE ORG awarded the applicant MONEY ( ORG ) in respect of pecuniary damage ( loss of earnings ) and ORG CARDINAL in respect of nonpecuniary damage .

On DATE the applicant lodged an action against the ORG , under LAW of LAW , CARDINAL and CARDINAL § CARDINAL of LAW and the LAW , seeking compensation for unlawful detention . He claimed CARDINAL NORP Lei ( ROL ) in respect of pecuniary and non - pecuniary damage , of which ORG CARDINAL,CARDINAL represented salaries that he had not received from ORG during his arrest .

On DATE ORG allowed the action and granted the applicant ORG in respect of nonpecuniary damage . It held :

“ The evidence in the file confirms the applicant ’s right to compensation under LAW ] for his detention ...

The applicant ’s detention for DATE on the prosecutor ’s order ; the detention from DATE to DATE which , as decided by means of a final decision , contravened LAW and the LAW , which required that the arrest be ordered by a “ judicial officer ” and extended by a court ... ; and lastly , the decision to terminate the criminal prosecution against the plaintiff on the ground that the facts committed did not fall within the scope of the criminal law , required the ORG ’s responsibility for the judicial error made in the case ...

Concerning the salaries not received during his arrest , ... the court notes that the applicant was released from his position on DATE , [ ORG NORP criminal complaint being posterior to his dismissal . Therefore ... the court considers that there is no causal link between the applicant ’s arrest and loss of revenue .

Moreover , in ORG decision of DATE , ... [ which became final ] , a causal link was established between ... the plaintiff ’s dismissal of DATE , which had not been a consequence of his detention , and the damage incurred , that is , the loss of earnings ; this decision awarded compensation for the damage ...

... [ [ GPE arrest and prosecution causes moral , social and professional suffering , and breaches dignity , honour and individual freedom , human rights protected by law . However , the amounts claimed by the plaintiff exceed by far the awards made by ORG ... for just satisfaction under LAW , the instrument invoked by the plaintiff as the legal basis for his claims . ”

On DATE ORG dismissed appeals lodged by the parties , upheld ORG arguments and confirmed that :

“ The plaintiff ’s deprivation of liberty affected his honour and reputation , and the reparation can and must be made by a financial award . ”

In a final decision of CARDINAL DATE ORG and ORG ( the former ORG ) dismissed for being out of time and ill - founded respectively , appeals on points of law lodged by the applicant and the State .

On DATE the Government informed the ORG that the applicant should request the execution of the final decision and communicate to ORG details of a valid bank account where the money could be transferred , but that to date no such steps had been taken by the applicant .

The newspaper “ PERSON ” presented in its DATE edition the opinion of various political figures on the applicant ’s dismissal and arrest :

“ The former president of [ Bank B. ] , ORG , was called on DATE for questioning by the police , informs prosecutor PERSON from ORG . PERSON pointed out that the hearings might continue in DATE .

ORG imposed an obligation on ORG not to leave GPE for DATE . The president of [ Bank B. ] was accused , in the press , of bad management ...

GPE , the president of the FPS [ ORG ] , stated that the members of [ Bank B. ] ’s executive board had been asked on DATE ... to dismiss ORG ... from his position ...

C.A. , deputy president of the PSDR [ the NORP ORG ] : ‘ We only comment when we know the exact content of the file . In the case at hand we can only say that , in principle , the investigation of ORG is part of the general fight against corruption . ... [ H]owever , his responsibility shall be determined after investigations by the police and ORG ... ’

ORG , leader of the PL ‘ CARDINAL [ ORG ‘ CARDINAL ] : ‘ I believe it is a good thing that the present political power , unlike the former one , is allowing the investigation of fraud in the banking world ... ’

ORG ) considers that the changes in the administration of [ Bank B. ] reflect the ORG right , in particular ORG ’s right , as the major shareholder , to decide upon the bank ’s fate , stated GPE , director for communications of BNR ...

ORG , president of ORG [ ORG ] and ORG [ LAW ] : ‘ The facts surrounding Răzvan Temeşan were predictable . Have you not seen what the press published ? Maybe it would have been better not to coincide his dismissal with the start of the criminal investigation by the police and ORG . But these authorities know better how to proceed ... ’ ”

On DATE the newspaper “ GPE published an article on the applicant ’s dismissal and arrest . The article presented the point of view expressed during a TV show on corruption and organised crime by GPE , the President of GPE at that time . He stated mainly that :

“ Our objective is to save and protect the NORP banking system , which needs consolidation . As from DATE important action against corruption shall commence ...

Our decision was to fight corruption from the top to the bottom and the action will continue . ”

On a different occasion ORG reiterated his intention to have criminal investigations started in relation to all the corruption scandals that had previously only been investigated by the press .

Other similar positions , as well as interviews with the applicant , were reported in the press .

On DATE the Minister of ORG told the newspaper “ NORP ” that the courts should be more careful when dealing with requests for release from pre - trial detention and noted that some of the most inappropriate decisions to release individuals from custody had been adopted by ORG .


The applicant is a NORP citizen , born in DATE and resident in GPE ( GPE ) . She is represented by PERSON of ORG ( Perheen Suojelun Keskusliitto ORG r.y . ) . The respondent Government are represented by Mr PERSON , Director in ORG .

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

The applicant is a mother of CARDINAL . Her oldest daughter PERSON , born in DATE , was placed in public care from DATE to DATE on account of the applicant ’s mental problems . The care was terminated after sole custody of ORG had been granted to her father S.

At the beginning of the events of relevance to the application , the applicant ’s sons PERSON and J. , born in DATE and DATE respectively , lived with the applicant and her partner PERSON father is PERSON and J. ’s father is NORP

DATE ORG of ORG , having received an indication under LAW ( lastensuojelulaki , barnskyddslag CARDINAL ) , on several occasions attempted to interview the applicant and NORP and to verify their home conditions . As the applicant refused social officials access into her home and refused to allow ORG and J. to undergo expert examinations , ORG ( sosiaali- ja terveyslautakunta , social- och hälsovårdsnämnden ) , on DATE , decided to place them in public care pursuant to section CARDINAL of LAW .

ORG considered that the applicant was suffering from mental problems which had taken the form of “ deviating behaviour ” and difficulties in her personal relations . For DATE the ORG had received information about the family which had given rise to concerns . The applicant had been “ abandoning ” J. , stating that he was not her son but R. ’s . She had also been threatening PERSON and was suspected of not feeding him properly . Because of her strong personality the whole responsibility for the children ’s upbringing had been placed on her . She and NORP had not been co - operating with the social authorities . A home helper had only managed to control to some extent “ the chaos ” in their home . They had turned down an offer to place J. in a day care centre and had brought ORG to day care only irregularly . ORG short - term stay in a foster home with the applicant ’s consent had not been appropriate , since that home had been located in the same town as the applicant ’s home . The applicant had also taken ORG home before his planned DATE stay had come to an end . ORG expressed the hope that the applicant would seek treatment .

According to the applicant , the information on which the ORG ’s findings were based had not been submitted by persons qualified to assess her mental health . CARDINAL opinions were submitted by physicians who had allegedly never examined her . Some opinions were allegedly based on information provided by a social worker without the applicant ’s knowledge and consent . A further opinion was submitted by an official of ORG who had not examined those involved either .

The care orders were not enforced immediately . The applicant and NORP appealed to ORG ( lääninoikeus , länsrätten ) of GPE .

At the relevant time the applicant had sole custody of ORG , who was spending his DATE with his father P. in GPE . The social authorities told PERSON not to return PERSON to the applicant after DATE . Thereafter his public care was implemented in his father ’s home .

On DATE ORG , without holding an oral hearing , rejected the applicant ’s and NORP ’s appeal against the care orders . They appealed further to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) .

On DATE J. was forcibly removed from the applicant ’s arms in their home with a view to implementing the care order . Following an observation period in a hospital J. was placed in FAC at LOC . The applicant ’s complaint about the enforcement manner did not lead to charges being brought by ORG .

On DATE , the applicant and NORP requested ORG to revoke the public care orders . This was refused on DATE . On DATE ORG rejected the applicant ’s appeal without holding an oral hearing . She did not appeal further to ORG .

In a decision of DATE a social welfare officer refused to provide the applicant with a copy of her client records , since they also contained information concerning third persons . The official noted that the applicant ’s counsel had studied the records in ORG . The official scheduled a further appointment when the applicant could read the records in the ORG .

On DATE ORG apparently ordered that the documents in question could be released to the applicant as the information relating to third persons had been deleted .

On DATE ORG adopted a care plan for J. It further rejected the applicant ’s request for access to documents relating to her daughter PERSON ’s taking into care in DATE , since that material was in the possession of the social authorities in ORG , which the applicant could petition directly . In her appeal the applicant , inter alia , questioned the continued public care of the children and the collection of information supporting such care . Her appeal was rejected by ORG on DATE but the court did afford her an opportunity to study the documents relating to her daughter PERSON ’s taking into care in DATE . The applicant did not appeal further in so far as this was possible ( with the exception of the terms of the care plan ) .

Meanwhile , when returning home in DATE or DATE before the applicant was about to give birth to her fourth child she saw an ambulance waiting for her in her yard . Expecting to be placed in compulsory psychiatric care , she had her partner NORP drive her to GPE , where she gave birth on DATE . She returned to GPE shortly thereafter but later moved back to GPE .

On DATE ORG rejected the applicant ’s appeal against ORG decision of DATE after having obtained written observations from ORG . The applicant was also able to submit a rejoinder

At ORG request ORG ( käräjäoikeus , tingsrätten ) of GPE , on DATE , transferred the custody of ORG from the applicant to ORG ’s father PERSON The applicant did not attend the court hearing , though duly summoned .

A further request by the applicant to have the public care orders concerning ORG and ORG revoked , alternatively to have the access restrictions alleviated , was rejected by ORG on DATE . Her appeal was rejected by ORG on DATE after an oral hearing where NORP was also heard . The court noted the applicant ’s lack of co - operation which had rendered it impossible for the social authorities to ascertain the alleged improvement in the home conditions . Nor had any other evidence of such improvement been adduced . ORG also upheld the care plan adopted by ORG on DATE in respect of J. It urged ORG to specify the support measures necessary for improving the home conditions , but this again required co - operation between the social authorities and ORG parents ( i.e. the applicant and NORP ) .

The applicant apparently did not appeal to ORG against the decision to uphold the care order .

On DATE ORG terminated ORG ’s public care , noting that he was in the sole custody of his father P. As regards ORG noted that the applicant and NORP had failed to show up to any of the recent meetings scheduled for discussing his care plan . On CARDINAL DATE the number of meetings between J. and his parents and sister was reduced from DATE to DATE . NORP was allowed CARDINAL further DATE visit . This restriction was extended on DATE . Reference was made , inter alia , to the applicant ’s threats against staff at FAC ( including a threat to blow up CARDINAL employee ’s car ) , her assault of a social welfare worker and her refusal to return PERSON to her father after a visit . Moreover , the applicant had failed to communicate the family ’s new address to the authorities .

The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ECHR DATE ) . Those provisions of particular relevance to the present case are described below .

According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) . The care order must be forwarded to the administrative court for approval if a party opposes it and in certain other circumstances ( section CARDINAL , subsection CARDINAL ) .

If a child is in imminent danger for a reason stated in LAW or is otherwise in need of an urgent care order and substitute care , ORG may take him or her into care without submitting the decision to the administrative court for approval ( section CARDINAL ) . An emergency care order expires within DATE of the decision unless a normal order under section DATE is requested during that period . Such an order must be made within DATE , or on special grounds within DATE of the emergency order .

The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .

According to section CARDINAL of LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) , a decision made by ORG is enforceable regardless of an appeal ( a ) if the decision requires immediate implementation ; ( b ) if , for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; or ( c ) when ORG has ordered the decision to be enforced at once .

According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .

According to section CARDINAL of LAW and section CARDINAL of LAW , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .

The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .

Under LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) social welfare officials may not , without the consent of the person concerned or that of , for instance , his or her custodian , disclose personal and family information obtained in the performance of their duties . This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties ( section CARDINAL ) . Thus the social welfare authorities are entitled to obtain , from a public body such as a municipal care centre , any material required for the performance of their duties ( section CARDINAL ) . The confidentiality of patient records , as stipulated in the LAW on the Status and Rights of Patients ( laki potilaan asemasta ja oikeuksista , lagen om patientens ställning och rättigheter DATE ) , may thereby be waived ( section CARDINAL of the said Act ) . A refusal to disclose information requested under section CARDINAL of LAW constitutes an offence ( section DATE ) .

LAW obligates the authorities to provide social welfare authorities with information not only in accordance with LAW of LAW but also actively and on their own initiative . According to section CARDINAL of LAW , certain officials are under a duty to notify the social authorities immediately whenever a child appears to be in evident need of child welfare measures . Others may also notify ORG of similar suspicions .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

On DATE the applicant lodged with the Ostrów ORG ( Sąd Rejonowy ) a claim for payment against his ex - employer , a construction company .

On DATE the case file was sent to ORG which was competent to deal with the subject - matter .

The first hearing was scheduled for DATE . It did not take place because on DATE the ORG stayed the proceedings due to the fact that on DATE winding - up proceedings had been instituted against the defendant .

On DATE the applicant ’s claim was entered on the list of claims ( lista wierzytelności ) .

On DATE the ORG refused to resume the proceedings .

On DATE the ORG was informed that the winding - up proceedings had been discontinued .

The proceedings were resumed on DATE . On DATE the case was joined to similar claims lodged against the defendant , and registered under a new reference number . The court adjourned the trial until DATE .

It appears that between the date when the proceedings were resumed and DATE on which the first - instance judgment was given , no hearing took place . The trial was adjourned CARDINAL times on procedural grounds , such as , for example , the appointment of the defendant ’s curator then its liquidator , and the need to supplement the evidence and to appoint an expert .

On DATE the ORG , following the applicant ’s motion , appointed a lawyer for the applicant .

On DATE the ORG gave judgment and discontinued the proceedings in respect of the applicant .

On DATE the applicant ’s lawyer lodged an appeal . It was rejected by ORG on DATE on procedural grounds , i.e. failure to pay the so - called “ basic court fee ” ( opłata podstawowa ) .

On DATE the applicant lodged with ORG ( PERSON ) a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) which entered into force on DATE . The applicant sought a ruling declaring that the length of the proceedings before ORG had been excessive .

On DATE ORG dismissed his complaint . The court examined the course of the impugned proceedings and held that there had been no delays for which ORG could be held responsible , although it admitted that the proceedings had been lengthy .

On DATE ORG rejected the applicant ’s appeal against the decision of DATE as inadmissible in law .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)

András Sajó;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE ( canton of GPE ) . He practises as a lawyer in GPE .

The applicant is the owner of a house built in CARDINAL in the centre of GPE which is subject to a number of measures aimed at the protection of the historical heritage .

On DATE , the company I.G.W. requested GPE to issue a building permit for the construction of a “ wellness centre ” on the plot of land adjacent to the applicant ’s house . The building plan envisaged , inter alia , the construction of a swimming pool on top of the building . The applicant objected to the issuing of the building permit .

On DATE ORG of Samedan rejected the objection . The applicant lodged a motion with the administrative court of the canton of GPE which was rejected by judgment of DATE . The administrative court considered , inter alia , that the municipality did not have an obligation to hear expert submissions by ORG for the protection of historic buildings or by ORG on nature and homeland protection , because the instant case did not fall within ORG competencies .

On DATE the applicant lodged an appeal under public law as well as an administrative appeal with ORG . He complained that the swimming pool would create emissions of steam and noise which exceeded the limits allowed under the regulations for the protection of the environment and that the presence of such an installation in DATE was contrary to the rules for the protection of historic buildings , to which the applicant ’s house belonged . He further alleged that the remainder of the planned building would not respect the pertinent legal regulations . Finally , he complained that the proceedings before ORG had been unfair .

By letter of CARDINAL DATE , ORG invited ORG to submit comments on the applicant ’s appeal . On DATE , the General Secretary of ORG submitted CARDINAL pages of comments to the tribunal . He considered , in particular , that the building permit did not violate the provisions of LAW and Homeland protection , because the building project did not fall within ORG competence . In DATE , ORG had subsidised archaeological searches and restoration work on the GPE church . However , these subsidies did not constitute Federal tasks and did not establish ORG competency . It followed that the Federal provisions necessitating further expert examination were not applicable in this case . Furthermore , ORG considered that the building project did not have a relevant impact on the centre of GPE . On DATE ORG forwarded a copy of the comments to the applicant for information . The applicant received it on DATE .

By judgment of CARDINAL DATE ORG rejected the applicant ’s appeals as being admissible , but unfounded . With regard to the admissibility of the appeal under public law , it noted that the applicant contested the lawfulness of a building permit and that he complained , in particular , about the arbitrary application of the town planning law . Under the pertinent case - law , an appeal under public law was only admissible if the legal provisions relied upon also protected the applicant ’s own interests . In view of the fact that the applicant ’s building marked the historical centre of GPE , the ORG concluded that the provisions serving the protection of the overall appearance of the locality also served the protection of the applicant ’s building . With regard to the admissibility of the administrative appeal , the ORG considered that the applicant ’s building was situated at a distance of QUANTITY from the place where the impugned wellness centre was to be constructed , leading to the conclusion that the applicant had an “ interest warranting protection ” . ORG considered , however , that the appeals were unfounded because the pertinent legal provisions had not been breached in the instant case . With regard to the applicability of LAW and Homeland protection , ORG considered that the fact that the church had been restored with the help of federal subsidies did not mean that all building projects in the church ’s vicinity fell within the competency of ORG .

NORP The relevant provisions of LAW ( Organisationsgesetz ) as applicable at the time of the instant proceedings read as follows :

“ CARDINAL . If the tribunal orders an exchange of written submissions , it serves the appeal on the authority which had issued the impugned decision or act , on the adverse party and on other possible parties . It sets an adequate time - limit for submitting the case - file and comments .

NORP If the reasons for the judgment or decision are contained for the first time in the authority ’s submissions , the applicant may be granted a time - limit allowing him or her to submit supplementary observations .

A further exchange of submissions takes place only exceptionally . ”

“ CARDINAL . If the tribunal orders an exchange of written submissions , it serves the appeal on the previous court instance and possible other parties ...

At the same time , it sets a time - limit for submissions and orders the previous instance to submit the case - files within that same time - limit .

NORP ...

A second exchange of submissions takes place only exceptionally . ”

By judgment of CARDINAL DATE ( published in the official collection ( LAW ) CARDINAL I DATE , summarised in PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) , ORG considered that , in proceedings which provided , as a rule , for a simple exchange of submissions , it was sufficient to send the respective submissions to the adverse party for information , without expressly inviting him or her to submit comments . That way , the party had the possibility to examine the need to comment on the new submissions . If , in such a case , the party did not react after having taken notice of the new submissions , the tribunal could assume that he or she had waived their right to comment . ORG considered that this approach was “ a pragmatic way of implementing LAW ” . Referring to a previous judgment , the tribunal further considered that an applicant , who deemed it necessary to submit comments on submissions which had been served on him for information , was obliged , without undue delay , to submit his comments or to request leave to submit such comments .


Violation of Art 6-1;Non-pecuniary damage - award

András Sajó;Anatoly Kovler;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant appeared before ORG , together with CARDINAL co - defendants , on charges of murdering an honorary minister ( ministre d’Etat ) , ORG , and attempting to murder the latter ’s partner , M .- H.J. According to the wording of the indictment , they were charged with the following offences , committed in GPE on DATE :

“ as principals or joint principals ,

either through having perpetrated the offences or having directly cooperated in their perpetration ,

or through having , by any act whatsoever , lent such assistance to their perpetration that without it the offences could not have been committed ,

or through having , by gifts , promises , threats , abuse of authority or power , scheming or contrivance , directly incited another to commit the offences ,

or through having , by means of speeches in a public place or assembly , or by means of any written or printed matter , image or emblem displayed , distributed or sold , offered for sale or exhibited in a place where it could be seen by the public , directly incited another to commit the offences ,

having knowingly and intentionally killed [ ORG ] , with the additional circumstance that the killing was premeditated , an offence classified by law as premeditated murder [ assassinat ] ;

having attempted , knowingly , intentionally and with premeditation , to kill [ M.H.J. ] , the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrators , an offence classified by law as attempted premeditated murder . ”

CARDINAL of the co - defendants filed a statement of defence . The applicant alleged that it was impossible for him to do so since he had no knowledge of the evidence against him .

The indictment of CARDINAL DATE stated , inter alia , that in DATE a person described by the applicant as an anonymous witness had passed on certain information to the investigators . A record of DATE noted the informer ’s wish to remain anonymous , based on fears for his safety “ in view of the importance of his information and the media outcry that has always surrounded the [ ORG ] case ” . The person was never interviewed by the investigating judge . He had given the investigators information obtained in confidence from a person whose identity he refused to disclose . During the trial in ORG , questions were put to the investigators on the initiative of several of the defendants about the informer ’s identity . The investigators stated that their informer was not CARDINAL of the defendants and had not personally witnessed the alleged offences . According to the information supplied , which was set out in CARDINAL points , ORG ’s murder had been planned by CARDINAL people , including the applicant and another leading politician . The passage incriminating the applicant stated :

“ PERSON and PERSON were said to have been particularly insistent about the urgent need to kill [ GPE ] before the ‘ CARDINAL holidays as he had promised to make some significant disclosures after the DATE break . ”

On account of the numerous applications made during the trial , ORG delivered CARDINAL interlocutory judgments :

( i ) judgment of DATE noting the absence of certain defendants and directing that they were to be tried in absentia ;

( ii ) judgment of DATE on an application to have a confrontation between witnesses declared null and void ;

( iii ) judgment of DATE concerning the examination of witnesses without CARDINAL of the co - defendants being present ;

( iv ) judgment of DATE on the examination of a witness in camera ;

( v ) judgment of DATE setting aside the order for a codefendant to be tried in absentia ;

( vi ) judgment of CARDINAL DATE refusing an application by the prosecution for a hearing to be held in camera ;

( vii ) judgment of DATE on the examination of certain witnesses in camera ;

( viii ) judgment of DATE on an application by a codefendant for the examination of certain witnesses ;

( ix ) judgment of DATE on the use of recordings of a confrontation between witnesses ;

( x ) judgment of DATE on an application by the civil parties for the examination of witnesses who had failed to appear and the reexamination of other witnesses ;

( xi ) judgment of DATE on an application by a co - defendant for the examination or re - examination of the anonymous witness ;

( xii ) judgment of DATE on the applicant ’s submissions as to the examination of witnesses who had failed to appear and the reexamination of other witnesses ;

( xiii ) judgment of DATE on an application by the applicant for the examination or re - examination of the anonymous witness .

In the last - mentioned judgment , concerning the application for an investigating judge to hear or rehear evidence from the person who had anonymously supplied information noted down by CARDINAL non - commissioned gendarmerie officers , ORG held :

“ This information , obtained anonymously by members of the police force , has no probative value as such . Accordingly , in the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and enabling lawful evidence to be gathered independently .

When examined as witnesses at the trial , [ the CARDINAL non - commissioned gendarmerie officers ] stated that their informer was not CARDINAL of the defendants and had not personally witnessed any of the acts he described ; he had merely relayed information he claimed to have received in confidence from a person whose identity he refused to disclose .

They also noted that some of the information supplied by their informer , relating in particular to other politicians mentioned in the submissions by counsel for PERSON ... , could not be corroborated by any evidence , despite their inquiries .

In the NORP view , the process of drawing up an official record of information given to them by an anonymous informer did not in itself constitute any infringement of the defence rights of the persons named by the informer . That step solely involved the disclosure , with a view to its analysis and verification , of information that might be of interest to the investigation and might assist in clarifying the facts . Viewed in isolation from any objective data that might subsequently confirm it , this information did not constitute evidence of the acts allegedly carried out by the persons whose identity was mentioned by the informer .

Lastly ... it is not possible to speak of a re - examination , seeing that it does not appear from the case file or the oral proceedings that [ the person described as an anonymous witness ] gave evidence under oath to an investigating judge .

With regard to the application for an examination of that person , firstly , the court is unaware of his identity and , secondly , regardless of the considerations referred to by the judicial investigating bodies in that connection , such an examination does not appear useful for establishing the truth and would delay the proceedings needlessly without giving cause to hope for more certain results . ”

The jury was asked to answer QUANTITY questions put to it by the President of ORG . CARDINAL of them concerned the applicant and were worded as follows :

“ Question DATE PRINCIPAL COUNT

Is the accused PERSON , who is present in court , guilty ,

as principal or joint principal ,

– either through having perpetrated the offence or having directly cooperated in its perpetration ,

– or through having , by any act whatsoever , lent such assistance to its perpetration that without it the offence could not have been committed ,

– or through having , by gifts , promises , threats , abuse of authority or power , scheming or contrivance , directly incited another to commit the offence ,

– or through having , by means of speeches in a public place or assembly , or by means of any written or printed matter , image or emblem displayed , distributed or sold , offered for sale or exhibited in a place where it could be seen by the public , directly incited another to commit the offence ,

of having knowingly and intentionally killed [ ORG ] in GPE on DATE ?

Question DATE AGGRAVATING CIRCUMSTANCE

Was the intentional homicide referred to in the previous question premeditated ?

Question DATE PRINCIPAL COUNT

as principal or joint principal ,

of having attempted knowingly and intentionally to kill [ M .- H.J. ] in GPE on DATE , the intent to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator ?

Question DATE AGGRAVATING CIRCUMSTANCE

Was the attempted intentional homicide referred to in the previous question premeditated ? ”

The jury answered “ yes ” to all CARDINAL questions .

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment .

The applicant appealed on points of law against his conviction of DATE by ORG and all the interlocutory judgments given by that court .

In a judgment of DATE , ORG dismissed the appeal . It held , in particular , as follows :

( i ) the belated appearance of a co - defendant could not infringe the appellants’ defence rights as they had been able to challenge freely both the statements made by that defendant during the preliminary investigation and relayed at the trial by the persons to whom they had been given , and the statements made directly by the defendant before the jury ;

( ii ) ORG had rightly ordered that CARDINAL witnesses should be examined in camera , fearing that they might not be able to express themselves freely if the hearing were public , which would hinder the proper administration of justice ;

( iii ) in refusing , on the ground that such a step might delay the proceedings needlessly , to show the film of the confrontation between some of the defendants and certain NORP nationals against whom charges had been brought , ORG had not breached the rights of the defence or the principle that hearings must be conducted orally , since the refusal had been based on the fact that those taking part in the confrontation , having appeared at the trial , had been directly confronted with the defendants ;

( iv ) in directing that the proceedings should continue on the ground that the examination of certain witnesses who had failed to appear in court ( having been properly summoned ) was not necessary for establishing the truth , and in holding that a further appearance by certain other witnesses “ would be likely to prolong the proceedings needlessly without giving cause to hope for more certain results ” , ORG had not breached LAW and the principle that hearings must be conducted orally ;

( v ) since the presumption of innocence related above all to the attitude of the judges determining a criminal charge , comments by an investigator and reports in the press , even if inaccurate , malevolent or amounting to a criminal offence , could not in themselves cause the trial to breach LAW and CARDINAL of the Convention ;

( vi ) it could not be inferred from the ORG alleged inexperience , the speed with which they deliberated or the lack of reasons given for their verdict that they were incapable of impartial adjudication in a case that had attracted considerable press coverage ;

( vii ) the procedure for appointing members of the jury and the fact that they reached their verdict as to guilt without having discussed the issue with the court did not mean that ORG was not an independent and impartial tribunal established by law within the meaning of LAW or that the presumption of the accused ’s innocence could not be lawfully rebutted in that court ;

( viii ) neither LAW guaranteed the right of appeal ;

( ix ) neither LAW and CARDINAL ( b ) of LAW CARDINAL § CARDINAL ( b ) of LAW , nor LAW , even when taken in conjunction with the above - mentioned treaty provisions , placed any obligation on a jury to give reasons for its answers ;

( x ) the ground of appeal relating to LAW ( b ) of the LAW ( inability to confer freely with his lawyer as a result of his detention DATE before the start of the trial ) was inadmissible as it did not appear from the evidence in the file that the applicant had alleged before ORG that there had been a violation of the right to have adequate facilities for the preparation of his defence ;

( xi ) Articles DATE and CARDINAL of the LAW , LAW CARDINAL of the Convention did not lay down a requirement for reasons to be given for a verdict as to guilt , or the right of appeal or the right to appear before courts made up solely of professional judges ; the discretion of the lay jury , which , moreover , was circumscribed by ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL bis of the Code of Criminal Procedure , did not give rise to an arbitrary difference in treatment for the purposes of LAW between those being tried by assize courts and those being tried by other criminal courts .

As to the ground of appeal contending that the appellants’ conviction had been decisively or incidentally based on the statements of an anonymous informer , ORG stated :

“ In so far as they challenge the observation that ORG was unaware of the identity of the person whose examination was being requested and could therefore not order it , these grounds of appeal , being directed against an obiter dictum , are immaterial .

On that account , they are inadmissible .

As to the remaining arguments , the presence in the criminal case file of a record containing information from an unidentified source does not require the trial court , as a condition for the validity or admissibility of the prosecution , to ensure that the informer is identified and examined in accordance with the procedure set forth in Articles CARDINAL bis and CARDINAL bis of LAW . Those provisions leave it open to the trial court to appoint an investigating judge to that end if such a step appears useful for establishing the truth .

The judgments take the view , on the basis of a factual assessment which this court is not empowered to overrule , that the examination sought would delay the proceedings needlessly without giving cause to hope for more certain results .

The judgments also observe that the information obtained anonymously did not correspond to the evidence obtained lawfully and independently against the defendants .

It does not appear from ORG reply to the ORG submissions that the trial court contested their right to rebut the evidence produced at the trial .

On that account , these grounds of appeal can not be allowed .

As to the remaining argument , LAW ( d ) of the LAW ... is not breached by the mere fact that the trial court considered it unnecessary or impossible to order the cross - examination of the anonymous informer whose disclosures provided helpful guidance for the investigation .

On that account , these grounds of appeal have no basis in law . ”

In the Questions à la ORG programme broadcast by ORG ( the ORG broadcaster for the LANGUAGE - speaking part of GPE ) in DATE , CARDINAL of the applicant ’s co - defendants , ORG , stated that he had been the anonymous informer and had acted as a “ middleman ” on behalf of another co - defendant , GPE , whose accusations he had relayed . During the same programme , the identity of the anonymous witness was confirmed by the Minister of ORG who had been in post at the time of the events . ORG said that he had received the sum of MONEY ( BEF ) ( MONEY ( ORG ) ) from ORG as a “ middleman ’s commission ” . GPE had allegedly received LAW ( EUR CARDINAL ) .

Following the CARDINAL French Revolution , the jury featured in DATE and LAW . At that time , GPE was part of NORP territory . When it was separated from GPE and attached to GPE , the jury was abolished but assize courts continued to exist . When GPE gained independence , the institution of the jury was enshrined in LAW DATE , Article CARDINAL of which provided : “ The jury shall be constituted for all serious crimes and for political and press offences . ” The institution was envisaged by the framers of the LAW as the touchstone of the authenticity of any democratic demand . The jury was seen above all as a political affirmation of the freedom won by the people , the symbol of the people ’s sovereignty . It was instituted by the decree of DATE ; membership was initially based on function ( jury capacitaire ) and subsequently , from DATE , on property ( jury censitaire ) . By virtue of a Law of DATE , a new reform made the composition of the jury more democratic and representative of all social classes , the result being the CARDINAL - member lay jury that still exists DATE .

Article CARDINAL of LAW of DATE provides : “ The jury shall be constituted for all serious crimes and for political and press offences , except for press offences motivated by racism or xenophobia ” ( text as amended on DATE ) .

Furthermore , Article CARDINAL provides : “ All judgments shall contain reasons ; they shall be delivered in public . ”

Proceedings in assize courts in GPE afford a number of safeguards , particularly as regards the defence rights of the accused .

Article CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) requires ORG to draw up an indictment indicating the nature of the offence forming the basis of the charge , and any circumstances that may cause the sentence to be increased or reduced . Pursuant to LAW must read out the indictment and the defendant or his counsel the statement of defence . LAW states that the questions put to the jury must derive from the indictment ( which itself must be consistent with the judgment committing the accused for trial LAW CARDINAL of the ORG ) and must comply with certain formal requirements ; for example , questions that are complex or concern points of law are prohibited .

At the close of the oral proceedings , questions are put to the jury in order to establish the factors likely to lead to the precise determination of whether or not the accused is guilty as charged . The president of ORG is empowered to put questions to the jury on all the circumstances which might have an influence on the facts which served as the basis for the indictment , provided that these circumstances were discussed during the oral proceedings . The principal question concerns the constituent elements of the offence , while there must be a separate question in respect of each count . Separate questions regarding other facts , such as aggravating circumstances or the existence of any justification or mitigating factor , may also be put . The prosecution and the accused can challenge the questions and have the opportunity to ask the president to put CARDINAL or more additional questions to the jury . In the event of a dispute regarding the questions , ORG must decide by a reasoned judgment .

Article CARDINAL provides that , after asking the questions , the president hands them to the jury ; at the same time , he hands over the indictment , the reports establishing the offence and the documents in the file other than the written witness statements .

In accordance with LAW , once the questions have been put to and handed to the members of the jury , they retire to deliberate in private . The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent . Before the deliberations begin , the foreman reads out the following instruction , which is also displayed in large type in the most visible place in the deliberation room :

“ The law does not ask jurors to account for how they reached their personal conviction ; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence ; it requires them to ask themselves questions , in silence and contemplation , and to discern , in the sincerity of their conscience , what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence . The law does not tell them : ‘ You will hold every fact attested by this number of witnesses to be ORG ; nor does it tell them : ‘ You will not regard as sufficiently established any evidence that does not derive from this report , these exhibits , this number of witnesses or this many ORG ; it simply asks them this CARDINAL question , which encompasses the full scope of their duties : ‘ Are you inwardly convinced?’ ”

Article CARDINAL authorises members of the jury to leave the deliberation room only when they have arrived at their verdict .

Lastly , Article CARDINAL provides that if the judges are unanimously persuaded that the jurors , while complying with the procedural requirements , have made a substantive error , the court must stay the proceedings and adjourn the case until the following session for consideration by a new jury , which can not include any of the original members . However , according to information supplied by the Government , this option has been used on CARDINAL occasions .

The ORG judgment of CARDINAL DATE has had repercussions on the case - law of the NORP courts .

In judgment no . CARDINAL ( P.CARDINAL.CARDINAL.F ) of DATE , ORG held :

“ As to the ground of appeal , raised proprio motu , alleging a violation of LAW :

According to a judgment of DATE of ORG in [ Taxquet v. GPE , no . CARDINAL/CARDINAL ] , the right to a fair trial guaranteed by LAW implies , where ORG is concerned , that the decision on a criminal charge should highlight the considerations that have persuaded the jury of the accused ’s guilt or innocence and should indicate the precise reasons why each of the questions has been answered in the affirmative or the negative .

On account of the binding effect of interpretation now attaching to that judgment and the prevalence over domestic law of the international legal rule deriving from a treaty ratified by GPE , the court is compelled to reject the application of ORG CARDINAL and CARDINAL of the Code of Criminal Procedure in so far as they lay down the rule , now criticised by ORG , that the jury ’s verdict does not contain reasons .

It appears from the documents to which the court may have regard , in particular the indictment , that during the preliminary investigation the appellant , who was prosecuted for murder as the principal or joint principal , provided explanations , as to the acts of which he was accused , which were rebutted by a witness whose identity was kept secret under Articles DATE bis and QUANTITY

In submissions filed with ORG at the hearing on DATE the appellant requested that the verdict contain reasons so that , in the event of his conviction , he could understand the grounds that had persuaded the jury to find him guilty , and so that ORG could review the lawfulness of the verdict .

With regard to the charge of murder against the appellant , the jury was asked to answer a principal question about his involvement in committing intentional homicide , an additional question on the statutory defence of provocation and CARDINAL questions , in the alternative , on the offence provided for in LAW . The jury answered the first question in the affirmative and the second in the negative , leaving the other questions unanswered .

The judgment appealed against sentenced the appellant to DATE imprisonment for murder , on the basis of the verdict expressed solely by answers in the affirmative or the negative to the questions put in accordance with the law . The judgment states that there is no need to give any further reasons for the finding of guilt , on the ground that the precision of the questions adequately offsets the brevity of the decision .

However , the bare statement that the appellant is guilty of murder and that there are no mitigating factors does not disclose the precise reasons why the charge , which the appellant denied , was found to have been made out , and does not enable this court to review , inter alia , whether the conviction was based to a decisive extent on the deposition by an anonymous witness incriminating the accused or was supported by other corroborating evidence in accordance with Article CARDINAL , paragraph CARDINAL , of LAW .

While conforming to NORP law , which does not require jurors to account for how they reached their personal conviction , the decision is contrary to LAW in so far as that provision may be construed as meaning that the right to a fair trial encompasses a statement of reasons for the verdict . ”

Other judgments to similar effect have subsequently been delivered .

In GPE , even before the ORG judgment in the PERSON case , a PERSON of DATE that sought , among other things , to allow the president of ORG to be present during the jury ’s deliberations in order to assist its members was considered by the ORG . The proposed version of LAW ORG stated that ORG should give reasons for its decision as to guilt , but was not required to address the parties’ submissions .

The Assize Court Reform Act of DATE , which was published in the ORG belge on DATE and came into force on DATE , has introduced a requirement for ORG to state the main reasons for its verdict . The relevant provisions of the ORG now read as follows :

“ Once the questions have been put and handed to the jurors , they shall retire to the deliberation room to deliberate .

The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent .

Before the deliberations begin , the foreman shall read out the following instruction , which shall also be displayed in large type in the most visible place in the deliberation room : ‘ The law provides that the accused may be convicted only if it is apparent from the evidence admitted that he is guilty beyond reasonable doubt of the offence with which he is NORP ”

“ The members of the jury may leave the deliberation room only when they have reached their verdict .

No one may enter while they are deliberating , for any reason whatsoever , without the written authority of the president . The president may enter the room only if he is called by the foreman , in particular to answer questions of law , and is accompanied by his fellow judges , the accused and his counsel , the civil party and his counsel , the prosecution and the registrar . A reference to the incident shall be made in the record .

“ The court and the members of the jury shall then immediately retire to the deliberation room .

Without having to address all the submissions filed , they shall formulate the principal reasons for their decision .

The decision shall be signed by the president , the foreman of the jury and the registrar . ”

The relevant Articles of the Criminal Code provide as follows :

“ A criminal attempt is made out where the intent to commit a serious crime [ crime ] or other major offence [ délit ] has been manifested by conduct which objectively constituted the first step towards perpetration of the offence in question and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of the perpetrator . ”

“ The following shall be punished as perpetrators of a serious crime or other major offence :

Those who have perpetrated the offence or have directly cooperated in its perpetration ;

Those who have , by any act whatsoever , lent such assistance to its perpetration that without it the offence could not have been committed ;

Those who have , by gifts , promises , threats , abuse of authority or power , scheming or contrivance , directly incited another to commit the offence ;

Those who have , by means of speeches in a public place or assembly , or by means of any written or printed matter , image or emblem displayed , distributed or sold , offered for sale or exhibited in a place where it can be seen by the public , directly incited another to commit the offence , without prejudice to the penalties provided for by the law against those who incite others to commit offences , even where such incitement has no effect . ”

“ The following shall be punished as accessories to a serious crime or other major offence :

Those who have given instructions for its commission ;

Those who have procured weapons , implements or any other means used to commit the offence , knowing that they were intended for that purpose ;

Those who have , save in the case provided for in paragraph CARDINAL of Article CARDINAL , knowingly aided or abetted the principal or principals in acts preparatory to or facilitating the commission of the offence or in its completion . ”

“ Homicide committed with intent to kill shall be classified as murder [ meurtre ] . It shall be punishable ( by DATE imprisonment ) . ”

“ Murder committed with premeditation shall be classified as premeditated murder [ assassinat ] . It shall be punishable ( by life imprisonment ) . ”

The Law of DATE ( which was published in the ORG belge on DATE and came into force on DATE ) entitles convicted persons to seek the reopening of their trial following a finding by ORG a violation of the Convention .

Article CARDINAL bis of the ORG provides :

“ If a final judgment of ORG has found that there has been a breach of LAW or the Protocols thereto ( hereinafter ‘ the NORP Convention’ ) , an application may be made for the reopening – in respect of criminal matters alone – of the proceedings that resulted in the applicant ’s conviction in the case before ORG or in the conviction of another person for the same offence on the basis of the same evidence . ”

Article CARDINAL ter of the ORG provides :

“ The following shall be entitled to apply for the reopening of the proceedings :

( CARDINAL ) the convicted person ;

( CARDINAL ) NORP if the convicted person has died , has been deprived of legal capacity or has been declared untraceable , the person ’s spouse , lawful cohabitee , descendants , brothers and sisters ;

( CARDINAL ) ORG at ORG , of his own motion or at the instigation of the Minister of Justice . ”

Article CARDINAL quinquies of the ORG provides :

“ Where it appears from consideration of the application either that the impugned decision is in breach of LAW on the merits or that the violation found is the result of procedural errors or shortcomings of such gravity as to cast serious doubt on the outcome of the proceedings in issue , ORG shall order the reopening of the proceedings , provided that the convicted person or the entitled persons under LAW , point ( CARDINAL ) , continue to suffer very serious adverse consequences which can not be redressed other than by reopening the trial . ”

Following the ORG ’s judgment in PERSON v. GPE ( no . CARDINAL , CARDINAL DATE ) , ORG , in a judgment of DATE , ordered the reopening of the proceedings and withdrew the judgment it had delivered on DATE ( ORG des tribunaux , DATE , p. CARDINAL ) .

It is clear that there are many different models of lay adjudication in the member ORG . There are variations reflecting cultural and historical particularities even among countries that have opted for the “ traditional ” trial - by - jury model , the defining feature of which is that professional judges are unable to take part in the ORG deliberations on the verdict .

The member GPE may be divided into CARDINAL categories : those without any form of jury trial or any model of lay adjudication in criminal matters ; those using a collaborative court model of lay adjudicators sitting and deliberating alongside professional judges in criminal matters ; and those which have opted for the “ traditional ” jury model in criminal matters .

Among the models examined , CARDINAL ORG member ORG have never had a jury system or any other form of lay adjudication in criminal matters or have abolished it : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE . In these GPE criminal courts are composed exclusively of professional judges .

The member GPE with a collaborative system are GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ( in most cases ) , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE . The collaborative system , which can also be employed alongside the traditional jury model , is characterised by the fact that the professional judges and the jurors collectively determine all questions of law and fact , the issue of guilt and the sentence .

The CARDINAL ORG member GPE that have opted for a traditional jury system are GPE , GPE , GPE , GPE , GPE , GPE ( only in serious appeal cases ) , GPE , GPE , GPE ( GPE until DATE ) , and GPE , GPE , GPE and GPE ) .

In its traditional form , trial by jury involves a combination of a number of jurors sitting with CARDINAL or more professional judges . The number of jurors varies according to the country and the subject matter of the proceedings . The number of professional judges varies from country to country . In GPE , GPE , GPE , GPE , GPE and GPE the court and jury are presided over by a single judge . In GPE , GPE and GPE the court consists of CARDINAL professional judges together with the jury . The professional judges can not take part in the jury ’s deliberations on the question of guilt , which falls within the exclusive competence of the jury .

In a number of countries the jurors are presented with a list of specific questions before they retire to deliberate on the facts of the case . CARDINAL States – GPE , GPE , GPE , GPE , GPE , GPE and GPE – follow this practice .

In GPE , GPE and GPE , at the conclusion of the evidence , the judge sums up the case to the jurors . He reminds them of the evidence they have heard . In doing so , the judge may give directions about the proper approach to take in respect of certain evidence . He also provides the jurors with information and explanations about the applicable legal rules . In that context , the judge clarifies the elements of the offence and sets out the chain of reasoning that should be followed in order to reach a verdict based on the jury ’s findings of fact .

In GPE the judge directs the jurors on each legal issue raised and explains the rules they should follow when they retire to deliberate on the verdict . At the end of the trial , he also sums up the evidence to the jury or draws its attention to evidence of importance .

In GPE the ORG verdict is reached on the basis of a detailed questionnaire which sets out the main elements of the various charges and contains questions requiring a “ yes ” or “ no ” answer .

In principle , juries deliberate in private , without the presiding judge(s ) being present . Indeed , the secrecy of the jury ’s deliberations is a firmly established principle in many countries .

In GPE a professional judge may be invited to the deliberation room to provide the jury with clarifications on a specific question , without being able to express a view or to vote on the issue of guilt . In GPE the jury may summon the presiding judge , but if the jury considers that it needs further clarifications as to the questions to be answered , the legal principles applicable or the procedure to be followed , or that the questions should be amended or new questions put , it must return to the courtroom , so that the matter can be raised in the presence of the parties .

In GPE the presiding judge attends the jury ’s deliberations to provide assistance , but can not give an opinion on the issue of guilt . A registrar is also present to make a record of the decisions taken and the reasons given .

NORP The general rule appears to be that reasons are not given for verdicts reached by a traditional jury . This is the case for all the countries concerned , except GPE and GPE ( GPE of GPE ) .

In GPE the jury ’s verdict is made up of CARDINAL distinct parts . The first lists the facts held to be established , the second lists the facts held to be not established , the third contains the jury ’s declaration as to whether the accused is guilty or not guilty , and the fourth provides a succinct statement of reasons for the verdict , indicating the evidence on which it is based and the reasons why particular facts have been held to be established or not . A fifth part contains a record of all the events that took place during the discussions , avoiding any identification that might infringe the secrecy of the deliberations .

Until DATE the authorities of the GPE of GPE considered that the jury satisfied the requirement of a reasoned decision by answering “ yes ” or “ no ” to the precise questions put to it . However , in a decision of CARDINAL DATE ORG found such replies to be insufficient and required juries in the GPE to give reasons for their verdicts in future . In DATE Articles CARDINAL and CARDINAL of LAW Procedure were amended to require the jury to state reasons for its choices should it consider that this was necessary for an understanding of its verdict or its decision . LAW requires the jury to state “ the reasons for taking into account or disregarding the main items of evidence and the legal reasons for the jury ’s verdict and the decision by the court and the jury as to the sentence or the imposition of any measure ” .

Within the GPE that have opted for a traditional jury system , an appeal against the jury ’s verdict is available in GPE , GPE , GPE , GPE , GPE and GPE , whereas no appeal is available in GPE , GPE , GPE , GPE and GPE ( GPE of GPE ) . In GPE , convicted persons may appeal to ORG against the sentence only ; they may also file a plea of nullity with ORG .

In GPE , since the events in issue in the present case , the Law of DATE , which came into force on DATE ( see paragraph CARDINAL above ) , has amended the procedure in ORG , notably by requiring it to state the main reasons for the verdict reached by the jury , in order to clarify its meaning .