ITEMID: 001-70963
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BOCOS-CUESTA v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 9. The applicant was born in 1976 and lives in Barcelona.
10. On 3 May 1997, the mother of A., a then ten-year old boy, filed a criminal complaint with the police alleging that on 1 May 1997 A. had been sexually assaulted by an unknown man at a playground. On the same day Mr Z., an officer of the Juvenile and Vice Police (jeugd- en zedenpolitie), took a statement from A., as well as from his mother.
11. On 11 May 1997, the mother of B., a then six-year old boy, informed the police that on 10 May 1997 an unknown man had sexually assaulted B.
12. On 12 May 1997, on the basis of descriptions given to the police by A. and B., the applicant was arrested in Amsterdam and detained on remand.
13. On 13 May 1997, A. was confronted with the applicant through a two-way mirror and identified him as the man who had assaulted him. According to the record of this confrontation drawn up by Mrs X., an officer of the Juvenile and Vice Police, A. had slightly recoiled when he saw the applicant, saying “That is him”. A. was also shown a rucksack, which he identified as belonging to the applicant. A. further declared that a woman from the neighbourhood had spoken with the man and that she had told him that the man spoke Spanish.
14. On the same day, Mrs E. – a maternal aunt of B. – gave a statement to the police in which she stated that on 10 May 1997, directly after having been told by her son W. that a man had touched the genitals of his cousin B., she had left her house in order to find this man, that she had found a man who matched the description given by her son and who was identified by B. and W. who had accompanied her, that he was sitting with some children and that this man had run away from her. One of these children, C., had told her that the man had stuck his hand into C.'s pants and that C. had then slapped the man's hand. When confronted with the applicant through a two-way mirror, she stated that she believed that he was the man whom she had seen on 10 May 1997. However, as he no longer had a beard and was looking neater and cleaner, she did not dare to say that she recognised him with 100%, rather with 80% certainty.
15. Also on 13 May 1997, B.'s mother filed a criminal complaint with the police against the unknown man who had sexually assaulted her son. On the same day, Mrs Y., an officer of the Juvenile and Vice Police, took a statement from B. When subsequently confronted with the applicant through a two-way mirror, he identified the applicant as the man who had sexually assaulted him. B. was further shown a rucksack, which he identified as belonging to the applicant.
16. On 13 May 1997, the mother of C., a then nine-year old boy, filed a criminal complaint with the police against an unknown man who had sexually assaulted her son on 10 May 1997. In his statement to the police officer Mrs Y., C. gave a description of the man. According to the record drawn up by Mrs Y., C. visibly reacted in fright when he was subsequently confronted with the applicant through a two-way mirror, identified him as the man who had sexually assaulted him and started crying. C. was further shown a rucksack, which he identified as belonging to the applicant. According to the police record drawn up on 14 May 1997, the description given by C. of the pants worn by the perpetrator corresponded to pants found in the applicant's possession.
17. A statement was also taken from C.'s mother, who declared that her son had told her on 10 May 1997 that a man had touched his private parts.
18. On 14 May 1997, the police took a statement of Mrs F. who was living on a houseboat near to a playground where, on 1 May 1997, she had seen, met and spoken with the applicant. When subsequently confronted with the applicant through a two-way mirror, she stated:
“That is the boy with whom I have spoken. I am fully, 100 %, certain; no mistake is possible. I recognise the boy's face.”
19. On 22 May 1997, the mother of D., a then eleven-year old boy, filed a criminal complaint with the police against an unknown man who had sexually assaulted her son D. earlier that month. On the same day, the police took a statement from D. in which he described how a man had touched his private parts, that this man had stopped this when he had started to scream, that he had then gone to his mother and told her what had happened, that later on the same day he had seen this man again, and that an angry woman had then approached this man who then ran away.
20. On 2 June 1997, D. was confronted with the applicant through a two-way mirror. According to the record drawn up by Mrs Y., D. identified the applicant as the man who had sexually assaulted him.
21. The applicant was subsequently summoned to appear before the Amsterdam Regional Court (arrondissementsrechtbank) on 2 July 1997 in order to stand trial on charges of sexual assault and acts of indecency with persons younger than sixteen.
22. On 24 June 1997 the applicant's lawyer requested the public prosecutor to summon the four boys, Mrs E. and Mrs F. to appear before the Regional Court in order to be heard as witnesses, stating:
“In his conversations with me, my client has repeatedly and with force indicated that he is innocent of the facts he has been charged with. Under these circumstances my client has the right and has an interest in being confronted in court with [these six] witnesses and to be given the opportunity to put (or have put) questions to them. My client and I have no objections to that hearing being held in camera.”
The public prosecutor rejected this request by letter of 13 June 1997, considering that it would be particularly difficult, given their young age, to hear the four boys. Moreover, the defence had failed to indicate in any way – apart from a mere denial of the facts by the applicant – on what grounds it doubted the reliability of the confrontations which had taken place and the statements which had been given at the investigation phase.
23. At the hearing of 2 July 1997 before the Regional Court, the defence reiterated its request to hear the four boys, if appropriate in camera, as well as Mrs E. and Mrs F., stating:
“My client denies wholeheartedly the charges against him. Therefore I wish to hear the victims [A., B., C. and D.] in court, as a mistake in identity is possible. It is very well possible that the four victims, under the stress that reigns at a police station, identified my client as the perpetrator because they have only been confronted with him. It is therefore in my client's interest to be confronted again [and] in court with the victims. ... Mrs F has only seen my client talking and has seen nothing punishable. Yet in the records she is presented as an important witness. I would therefore like to hear her, in particular about the impression my client made on her while he [roller]skated away. I finally wish to hear [Mrs E.] in court. Although she is an indirect witness, as she has no own knowledge of the perpetrator's physical features, she can contribute to exculpating my client. During the mirror-confrontation she has not recognised my client for the full hundred percent as the person she had seen.”
24. The prosecution opposed the request to hear the four boys, but not the request to hear the other two witnesses.
25. Having deliberated, the Regional Court rejected the request to hear the four victims, holding:
“A one-to-one identification through a two-way mirror (enkelvoudige spiegelconfrontatie) has taken place at the police station, the value of which is now challenged by the defence. Now counsel asks for a new one-to-one confrontation (enkelvoudige confrontatie) in court between the victims and the accused. On this point, the court considers that such a confrontation between the witnesses and the accused cannot change or add anything to the confrontations that have taken place previously.”
26. The Regional Court granted the request of the defence to hear Mrs E. and Mrs F. In order to allow the prosecution to comply with a request from Interpol to provide the latter with a photograph of the applicant as well as his fingerprints so as to compare these with materials held by the Spanish police, the Regional Court adjourned its further examination of the case for a maximum period of three months.
27. The Regional Court resumed its examination on 20 August 1997. The applicant was present. The Regional Court noted that the following items had been added to the applicant's case file: photographs of the applicant taken by the Spanish police, a fax message dated 14 July 1997 from Interpol Madrid concerning pending preliminary judicial investigations against the applicant in Barcelona in respect of, inter alia, exhibitionism and the sexual provocation of minors, and a formal record dated 19 August 1997 of the forensic bureau of the Amsterdam-Amstelland police, according to which the applicant's fingerprints matched those taken from him by the police in Barcelona on 31 May 1995.
28. The applicant accepted that he was the man in the police photographs, and confirmed that the Spanish police had taken his fingerprints on 31 May 1995. He further confirmed that, on 12 December 1995 in Tarragona (Spain), he had been convicted for the sexual assault of minors and sentenced to six months' imprisonment. He further denied the facts with which he had been charged in the Netherlands.
29. Upon the request of the defence, the Regional Court then heard Mrs E. and Mrs F. Although both witnesses identified the applicant as the man they had seen at the material time, the applicant denied ever having seen the two women.
30. After having heard the parties' final pleadings, the Regional Court closed the trial proceedings and set a date for judgment.
31. In its judgment of 3 September 1997, the Regional Court convicted the applicant of sexual assault and of acts of indecency with persons younger than sixteen and sentenced him to twenty months' imprisonment. The applicant filed an appeal with the Amsterdam Court of Appeal (gerechtshof).
32. On 26 January 1998, a hearing was held before the Court of Appeal in the course of which the applicant made both oral and written submissions in which, inter alia, he denied the charges against him and challenged the reliability of his confrontation with the various witnesses and the credibility and reliability of the latter's statements. The Court of Appeal further took note of a request filed by the defence to refer the case back to the investigating judge (rechter-commissaris) in order to hear the four boys as witnesses and for an identification of the applicant by putting a selection of photographs of different persons to the witnesses (meervoudige / keuze-foto-confrontatie). In this connection, the lawyer acting for A. and his mother submitted that A. had been quite shocked by the events, that he no longer did certain things alone, asking to be accompanied, and that it was very difficult for him to come to terms with what had happened to him.
33. The applicant also submitted written pleadings prepared by himself in Spanish in which, inter alia, he challenged the reliability of his confrontation with the various witnesses and the latter's statements, and in which he stated that a second confrontation in the form of an identity parade would be pointless as the victims had already seen and identified him as the perpetrator in the course of a one-to-one identification through a two-way mirror. The President of the Court of Appeal ordered that this document be translated into Dutch and be added to the applicant's case-file.
34. After having heard the parties' pleadings, the Court of Appeal closed the trial proceedings, stated that it would determine the requests made by the defence in its judgment and set a date for judgment.
35. In its interim judgment of 9 February 1998, the Court of Appeal stated that it had appeared during its deliberations that its investigation was incomplete. It found it necessary, therefore, to take evidence from the police officers X., Y. and Z. in relation to the manner in which the victims had been questioned and confronted with the applicant. To this end, it fixed a hearing for 16 April 1998. It further ordered that the applicant was to be released from pre-trial detention on 10 February 1998.
36. On 16 April 1998, the Court of Appeal reopened the trial proceedings. The applicant, who had been released in the meantime, did not appear. His lawyer, who was present, informed the Court of Appeal that the applicant was being detained in Spain, and that he had instructed his lawyer by telephone to request the Court of Appeal to proceed with the trial proceedings in his absence.
37. The Court of Appeal heard the police officers X., Y. and Z. After having heard the parties' final submissions, the Court of Appeal closed the proceedings and set a date for judgment.
38. In its judgment of 27 April 1998, the Court of Appeal quashed the Regional Court's judgment of 3 September 1997, convicted the applicant of sexual assault and acts of indecency involving persons under sixteen years of age and sentenced him to fifteen months' imprisonment of which five months suspended pending a two years' probationary period, and less the time spent in pre-trial detention. It also ordered the applicant to pay A., who had joined the criminal proceedings as a civil injured party (benadeelde partij) and who had filed a claim for compensation, an amount of 500 Netherlands Guilders (“NLG”; i.e. 226.89 euros; “EUR”) for non-pecuniary damage.
39. It based the applicant's conviction on a statement he had made before the Court of Appeal, the criminal complaints filed containing a description of the perpetrator given by the four victims, the statements made by the four victims to the police, the record of the two police officers who arrested the applicant and considered that the applicant corresponded to the description of the perpetrator, the records on the mirror-confrontations between the applicant and the four victims, and the statements given by Mrs E. and by Mrs F.
40. As regards the evidence the Court of Appeal held, in so far as relevant, as follows:
“2. ... during the hearing of 26 January 1998 ... the accused requested to be allowed, relying on [the Convention] to question the four minor children.
3. In its interim judgment of 9 February 1998, the court [of appeal] has lifted the pre-trial detention of the accused. It also reopened the trial proceedings, which had been closed on 26 January 1998, in order to hear the reporting police officers [X., Y. and Z.] on the manner in which the minor children had been questioned and the manner in which the confrontations had been conducted. These reporting police officers were heard as witnesses during the hearing of 16 April 1998. The accused did not appear at this hearing. His lawyer has indicated that he had had a contact by telephone with his client who was in Barcelona. [The applicant] had told [his lawyer] that he did not object to the further continuation of the trial proceedings in his case in his absence.
4. It follows from the above that the court, in its interim judgment of 9 February 1998, has not as yet granted the accused's request to hear the four minor children. The court heard the above-cited reporting police officers during the hearing of 16 April 1998 in order to obtain additional information about the manner in which the four children have been questioned and confronted with the accused. Also noting what has been stated by the reporting police officers [X., Y. and Z. at the hearing of 16 April 1998], the court considers that there is no necessity to hear the four children as witnesses. In so far as the request [to hear the four children] made by the defence is maintained – the applicant's lawyer having indicated at the hearing of 16 April 1998 that he did not wish to hear any further witnesses – the court rejects it. In balancing all interests involved, the court is of the opinion that the interests of the four still very young children in not being forced to relive a, for them, possibly very traumatic experience must be given priority over the interests of the suspect in hearing these children.
5. The court must now address the question whether the statements of the four children, having regard to the manner in which they have been questioned and confronted with the suspect, are sufficiently reliable to be used in evidence ... It must also be examined whether their statements may be used in evidence although the suspect has never been given the opportunity to question them.
6.1. In relation to the first question the court considers as follows: Although in general it is preferable for a witness to be given a choice between various options in a confrontation for identification purposes (meervoudige keuzeconfrontatie) instead of being confronted with only one person (enkelvoudige confrontatie), it cannot be said as a rule that the result of [the latter method] can only be used in evidence when it has appeared that the [former method] could not be used. There may be cause to exclude such a result when the manner in which a confrontation with only one person has taken place is incompatible with the fair conduct of proceedings or where the result finds insufficient support in other evidence.
6.2. Altogether six persons have been confronted with the suspect via a two-way mirror. Apart from the minor witnesses [A., B., C. and D.], adult witnesses [Mrs E. and Mrs F.] were involved here. A reading of the records of questioning and confrontation makes it clear that, in five of the six cases, a questioning in which the witness was asked to give a description of the suspect preceded the confrontation. ... Only in the case of Mrs E. this sequence was apparently different. In five of the six cases the most important procedural condition for obtaining reliable results in carrying out a confrontation has thus been complied with. In addition, it does not appear from the [police] records or from the reporting officers' oral evidence in court that these officers would have acted in a leading manner in the confrontations at issue.
6.3. The descriptions given by the six witnesses to the police show a high level of similarity. It transpires from the totality of the descriptions given that the person described was a young man, that he spoke another language than Dutch, had particular eyes, wore a cap and carried a (black-and-white) rucksack. The different witnesses each time mentioned three or more of these features ... In the [witnesses'] description of the suspect there are no points of contradiction. In the confrontation, five witnesses recognised the suspect on the basis of the features previously indicated by them. In their recognition of the suspect the witnesses demonstrated either as, in the case of Mrs E., little doubt, or a definite certainty.
6.4. On grounds of the above, the court does not doubt that the witnesses have wished to indicate the suspect as the person who has committed the facts [at issue] and that a mistake in identity cannot have arisen. The recognition by each separate witness each time finds support in the recognition by the five other witnesses. This entails that, from the point of view of reliability, the result of the confrontations carried out can be used in evidence.
6.5. Also noting the above the court finds no necessity to have an identification of the perpetrator by putting a selection of photographs of different persons to the witnesses (meervoudige fotoconfrontatie) carried out. The accused himself has – not incomprehensibly– indicated [during the appeal trial proceedings] that, after the mirror-confrontations already carried out, he did not consider this now useful anymore. In so far as the defence would maintain this request – the applicant's lawyer having indicated at the hearing of 19 April 1998 that he had no objection to the closure of the trial proceedings – the court rejects this request.
7.1. The remaining question is whether the statements of the four children can be used in evidence although the suspect has not had the opportunity to question them himself. The court's first consideration is the fact that Article 6 [of the Convention], particularly in the light of some recent [Strasbourg] decisions given on applications brought against the Netherlands, does not unconditionally oppose the use in evidence of statements given by witnesses whom a suspect has not been able to question. There is room for the balancing of interests. In its judgment of 26 March 1996 in the case of Doorson v. the Netherlands, the European Court [of Human Rights] considered in this respect that the principles of a fair trial also require that, in appropriate cases, the interests of the suspect in questioning [witnesses] are to be balanced against the interests of witnesses and victims in the adequate protection of their rights guaranteed by Article 8 [of the Convention]. In the opinion of the European Court, briefly summarised, in balancing these interests much weight must be given to the question whether the handicaps under which the defence labours on account of the inability to questioning a witness in an indirect manner are compensated, and whether a conviction is based either solely or to a decisive extent on the statement of this witness. In its report of 17 May 1995 [in the case of Finkensieper v. the Netherlands, no. 19525/92], the European Commission [of Human Rights] adopted an essentially similar opinion.
7.2. In the light of these decisions, the following can be said. As already found by the court, the interests of the four children in not being exposed to reliving a possibly traumatic experience weighs heavily. With that, as also already found by the court, stands the fact that the confrontations of these four witnesses with the suspect have been carried out with the required care, and that the results thereof, as already found earlier, are particularly reliable. As regards the acts themselves of which the suspect stands accused, the court finds it established that the four children have all been questioned by (or assisted by) investigation officers of the Amsterdam Juvenile and Vice Police Bureau with extensive experience in questioning very young persons. It has become plausible from the records drawn up by them and from the oral evidence given in court by these civil servants that the four children have been questioned in an open, careful and non-suggestive manner. What these children have stated, independently of each other, finds corroboration ... in what the other children have declared. In addition, important support for the veracity of their accounts is also to be found in the statements of the witnesses Mrs E. and Mrs F., witnesses whom the defence has been able to question at the hearing held before the Regional Court on 20 August 1997. It does not appear from the record of this hearing that their statements were challenged by the defence, only that the suspect did not recognise these witnesses. [The court further notes that] no request for their appearance in the proceedings on appeal has been made. Taking into account these circumstances as a whole, the court does not find a violation of the suspect's right to question witnesses in using as evidence ... the statements of the four children.
8. On the above grounds, the court is of the opinion – with the required cautiousness – that the statements of the children, as set out in the means of evidence, are reliable and credible and, furthermore, eligible to be used in evidence.”
41. On 4 May 1998, the applicant's lawyer filed an appeal in cassation, which is limited to points of law and procedural conformity, with the Supreme Court (Hoge Raad).
42. On 6 May 1999, the applicant's lawyer completed the applicant's appeal in cassation by submitting the grounds of the appeal, in which it was denied that the applicant had dropped his request to hear the four children. In this connection it was, inter alia, pointed out that, in its ruling of 27 April 1998, also the Court of Appeal had assumed that this request had not been withdrawn.
43. On 25 June 1999, the applicant's lawyer further submitted a response to the advisory opinion of the Advocate General to the Supreme Court who, in that opinion, did not address the question whether or not the applicant had withdrawn or maintained his request to hear the four children but who did find that the reason given by the Court of Appeal for rejecting the applicant's request to hear the four children was insufficient in that it had failed to establish or consider whether and why an adapted manner of questioning was not possible. In this respect, the Advocate General referred to the possibility to question the witnesses in the absence of the accused, the latter being in another room where he could follow the questioning on a television screen and, from there, have questions put to the witnesses.
44. In its judgment of 12 October 1999, the Supreme Court rejected the applicant's appeal, subject to the correction of a clerical oversight in the Court of Appeal's judgment of 27 April 1998. In so far as the applicant complained that the Court of Appeal had used in evidence the statements given by the four boys, although they had never been heard by a judge and/or in the presence of the defence, and despite a request thereto filed by the defence, the Supreme Court held that it was not necessarily contrary to Article 6 to use in evidence statements of such witnesses where such evidence was sufficiently supported by other evidence. Having regard to the manner in which the Court of Appeal had set out in its judgment, as regards each separate offence of which the applicant had been convicted, the evidence given by each of the boys and other pertinent evidence, the Supreme Court noted that the other evidence related each time to those parts of the boys' statements that were disputed by the applicant. The Supreme Court concluded that it was implicit in the Court of Appeal's findings that it had found the supporting evidence to be sufficient and that this finding, in itself not incomprehensible, could not be examined further in cassation proceedings.
45. The Supreme Court also rejected the applicant's argument that the Court of Appeal had unjustly found that it was not necessary to hear the four minors as witnesses. It did not deal with the question whether or not the applicant had withdrawn or maintained his request to hear the four children. As regards the reasons given by the Court of Appeal for not acceding to this request, the Supreme Court held:
“In rejecting the request to hear the four minors as witnesses, the Court of Appeal ... has applied the correct standard. Nor is this decision [of the Court of Appeal] incomprehensible, since it follows logically from the establishment of the interest of the four still very young children in not being forced to relive a, for them, possibly very traumatic experience, that every confrontation with these experiences in pursuit of the criminal investigation, however organised, must be avoided.”
46. The finding that an accused has committed the act with which he or she is charged must be based on “legal means of evidence” (“wettige bewijsmiddelen”) within the meaning of Article 338 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”). “Legal means of evidence” include, inter alia, the personal observations of the judge, the statements of the accused, the statements of witnesses relating to facts or circumstances which they themselves have witnessed, the formal minutes and records and other written documents (Article 339 § 1 and Article 344 §§ 1 and 2 of the CCP).
47. The public prosecutor has the power to call witnesses and experts to the trial court hearing (Article 260 § 2 of the CCP). In the summons to the accused the public prosecutor gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he or she can submit a request to the public prosecutor to summon a witness before the court. Such a request must be filed no later than three days before the court hearing (Article 263 § 2 of the CCP).
48. As a rule, the public prosecutor should summon the witness, but –according to Article 263 § 4 of the CCP as in force until 1 February 1998 – the public prosecutor could refuse to do so if it could be reasonably assumed that no prejudice to the rights of the defence would be caused if the witness was not heard in court. The public prosecutor had to give a reasoned decision in writing and at the same time inform the defence of its right under Article 280 § 3 of the CCP – as in force until 1 February 1998 – to renew the request to the trial court at the hearing.
49. If the public prosecutor had failed to summon a witness at the request of the accused, or declined to do so, the defence could, at the opening of the trial court proceedings, ask the court to have that witness summoned (Article 280 § 3 of the CCP). The trial court would accept such a request, unless it considered that the non-appearance of the witness could not reasonably be considered prejudicial to the rights of the defence (Article 280 § 4 of the CCP as in force until 1 February 1998).
50. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with (former) Article 280, fell under Article 315 of the CCP. Under this provision the trial court has the power to order, of its own accord, where it finds this to be necessary for the determination of the charges, the production of evidence, including the summoning of witnesses whom it has not yet heard.
51. If the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 of the CCP).
52. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 of the CCP). The defence enjoys the same rights as it does at first instance (Article 415 of the CCP).
53. Although the provisions of the CCP, as in force until 1 February 1998, in respect of witnesses did not provide for a possibility to take account of their interests, it was accepted in the case law that a trial court, in its determination of a request by the defence to hear a witness, could take into account, to a certain extent, the latter's interests. In a judgment given on 9 February 1993, the Supreme Court accepted the reasons given by the Court of Appeal to refuse a request under Article 280 § 3 of the CCP by the defence to take (further) evidence from the victim of a sexual offence, a 22 year old woman with Down's syndrome. The Court of Appeal had considered that, given her mental condition and her clear distress in response to questioning, followed by an inability to provide any further answers to the investigating judge, it could not reasonably be expected of her to be exposed to the stress of a hearing. Moreover, the failure to take further evidence from her would not harm the accused in his defence to such a degree that – after having balanced the interests of the defence against those of the witness – the proceedings could not longer be considered as fair within the meaning of Article 6 of the Convention. However, the Supreme Court did take into account the fact that the defence had been given an opportunity to provide the investigating judge with written questions and that these questions had in fact been put to the witness (Nederlandse Jurisprudentie (Netherlands Law Reports) 1993, no. 603).
54. On 1 February 1998, an amendment to a number of provisions of the CCP entered into force. According to the amended Article 264 § 1 (b) and (c) of the CCP, the public prosecutor may refuse the request of an accused to summon a witness in order to give evidence in court, where the prosecutor considers that there are well-founded reasons to believe that such oral testimony would entail a serious risk for the witness's health, or when the refusal of such a request, in all reasonableness, cannot be regarded as harming the accused's defence. On the same grounds, a trial court may decide not to hear a witness proposed by the defence (Article 288 § 1 (b) and (c) of the CCP).
55. Only in very rare cases are young children heard as witnesses before a court. In most cases, such witnesses are heard by an investigating judge. Witnesses younger than sixteen years of age – when heard before an investigating judge – are exempted from the obligation to testify under oath, but are urged to speak the whole truth and nothing but the truth (Article 216 § 2 of the CCP).
56. When a trial court uses such a statement in evidence, it should give special reasons in its judgment for doing so (Article 360 § 1 of the CCP). This requirement does, however, not apply where it concerns a statement of a child set out de auditu in a written record (proces-verbaal) drawn up by an officer with powers of investigation (opsporingsambtenaar) (Hoge Raad, 6 February 1990, Nederlandse Jurisprudentie 1990, no. 482).
57. On 1 January 2003, an amendment to Article 457 of the CCP, which provision governs the possibilities to obtain revision (herziening) of final judgments, entered into force. This amendment extended the existing grounds on which a revision of a final conviction can be sought by including as a ground for revision a ruling by the Court that the criminal proceedings having led to that conviction had been in violation of the Convention. The amended text of Article 457 of the CCP reads, in so far as relevant, as follows:
“1. An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res iudicata can be filed: ...
3o. on grounds of a ruling of the European Court of Human Rights in which has been established that [the Convention or one of its Protocols] has been violated in the proceedings having led to the conviction ... if revision is necessary with a view to reparation within the meaning of Article 41 of [the Convention].”
A request for revision can be filed with the Supreme Court by the Procurator-General, the convicted person or the latter's lawyer within a period of three months after the convicted person has become aware of the Court's ruling referred to in Article 457 § 1 under 3 (Article 458 of the CCP).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58009
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF SAUNDERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 14. The applicant had become a director and chief executive of Guinness PLC ("Guinness") in 1981.
15. In early 1986 Guinness was competing with another public company, Argyll Group PLC ("Argyll"), to take over a third public company, the Distillers Company PLC ("Distillers"). The take-over battle resulted in victory for Guinness. Guinness’s offer to Distillers’ shareholders, like Argyll’s, included a substantial share exchange element, and accordingly the respective prices at which Guinness and Argyll shares were quoted on the Stock Exchange was a critical factor for both sides. During the course of the bid the Guinness share price rose dramatically, but once the bid had been declared unconditional it fell significantly.
16. The substantial increase in the quoted Guinness share price during the bid was achieved as a result of an unlawful share-support operation. This involved certain persons ("supporters") purchasing Guinness shares in order to maintain, or inflate, its quoted share price. Supporters were offered secret indemnities against any losses they might incur, and, in some cases, also large success fees, if the Guinness bid was successful. Such inducements were unlawful (1) because they were not disclosed to the market under the City Code on Take-overs and Mergers and (2) because they were paid out of Guinness’s own moneys in breach of section 151 of the Companies Act 1985 ("the 1985 Act"), which prohibits a company from giving financial assistance for the purpose of the acquisition of its own shares.
17. Supporters who had purchased shares under the unlawful sharesupport operation were indemnified and rewarded. In addition, some of those who had helped find supporters were rewarded by the payment of large fees. These too came from Guinness funds. In most cases payments were made using false invoices which concealed the fact that payment was being made in respect of the supporters or other recipients’ participation in the unlawful share-support operation.
18. Allegations and rumours of misconduct during the course of the bid led the Secretary of State for Trade and Industry to appoint inspectors some months after the events pursuant to sections 432 and 442 of the 1985 Act (see paragraphs 45 and 46 below). The inspectors were empowered to investigate the affairs of Guinness.
19. On 10 December 1986, the inspectors began taking oral evidence. Mr Seelig, a director of the merchant bank advisers to Guinness, was the first witness.
20. On 12 January 1987, the inspectors informed the Department of Trade and Industry ("the DTI") that there was concrete evidence of criminal offences having been committed. On the same date the DTI contacted Mr John Wood of the Director of Public Prosecutions’ office ("the DPP"). It was decided that the proper thing to do was to permit the inspectors to carry on with their inquiry and to pass the transcripts on to the Crown Prosecution Service ("the CPS") which had come into being in September 1986.
21. On 14 January 1987 the applicant was dismissed from Guinness.
22. On 29 January 1987, the Secretary of State required the inspectors to inform him of any matters coming to their knowledge as a result of their investigation pursuant to section 437 (1A) of the 1985 Act. Thereafter the inspectors passed on to the Secretary of State transcripts of their hearings and other documentary material which came into their possession.
23. On 30 January 1987, a meeting was held attended by the inspectors, the solicitor to and other officials of the DTI, Mr John Wood and a representative from the CPS. Amongst other matters, potential accused were identified - including the applicant – possible charges were discussed and it was stated that a decision had to be made as to when to start a criminal investigation. All concerned agreed on the need to work closely together in preparing the way for bringing charges as soon as possible. The inspectors indicated their readiness to cooperate although they reserved the right to conduct their investigations as they thought right.
24. On 5 February 1987 Mr John Wood, who had been appointed head of legal services at the CPS, appointed a team of counsel to advise on the criminal aspects of the investigation. Transcripts and documents from the inspectors were passed on to the team after receipt and consideration by the DTI.
25. The applicant was interviewed by the inspectors on nine occasions: on 10-11, 20 and 26 February, 4-5 March, 6 May and 11-12 June 1987. He was accompanied by his legal representatives throughout these interviews.
26. During the first week of May 1987 the police were formally asked by the DPP’s office to carry out a criminal investigation. The transcripts and documents obtained as a result of the inspectors’ interviews were then passed on to the police.
27. The applicant was subsequently charged with numerous offences relating to the illegal share-support operation and, together with his codefendants, was arraigned before the Crown Court on 27 April 1989.
In view of the large number of counsel and the number of defendants two separate trials were subsequently ordered by the trial judge in the Crown Court on 21 September 1989.
28. From 6 to 16 November 1989 the court held a voir dire (submissions on a point of law in the absence of the jury) following the application of one of the applicant’s co-defendants, Mr Parnes, to rule the DTI transcripts inadmissible. Mr Parnes argued, principally, that the statements obtained during three interviews before the inspectors should be excluded
(i) pursuant to section 76 of the Police and Criminal Evidence Act 1984 ("PACE") on the basis that they had been obtained by oppression or in circumstances which were likely to render them unreliable;
(ii) pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained.
In a ruling given on 21 November 1989, the trial judge (Mr Justice Henry) held that the transcripts were admissible. He stated that it was common ground that the interviews were capable of being "confessions" as defined in section 82 (1) of PACE. He found that as a matter of construction of the 1985 Act inspectors could ask witnesses questions that tended to incriminate them, the witnesses were under a duty to answer such questions and the answers were admissible in criminal proceedings. He rejected Mr Parnes’s assertion that the inspectors should have given a warning against self-incrimination. He was satisfied that there was no element of oppression involved in the obtaining of the evidence and that the answers were not obtained in consequence of anything said or done which was likely to render them unreliable in all the circumstances existing at the time.
29. From 22 to 24 January 1990 the court held a further voir dire following the application of the applicant to rule inadmissible the DTI transcripts concerning the eighth and ninth interviews on the basis that they should be excluded either as unreliable under section 76 of PACE or pursuant to section 78 of PACE because of the adverse effect the admission of the evidence would have on the fairness of the proceedings having regard to the circumstances in which it was obtained. Reliance was placed on the applicant’s alleged ill-health at the time and on the fact that the two interviews in question had taken place after the applicant had been charged.
In his ruling of 29 January 1990 Mr Justice Henry rejected the defence argument as to the applicant’s medical condition. He did, however, exercise his discretion pursuant to section 78 to exclude the evidence from the two above-mentioned interviews which had taken place after the applicant had been charged on the grounds that his attendance could not be said to be voluntary. In his view, moreover, it could not be said to be fair to use material obtained by compulsory interrogation after the commencement of the accusatorial process.
30. The applicant was tried together with three co-defendants. The trial involved seventy-five days of evidence, ten days of speeches by counsel and a five-day summing-up to the jury by the trial judge. The applicant faced fifteen counts including, inter alia, eight counts of false accounting contrary to section 17 (1) b of the Theft Act 1968 and two counts of theft and several counts of conspiracy.
In the course of his trial the applicant, who was the only accused to give evidence (days 63-82) - after the reading of the transcripts (see paragraph 31 below) - testified that he knew nothing about the giving of indemnities or the paying of success fees and that he had not been consulted on such matters. He asserted that he had been guilty of no wrongdoing. The Crown relied heavily on the evidence of Mr Roux (Guinness’s finance director) who had been granted immunity from prosecution. It also referred to the statements made by the applicant in the course of interviews to the DTI inspectors.
31. The transcripts of the interviews were read to the jury by the prosecution over a three-day period during the trial (days 45-47). They were used in order to establish the state of the applicant’s knowledge and to refute evidence given by the applicant to the jury.
For example, counsel for the prosecution used passages from the interviews to demonstrate that Mr Saunders had been aware, inter alia, of the payment to Mr W., who had been allegedly involved in the sharesupport operation, of more than £5 million, before the inspectors had shown him an invoice for the payment of the money to Mr W. In his answers to the inspectors Mr Saunders had stated that he had agreed on the payment to Mr W. of £5 million as an appropriate success fee. When the inspectors showed him the invoice for the payment of this money to a company (MAC) used by Mr W. to receive fees for work done, he replied that he had not seen the invoice before but had deduced that it related to his agreement to pay Mr W. £5 million.
In his opening speech to the jury, counsel for the prosecution stated as follows:
"Mr Saunders also told [DTI] inspectors why the [£5 million] had been paid. He said that Mr [W.] had performed invaluable service during the bid for Distillers and that Mr [W.] had persuaded him that £5 million was an appropriate fee as a reward. Mr Saunders accepted that there was no documentation to support his decision to pay Mr [W.] £5 million. Mr Saunders admitted to the [inspectors] that he knew that MAC was a company used by Mr [W.] and his associates to receive money."
During the trial Mr Saunders testified that he did not know that the money had been paid to Mr W. prior to being shown the invoice by the inspectors. In his cross-examination of the applicant, counsel for the prosecution referred to the above answers in the transcripts to contradict Mr Saunders’s testimony. In his closing speech to the jury he stated:
"But Mr Saunders’s ... evidence to the inspectors make it clear that he knew perfectly well ... that Mr [W.] had been paid. You will remember those passages in his ... interviews where he knew all about this payment before he was shown the invoice."
32. Reference was also made to the interview transcripts by counsel for the co-accused [Mr R.] in an attempt to demonstrate that Mr Saunders was not telling the truth. In his answers to the inspectors Mr Saunders had repeatedly stated that he did not recall any conversations with Mr R. concerning the purchase of shares in Guinness or about indemnities against loss in the event of such purchase. However, a letter written by Mr R. to another person stating that such conversations had taken place and generally implicating Mr Saunders in the share-support operation had been previously published in the press.
During cross-examination of Mr Saunders, counsel for Mr R. suggested that Mr Saunders’s answers to the inspectors on this point were not believable, that he had "lost his nerve" before them and that this explained his replies that he could not recollect the conversations with Mr R. taking place. He repeatedly asked why Mr Saunders did not take the opportunity to tell the inspectors that Mr R.’s accusations in the published letter were a "pack of lies" instead of replying as he did.
33. In his summing-up to the jury, the judge also compared and contrasted what the applicant had said in court with the answers which he had given to the inspectors.
34. On 22 August 1990 the applicant was convicted of twelve counts in respect of conspiracy, false accounting and theft. He received an overall prison sentence of five years.
35. In the second set of proceedings concerning the other co-defendants, further challenge was made to the admissibility of the transcripts of the interviews on the ground, inter alia, that there was an abuse of process in that there was misconduct by the inspectors and/or the prosecuting authorities in the use of the inspectors’ statutory powers for the purpose of constructing a criminal case. In particular, it was alleged by one of the codefendants, Mr Seelig, that there was a deliberate delay in charging the accused in order that the inspectors could use their powers to obtain confessions.
36. In a ruling given on 10 December 1990 Mr Justice Henry found that there was no prima facie case of abuse by either the inspectors or the prosecuting authorities. He had heard evidence from both the inspectors and the police officer in charge of the criminal investigation. In a ruling given on 14 December 1990 the judge rejected the application for a stay, finding that there had been no abuse of the criminal process in the questioning of the defendants or in the passing of Mr Seelig’s depositions to the inspectors to the prosecuting authorities or in their conduct of the prosecution. He saw nothing improper or sinister in the decision by Mr Wood not to involve the police until the beginning of May. He concluded rather that proper use had been made of the statutory powers. The judge also refused an application to exclude the evidence of the interviews under section 78 of PACE as constituting evidence which had such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
37. On appeal the Court of Appeal in a judgment dated 2 May 1991 (R. v. Seelig) upheld the trial judge’s ruling as to the admissibility of the interviews before the inspectors. On 24 July 1991 leave to appeal was refused by the House of Lords.
38. The applicant applied for leave to appeal against conviction and sentence. He argued, inter alia, that the trial judge had misdirected the jury as to the weight to be allowed to the evidence given by Mr Roux, the finance director of Guinness who had been afforded immunity from prosecution.
The applicant was granted leave to appeal against conviction. Following a hearing at which the applicant was represented, the Court of Appeal gave its judgment on 16 May 1991. It held that while there were some blemishes and infelicities in the judge’s summing-up, it was in the main a masterly exposition, which left the main issue of dishonesty to the jury. It commented that the applicant’s counsel had expressed the possibility that he might wish to address the court as to the admissibility of the transcripts. It stated however that the question had been decided, as far as it was concerned, by the decision given by another division of the Court of Appeal in the case of R. v. Seelig, which had held that such statements were admissible. It went on to reject the applicant’s appeal on all but one count: it found that the judge had erred in his direction on one count and quashed that conviction. It reduced his sentence to two and a half years’ imprisonment.
39. On 22 December 1994 the Home Secretary referred the applicant’s case and that of his co-defendants to the Court of Appeal pursuant to section 17 (1) of the Criminal Appeal Act 1968. He did so on the basis of applications by the applicant’s co-defendants - but not the applicant himself - who submitted that the prosecution had failed to disclose certain documents at their trial.
40. At the appeal the applicant argued, inter alia, that the use at the trial of answers given to the DTI inspectors automatically rendered the criminal proceedings unfair.
The court rejected this argument, pointing out that Parliament had expressly and unambiguously provided in the 1985 Act that answers given to DTI inspectors may be admitted in evidence in criminal proceedings even though such admittance might override the privilege against selfincrimination.
In its judgment the court noted that the interviews with each of the accused "formed a significant part of the prosecution case".
41. With reference to the allegation that it was unfair that those interviewed by DTI inspectors should be treated less favourably than those interviewed by the police under PACE, the court noted as follows:
"... the unravelling of complex and devious transactions in those fields is particularly difficult and those who enjoy the immunities and privileges afforded by the Bankruptcy Laws and the Companies Acts must accept the need for a regime of stringent scrutiny especially where fraud is suspected ..."
42. In relation to the argument that the difference between the Companies Act and the Criminal Justice Act regimes (see paragraphs 48 and 54 below) was anomalous the court stated:
"... the explanation lies in the very different regime of interviews by DTI inspectors compared with that of interviews either by police or the SFO [Serious Fraud Office]. DTI inspectors are investigators; unlike the police or SFO they are not prosecutors or potential prosecutors. Here, typically, the two inspectors were a Queen’s Counsel and a senior accountant. They are bound to act fairly, and to give anyone they propose to condemn or criticise a fair opportunity to answer what is alleged against them ... Usually, the interviewee will be represented by lawyers and he may be informed in advance of the points to be raised."
43. The court also rejected an allegation that there had been an abuse of process in that the DTI inspectors were used wrongly as "evidence gatherers" for the prosecution or that there had been improper or unfair "collusion", as follows:
"We have carefully considered the effect of the events of November 1986 to October 1987 in the light of all the documents. We conclude that to allow the inspectors to continue their inquiry and to bring in the police only in May 1987 was a proper course subject to two essentials.
(1) That the inspectors were left to conduct their inquiries and interviews independently without instruction, briefing or prompting by the prosecuting authority. We are quite satisfied that the inspectors themselves made that clear and abided by it. Counsel also laid down those ground rules correctly and they were observed ...
(2) That the interviews were conducted fairly and unobjectionably. It was not suggested to the trial judge or before us that the inspectors could be criticised on this score. These were carefully structured sessions of proper length in suitable conditions. The appellants, experienced businessmen of high intelligence, were each represented either by counsel (usually Queen’s Counsel) or a senior solicitor. The questions were put scrupulously fairly and the Code laid down in the Pergamon case ... was observed."
44. Finally, the court also rejected the allegation that non-disclosure prior to the trial of the material alleged to indicate abuse caused any unfairness to the applicant. It subsequently refused to certify that the case involved a point of public importance and denied leave to appeal to the House of Lords. Following this decision no further avenue of appeal was open to the applicant.
45. By section 432 of the Companies Act 1985 (the "1985 Act") the Secretary of State may appoint one or more competent inspectors to investigate the affairs of a company and to report on them in such manner as he may direct. The Secretary of State may make such appointment if it appears that there are circumstances suggesting:
"(a) that the company’s affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person, or otherwise for a fraudulent or unlawful purpose, or in a manner which is unfairly prejudicial to some part of its members, or
(b) that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial, or that the company was formed for any fraudulent or unlawful purpose, or
(c) that persons concerned with the company’s formation or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards it or towards its members, or
(d) that the company’s members have not been given all the information with respect to its affairs which they might reasonably expect." (section 432 (2))
46. The Secretary of State is also empowered to appoint inspectors to:
"... investigate and report on the membership of any company, and otherwise with respect to the company, for the purpose of determining the true persons who are or have been financially interested in the success or failure (real or apparent) of the company or able to control or materially to influence its policy." (section 442 (1))
47. The function of inspectors is an inquisitorial and not a judicial function. It has been summarised in re Pergamon Press Ltd [1971] Chancery Reports 388, per Sachs LJ at p. 401, as follows:
"The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates."
48. Section 434 of the 1985 Act provides:
"(1) When inspectors are appointed under section 431 or 432, it is the duty of all officers and agents of the company ...
(a) to produce to the inspectors all books and documents of or relating to the company ... which are in their custody or power,
(b) to attend before the inspectors when required to do so and,
(c) otherwise to give the inspectors all assistance in connection with the investigation which they are reasonably able to give ...
...
(3) An inspector may examine on oath the officers and agents of the company or other body corporate, and any such person as is mentioned in subsection (2), in relation to the affairs of the company or other body, and may administer an oath accordingly ...
...
(5) An answer given by a person to a question put to him in exercise of powers conferred by this section (whether it has effect in relation to an investigation under any of sections 431 to 433, or as applied by any other section in this Part) may be used in evidence against him."
49. Section 436 of the Act provides:
"(1) When inspectors are appointed under section 431 or 432 to investigate the affairs of a company, the following applies in the case of -
(a) any officer or agent of the company,
(b) any officer or agent of another body corporate whose affairs are investigated under section 433 and
(c) any such person as is mentioned in section 434 (2).
Section 434 (4) applies with regard to references in this subsection to an officer or agent.
(2) If that person -
(a) refuses to produce any book or document which it is his duty under section 434 or 435 to produce, or
(b) refuses to attend before the inspectors when required to do so, or
(c) refuses to answer any question put to him by the inspectors with respect to the affairs of the company or other body corporate (as the case may be) the inspectors may certify the refusal in writing to the court.
(3) The court may thereupon inquire into the case, and, after hearing any witnesses who may be produced against or on behalf of the alleged offender and after hearing any statement which may be offered in defence, the court may punish the offender in like manner as if he had been guilty of contempt of court."
50. Contempt of court in this context may be punished by the imposition of a fine or by committal to prison for a period not exceeding two years.
51. Section 76 of the Police and Criminal Evidence Act 1984 (PACE) provides as relevant:
"1. In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
2. If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond a reasonable doubt that the confession (notwithstanding that it might be true) was not obtained as aforesaid ..."
52. Section 78 provides as relevant:
"1. In any proceedings the court may refuse to allow the evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
53. Under section 82 (1) of PACE a "‘confession’ includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise".
54. The Criminal Justice Act 1987 confers on the Director of the Serious Fraud Office special powers to assist him in the investigation and prosecution of serious fraud. Section 2 (2) requires a person whose affairs are being investigated to answer questions even if by so doing he might incriminate himself. Failure to answer may give rise to criminal sanctions (section 2 (13)). Answers in this context cannot be used in evidence against a suspect unless he is prosecuted for failure, without reasonable excuse, to answer questions or unless he makes a statement in evidence which is inconsistent with a previous answer (section 2 (8)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91130
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAKHNOVSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 6-1 and 6-3-c;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1979 and lived in Novosibirsk.
7. On 30 April 2001 the applicant was arrested on suspicion of having murdered his father and uncle. The applicant made a written request to be provided with a legal aid lawyer. On the same day an expert examination of fingerprints and a forensic examination were ordered and on 3 May 2001 the applicant was remanded in custody.
8. On 4 May 2001 legal aid counsel, Ms P., was appointed to assist the applicant, and he was charged with aggravated murder on 10 May 2001.
9. From May to September a number of expert examinations were carried out. Subsequently the applicant received copies of orders for such examinations. He signed each of them confirming their receipt and indicating that he had no comments or requests.
10. On 30 September 2001 the detention order was lifted and replaced with an undertaking not to leave his place of residence.
11. In October 2001 the applicant's former cellmate in the detention facility, Mr Zh., testified that the applicant had told him in detail how he had murdered his father and another man.
12. On unidentified date the applicant's friend, Mr R., made a witness statement that the applicant had asked him to murder his father and when R. refused the applicant seemingly intended to do it himself.
13. On 5 November 2001 the applicant was again remanded in custody.
14. On 20 December 2001 the Novosibirskiy Regional Court examined the criminal charges against the applicant. The applicant pleaded not guilty. The court examined seventeen witnesses including Zh. and R., and found the applicant guilty of having murdered two persons and sentenced him to eighteen years' imprisonment. In its judgment the court referred to witness statements, forensic reports and extensive material evidence.
15. The applicant and his lawyer appealed, alleging that Zh. and R. had given their statements under pressure from the police and claiming that the investigation had been conducted with numerous violations of the applicant's defence rights. They also complained that the orders to appoint expert examinations had been received late.
16. On 12 May and 29 July 2002 the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because Ms P. was unable to attend the hearing as she was already engaged in another trial.
17. On an unidentified date the applicant was informed that his participation in the appeal hearing would be ensured by video link. On 26 and 30 July 2002 he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing.
18. On 16 October 2002 the Supreme Court of the Russian Federation ordered the Moscow IZ-77/3 detention centre to ensure the applicant's participation in the appeal hearing, which was to take place on 31 October 2002, by video link.
19. On 31 October 2002 the Supreme Court of the Russian Federation examined the applicant's appeal. The applicant participated in the proceedings by video link. No defence counsel attended the hearing. The court dismissed the applicant's appeal, having found no proof that Zh. and R.'s testimonies were false. As regards the alleged breach of his defence rights, the court found this to be unsubstantiated.
20. On 4 July 2007 the Presidium of the Supreme Court granted a request for supervisory review by the Deputy Prosecutor General and quashed the Supreme Court's appeal decision of 31 October 2002. The Presidium found that the applicant's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the court of appeal.
21. The applicant requested to take part in the appeal hearing in person. On 10 August 2007 the Supreme Court, sitting as a bench of three judges, granted leave to attend in person and ordered the applicant's temporary transfer from the prison in the Novosibirsk Region to a detention facility in Novosibirsk, apparently to avail him of the video link.
22. On 20 August 2007 the applicant made a new statement of appeal. He requested the Supreme Court to examine his appeal on the basis of this new statement only and also requested leave to attend the appeal hearing in person and not by video link.
23. On 29 November 2007 the Supreme Court, sitting in Moscow, examined the case. First, it considered the applicant's requests of 20 August 2007. In a separate decision on procedure it found that there were no grounds to accept the applicant's new statement of appeal and decided to examine the case on the basis of the statement by the applicant's former counsel, Ms P., in 2002. It also rejected the applicant's request to attend in person, finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions, and that this form of participation would be no less effective than if he was personally present in the courtroom. The Supreme Court then introduced the applicant to Ms A., his new legal aid counsel who was present in the Supreme Court's courtroom and then allowed them fifteen minutes of confidential communication by video link before the start of the hearing. All persons, both in the courtroom and in the detention facility, left the rooms.
24. The applicant rejected the assistance of Ms A. on the grounds that he needed to meet his counsel in person. The Supreme Court, having noted that the applicant did not rely on divergence with Ms A. in his defence, did not request her replacement by another legal aid lawyer, did not accept the court's proposal to retain private counsel of his choice and, taking into account the quashing of the previous appeal decision on the grounds of lacking legal assistance, rejected the applicant's objection to the counsel's assistance. Accordingly, Ms A. represented the applicant in the appeal hearing.
25. On the same day the Supreme Court examined the merits of the case. It upheld the judgment of the Novosibirsk Regional court of 20 December 2001, making one correction in the text and excluding one piece of evidence. The substantive findings and the applicant's sentence remained unchanged.
26. Article 51 of the Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless the counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal aid counsel.
27. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties.
28. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.”
29. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings.
30. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58459
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF JOSEF PRINZ v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 6-1+6-3-c
TEXT: 6. On 4 October 1993 the Krems Regional Court (Landesgericht), sitting with two professional and two lay judges (Schöffengericht), having held an oral hearing in the presence of the Public Prosecutor, the applicant and his official defence counsel, ordered that the applicant be detained in an institution for mentally ill offenders (Anstalt für geistig abnorme Rechtsbrecher), pursuant to section 21 § 1 of the Criminal Code (Strafgesetzbuch). The Regional Court found that the applicant had intimidated numerous persons by threats of murder, but that he could not be held responsible because he was suffering from a mental illness. The applicant had, in several letters addressed to judicial authorities and lawyers, respectively, stated his intention to murder particular judges and lawyers, mentioning also either his "list of death" or details of the threatened offence.
7. In its decision, the Regional Court noted that the applicant had twelve previous convictions, inter alia, of intimidation, coercion, bodily injury and property offences. The offences at issue in the pending proceedings had started in the context of civil proceedings, which had been instituted by the Austrian Auditor-General's Department (Finanzprokuratur), claiming compensation for damages of Austrian schillings (ATS) 2,000 caused by the applicant in the context of a burglary. In a judgment of October 1991, the St. Pölten District Court (Bezirksgericht) had decided against the applicant. The applicant had filed counter-claims for compensation in respect of an illness suffered while serving a prison sentence and had threatened terrorist attacks. Following the institution of criminal proceedings against him concerning this threat, the applicant addressed written threats of murder to various persons involved in these criminal proceedings, in particular to judges and lawyers.
8. Furthermore, having heard two psychiatric experts, the Regional Court considered that the applicant suffered from a mental illness, namely paranoia querulans. He had a system of fixed ideas and a missionary devotion to the implementation of his plans. His mental disturbances, combined with the further symptoms of aggressiveness, his cruelty and recklessness, entailed a high risk for third persons. The Regional Court regarded a faculty opinion on these matters as unnecessary, taking into account that the two experts largely concurred in their opinions and that there were no contradictions or shortcomings, within the meaning of the relevant provision of the Code of Criminal Procedure (Strafprozeßordnung).
9. Moreover, the Regional Court considered that it had not been required to hear the judges and other victims concerned, as requested by the applicant. In this respect, the Regional Court observed that the question of whether these persons had in fact been intimidated was irrelevant for legal reasons, the offence of intimidation being committed in case of threats of such a nature as to intimidate third persons in general, if the offender intended to intimidate. The Regional Court, having regard to the details stated in the applicant's various letters, found that his threats of murder were of such a nature as to intimidate third persons in general, and he had in fact intended to intimidate the persons concerned. Considering his mental illness, there was also a risk of further offences of the same kind.
10. The written judgment was served upon the applicant's official defence counsel on 29 October 1993.
11. The applicant, assisted by his official defence counsel, filed a plea of nullity (Nichtigkeitsbeschwerde) with the Supreme Court (Oberster Gerichtshof), challenging the dismissal of his requests for the taking of further evidence as well as the part of the legal reasoning and the findings as to his dangerousness in future. He further lodged an appeal (Berufung). Defence counsel did not file any grounds of appeal, and did not request that the applicant be permitted to attend the Supreme Court hearing.
12. On 15 February 1994 the applicant personally filed submissions with the Supreme Court. According to the applicant, he also requested the Supreme Court for leave to attend the hearing of his plea of nullity and appeal, but this request was to no avail.
13. On 2 March 1994 the Supreme Court held the hearing on the plea of nullity and the appeal in the absence of the applicant, who was represented by his official defence counsel. The Supreme Court rejected the plea of nullity as well as the appeal.
14. The Supreme Court, in its judgment, found that the rejection by the trial court of the applicant's requests for the taking of evidence did not impair the rights of the defence. In particular, the Supreme Court confirmed the reasoning of the trial court that the applicant had failed to show any contradictions or shortcomings in the expert opinions which would be the only reason to justify a faculty opinion. Moreover, the question of whether the victims had in fact been intimidated had been irrelevant. The Supreme Court also confirmed the legal qualification of the offences committed by the applicant.
15. Finally, the Supreme Court proceeded of its own motion to an examination of the applicant’s appeal. While noting that the applicant had not submitted any grounds of appeal, it examined the arguments challenging the trial court’s findings as to his dangerousness in the future, which he had submitted in his plea of nullity. In this respect, the Supreme Court considered that the prognosis was reliably founded on the expert psychiatric opinions and was confirmed by the general impression conveyed by the applicant's criminal acts.
16. The decision was received at the registry of the Krems District and Regional Court on 17 March 1994.
17. Section 21 of the Austrian Criminal Code (Strafgesetzbuch) provides as follows:
"1. If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (section 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his person, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.
2. If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking criminal responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed."
18. The duration of these preventive measures is governed by Article 25 of the Criminal Code, which states that:
“1. Preventive measures are to be ordered for an indefinite period. They are to be implemented as long as is required by their purpose ...
2. The termination of preventive measures shall be decided by the court.
3. The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary.”
19. A first instance court judgment given by a Regional Court, sitting with lay judges, can be challenged by a plea of nullity to the Supreme Court on the specific grounds enumerated in section 281 § 1 of the Code of Criminal Procedure. The Supreme Court’s task is mainly to control the correct application of the criminal law, but in so doing it is - as a general rule - bound by the trial court’s finding of fact.
20. In certain cases the Supreme Court may reject a plea of nullity without a public hearing (section 285 (c) of the Code of Criminal Procedure). In all other cases - such as the present - there will be a public hearing which may also be combined with a public hearing on an appeal against sentence.
21. As regards the hearing on a plea of nullity, section 286 of the Code of Criminal Procedure provides:
“1. When the date of the public hearing is being fixed, the accused ... shall be summoned ...
2. If the accused is under arrest, the notice of the hearing given to him shall mention that he may only appear through counsel. ...”
However, if the hearing is a combined one on a plea of nullity and an appeal against sentence, an accused who is present for the latter purpose may also exercise his rights concerning the nullity plea.
22. The sentence as such can be challenged by way of an appeal. It may concern both points of law (in particular whether mitigating or aggravating circumstances have been correctly taken into account) and factors relating to the assessment of the sentence. Where the substance of an appeal is examined, a public hearing must normally be held.
23. As regards the personal appearance of the accused at a public appeal hearing, section 296 § 3, second sentence, of the Code of Criminal Procedure provides:
“An accused who is detained shall always be summoned and an accused who is detained shall also be brought before the court if he has made a request to this effect in his appeal or counter-statement, or otherwise if his personal presence appears necessary in the interests of justice.”
24. The applicant applied to the Commission on 28 March 1994. He alleged, inter alia, a violation of Article 6 §§ 1 and 3 (c) of the Convention on the ground that, in criminal proceedings against him, he was not present at the hearing before the Supreme Court.
25. The Commission declared the application (No. 23867/94) partly admissible on 10 April 1997. In its report of 20 May 1998 (former Article 31 of the Convention) it expressed, by a majority, the opinion that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-91560
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SUKÜT v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Osman Suküt, is a Turkish national who was born in 1972 and lives in Kayseri. He was represented before the Court by Mr T. Demirel, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not appoint an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1972 and lives in Kayseri. At the material time he was a non-commissioned officer with the rank of “staff sergeant tanker” (tankçı üstçavuş) and had been serving in the army since 1990.
On 9 July 1997 he received an initial letter from the commanding officer of his regiment, M.S.:
“I have been watching your and your family’s lifestyle and behaviour since the day I joined the regiment. Although I have already given you a verbal warning on the subject, I have not noticed any change, either in your appearance or in your behaviour. I have observed that your family (ailece) do not comply with [the rules governing] clothing and behaviour.
I shall give you one month. If, on the expiry of this period, I cannot see any change in the areas I have mentioned, I shall bring legal proceedings (kanunî işlem) against you.”
In a second letter dated 8 December 1998 the battalion commander, İ.Ü., gave the applicant a warning:
“1. According to information obtained, my own observations and those of the regiment commander, your wife dresses in an anti-modern (çağdaşlığa aykırı), Islamic fashion (tesettür kıyafeti), with the head covered.
...
3. I am giving you a warning to ensure that, without delay, you change this negative conduct, which does not correspond to [that expected of] members of the Turkish armed forces (TSK) and their families.
...”
In his observations of the same day, the applicant argued:
“I have been serving my country for nine years in all circumstances. I consider it an honour ... I have never had any particular links with an ideology or political opinion, whether at work or in my private life. ... I have already had several discussions with my wife about her choice of attire. She has always told me that she saw it as the traditional way to dress and that it had no political connotations. She also said that her private life concerned her alone and that even I could not interfere with her style of dress or her choice to wear the headscarf. Even so, I informed her of all the warnings from my superiors. She replied that she could not understand what was meant by ‘inappropriate conduct for TSK personnel and their families’, adding that she had not displayed any conduct that could harm her country, nation or family, or any immoral attitude. I have done all I can. I have various problems to deal with as we have a two-year-old child.”
In three other warning letters, dated 14, 25 and 28 January 1999, the applicant’s superiors reiterated their demands. The applicant defended himself in similar terms.
According to the information and documents submitted by the Government, the head of the personnel office inspected the applicant’s confidential service record (gizli sicil dosyası), the records of his salary and allowances (özlük dosyaları) and “other personal files”. Taking into consideration various documents in these files and the applicant’s conduct, the office established that the applicant held political and ideological views of an unlawful, subversive, separatist and fundamentalist nature. The office forwarded the file on the applicant to a committee consisting of nine high-ranking officers. The following information could be gathered from the file, which was classified as strictly confidential:
“A. As regards Mr Suküt’s conduct and attitudes:
A.a. Mr Suküt holds revolutionary Islamist views;
A.b. He has supported the view that the nation’s law and administration should be based on sharia;
A.c. He is opposed to Atatürk’s principles and revolutions and to the main achievements of the Republic, and it is impossible for him to alter these opinions;
A.d. He has played an active part in movements seeking to destroy the unity and integrity of the Turkish armed forces.
B. Information regarding Mr Suküt’s personality
B.a. Mr Suküt has refused to take part in the armed forces’ social activities on the ground that they were immoral; he has not formed any relations with his colleagues;
B.b. He forbids his wife even to look out of the window of their house or to go outside; he hits her when she attempts to breach this rule;
B.c. He is in a close relationship with people who have ideological views and with people who are members of illegal organisations;
B.d. He spreads propaganda on religious and reactionary topics.
C. Other remarks: Mr Suküt’s two immediate superiors have noted the following observations in his confidential record as regards his professional attitude:
C.a. He holds negative professional and ideological views;
C.b. He holds reactionary opinions;
C.c. He does not take part in social activities and meetings;
C.d. In their opinion, his continuing service in the armed forces is inappropriate, on the ground that he holds fundamentalist and ideological views.”
The committee gave a unanimous opinion in favour of the applicant’s compulsory early retirement. After examining the file, the applicant’s highest-ranking superior endorsed the committee’s opinion and sent the file to the head of the personnel office. As the latter considered that an examination of the applicant’s status was necessary, the file was referred to the Supreme Military Council (Yüksek Askeri Şûra).
On 2 August 1999 the applicant’s compulsory early retirement on disciplinary grounds was ordered in a decision of the Supreme Military Council, pursuant to sections 50 (c) and 94 (b) of the Military Personnel Act (Law no. 926).
In accordance with the Constitution, the decision was not subject to judicial review (see “Relevant domestic law” below).
“All acts or decisions of the administration are subject to judicial review.
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.”
Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that civil servants other than members of the armed forces cannot be subjected to disciplinary penalties unless they are granted the right to defend themselves. It further provides that disciplinary penalties other than warnings and reprimands are subject to judicial review. Provisions concerning members of the armed forces are reserved.
“Discharge for breaches of discipline and immoral behaviour
Irrespective of length of service, non-commissioned officers whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act.
The Regulations on assessment of non-commissioned officers shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted to it by the Chief of Staff.”
Regulation 53 (e) of the Regulations on assessment of non-commissioned officers states that the compulsory early-retirement procedure is to be applied to any non-commissioned officers whose conduct and attitude show that they have held unlawful, subversive, separatist, fundamentalist and ideological political opinions or taken an active part in the propagation of such opinions.