ITEMID: 001-57946
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF VAN DER TANG v. SPAIN
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (ex delicto non oritur actio);No violation of Art. 5-3
TEXT: 7. Mr Antonius Adrianus van der Tang was born in 1959 and lives in Haarlem in the Netherlands. At the material time he worked as a lorry driver.
8. In the early morning of 26 May 1989 Mr van der Tang was arrested by the police (Guardia Civil) in Bayona, Galicia, on the north-west coast of Spain. He was found driving a lorry which contained 1,300 kg of hashish. The lorry belonged to the applicant. He was also found in possession of a pistol with its serial number chiselled off and of a radio pre-tuned to a station which coincided with that of another set found later in the possession of Luciano Núñez, who was also arrested (see paragraph 32 below).
At least eight more people were subsequently detained for allegedly being involved in a three-stage operation to deliver about 7,000 kg of hashish.
9. According to the applicant's statement to the police, made with the assistance of a lawyer and an interpreter on 26 May 1989, an unknown person had approached him sometime in March and again in May 1989 and offered him 20,000 Netherlands guilders to transport 1,300 kg of "dope" (droga) from Bayona to the Netherlands. After some hesitation Mr van der Tang had finally accepted. Late in the evening of 25 May 1989, following the unknown person's instructions, he had taken his truck to Bayona, where another man had loaded the drugs and then gone away. The applicant had only been driving for about ten minutes when he was arrested.
This statement was confirmed by the applicant on 27 May 1989 before the relevant judicial authority (see paragraph 34 below), Vigo investigating judge no. 1, who then ordered Mr van der Tang's detention pending trial (auto de prisión). Basing his decision on sections 503 and 504 of the Code of Criminal Procedure (Ley de Enjuiciamiento Criminal, "LECrim" - see paragraphs 42 and 43 below), the judge held that there was sufficient reason to believe that the applicant was criminally responsible for the commission of a public-health offence. According to the applicant, the other persons detained, all Spanish nationals, were unconditionally released.
On 12 June 1989 Mr van der Tang made a written statement to Vigo investigating judge no. 1 in which he explained that, contrary to his previous statements, he had not known that he was transporting drugs at the time of his arrest. He had thought the consignment was tobacco but had said drugs because of the pressure put on him and language difficulties.
10. In an order of 18 November 1989 (auto de procesamiento) investigating judge no. 1 decided that the available evidence was sufficient to charge the applicant with an offence against public health (sections 344 and 344 bis (a) of the Criminal Code - see paragraphs 37 and 38 below) and unlawful possession of a firearm (section 254 of the Criminal Code - see paragraph 39 below). The applicant's detention was confirmed. An appeal by the applicant against this order appears to have been dismissed.
11. On 25 September and 22 November 1989 Mr van der Tang lodged with investigating judge no. 1 his first applications for provisional release. Arguing that he had throughout been unaware of the real nature of the consignment, he insisted that he was not involved with any drug-trafficking organisation. He further complained that during his four-month detention he had only been questioned twice by the judge - in May and June 1989 - and was the only person still held in custody despite the relatively minor character of his offence. Mr van der Tang also undertook to comply with any conditions attached to his release.
These applications were rejected on 9 October and 25 November 1989 respectively by means of orders not containing reasons.
12. A similar application for provisional release followed on 22 December 1989 and was rejected on 27 December 1989 by an auto (reasoned decision). The ground for the decision was the seriousness of the offences - illegal possession of a firearm and drug trafficking in large quantities; the second offence in itself attracting a prison sentence of "prisión menor en su grado medio" (that is, from two years, four months and one day to four years and two months).
13. By an order of 19 April 1990 (auto de conclusión del sumario) the applicant was committed for trial.
14. Further applications for provisional release were addressed to the Audiencia Provincial in Pontevedra (see paragraph 34 below) on 20 April, 28 May, 19 July and 5 September 1990. On 21 September 1990 the Pontevedra public prosecutor (Ministerio Fiscal) stated that he would not oppose the applicant's release provided that he paid security of 500,000 pesetas, handed in his passport and reported daily to the police. However, on 26 September 1990 the Audiencia Provincial refused the applications for release, briefly stating: "The original circumstances on which the detention pending trial was decided remain unchanged" (see paragraph 45 below). The applicant then requested the Audiencia Provincial to reconsider its decision, complaining, inter alia, that several co-detainees in respect of whom the prosecution was seeking sentences of up to ten years' imprisonment had obtained conditional release upon payment of only 200,000 pesetas. In the applicant's submission, only the fact of his being a foreigner seemed to account for his long period of detention. On 9 October 1990 the Audiencia Provincial declined to reconsider its decision.
15. In the course of 1989 the Spanish authorities had launched a nationwide operation (Operación Nécora) to combat a large-scale drug-trafficking organisation which operated mainly in Galicia. Central investigating judge no. 5 in the Audiencia Nacional, Madrid (see paragraph 35 below), was put in charge of the overall investigation.
The applicant's case was considered to be closely linked with other files relating to Nécora and was therefore transferred to Madrid on 29 October 1990. The Audiencia Provincial had heard the parties beforehand; the applicant's lawyer did not make any submissions (see paragraph 36 below).
16. On 8 January 1991 central investigating judge no. 5 issued an order (auto de procesamiento) whereby new charges were added against the applicant without any alteration to the established facts. He was now charged not only with an offence against public health and unlawful possession of a firearm of foreign origin (see paragraph 10 above) but also with smuggling and criminal association (sections 173 and 174 of the Criminal Code). An appeal by the applicant against these orders which included a request for release was eventually rejected on 8 July 1991 by the Third Criminal Division of the Audiencia Nacional. The grounds for the decision not to release the applicant were the seriousness of the alleged offences, considerations of public order and the high risk of absconding on account of the applicant's foreign nationality.
17. On 19 November 1990 the applicant had lodged a fresh application for release with investigating judge no. 5 in which he repeated arguments adduced earlier and additionally submitted that the transfer of his case to Madrid would inevitably mean that his trial would be further delayed. The public prosecutor opposed the applicant's release, and on 30 November 1990 central investigating judge no. 5 decided to continue the applicant's detention in view of the available evidence, the nature of the offence and its seriousness, the prison sentence that it would attract, the extent of the applicant's involvement and the likelihood of his absconding.
Mr van der Tang challenged this in the Third Criminal Division of the Audiencia Nacional. In his appeal the applicant submitted, inter alia, that as his alleged offence was wholly unconnected with the charges relating to drug trafficking, he could easily have been tried only thirty days after his arrest. He further submitted that, in any case, even if he were to be found guilty of the offences with which he was charged, he would already have served his sentence in detention pending trial (over two years). On 30 April 1991 the Audiencia Nacional dismissed the appeal, thereby confirming the investigating judge's decision.
The applicant's subsequent constitutional complaint (recurso de amparo) was declared inadmissible by the Constitutional Court on 11 September 1991 on the ground that none of the issues raised by the applicant were of a constitutional nature.
18. In the meantime, in a telegram of 30 January 1991 addressed to central investigating judge no. 5, the applicant had renewed his application for release. The public prosecutor attached to the Audiencia Nacional requested that the applicant's detention be prolonged to the statutory maximum of four years (see paragraph 43 below). Mr van der Tang responded by offering to make a formal undertaking that he would reside in Vigo should his release be granted. On 6 March 1991 central investigating judge no. 5 decided to continue the applicant's detention and to adjourn any decision on the public prosecutor's request for its extension.
19. As Mr van der Tang's period of detention approached two years, the central investigating judge no. 5 decided on 22 May 1991, in accordance with section 504 (4) of the Code of Criminal Procedure (see paragraph 44 below) and after hearing the parties, that the maximum duration of the detention should be extended by two years. He based this decision on the seriousness of the charges and the sentence which could be imposed in the event of conviction.
20. On 19 February 1992 the central investigating judge no. 5 concluded the preliminary investigation. The case was sent to the Third Criminal Division of the Audiencia Nacional for trial.
21. On 29 April 1992 the applicant lodged a new application for release, this time with the Audiencia Nacional, which on 11 June 1992 allowed it subject to the following conditions: (a) the applicant was to pay in cash a security of 8 million pesetas; (b) he was to give an address and inform the court of any subsequent change; (c) he was to report daily to the police in Vigo; and (d) he was not to leave Spanish territory.
The Audiencia Nacional gave the following reasons for its decision:
"There is prima-facie evidence that ... the accused did not play a major role in any of the organisations concerned, as he merely transported the illegal substance in question, the nature of which also has to be taken into account by the court.
The time that has elapsed since Van der Tang was placed in custody - over three years (he has been in detention far longer than any of the other defendants in this case) - means that it is possible to rule out his being able to conceal or suppress evidence.
The period of time that has elapsed clearly - why not be frank about it? - owes much to ill fortune and the vicissitudes of the proceedings. He could have been tried in Galicia several months ago, when the Pontevedra public prosecutor did not oppose his provisional release.
The same lapse of time, viewed in the context of the brief provisional summary of the facts, argues in favour of varying the order placing him in detention pending trial, relaxing the conditions of detention by making it possible to avoid it altogether, provided that the measures referred to in the operative provisions below are taken so as to ensure that he appears for trial.
The court did not consider that the accused's foreign nationality constituted an insurmountable obstacle to reaching this conclusion, because other foreign defendants in the case are in fact not being held in detention. The court simply took the view that it was just another factor which, combined with the accused's lack of close ties with Spain, could lend support to the idea that he might be likely to seek to evade trial; but that cannot be presumed without additional evidence. Furthermore, this type of fear, which is always relative, cannot in such circumstances have the effect of inexorably making the accused serve in advance the sentence which may be imposed on him. This is particularly so as the accused has shown, at least to some extent, that he is able to remain on Spanish territory and obtain a contract of employment there which would enable him to engage in a lawful activity for the duration of the contract."
22. On 2 July 1992, in response to a request by the applicant for a reduction in the amount of the security, the Audiencia Nacional set it at 4 million pesetas either to be paid in cash or to be guaranteed by a bank. On 24 July 1992 the security was deposited by the applicant's wife, whereupon Mr van der Tang was released.
23. During his stay in Vigo prison, Mr van der Tang was of good behaviour and participated in several prison activities. He also worked as a clerk in the prison bursar's office.
24. On 9 October 1992, on an application by Mr van der Tang, the Audiencia Nacional gave him leave to report to the police only once a week and returned certain documents to him, including his driving licence.
25. On 12 November 1992 the applicant sought permission to travel to the Netherlands in order to spend Christmas with his family. This request was refused by the Audiencia Nacional on 24 November 1992 in view of the obvious risk of absconding.
26. On 23 December 1992 the applicant travelled by car from Spain to the Netherlands.
27. By letter of 5 January 1993 the applicant's Netherlands lawyer informed his Spanish lawyers that their client had left Spain and returned to the Netherlands, as he had no means of subsistence. The Netherlands lawyer requested them to secure a variation of the conditions on which release had been granted, in particular the obligation to stay in Spain.
28. In a letter of 7 April 1993 to the Spanish embassy in The Hague, the Netherlands lawyer proposed that Mr van der Tang should report weekly to the embassy. He further stated that his client intended to return to Spain in order to stand trial. The embassy answered by advising the applicant to contact the Audiencia Nacional.
Neither the applicant nor his representatives appear to have contacted the Audiencia Nacional at this stage, nor do they seem to have informed that court of his new address.
29. Meanwhile, on 3 July 1992, the Audiencia Nacional had confirmed the investigating judge's decision to conclude the investigation (see paragraph 20 above), thereby ordering the opening of the trial (juicio oral). By that time the case file ran to more than 22,000 pages. On 15 July 1992 the public prosecutor made provisional indictment submissions (conclusiones provisionales) containing charges against fifty-two people. In respect of the applicant, the public prosecutor demanded a total prison sentence of fourteen years and a fine of 60 million pesetas in respect of an offence against public health (see paragraphs 37 and 38 below) and of unlawful possession of a firearm of foreign origin (see paragraphs 39 and 40 below).
30. In a summons of 10 June 1993 the applicant was ordered to appear before the trial court. However, the summons could not be served on him, as he no longer lived at the address he had originally given the Spanish authorities.
On 9 July 1993 the police informed the court that the applicant's whereabouts were unknown. Thereupon the Audiencia Nacional ordered the applicant and his surety - his wife - to appear before it on 23 July 1993 at a hearing concerning the forfeiture of the bail.
The applicant's Spanish lawyer filed an objection against this order, submitting, inter alia, that the applicant had had to leave Spain for a compelling reason, namely the terminal illness of his father, but that he had no intention of evading Spanish justice and would appear for trial. On 31 July 1993 the Audiencia Nacional, noting that the applicant had failed to comply with the conditions attached to his release, dismissed the objection and ordered his arrest.
On 16 September 1993 the Audiencia Nacional declared that the applicant had failed to appear (rebeldía) and his security was forfeited.
31. The trial took place in Madrid from 20 September 1993 to 24 May 1994. Mr van der Tang did not attend it and could therefore not be tried pursuant to section 841 of the Code of Criminal Procedure.
32. On 27 September 1994 the Audiencia Nacional delivered a 529-page-long judgment. Luciano Núñez (see paragraph 8 above) was held to have played a leading role in importing very large quantities of hashish. He was accordingly sentenced to a total of thirteen years' imprisonment and a fine of 100 million pesetas. It does not appear from the facts set out in this judgment that the applicant was involved in drug-trafficking activities beyond the transporting of 1,300 kg of hashish for which he was arrested (see paragraph 8 above).
33. The Spanish authorities have not requested Mr van der Tang's extradition.
34. In ordinary cases the investigation of all types of offence falls to the investigating judge (juez de instrucción) in whose district the offence has been committed (section 14.II LECrim). Upon completion of the investigation, the investigating judge may, by means of an order (auto de conclusión del sumario y apertura del juicio oral - section 622 (1) LECrim) commit the accused for trial at the Audiencia Provincial in whose province the offence in question has been committed (section 14.IV LECrim).
35. Offences concerning drug trafficking that have been committed by "organised gangs or groups and affect various provinces" and any other connected offences come within the jurisdiction of the Audiencia Nacional in Madrid (section 65 (1) (e) and in fine of the Judicature Act - Ley Orgánica del Poder Judicial, "LOPJ"). In such cases investigation falls to the relevant central investigating judge (juez de instrucción central) attached to the Audiencia Nacional, likewise in Madrid (section 88 LOPJ).
36. Where the same facts are being examined by two courts, the one which considers that it has jurisdiction must ask the other to transfer the file to it (inhibitoria). In such cases the decision to transfer the file can only be taken after the parties have been heard (section 45 LOPJ) and is always final, no appeal being possible (section 49).
37. Under section 344 of the Criminal Code, "anyone who cultivates, manufactures or traffics in toxic or stupefying drugs or psychotropic substances or in any other way promotes, encourages or facilitates the unlawful consumption of them, or possesses them for such purposes", shall be liable to a term of imprisonment ranging from four months and one day to four years and four months (de arresto mayor en su grado máximo a prisión menor en su grado medio) and to a fine of 500,000 to 50 million pesetas, provided that the damage to health caused by the substances or products involved is not serious. Hashish is regarded as such a substance, as opposed to "hard drugs".
38. However, under section 344 bis (a) of the Criminal Code, the relevant term of imprisonment is substantially increased, ranging from four years, two months and one day to ten years, where:
"3. ... the quantity of toxic or stupefying drugs or psychotropic substances ... is particularly large.
...
6. ... the offender belongs to an organisation, even a provisional one, that could have the aim of spreading such substances or products even on an occasional basis."
39. Under section 254 of the Criminal Code, the unlawful possession of a firearm, without the required licence, is punishable with imprisonment ranging from two years, four months and one day to four years and two months.
40. The term of imprisonment ranges from six years and one month to ten years where the firearms are of foreign origin and have been brought into Spanish territory illegally (section 255 (2) of the Criminal Code).
41. Article 17 of the Constitution secures the right to liberty and security of person and sets out the conditions under which a person's liberty may be restricted. By paragraph 4 of this provision, a habeas corpus procedure shall be provided for by law, which shall also determine the maximum duration of detention pending trial.
42. Under section 503 LECrim:
"The following conditions must be satisfied for pre-trial detention to be ordered:
1. The commission of an act which may constitute an offence (delito) must have been established.
2. The offence must be punishable by more than six years' imprisonment (prisión menor) or, if the term of imprisonment is shorter, the judge must consider it necessary to remand the accused in custody in the light of his criminal record, the circumstances of the offence, the disturbance of public order it has caused or the frequency with which similar acts have been committed ...
3. There must be sufficient reasons to consider the person to be remanded in custody criminally responsible for the offence."
43. According to section 504 LECrim, detention pending trial shall not exceed one year where an offence is punishable with a term of imprisonment ranging from six months and one day to six years (prisión menor) and shall not exceed two years if the applicable sentence is more severe.
44. If, however, owing to certain circumstances the case cannot be tried within that period and there is a risk that the accused may evade justice, section 504 LECrim provides that detention pending trial may be prolonged up to two and four years respectively. A reasoned decision (auto) to this effect shall only be issued after the competent court has heard the accused and the public prosecutor.
45. Under section 528 (1) LECrim detention pending trial may last only as long as the original reasons remain valid.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-80861
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HÜRRİYET YILMAZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
TEXT: 5. The applicant was born in 1960. He is currently detained in Isparta Prison.
6. The applicant was suspected of being involved in an armed robbery. On 1 August 1996 police officers from the organised crime unit of the İstanbul Security Directorate conducted an operation and the applicant was arrested. At the time of his arrest, the applicant was at a real estate office, owned by one of his relatives. Many of his relatives, including his children, were in this office at the relevant time. The applicant was allegedly beaten severely on his neck and back during his arrest. He was subsequently taken to the Security Directorate Building in Gayrettepe, without having a medical examination.
7. The applicant was allegedly blindfolded and interrogated in the security directorate building. During his interrogation, it is alleged that the applicant was stripped naked, punched, beaten with a truncheon, and had his testicles squeezed. However, the Government maintained that the applicant's statement was taken in the presence of his lawyer, Mr Gürkan Atabay.
8. On 3 August 1996 the applicant was taken to Haydarpaşa Hospital where he was examined by a doctor. According to his report, the doctor found no signs of injury on the applicant's body. The same day, he was placed in detention on remand.
9. In September 1996, complaining of a stiff neck and facial paralysis, the applicant went to see the prison doctor. The doctor transferred him to Kartal Hospital.
10. On 16 September 1996 the applicant filed a complaint with the public prosecutor and maintained that he had been severely beaten during his arrest.
11. Following certain medical tests, on 15 October 1996 the Kartal Hospital delivered its report, in which it was stated that the applicant was suffering from post-traumatic vertebral disorders and that he had an old fracture on his C6 vertebrae.
12. On 27 November 1996 the applicant gave a statement to the public prosecutor, and repeated his allegations. He maintained that he had been severely beaten on his neck during his arrest.
13. The public prosecutor took statements from the eye-witnesses to the applicant's arrest and the four police officers involved. In their statements taken on 8 January 1997, the applicant's son A.Y., his daughter E.Y, his brother-in-law N.Y. and sister-in-law H.S. explained to the prosecutor that they had seen the police officers beat the applicant heavily on the neck. On 23 June 1997 the prosecutor took statements from two officers, M.B. and M.K., who had been involved in the applicant's arrest. The officers denied the accusations. Subsequently, on 17 July 1997 and 26 August 1997, respectively, O.K. and M.K., the two other police officers involved in the applicant's arrest, gave identical statements to the public prosecutor and denied the allegations.
14. Upon the request of the public prosecutor, the İstanbul Forensic Medical Institution prepared a final report concerning the applicant's injuries. In its report dated 23 March 1998, the Forensic Medicine Institute concluded that, although the applicant's injuries did not constitute a danger to his life, he was unfit to work for twenty five days. The fracture on the applicant's C6 vertebrae and the disorders on his vertebras were estimated to be at least three weeks old on 15 October 1996. It was also indicated that it had not been medically possible to determine the exact date of the incident. While drafting this report, the İstanbul Forensic Medicine Institute based itself solely on the report of the Kartal Hospital, dated 15 October 1996.
15. On 3 June 1998 the public prosecutor filed an indictment with the İstanbul Criminal Court and initiated criminal proceedings against the four police officers for ill-treatment.
16. In a hearing held before the İstanbul Criminal Court on 15 September 1998, the accused police officers M.B. and M.T. appeared before the court and denied the accusations. Neither the applicant nor his witnesses were present at this hearing.
17. On 9 February 1999 the applicant's children A.Y. and E.Y. appeared before the court. They explained that they had seen the police officers beat their father on the back and particularly on his neck. They told the court that they could identify the police officers who had beaten him if they met them face to face. The accused police officers were not present at this hearing.
18. On 9 March 1999 the applicant's statement was taken by the Isparta Criminal Court. He repeated his allegations of ill-treatment.
19. On 23 February 1999 the accused police officer O.K.'s statement was taken on commission before the Samsun Criminal Court. He denied the accusations.
20. On 29 December 1999 the İstanbul Criminal Court decided that it lacked jurisdiction and transferred the case file to the İstanbul Assize Court.
21. On 18 January 2000 the proceedings against the four accused police officers were resumed before the İstanbul Assize Court.
22. On 23 February 2000 the applicant's statement was taken once again before the Isparta Assize Court.
23. On 1 March 2000 the Samsun Assize Court took the statement of O.K. on commission.
24. On 10 March 2000 the İstanbul Assize Court heard the statements of the two accused officers, M.B. and M.T.
25. On 30 May 2000 the applicant's children A.Y. and E.Y. testified once again that that they had seen their father being beaten during his arrest. However, they explained that, as a long time had passed, they would no longer be able to recognise the police officers.
26. On 14 September 2000 the Assize Court took a statement from M.K., the fourth accused police officer. Before the court, M.K. denied the allegations. On the same day, the court delivered its judgment and acquitted the police officers of the charges against them on account of a lack of evidence.
27. On 3 July 2002 the Court of Cassation rejected the applicant's appeal request.
VIOLATED_ARTICLES: 3


ITEMID: 001-77109
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GUDMUNDSSON v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Sigurdur Gudmundsson, is an Icelandic national who was born in 1964 and at the time of lodging the application was serving a prison sentence in Iceland. He is represented before the Court by Mr Sveinn Andri Sveinsson, a lawyer practising in Reykjavik. The Icelandic Government (“the Government”) are represented by their Agent, Mr Thorsteinn Geirsson.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his wife, K., ran a private day-care centre at their home in the suburbs of Reykjavík. On Wednesday, 2 May 2001, at 9.00 a.m., a nine month old boy, S., was brought by his mother to the applicant and his wife. During the night the boy had been restless, awake and crying. Usually the boy had a nap twice during the day but that day he refused to sleep before lunch-time and had no appetite. Between 10.30 a.m. and noon the applicant left the centre for a meeting. His pregnant wife was close to giving birth to their child and went to see a doctor at 1 p.m. At around 2 p.m. she returned home and she sat down in the play-room; the applicant took S. to put him to sleep in a pram, placed in the garage. An audio detection device (baby-sitter) was set in motion in the garage. A few minutes later the applicant came back into the apartment.
According to the applicant, nothing unusual happened when he put the baby to sleep. He just placed the boy in the pram and the boy immediately fell asleep. The applicant stayed with him for a couple of minutes. His wife stated that she did not see or hear anything unusual while attending to the children who were not sleeping. Two hours later, the applicant tried to wake up the baby, but he was unconscious. His wife took the baby and put him on a changing blanket. She removed the baby’s napkin since it was soiled. The applicant telephoned an emergency service and a few minutes later emergency personnel arrived. S. was taken urgently to hospital. In the morning of Friday 4 May 2001, the baby died.
After the formal autopsy was completed on 6 September 2001, the couple was arrested. The relevant report, drawn up by a forensic pathologist, T.S., concluded that S. had died of the so-called Shaken Baby Syndrome. It was found, firstly, that the injuries that appeared to have caused the child’s death must have been caused less than 48 hours before death. Secondly, the baby had lost consciousness immediately after the fatal injuries had occurred. Since the child had been playing in the play room when the applicant’s wife arrived, the incident must have occurred when the applicant put the baby to sleep.
Subsequently, the applicant was charged under Article 215 of the Penal Code with having shaken the baby in such a fierce or other manner as to cause his death. He and K. were also charged with offences related to the manner of running of their day-care centre, in that they had undertaken to provide care for many more children (21) than they were allowed (12). This part of the case will not be described further below.
Prior to the trial hearing before the Reykjanes District Court, the State Prosecutor obtained the State Medico-Legal Board’s (“the SMLB”) comments on the forensic expert report, which confirmed the conclusions contained in the report.
Extensive evidence was submitted to the District Court, including voluminous police investigation files, police reports, forensic pathology documents, and photocopies from medical publications as listed in an attachment to the autopsy report. Statements were received from the applicant and K, and twelve witnesses were heard, which included all the witnesses called by the defence. Expert witnesses K.K., T.S. and O.T., all summoned at the prosecution’s request, also gave oral testimonies and answered questions.
According to the applicant, neither the forensic specialist, nor the doctors who had attended to the boy, nor the SMLB in its initial statement mentioned the differences in international medical opinion regarding the Shaken Baby Syndrome.
In its judgment of 1 March 2002, the District Court, relying on the evidence given by the prosecutor’s expert witnesses and the conclusions of the SMLB, convicted the applicant of the charges and sentenced him to 3 years’ imprisonment for having shaken S. to death. He was also sentenced to pay ISK 1,000,000 in fines and was ordered to pay compensation to S.’s parents.
Subsequently the applicant, represented by a new lawyer (who is also representing him in his application to the European Court), appealed against his conviction and sentence to the Supreme Court. In this context, the defence sent a translation of T.S.’s medical forensic report to a number of foreign medical and forensic experts for comment, eight of whom produced statements which, according to the applicant, indicated that he was not guilty. The cause of S.’s death was fraught with doubt, it not being established that it was the Shaken-Baby Syndrome rather than any other cause that was involved.
By a letter of 7 October 2002 to the Supreme Court, the Prosecutor General stated that he considered it imperative, before a final judgment be passed on the merits of the case, to contact the SMLB again in order to obtain an answer to the question whether the medical statements of four of the foreign experts submitted by counsel for the applicant, to the extent that they concerned the alleged cause of death of the baby boy in question, had the effect of changing in any respect the SMLB’s conclusions submitted to the District Court. The Prosecutor general listed 7 questions that in his view should be addressed to the SMLB. He further stated:

“The Prosecutor General furthermore respectfully asks the Supreme Court of Iceland to send an enquiry to the forensic pathologist [T.S.], asking her whether the writings of the four above writers and their suggestions and comments relating to the child [S.]’s assumed cause of death, have the effect of changing in any respect the inferences she draws in the autopsy report on the child’s cause of death, cf. pages 427 - 444 of the abstract, all with a view to the points made under items 1-7 above.
If granting this request is not deemed possible, the prosecution requests an opportunity to obtain [T.S.]’s testimony as a witness before the Supreme Court on the autopsy of the child [S.]and the assumed cause of his death.”
On 10 October 2002 the Supreme Court forwarded the Prosecutor General’s letter of 7 October to counsel for the applicant, giving him an opportunity to comment within two weeks.
On 10 October 2002 counsel for the defence replied requesting that 16 questions formulated in his letter be put to the SMLB. His letter then went on as follows:
“On the occasion of the Prosecutor General’s letter to the Supreme Court concerning questions to be put to the SMLB, it must be noted that according to Section 5 of the SMLB Act no member of the Board may pass an opinion on a matter on which he has previously taken a stand, personally or in office. The conclusions of the opinions referred to by the Prosecutor General in his letter largely refute the opinion of the SMLB’s Forensic Section of 16 November 2001. By asking for the Board’s observations on the opinions of the foreign experts, the Board is in reality being asked to comment on its own conclusions. A question mark can be placed on how reasonable such an arrangement is. The defence considers at least obvious that all the SMLB’s members who on 14 December 2001 took part in handling the entry from the Forensic Section’s meeting of 16 November lack competency for approving an opinion prepared in response to questions posed by the Prosecutor General, the defence, and, as the case may be, the Court.
At the end of his letter, the Prosecutor General requests that [T.S.] will be asked whether the conclusions of the autopsy report should be changed on account of the opinions of the foreign experts. If it is not deemed possible to request her written replies, the Court is asked to call for her oral statement. If the Supreme Court decides to call for [T.S.]’s oral statement, the defence must demand that equality in this respect will be respected, and that the defence will be permitted to obtain the statement of some of the foreign experts who have expressed an opinion of the prosecution’s autopsy report.”
On 22 October 2002 the Supreme Court decided, in the light of the fact that the opinions and conclusions of the forensic expert TS were given decisive importance in the District Court’s assessment and that the foreign medial statements had been submitted in particular to challenge those conclusions, to order the SMLB to give a reasoned opinion on 10 specific questions.
On 23 October 2003, without awaiting a decision by the Supreme Court, the Prosecutor General addressed seven questions to forensic pathologist TS, which in substance were the same as the first seven questions addressed by the Supreme Court to the SMLB. She replied to the questions on 11 December 2002, concluding that the foreign expert statements did not alter the inference she had drawn in her earlier autopsy report
On 16 January 2003 the SMLB replied to each of the questions and, composed of the same members as in the first round, maintained its previous conclusions. It was accompanied by an assessment by two ophthalmologists, E.S. and E.G., of 6 December 2002.
On 11 March 2003 counsel for the defence submitted additional observations regarding the phenomenon of “Shaken-Baby Syndrome” and disputing the Prosecutor General’s arguments.
In the proceedings before the Supreme Court, the defence maintained that the cause of S’s death could not be determined with any certainty as this was wide open to doubt, and that no medical proof had been obtained of a “Shaken Baby Syndrome” rather than some other cause of death. In this context the applicant chiefly referred to the statements of the foreign experts. This had consisted, firstly, of the opinions of four foreign specialists to whom the defendant’s counsel had sent written material relating to S.’s autopsy and state of health, and additional opinions of three of them after further replies were obtained from forensic pathologist T.S to the questions posed by the Prosecutor General. Secondly, the opinions of four additional experts, who had been delivered the same written material for examination, were submitted.
After holding an oral hearing at which the Prosecutor General and counsel for the defence spoke twice, the Supreme Court, by a judgment of 3 April 2003, upheld the applicant’s conviction by the District Court but reduced the sentence to 18 months’ imprisonment. In its judgment the Supreme Court relied on the assessment made by the SMLB and rejected the written foreign expert statements as guesses and speculation.
In its judgment the Supreme Court pointed out that the applicant had failed to avail himself of the opportunity under Article 63 of the Code of criminal Procedure to ask it to appoint experts to provide an opinion with a view to refuting the medical inferences provided by domestic medical doctors and experts in the case. The defendant’s collection of evidence had had the effect that the Supreme Court had found it appropriate to seek opinions from the SMLB in addition to those already obtained on the initiative of the Prosecutor General, which was possible under section 2 of the State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”). In a reasoned opinion the SMLB had rejected the theory that S’s death could have been due to infant scurvy or “Barlow’s Disease”, allergic encephalitis, an ophthalmic disease, a bleeding disorder or chronic brain haemorrhage, vaccination, the mother’s epilepsy or her use of the drug Tegretol, or to a digestive disorder resulting in endotoxinemia, acute scurvy and haemorrhage. The SMLB had stated in response to a specific question that all possible examinations had been conducted in order to preclude causes of death other than the one stated in the autopsy report. The Prosecutor General had asked forensic pathologist T.S. substantially identical questions on account of the writings of the foreign experts, and her replies and those of the State Medico-Legal Board were in full harmony.
The relevant provisions of the Code of Criminal Procedure (Act No. 19/1991) provide:
Article 63
“1. The judge may, as requested by a party or of his own accord, appoint an expert or experts to provide an opinion in a criminal case.
2. The judge may turn directly to any person who has been officially appointed or accredited to give an opinion, provided that the person has the duty of providing the evidence or is willing to do so.”
Article 157
“1. Supreme Court cases shall generally be argued orally. The Court may however decide that a case shall be argued in writing, if particular reasons commend this. The Supreme Court may also decide to receive a case for adjudication without separate argumentation if this is requested unanimously by the parties, or if a judgment is appealed against solely with respect to the determination of sanctions.
...
3. The Supreme Court may, to the extent that the Court finds it necessary, decide to take oral evidence, provided that it deems, in the light of the facts, that such [...] evidence may influence the outcome of the case.”
Article 159
“...
4. The Supreme Court cannot review the findings of a district court relating to the evidential value of evidence presented orally, except if the witness in question, or the defendant, has provided a statement to the Supreme Court.
5. If the Supreme Court deems possible that the district court’s findings concerning the evidential value of oral evidence presented in court may be erroneous to the extent of affecting the outcome of the case, and the witness or the defendant, as applicable, has not provided an oral statement to the Supreme Court, the Supreme Court may invalidate the district court’s judgment and procedure to the extent necessary for making possible the submission of oral evidence there and a renewed conclusion.”
In relation to the statutory provisions quoted above, the Government drew the Court’s attention to two judgments by the Supreme Court, respectively of 3 September 2002 and 12 September 2005, both of which concerned civil proceedings.
In the latter judgment, the Supreme Court’s reasoning included the following observations:
“According to the respondent’s exposition to the Supreme Court, he considers that the requested expert opinion may be of importance to his defence. In the light of the extensive consequences which the conclusions of the autopsy report may have for the outcome of this case, the respondent cannot be barred from seeking additional expert opinions, and this procedural recourse is adequately provided for in Article 63, the first paragraph, and in Article 65, the third paragraph, of Act No. 19/1991, cf. Chapter IX of the Code of Civil Procedure, Act No. 91/1991. The respondent’s request for a further expert opinion is therefore to be granted. The district court judge will be ordered to appoint in court two experts to provide replies to the questions stated in the respondent’s above request.”
In the former judgment, the Supreme Court stated:
“According to section 2 (1) and (2) of the SMLB Act, No. 14/1942, the Board’s role includes providing the courts with opinions on medical matters if this is required for a judicial decision. In this respect the SMLB’s role is analogous to the function exercised by an expert providing evidence in accordance with the generally applicable rules of Chapter IX of Act No. 91/1991, cf., in part, Article 60 § 3 of that Act. To the extent that statute law does not provide for any different arrangement, there is no reason not to apply those general rules to persons providing opinions under the auspices of the SMLB. According to Article 65 of Act No. 91/1991, an expert providing evidence shall, at the request of a party, appear in court and give a statement explaining his opinion and matters relating thereto. As regards the provision of such statements, the rules on witnesses in Chapter VIII of the same Act shall apply in so far as appropriate. Act No. 14/1942 contains no provisions to the effect that the members of the Board are exempted from such duty to appear in court.”
The State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”), contains inter alia the following provisions:
Section 2
“The State Medico-Legal Board shall have the role of providing the courts, the prosecution authorities and the supreme health authorities with expert opinions on medical matters.
Among its functions shall be the provision of opinions on any medical certificates submitted to the courts, provided these are sent to the Board in accordance with a judicial decision.
The State Medico-Legal Board shall provide the supreme health authorities with its opinions as to the propriety of a particular measure, action or conduct on the part of a doctor, dentist, masseur, pharmacist nurse, midwife or other similar health professional.
The State Medico-Legal Board shall provide the supreme health authorities with its opinions relating to health measures of extensive scope, in particular extensive measures taken against the spreading of infectious diseases.”
Section 3
“The State Medico-Legal Board shall only attend to matters referred to the Board in accordance with the provisions of Section 2, by the parties stated there.
The Board shall not provide opinions on the mental condition or criminal responsibility of any person, unless an expert opinion following suitable examination has already been obtained, provided such examination has been possible.
The Board shall not provide an opinion on any person’s cause of death, unless an expert opinion following autopsy, or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death, has already been obtained, provided such evidence can be obtained.”
Section 4
“The State Medico-Legal Board shall seek the opinions of outside experts on matters not within the specialist knowledge of its members.
Before invalidating a doctor’s certificate the board shall, if possible, offer the doctor in question an opportunity to bring forth his arguments in its support.
The Board shall, if possible, consult the person in question, and his professional organisation, on any matters specifically relating to a measure, an action or conduct of a doctor or other health professional (cf. Section 2, the third paragraph), before providing its opinion.”
Section 5
“No member of the State Medico-Legal Board shall take part in deciding on a matter relating to himself or his principal, or a matter with respect to which he has previously taken a stand, personally or in official capacity. If the Board becomes unable to exercise its function as a result of some of its expert members being unable to take part in deciding on a matter coming under his speciality, the Minister shall appoint another expert in his stead as the Board may propose, for considering that particular matter.”