ITEMID: 001-57555
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF PAUWELS v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 9. Mr. Pauwels is a Belgian national and was born in 1931. He was formerly a regular army officer and as such last served in the Belgian forces stationed in the Federal Republic of Germany with the rank of senior captain (capitaine-commandant). He and his family now live in Cologne and the Belgian authorities have requested his extradition.
10. On 2 April 1982, the Board of Inquiry (commission judiciaire) of Field Court Martial "A", sitting at Cologne, ordered the applicant’s arrest and charged him with embezzlement of State funds. The Board was chaired by Mr. G. Van Even, a senior deputy auditeur militaire, who had questioned Mr. Pauwels on 23 and 24 March, and it said that its decision had been taken in view of the seriousness of the charges and the need to take statements from certain witnesses before the applicant could exert influence on them.
On his arrest a few hours later, the applicant lodged an application for his immediate release but on 8 April the Board of Inquiry, again chaired by Mr. Van Even, confirmed the order in question on the same grounds.
11. The same day, Mr. Pauwels submitted to the Court Martial a second application for his release. On 15 April, the Court Martial, after having heard the views of another deputy auditeur militaire, Mr. Potemans, declared the application admissible but ill-founded. The Court Martial observed that during the preliminary investigation the Board of Inquiry had exclusive jurisdiction to hear such applications and determine whether or not detention should be ordered. It also found that the initial arrest warrant had been lawful.
The applicant immediately appealed to the Courts-Martial Appeal Court sitting in Brussels, which dismissed the appeal on 22 April, upholding the contested judgment on every point.
On 23 April, the Board of Inquiry, again chaired by Mr. Van Even, confirmed the arrest order for the second time.
On 30 April, the applicant appealed to the Court of Cassation against the judgment of the Courts-Martial Appeal Court. He relied inter alia on paragraph 3 of Article 7 of the Constitution, which provides that "save for offences discovered while being committed, no one may be arrested except pursuant to an order issued by a judge, which shall state the grounds on which it is based". He argued that neither the Board of Inquiry nor any of its members had the status of judge or possessed the independence and impartiality inherent in such status. In particular, an auditeur militaire carried out his duties under the supervision and direction of the Minister of Justice; he combined the functions of public prosecutor and investigating judge; his interests as prosecutor and those of the remand prisoner or defendant were directly opposed; and he alone was vested with the power of decision, since he was not bound by the dissenting opinion of either or both of the officers designated to sit on the Board (see paragraph 24 below).
On 22 June 1982, the Court of Cassation dismissed the applicant’s appeal. As regards the submission based on Article 7 of the Constitution, it held that paragraph 3 had to be read in the light of Article 105 of the Constitution (see paragraph 18 below). In this context the term "judge" therefore meant a body on which judicial powers were conferred by the provisions governing military criminal procedure. Articles 35 and 36 of the Code of Military Criminal Procedure, adopted under an Act of 15 June 1889, empowered Boards of Inquiry to issue arrest warrants. The drafting history showed that the auditeur militaire who chaired the Board of Inquiry performed the function of an investigating judge, in which capacity he was by definition independent.
12. In the meantime, on 3 May 1982, Mr. Pauwels had requested the Court Martial to order his release on the ground that the Board of Inquiry had no power to issue and then confirm the warrant of 2 April. On 11 May, the Court Martial declared this third application inadmissible on the ground that it was incompatible with the principle of res judicata, which applied to the decision of 15 April. Before making its ruling, the Court Martial had heard the views of the public prosecutor in the person of Mr. Van Even. The applicant immediately appealed to the Courts-Martial Appeal Court, which dismissed his appeal on 4 June as inadmissible and in any event ill-founded.
13. A fourth application, on 14 June, likewise failed. On 23 June, the Court Martial dismissed the application on similar grounds, after having heard the views of Mr. Van Even.
14. On 11 June 1982, the applicant’s lawyer had written direct to the auditeur général, who, on 16 June, sent him the following reply (translated from the Dutch original):
"With reference to the application of 1 June 1982 for Pauwels to be released on bail ..., I have the honour to inform you that, having studied the application, I consider that there are not sufficient grounds for the question of his continued detention to be determined by my office under Article 123 of the Code of Military Criminal Procedure.
However, I have asked the auditeur militaire of Field Court Martial A to bring the case before the Court Martial as quickly as possible in order to enable that court to determine the merits and, at the same time, decide on any application for release. ..."
15. On 23 June 1982, the senior deputy auditeur militaire, Mr. Van Even, issued a summons for the applicant to appear before the Court Martial at Cologne on 5 July. On the appointed day, the Court Martial ordered the applicant’s release and adjourned the case sine die.
The trial proceedings resumed on 6 December 1982 following a further summons, signed this time by Mr. Potemans (on 17 November). On 2 May 1983, the Court Martial agreed to allow Mr. Van Even to give evidence, under oath. Since the defence objected, the Court Martial decided to join the issue to the merits. However, it elected to hear Mr. Van Even immediately.
The following day, the defendant appealed against this decision, but on 4 July agreed that the proceedings should continue. In its decision of 8 September 1983, the Court Martial based its conclusion inter alia on Mr. Van Even’s statements, which it ruled were admissible. It sentenced the applicant to six years’ imprisonment and a fine of 6,000 Belgian francs (BF) for forgery, uttering forged documents and embezzlement of State funds.
16. On the same day, the applicant appealed to the Courts-Martial Appeal Court, which ruled on his two appeals in a single judgment of 27 February 1985.
In the first place, the Courts-Martial Appeal Court quashed the decision of 2 May 1983 concerning Mr. Van Even’s testimony, on the ground that it did not give adequate reasons. It noted in addition that Mr. Van Even, acting not as investigating judge but as representative of the public prosecutor, had taken certain steps in the prosecution, and in particular had issued the summons of 23 June 1982. This meant that he had become a party to the proceedings and accordingly could not appear as a witness. His testimony should therefore have been disregarded.
On the merits, the Courts-Martial Appeal Court reduced the sentence to four years’ imprisonment and a fine of 6,000 BF. It ordered that the applicant be dismissed the service (Article 54 of the Military Criminal Code) but, unlike the court below, did not order his immediate arrest.
17. On 3 March 1987, the Court of Cassation dismissed appeals on points of law which the public prosecutor and Mr. Pauwels had entered against the judgment of the Courts-Martial Appeal Court.
18. By Article 105, first paragraph, of the Constitution, "special laws shall regulate the organisation of military courts, their powers, the rights and obligations of their members and the terms of office of the latter".
Military criminal procedure is governed principally by the Army Code of Procedure (ACP) of 20 July 1814 and the Code of Military Criminal Procedure (CMCP) of 15 June 1899.
19. The auditeur militaire heads the auditeur militaire’s office of a particular court martial. He is a member of the judiciary, and consequently is not subject to the military chain of command. The same is true of the senior deputies (such as Mr. Van Even) and the deputies (such as Mr. Potemans), who assist the auditeur militaire.
Auditeurs militaires and their deputies, however, are not judges within the meaning of Article 100 of the Constitution. The King, who appoints them, may also dismiss them (Article 77 of the CMCP). They are therefore not irremovable.
They are hierarchically subordinate to the auditeur général at the Courts-Martial Appeal Court and to the Minister of Justice, but it is not disputed that in practice they are wholly independent in the performance of their duties.
20. The auditeur militaire and his deputies discharge the functions of:
(a) senior police officers (officiers de police judiciaire - Article 44 of the CMCP);
(b) investigating judges, vested with powers identical to those of civilian investigating judges and which each individual exercises either alone or as chairman of the Board of Inquiry (Article 35 of the CMCP and paragraph 25 below);
(c) members of the public prosecutor’s office, acting as prosecuting counsel before the courts martial, subject to the supervision and direction of the auditeur général (Article 76 of the CMCP).
The Code of Military Criminal Procedure thus derogates from Article 292 of the Judicial Code, which prohibits such plurality of functions "except in the cases prescribed by law".
21. However, as a consequence of the Schiesser judgment given by the European Court of Human Rights on 4 December 1979 (Series A no. 34), the auditeur général issued the following instructions on 29 March 1983 (Circular no. 2920):
"... The Principal Public Prosecutor at the Court of Cassation has informed me of his view that, in the light of the Schiesser judgment, it is absolutely essential to ensure that, in cases where a preliminary investigation is held, particularly those in which the accused is placed in detention on remand, the judicial officer who acts as prosecuting counsel before the court martial should not be the one who conducted the preliminary investigation.
I have explained to the Principal Public Prosecutor at the Court of Cassation why in many circumstances, in view of the limited number of auditeurs militaires and deputies, it will no doubt be physically impossible to comply with the rule he wishes to have applied, but have told him that the rule generally will be applied in future.
Pending a solution which will inevitably require legislative reform, I would therefore ask you to ensure that to the fullest extent possible, particularly in cases where the accused is held in detention on remand, the rule laid down by the Principal Public Prosecutor at the Court of Cassation is applied."
In subsequent instructions issued on 11 March 1985, the auditeur général confirmed and clarified the distinction to be maintained between investigation and prosecution, "pending the necessary legislative reforms":
"... It has been held by the European Court of Human Rights that a judge who may be required to act in a given case as prosecuting counsel does not afford the guarantees of independence and impartiality necessary for the performance of the judicial acts inherent in the process of investigation.
This case-law prompted my circular (no. 2920) of 29 March 1983. I now consider that the time has come to take a further step towards separating the processes of investigation and prosecution. That is the purpose of the following instructions.
In all cases in which the auditeur militaire has exercised the judicial powers of investigating judge (e.g. arrest warrant, hearing of witnesses under oath, search warrant, seizure, body search, or appointment of an expert by the Board of Inquiry), the investigation and the prosecution must be conducted by different judicial officers.
...
I would ask you:
1. to implement forthwith the instructions in this circular;
2. to send to me by 1 October 1985 a detailed report on the practical application of these instructions, on any problems to which such application has given rise, etc.
..."
22. In the case of Public Prosecutor v. Faymonville which came before the Courts-Martial Appeal Court (permanent German division), the Advocate-General made the following submissions (translation):
"The auditeur militaire who chairs the Board of Inquiry discharges the judicial functions of an investigating judge (Cass., 22 June 1982, RW [Rechtskundig Weekblad], 1983-1984, col. 1115). Article 35 of the Army Code of Procedure of 20 July 1814, taken together with Article 70 of the Code of Military Criminal Procedure, lays on the chairman of the Board of Inquiry the duty to act as an independent judge, in particular in regard to the parties (Cour mil., 23 April 1980, RDP [Revue de droit pénal et de criminologie], 1983, p. 929).
It has been held by the European Court of Human Rights that the judge or other officer authorised by law to exercise judicial power during preliminary investigations, and more particularly when an arrest warrant is issued, must be independent of the executive and of the parties (Schiesser judgment, 4 Dec. 1979, Series A, no. 34, §§ 27-31). As an investigating judge, the auditeur militaire is independent of the executive, as under Article 76 of the Code of Military Criminal Procedure (Act of 15 June 1899) he is only subject to the supervision and direction of the auditeur général when discharging his duties as a member of the public prosecutor’s office.
The European Court of Human Rights held in the cases of Duinhof and Duijf (judgment of 22 May 1984, Series A, no. 79, § 38) and van der Sluis, Zuiderveld and Klappe (judgment, 22 May 1984, Series A, no. 78, § 44) that the Dutch auditeur-militair, although independent of the military authorities, could not be independent of the parties during the preliminary stage of the trial because he was liable, at a subsequent stage, to become a party himself, in that instance as prosecuting authority.
Consequently, the Belgian auditeur militaire, in that he intervenes as prosecuting authority, likewise does not afford the guarantees of impartiality and independence necessary for him to be able to perform the duties of investigating judge in the same case.
There is a danger that he might perform his duties as investigating judge from the point of view of the prosecuting authority at a subsequent stage of the proceedings.
This does not apply only to cases in which an arrest warrant is issued. The judicial function of investigating judge is indivisible and embraces all the judicial acts performed during a preliminary investigation.
The preliminary investigation and the prosecution must accordingly be conducted by different judicial officers (Cour mil., 13 Nov. 1983, RDP, 1985, p. 904); having a single judicial officer combine the functions of investigation and prosecution is incompatible with the impartiality and independence required of an investigating judge and accordingly violates Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights as construed by the European Court of Human Rights in the above-mentioned cases.
The explicit provisions of the European Convention on Human Rights regarding judicial safeguards lay down rights which are distinct but stem from the same basic idea, namely a citizen’s right to a fair trial (Golder judgment, 21 Feb. 1975, Series A, no. 18, §§ 28 and 36). This basic right in a democratic society, as laid down in the Convention, has such a prominent place that a narrow interpretation of the Convention’s explicit provisions in this field would not be in accordance with the Convention’s object and purpose (De Cubber judgment, 26 Oct. 1984, Series A, no. 86, §§ 30 and 32). One of the vital prerequisites of the right to a fair trial is precisely that the preliminary investigation and the prosecution should be separate, and Article 5.3 (art. 5-3) of the Convention is but an application of this principle.
In the present case the same judicial officer combined the functions of investigating judge with those of public prosecutor, firstly - as chairman of the Board of Inquiry and with the military members of the Board - by ordering a report to be made by an expert and hearing the accused during the final questioning, and subsequently by participating in the trial as prosecutor.
This amounts to a violation of Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights and is consequently unlawful in Belgian domestic law (Cass., 27 May 1971, Pas. [Pasicrisie], 1971, 919).
The investigative measures taken in the Faymonville case - the appointment of an expert and the final hearing of the accused by the Board of Inquiry - should therefore be declared null and void and the documents relating to those measures (including the expert’s report) should be declared inadmissible in evidence.
Ruling that these documents are inadmissible, however, does not in any way prevent the court from reaching a decision on the basis of the other evidence, namely the police reports and the accused’s statements to the auditeur militaire acting as senior police officer (officier de police judiciaire).
For these reasons,
Having regard to Article 35 of the Army Code of Procedure, Articles 70 and 76 of the Code of Military Criminal Procedure and Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights (Act of 13 March 1955),
I ask the court,
firstly, to declare that the appointment of an expert by the Board of Inquiry and the Board’s final hearing of the accused (item 2 in the file on the expert’s report and items 84 and 85 in the file on the preliminary investigation) together with the expert’s report are null and void and to rule these items inadmissible in evidence;
secondly, to order the costs of the expert’s report to be paid by the State; and
thirdly, taking its decision on the basis of the other evidence, to convict the accused in accordance with my oral submissions." (Journal des tribunaux, no. 5382, 31 May 1986, pp. 370-371)
On 18 December 1985, the Courts-Martial Appeal Court gave its judgment, which included the following reasons (translated from the German original):
"The auditeur général’s office took the view that, as the same senior deputy auditeur militaire acted both as investigating judge and as prosecutor, several items relating to the investigative measures must be declared null and void and inadmissible in evidence, because the investigation and the prosecution must be conducted by different judicial officers.
Every citizen has a right to a fair trial, and one of the vital prerequisites of the right to a fair trial is that the preliminary investigation and the prosecution shall be separate.
The European Court of Human Rights has so held (De Cubber case, judgment of 26 Oct. 1984, Series A, no. 86, §§ 30 and 32), and the Court of Cassation has likewise so decided on several occasions (judgments of 29 May 1985, Pub. v. D... and Pub. Pros. v. R... and others, Jur. Liège [Jurisprudence de la cour d’appel de Liège], 11 Oct. 1985, pp. 541-544).
...
For these reasons:
THE COURT,
...
Declares the appeals admissible;
Holds that the Board of Inquiry’s appointment of an expert, the final hearing of the defendant by the Board and the expert’s report are null and void and must be excluded as inadmissible evidence;
Sets aside the decision appealed against in so far as it ordered the defendant to pay the costs of the expert opinion (41,882 F);
Orders the State to pay the costs of the expert opinion;
..." (ibid., p. 371).
23. On 10 April 1987, the auditeur général submitted to the Minister of Justice a new preliminary draft Code of Military Criminal Procedure which had been drawn up by an inter-departmental committee. One of its purposes was to prevent any plurality of functions in the person of the auditeur militaire in peace time by creating two categories of military judicial officer, namely auditeurs militaires, who would retain only the powers of public prosecutors, and judges, who would deal with preliminary investigations as chairmen of Boards of Inquiry.
According to the report submitted by Mr. Van Rompaey on behalf of the Senate Legal Affairs Committee, the existing Code "has now been overtaken, in a number of fundamental respects, both by changes in human-rights case-law and by the new patterns of organisation entailed by the separation of preliminary investigation and prosecution" (Sénat 5-VI (1986-1987) no. 2 of 6 October 1987, p. 44).
24. When constituted at the seat of the Court Martial, the Board of Inquiry comprises - in addition to the auditeur militaire (or deputy auditeur militaire), who chairs it - two officers (officiers commissaires) appointed by the area commanding officer from among the officers of the garrison, normally for a period of one month. They are appointed in turn and in order of seniority (Articles 35-37 of the CMCP).
The auditeur militaire is the sole permanent member of the Board. Th military members of the Board are changed frequently, on the expiry of their term of office or as operational needs require.
25. The Board conducts the written part of the investigation of the case (Article 35 CMCP). In carrying out its task, it may issue a warrant for the arrest of a person who has been brought before the auditeur militaire. In such cases it must, at least once a month, review the detention in question (auditeur général’s Circular no. 2322 of 28 July 1955, paragraph III (e)(1)). In addition, it may at any time order the accused’s release on condition that he appear in person at any stage in the proceedings as soon as he is asked to do so (Article 60 of the ACP).
By Article 35 of the Code of Military Criminal Procedure, the auditeur militaire "shall direct the investigation". He must endeavour as much to establish the accused’s innocence as to obtain evidence of his guilt and secure a confession (Article 70 of the ACP). The decisions of the Board of Inquiry are his sole responsibility, and any dissenting opinions of the two officer members of the Board are not binding on him. The function of these two members is merely to assist him, not as investigating judges but as technical advisers and as witnesses to the lawfulness of the investigation, which they guarantee by their presence and by their signature.
26. Responsibility for conducting the prosecution lies with the public prosecutor, in other words the auditeur militaire (see paragraph 20 above), and not with the Board of Inquiry. It falls to the Board to determine at the end of the investigation whether there is sufficient evidence to justify committal for trial, but the summons requiring the accused to appear before the Court Martial is issued by the auditeur militaire or one of his deputies. On issue of the summons the Board of Inquiry ceases to have jurisdiction.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-112990
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DİRİ DIRI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1960 and lives in Trabzon. He used to work as a security guard in a security van for Akbank, a private bank in Turkey.
6. On 16 July 1998, on their return from one of the branches of the bank, the applicant and his two colleagues working in the same van realised that a sum of money (approximately 10,000 euros) was missing.
7. On 23 July 1998 the applicant was questioned by the police and on 3 September 1998 the Trabzon prosecutor filed an indictment formally charging the applicant and his two colleagues with the offence of breach of trust.
8. On 22 December 2000, while the criminal proceedings against the applicant and his colleagues were in progress, Law No. 4616 entered into force. Law No. 4616 provides for the suspension of criminal cases in respect of certain offences committed before 23 April 1999.
9. On 22 December 2003 the Istanbul Assize Court considered the following:
“...[the applicant] has committed the offence of breach of trust. Nevertheless, the offence was committed before 23 April 1999 and it thus falls within the ambit of Law No. 4616. It is accordingly decided not to convict [the applicant] but to suspend the proceedings in accordance with Law No. 4616”
10. On 13 February 2004 the applicant appealed against the Assize Court’s decision, arguing that if the proceedings had not been postponed his innocence would have been proved.
11. On 8 June 2006 the Court of Cassation decided that the Istanbul Assize Court’s decision was not appealable because it was not a decision containing a definitive conclusion. It considered, however, that the applicant’s appeal could be examined as an “objection” and forwarded it to the Court of Cassation’s prosecutor for the necessary action to be taken.
12. On 25 August 2006 the Istanbul Assize Court examined the objection and rejected it.
13. On 30 August 1998 lawyers representing Akbank lodged a claim with the Trabzon Labour Court for the return of the missing money from the applicant and the two colleagues who had been working with him on the day it went missing.
14. On 17 June 2004 the Trabzon Labour Court ordered the applicant and his two colleagues to repay the missing money to the bank together with the “highest rates of interest applicable”. It considered, on the basis of the Istanbul Assize Court’s decision of 22 December 2003, that the applicant and his colleagues had “committed the offence” in question and embezzled the money. The applicant appealed against the decision and drew the Court of Cassation’s attention to the fact that he had not been convicted of any offence by the Istanbul Assize Court, which, in fact, had decided to suspend the proceedings.
15. The Court of Cassation quashed the decision in so far as it concerned the rate of interest applicable. On 19 July 2005 the Trabzon Labour Court decided, in line with the Court of Cassation’s decision, that a lower rate of interest should apply. An appeal lodged against that decision by the applicant was rejected by the Court of Cassation on 26 September 2005.
16. On 30 October 1998 the applicant’s contract of employment was terminated by his employer. The applicant and his two colleagues brought a case against the bank before the Trabzon Labour Court claiming compensation for their dismissal.
17. On 21 September 2004 the Trabzon Labour Court rejected the applicant’s claim for compensation for his dismissal. It stated as follows:
“The case concerns the compensation claim for the dismissal of the plaintiffs who worked for the respondent bank and who, instead of bringing [a sum of] money they had collected from one of the bank’s branches back to their branch of the bank, embezzled it...According to the Istanbul Assize Court’s decision of 22 December 2003, the plaintiffs committed the offence of breach of trust that the proceedings were suspended in accordance with Law No. 4616...”
18. The applicant appealed against the decision, arguing that the criminal proceedings against him had been suspended by the Istanbul Assize Court. He further argued that the proper course of action for the Labour Court would have been to collect its own evidence, hear witnesses, and reach its conclusion on the basis of that evidence.
19. On 26 May 2005 the Court of Cassation quashed the Labour Court’s decision of 21 September 2004. It held that the Istanbul Assize Court’s decision had suspended the proceedings and not convicted the applicant. The Labour Court had erred in rejecting the applicant’s claim without hearing any of the witnesses proposed by him or obtaining expert reports, or even examining the Istanbul Assize Court’s case file.
20. On 13 October 2005 the Trabzon Labour Court reiterated its decision of 21 September 2004. In the opinion of the Labour Court, the applicant had caused financial losses to the bank by embezzling the money and knew that his employment had been terminated because of that. Any expectation on the part of the applicant of receiving compensation for his dismissal would therefore damage confidence in the judiciary and, for that reason, the Labour Court could not adhere to the Court of Cassation’s decision of 26 May 2005.
21. On 24 May 2006 an appeal lodged by the applicant against the Labour Court’s decision was rejected by the Court of Cassation, which considered that the Labour Court’s decision was in accordance with its decision of 26 May 2005. This decision was communicated to the applicant on 1 August 2006.
22. Law No. 4616, in so far as relevant, provides as follows:
“4. In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years:
- where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended;
- where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended.
If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached.
In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-69057
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: TANCZOS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Gábor Tánczos, is a Hungarian national, who was born in 1979 and lives in Körmend, Hungary. He is currently serving a prison sentence in Budapest Prison. He is represented before the Court by Mr Z. Somos, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1998 criminal proceedings were instituted against the applicant. He was charged with having murdered a 10-year-old girl by cutting her throat. In the ensuing proceedings he was assisted by a defence counsel of his choice.
On 15 October 1998 the Vas County Public Prosecutor’s Office preferred a bill of indictment.
On 12 March 1999 the Vas County Regional Court convicted the applicant of murder and sentenced him to 14 years’ imprisonment. The Regional Court relied on, inter alia, evidence given by the applicant at trial.
On appeal, on 17 November 1999 the Supreme Court held a hearing. It held that the first-instance judgment was ill-founded within the meaning of subparagraphs (a), (b) and (c) of section 239(2) of the Code of Criminal Procedure; consequently, it had to be quashed under sections 261(1) and 262(1) of that Code and remitted to the first-instance court. It ordered the Regional Court to analyse the contradictions contained in the various statements made by the applicant during the investigations and at trial.
In the resumed proceedings, on 14 February 2001 the Regional Court convicted the applicant of murder and sentenced him to 13 years’ imprisonment and barred him from participating in public affairs for 8 years. The Regional Court relied on the fact that, during the investigations, the applicant had admitted the murder, on the testimonies of some 110 witnesses, the opinion of some 25 experts, documentary evidence, the inspection of the crime scene and forensic analyses. The defendant did not wish to testify; instead, he maintained the statements he had made during the investigations along with those which he had made before the Regional Court during the first trial. His previous statements were read out in court.
In the appeal proceedings, on 11 July 2001 the Supreme Court refused the request of the applicant’s lawyer to obtain copies of the video recordings made during the investigation. The Supreme Court pointed out that he was entitled to obtain copies of any written minutes prepared on the basis of the recordings.
On 15 October 2001 the Supreme Court, pursuant to section 248(2) of the Code of Criminal Procedure and in response to the submission by the defence of the opinion of a private expert, instructed the expert chemist who had given an opinion during the first-instance trial to complete his report concerning the alleged mishandling of the material evidence in the case. The expert submitted his supplementary opinion on 30 October 2001.
On 6 November 2001 the Supreme Court held a hearing. The court heard the expert chemist and both the defence and prosecution put questions to him. The court refused to appoint an additional expert in physics, as was proposed by the defence, and declared the taking of evidence closed.
A further hearing took place on 13 November 2001. The Supreme Court rejected the defence’s further proposals to obtain the opinions of an expert physicist and an expert in graphological lie-detection, as well as to hear the applicant.
At the hearing of 20 November 2001, the Supreme Court again refused to hear the applicant, despite insistence by the defence. It was pointed out that during the first-instance proceedings the defendant could have, at any time, pleaded his case, but he had deliberately chosen not to. At the appeal stage, the hearing of the applicant’s testimony would only be permitted if necessary to complete the findings of fact. In any event, he had the right to address the court last.
At the hearings of 29 and 30 January 2002 the applicant addressed the court last.
On 5 February 2002 the Supreme Court adjudicated on the applicant’s appeal. It made a preliminary review of the judgment which it found well-founded as a whole. It made several corrections to the text and then considered that it was of a sufficient standard to be considered on the merits rather than quashed (érdemi felülbírálatra alkalmas). In the light of the evidence which it had completed itself, it was able to make a rectification to the relevant part of the first-instance decision by way of an order (végzés) rather than a judgment. Thereafter it upheld the conviction and sentence.
In particular, the Supreme Court noted that the Regional Court had respected its instructions on to how to repeat the first-instance proceedings. It observed that, since the applicant had refused to give evidence in the resumed proceedings before the Regional Court, all his utterances previously made in the case had been read out before the Regional Court and the applicant had been free to comment on them. Moreover, the video tapes available to the Regional Court were played at the hearings and all the persons involved in the case were heard. Furthermore, additional expert opinion was obtained.
The Supreme Court emphasised that, the taking of evidence having been closed in the first-instance proceedings, the provisions of the Code of Criminal Procedure did not allow for a repetition of that evidence before the second-instance court, which was only called on to review, under section 236 (1), the disputed judgment and the earlier proceedings. Insofar as the opinion of the defence’s private expert was concerned, the Supreme Court specified that it was admitted to the file as documentary evidence, although largely irrelevant.
Act no. 1 of 1973 on the [Old] Code of Criminal Procedure (as in force at the material time) provided as follows:
“(1) Evidence is constituted in particular by ... the testimony given by the accused.”
“(1) The authority is obliged to interrogate the accused in detail. ...
(2) At the beginning of the interrogation, the accused shall be warned that he is under no obligation to give evidence, that at any time during the interrogation he is free to refuse to give evidence and that what he says may be used as evidence. ...”
“(1) The court shall determine the case by a judgment (ítélet) if it convicts or acquits the defendant.”
(1) Unless the law provides otherwise, the appellate court shall review the judgment, together with the entirety of the preceding court proceedings, irrespective of who has appealed and for what reason.
The second-instance court shall ... uphold, modify or quash the first-instance court’s judgment, or dismiss the appeal.
“(1) The appellate court shall base its decision on the facts as established by the first instance court unless the first instance judgment is ill-founded.
(2) The first instance judgment is ill-founded if:
a) the facts have not been explored;
b) the court has failed to establish the facts or the findings of fact are deficient;
c) the findings of fact are in contradiction with the contents of the documents;
d) the court has drawn incorrect conclusions from the findings of fact in regard to a further fact.”
“Evidence may be taken in order to remedy the ill-foundedness of the first instance judgment if the facts are deficient or have been partially unexplored. Evidence shall be taken at hearings.”
“(2) Prior to the hearing, the appellate court may, at its preliminary deliberations in camera, order the taking of evidence, if necessary.”
“(1) If the appellate court modifies the first instance judgment, it shall determine the case by a judgment (ítélet); otherwise, it shall do so by an order (végzés).”
“(1) In the event of ill-foundedness (section 239(2)), the appellate court:
a) shall complete or correct the facts if the facts can be established fully and properly from the documents, or through induction, or from the evidence taken; and shall review the first instance judgment on the basis of the facts thus established;
b) may establish the facts differently from those established by the first instance court if, on the basis of the evidence taken, the defendant may be acquitted or the proceedings discontinued.
(2) The appellate court’s assessment, under (1) above, of the evidence may be different from that of the first instance court only in respect of those facts in relation to which the appellate court has taken evidence.”
“(1) The appellate court shall uphold the first-instance court’s judgment, if the appeal is ill-founded, the judgment need not be quashed or modified, or because it is not entitled to increase the penalty.”
“If the first-instance court applied the law erroneously and its judgment need not be quashed, the second-instance court shall modify the judgment and decide according to the law.”
(1) The second-instance court shall quash the first-instance judgment and remit the case to the first-instance court, if such a violation, other than those listed in section 250(II), of the procedural rules took place, so that the judgment was substantially affected... [in particular, if] the first-instance court did not meet the requirement of reasoning.
“(1) The second-instance court shall quash the first-instance judgment and remit the case to the first-instance court, if the ill-foundedness, which would be impossible to remedy under section 258, substantially affected the finding of guilt or the imposition of the sentence.”


ITEMID: 001-4659
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: CARTER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in 1943. He is currently living in Yaxley, a village near Peterborough, England.
The applicant is represented in the proceedings before the Court by Hegarty & Co., a firm of solicitors based in Peterborough.
A.
The facts as submitted by the parties may be summarised as follows.
The applicant has served as a retained fireman in Yaxley Fire Brigade in the village of Yaxley for 24 years. On 3 May 1994 he was made Sub-Officer and Station Commander with managerial responsibility for the Yaxley fire station. All the fire-fighters at the Yaxley station work on a retained basis and all live in Yaxley, a community of 2,810 inhabitants. The applicant was at the relevant time employed full-time as a bus driver in Peterborough. Fire service records indicate that the applicant spent, on average, four and a half hours per week at work, including time spent attending fires and other incidents. According to the applicant, he spent considerably more time at the fire station than the hours recorded since as a Sub-Officer he had to attend to a host of other matters relating to the running of the station.
In a letter dated 29 January 1996 addressed to the Cambridgeshire County Fire and Rescue Service a male colleague made a complaint against the applicant accusing him of harassment. The applicant’s colleague was interviewed on 31 January 1996. Certain of the allegations made against the applicant were subsequently confirmed by a leading fireman at the station who was also interviewed. A full disciplinary investigation was conducted into the allegation made against the applicant. On 9 February 1996 the applicant was suspended from duty pending the outcome of the disciplinary proceedings.
Subsequently in a letter dated 15 February 1996 a former female colleague of the applicant complained that the applicant and another member of the fire station had made unsavoury and personal comments of a very explicit sexual nature about her. That complaint also became part of the investigation.
The applicant denied all the accusations made against him.
During his period of suspension the applicant was prohibited from entering any fire service premises without obtaining prior permission and was requested that he should not, at any time, contact or speak to any of his service colleagues. He remained suspended on these terms until 18 February 1998, when the terms of the suspension were varied.
The applicant states that the terms imposed on his suspension placed considerable restrictions on his social and everyday life and prevented him from communicating with his friends and almost went as far as to prevent him from communicating with his family.
By way of illustration of the effects of the restriction, the applicant refers to an incident which occurred on 26 March 1996 while he was present at a local club which counted among its members many of the fire-fighters from the Yaxley Fire Brigade. The applicant states that officers from the fire service entered the premises, noted with whom he was associating and reported back to the fire service. A similar incident occurred shortly afterwards when he was present at the club with his son and wife together with two of his fire service friends and their wives.
The applicant refers to a further incident on 28 June 1996 when he attended the retirement party of a fire officer whom he had known for many years and whose wife was known to his family for some forty-five years. Other fire officers and their families were present. By letter dated 2 July 1996 the fire service cautioned the applicant that any further reports to the effect that he had breached the conditions of his suspension would lead to charges being brought against him under the Fire Service (Discipline) Regulations 1985.
In August 1996 the applicant was informed by the County Fire Officer that he had to request permission to attend his son's wedding because firemen whom his son had known from childhood, and one of whom was his Best Man, were also invited to the wedding. On this occasion a senior officer granted a relaxation of the conditions of the applicant's suspension and permitted him to associate with friends and colleagues from Yaxley Fire Brigade on the day of the wedding.
After hearing witnesses and the applicant on 2 and 3 August 1996, the disciplinary tribunal found each of the charges proven and the disciplinary action taken against him justified. He was sentenced to a reduction in rank to fire-fighter. He appealed to the Disciplinary Appeal Tribunal which modified the disciplinary sanction to reduction in rank to leading fire-fighter. On 10 March 1997 the applicant submitted notice of his appeal to the Secretary of State. The appeal had not yet been decided at the time of the Court’s consideration of the applicant’s complaints.
In a letter dated 18 February 1998 the County Fire Officer notified the applicant that the terms of his suspension had been varied and that he was henceforth permitted to have contacts with his fellow officers but was not to discuss the circumstances of the disciplinary proceedings until the appeal to the Home Secretary had been determined. The applicant continues not to be permitted to enter fire service premises.
B. Relevant domestic law and practice
The Fire Services (Discipline) Regulations 1985 (Statutory Instrument no. 1985/930) made pursuant to section 17 of the Fire Services Act 1947 provide for the maintenance of discipline in fire brigades and set out a code of discipline and the procedures to be followed for the investigation and the taking of disciplinary action against members of the fire service.
The terms under which a fire officer can be suspended are contained in section VIII of the National Joint Council for Local Authorities’ Fire Brigades Scheme of Conditions of Service (“NJC”). These conditions formed part of the contract between the applicant and Cambridgeshire County Council. Under the relevant provisions of section VIII the County Fire Officer (“the Chief Officer”) may suspend a fire officer who has committed a disciplinary or criminal offence. The period of suspension continues until it is either terminated by the Chief Officer or until disciplinary proceedings have been concluded.
The NJC Terms of Conditions of Service do not deal with the imposition of terms in connection with the suspension of a fire officer.
In December 1995 the fire service published a Fair Treatment Policy setting out procedures to enable employees to raise matters of concern with their superior officers in the service. The Policy implements an outline grievance procedure set out in section X of the NJC terms of service. Under the Policy any grievance is to be pursued in the first instance with the employee’s line manager. If dissatisfied, the employee may then take the matter up with the Manager, then the County Fire Officer and finally with the appropriate committee of the County Council.