ITEMID: 001-75655
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ESTATE OF KRESTEN FILTENBORG MORTENSEN v. DENMARK
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The Danish national, Mr Kresten Filtenborg Mortensen, (“KFM”), was born in 1926 and died on 10 February 1999. His estate is the applicant in the present case, represented by his son, Mr Niels Filtenborg Mortensen, (“N”), who was represented before the Court by Mr Tyge Trier, a lawyer practising in Frederiksberg.
The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their co-Agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
At the time of KFM’s death, he was divorced and had one legitimate son, N, born on 24 August 1951.
During his marriage, KFM had a relationship with a married woman, J, who gave birth to two sons, B and P, in 1956 and 1957 respectively. From 1963 until her death in 1994, J lived with KFM, who had by then divorced his first wife.
Following KFM’s death in February 1999, B and P requested the City Court of Holstebro (Retten i Holstebro), under the Administration of Justice Act (Retsplejeloven), to establish their paternity, since in their view their father was KFM and not the man to whom their mother had been married.
At a hearing before the City Court on 8 November 1999, B and P testified that they had been told by their mother, J, that KFM was their biological father as opposed to their legal father. Their legal father testified that he had divorced J because he suspected her of adultery and that J’s family had told him that he was not the father of B and P. N testified that KFM had never said anything to him about having children with J and that when J died in 1994, KMF had remarked that things were now settled “with J’s family”.
By decision of 10 November 1999 the City Court decided, in view of the evidence adduced, that it could not be ruled out that KFM was the biological father of B and P, and that the estate of KFM should therefore be a party to the paternity proceedings in accordance with section 456 (k) of the Administration of Justice Act. Moreover, in accordance with the said provision, forensic genetic tests should be carried out, as they might be expected to produce evidence of considerable weight for or against KFM’s being the biological father of B and P. KFM’s estate appealed against both decisions before the High Court of Western Denmark (Vestre Landsret), which found against it on 16 March 2000.
Accordingly, blood samples were taken from B and P, their legal father, two of J’s siblings, and a sister of KFM. N did not wish to participate in the genetic tests.
Subsequently, on the basis of the samples provided, the Forensic Genetics Institute (Retsgenetisk Institut) found it established that B and P’s legal father, with a probability that exceeded 99.99 %, was not their biological father. Moreover, it found that the results suggested that KFM, rather than some random man, was B and P’s biological father, with probability ratios of 9:1 and 3:1 respectively.
Eight testimonies were submitted before the City Court by KFM’s siblings, colleagues and acquaintances, all of whom endorsed the notion that KFM was B and P’s father.
On 5 June 2000 B died.
On 28 November 2001 the Forensic Genetics Institute answered two questions put by the City Court as to the likelihood of obtaining valid DNA results from the tissue of a deceased person.
On 5 December 2001 the City Court decided, in accordance with section 456(k) of the Administration of Justice Act, that KFM’s body was to be exhumed for the purpose of taking DNA samples, as such samples were assumed to be of significant, and probably decisive, importance in establishing paternity, and were the only remaining option.
KFM’s estate appealed against the decision before the High Court of Western Denmark which, by decision of 21 February 2002, amended the City Court’s decision. It stated that the estate of the deceased was party to the paternity suit and that it was therefore obliged, pursuant to section 456 (k) of the Administration of Justice Act, to participate in tests which entailed providing blood samples or similar, if the court decided that such tests were necessary. Furthermore, it followed from section 456 (l) of the Act that the court could decide to use the various measures mentioned in Section 178 of the Act to compel parties to participate in such tests if they refused to do so voluntarily. The High Court found, however, that in paternity cases neither the Administration of Justice Act nor any other provision of Danish law provided a basis for taking body samples by the use of physical force, as opposed to measures to compel living persons to give samples. Hence, the High Court found that tests of the kind ordered by the City Court constituted interference with the sanctity of the grave and that such interference was comparable with the measures to compel living persons to give samples. The High Court concluded that such interference could not be effected by force for the purpose of obtaining evidence in a paternity suit without an explicit legal basis, which the High Court found did not exist in domestic law. Accordingly, the High Court refused to order the exhumation of KFM and the taking of samples from his corpse for use in the paternity suit.
P was granted leave to appeal against the judgment before the Supreme Court (Højesteret), which on 4 September 2002 permitted the taking of biological material from KFM’s corpse. In reaching its decision, the Supreme Court stated as follows:
“By decision of 16 March 2000 the High Court of Western Denmark upheld the City Court’s decision that the estate of [KFM] was a party to the paternity suit. That decision is not under review by the Supreme Court in the present case.
Since [P] was born in 1957, it is the provisions inserted into the Administration of Justice Act by Act No. 135 of 7 May 1937 in chapter 42 (a) concerning the proceedings in paternity suits that are applicable, pursuant to the provisions on the entry into force of the Act contained in section 2(1) of Act No. 201 of 18 May 1960 amending the Administration of Justice Act. The provisions of the said Act concerning the court’s duty to elucidate the case which are relevant in the present case are broadly similar to the provisions of the Administration of Justice Act (chapter 42 (a)) currently in force. Hence, if the court considers forensic genetic testing of the parties to the case to be necessary, it may order such tests under section 456 (l) of the 1937 Act, sections 456 (k) and 456 (l) of the 1960 Act and section 456 (h) (7) of the current Act. The reference therein to the provisions of the Administration of Justice Act on measures to require witnesses to comply must be understood as specifying the measures which can be taken against a party who is alive, and are therefore without relevance if the test is to be carried out on a party who is deceased.”
The majority of the Supreme Court (three judges) went on to state:
“The fact that the Administration of Justice Act does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules, according to which [in a paternity case] the court may decide to compel the parties to undergo genetic testing, being narrowly construed to mean that the [existing] legal basis does not cover testing of deceased persons.
Pursuant to section 16 (1) of the Act on Cornoner’s Inquests, Post-Mortem Examinations and Transplantation, etc. (Lov om ligsyn, obduktion og transplantation m.v.), interference with a corpse, other than the kind mentioned in chapter 3 of the Act (on post-mortem examinations) and in chapter 4 (on transplantation), may be carried out only if the deceased person, having turned 18 years old, consented thereto in writing. According to the preparatory notes (Folketingstidende 1989/1990, tillæg A, spalte 3814), the above provision concerns interference with a scientific or educational purpose which is not carried out in connection with a post-mortem examination. It is not mentioned, however, whether the provision applies to other forensic tests under chapter 42 (a) of the Administration of Justice Act [that is, to paternity cases] or to other civil proceedings involving the estate or a surviving relative in which it becomes necessary to carry out forensic tests on a deceased person in order to gather evidence.
In these circumstances we consider that section 16 of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation does not restrict the legal basis provided by chapter 42 (a) of the Administration of Justice Act [to the effect] that, if deemed necessary, the court may decide that forensic genetic tests should be carried out, even on a deceased party. In its assessment, however, having regard to the principle of proportionality, the court must balance the extent of such interference with the need to elucidate the particular case.
[N] having refused to participate in forensic genetic testing, tests have been carried out on all possible living persons [in the case]. In view of the fact that these tests, and the information submitted in the case, have confirmed [P’s] allegation that [KFM] is his father, and in the light of the content of the Forensic Genetics Institute’s letter of 18 November 2001, we uphold the City Court’s decision of 5 December 2001 authorising the taking of tissue samples from the deceased [KFM].”
The minority of the Supreme Court (two judges) found:
“Without the existence of clear support in section 456 (g) and 456 (l) of the Administration of Justice Act [No. 135 of 7 May 1937, in force at the relevant time, when P was born] or the preparatory notes, we find it insufficiently established that these provisions confer authority to take blood samples or carry out other tests on the deceased.
In our opinion it is a matter for the legislator to decide whether it should be possible to carry out such testing, and in the affirmative to indicate the specific conditions governing it. Accordingly, we vote in favour of upholding the High Court’s decision.”
Following the Supreme Court’s decision, KFM’s corpse was exhumed and tissue samples were taken. However, the Forensic Genetics Institute was unable to make a typological classification of the samples, apparently owing to the time that had elapsed since KFM’s burial.
On 19 January 2004 the City Court of Holstebro delivered the following judgment:
“The forensic genetic tests carried out and the content of the written statements corroborate the claim that [KFM] is the father of [B and P]. The court does not find, however, that the test results and the statements can be given such weight as to prove with sufficient certainty that [KFM] had intercourse with the mother at the time of conception. Therefore, the court finds in favour of the defendant [the estate of KFM].”
Accordingly, N, as the only legitimate son of KFM and sole heir, inherited the estate.
The Administration of Justice Act was amended by Act No. 135 of 7 May 1937 when a special chapter 42 (a) on paternity suits was inserted. The relevant provisions of this chapter read as follows:
“The court shall ensure of its own motion that the [paternity] case is elucidated. Anyone who, according to information which emerges during the proceedings, could have made the woman in question pregnant shall be made a party to the case by the court.
The court itself shall decide on the calling of parties and witnesses to give testimony, and the obtaining of expert statements and other evidence. ...”
If, in order to elucidate the case, the court finds it necessary to require blood-type determination of the mother, the child or the respondent(s), it shall ensure that the necessary tests are carried out. When the circumstances strongly support such action and it can be taken without significant disturbance to the person in question, the court may also take steps to have other tests carried out on these persons, who shall be required to present themselves for tests, provide blood samples, etc. If they refuse, the measures in sections 177 and 189 shall be applicable.”
The above-mentioned provisions of the Administration of Justice Act were amended by Act No. 201 of 18 May 1960. This Act contains the following section 2 concerning scope and transitional period:
“This Act shall enter into force on 1 January 1961. It shall not apply to the Faroe Islands or Greenland. The Act shall apply only to cases concerning children born after its entry into force [...].”
Sections 456 (k) and 456 (l) of the current Administration of Justice Act read as follows:
“If, in order to elucidate the case, the court finds it necessary to require blood-type determination or other tests to be carried out on the parties, it shall ensure that such tests are carried out. The persons concerned shall be required to undergo the tests, give blood samples, etc.”
“The measures set out in section 178 shall be applicable with regard to the parties’ obligations set out in the present chapter.”
The measures to ensure compliance referred to in section 456 (l) above of the Administration of Justice Act as amended in 1937 (sections 177 and 189) are broadly similar to those found in the current Administration of Justice Act, section 178, which reads as follows:
“If for no legitimate reason a witness fails to appear ... or for no legitimate reason refuses to testify, the court may
impose a fine on the witness
fetch the witness with the assistance of the police
order the witness to reimburse costs occasioned by him or her
impose a daily fine, for a period not exceeding six months in the same case, continuously or in total
impose police detention or impose on the witness the measures prescribed in section 765, until the person appears before the court to give testimony or until the witness agrees to testify. Such measures may not be applied for a period of more than six months in the same case, continuously or in total.
Section 16 (1) of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation, etc., reads as follows:
“Interference with a corpse, other than that mentioned in chapters 3 and 4, may take place only if the deceased person, having turned 18 years old, gave his or her consent in writing.”


ITEMID: 001-113109
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DE CRISTOFARO v. ITALY AND OTHER APPLICATIONS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Mr Leandro De Felice, is an Italian national born in Naples on 9 April 1954.
2. On 4 August 1997 the applicant instituted proceedings before the Campania Regional Administrative Court.
3. The proceedings were concluded by a judgment dated 19 April 2007.
4. On 18 October 2007 the applicant applied to the Naples Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining about the excessive length of the above-mentioned proceedings.
5. The Court of Appeal, by a decree filed in the relevant registry on 7 July 2008, awarded to the applicant the sum of 6,708.32 EUR as compensation.
6. On an unspecified date in 2009, the applicant challenged the decree of the Court of Appeal of Naples before the Court of Cassation complaining about the insufficient amount of the compensation obtained.
7. The sum due was paid to the applicant on 26 November 2010. On 7 December 2010 the applicant lodged an application with the Court [no. 15064/11] complaining about the delayed payment of the “Pinto” compensation.
8. The Court of Cassation, by a decision filed in the relevant registry on 5 September 2011, dismissed the appeal and ordered the applicant to pay the legal fees, costs and expenses of the proceedings quantified at 900 EUR.
9. On 9 November 2011 the applicant lodged a further application with the Court [no. 77137/11] in relation to the same “Pinto” proceedings, complaining about the insufficiency of the “Pinto” compensation awarded to him, the order of the Court of Cassation to pay legal fees, costs and expenses of the proceedings and the ineffectiveness of the “Pinto” remedy.
10. The applicant, Mr Domenico Arpaia, is an Italian national born in Poggiomarino (Naples) on 14 September 1943.
On 29 January 1990 the applicant instituted administrative proceedings before the Campania Regional Administrative Court.
11. The proceedings ended on 24 October 2008.
12. On 9 June 2008 the applicant instituted “Pinto” proceedings before the Court of Appeal of Naples, seeking compensation for the excessive length of the above-mentioned proceedings, which at the time were still pending.
13. The Court of Appeal of Naples, by a decree filed in the relevant registry on 21 November 2008, awarded to the applicant the sum of 8,266.66 EUR as compensation.
14. On an unspecified date in 2009 the applicant challenged the decree before the Court of Cassation, complaining about the insufficiency of the compensation obtained.
15. The sum due was paid to the applicant on 23 September 2011.
16. The Court of Cassation, by a decision filed in the relevant registry on 29 August 2011, dismissed the appeal and ordered the applicant to pay the legal fees, costs and expenses of the proceedings quantified at 1,000 EUR.
17. On 27 September 2011 the applicant lodged an application with the Court [no. 67544/11] complaining, inter alia, about the insufficient amount of the “Pinto” compensation.
18. On 9 November 2011 the applicant lodged a further application with the Court [no. 77145/11] in relation to the same “Pinto” proceedings, complaining about the delayed payment of the “Pinto” compensation and the ineffectiveness of the “Pinto” remedy.
19. The applicant, Mr Giuseppe De Cristofaro, is an Italian national born in Naples on 13 April 1949.
20. On 12 March 1997, the applicant filed an appeal against a decision of the Nola Magistrate’s Court before the Rome Labour Court.
21. The final judgment in the proceedings was delivered on 19 June 2003.
22. On 11 October 2004 the applicant instituted “Pinto” proceedings before the Court of Appeal of Rome, seeking compensation for the excessive length of the above-mentioned proceedings.
23. By a decree filed in the relevant registry on 21 March 2005, the Court of Appeal of Rome awarded to the applicant the sum of 1,050 EUR as compensation.
24. On an unspecified date in 2006, the applicant challenged the decree before the Court of Cassation, complaining about the insufficiency of the compensation obtained.
25. On 23 March 2007 the sum awarded by the Court of Appeal of Rome was paid to the applicant.
26. On 5 July 2007 the applicant lodged an application with the Court [no. 30464/07] complaining about the delayed payment of the compensation awarded by the Court of Appeal of Rome.
27. By a decision filed in the relevant registry on 4 December 2008, the Court of Cassation upheld the appeal of the applicant and increased the compensation to 3,000 EUR.
28. On 23 February 2012 the sum due was paid to the applicant.
29. On 8 March 2012 the applicant lodged a further application with the Court [no. 15981/12] in relation to the same “Pinto” proceedings, complaining about the delayed payment of the “Pinto” compensation awarded by the Court of Cassation and the ineffectiveness of the “Pinto” remedy.
30. The applicant, Mr Andrea De Micco, is an Italian national born in Naples on 27 August 1940.
31. On 28 October 1999 the applicant instituted administrative proceedings before the Campania Regional Administrative Court. The final judgment in the proceedings was delivered on 14 June 2005.
32. On an unspecified date in 2006 the applicant instituted “Pinto” proceedings before the Court of Appeal of Naples, seeking compensation for the excessive length of the above-mentioned proceedings.
33. By a decree filed in the relevant registry on 21 July 2006, the Court of Appeal of Naples awarded to the applicant the sum of 1,000 EUR as compensation.
34. The sum due was paid to the applicant on 7 July 2010.
35. On 7 September 2010 the applicant filed an application (no. 57150/10) before the Court complaining about the delayed payment of the compensation awarded by the Court of Appeal of Naples.
36. On an unspecified date in 2007 the applicant challenged the decree of the Court of Appeal of Naples before the Court of Cassation, complaining about the insufficiency of the compensation obtained.
37. By a decision filed in the relevant registry on 19 October 2009, the Court of Cassation upheld the appeal and increased the compensation to 2,850 EUR.
38. The sum due was paid to the applicant on 3 February 2012.
39. On 24 February 2012 the applicant lodged a further application with the Court (no. 15985/12) in relation to the same “Pinto” proceedings, complaining about the delayed payment of the “Pinto” compensation awarded by the Court of Cassation and the ineffectiveness of the “Pinto” remedy.


ITEMID: 001-59690
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF G.B. v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-b;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 10. In the course of a judicial investigation concerning the applicant, his wife, his former brother-in-law and one of his nephews, the applicant was remanded in custody on 16 June 1993 and charged with rape of a child under 15 (his niece), sexual assaults on children under 15 (his nephews) and a number of further counts of sexual assault.
On 16 September 1993 the investigating judge at the Lorient tribunal de grande instance ordered medico-psychological examinations of the applicant’s niece and all the persons under investigation. He appointed two doctors, named Gautier and Daumer, for that purpose.
11. The two doctors were informed of the applicant’s criminal record. In addition to a number of prison sentences, this included an investigation opened in 1989 into charges against the applicant of sexual interference with the daughter of his brother-in-law’s sister.
12. On 29 October 1993 the experts filed their report on the applicant. They stated, among other things, that although the applicant, by his own admission, did have fantasist and even mythomaniac tendencies, these were not obviously pathological in nature, as had been shown two years previously by his statements regarding the relations between P.H. and K.S, two of the victims.
13. The doctors concluded as follows:
“1. Our examination of G.B. has revealed psychopathic traits and signs of sexual perversion for which objective evidence is provided by his statements regarding P.H. and C.H.
2. The offence of which he stands accused with respect to C.H. and P.H. is linked to a state of sexual perversion. It is difficult to assess the extent or the nature of this state in so far as the accused presents the facts as isolated incidents. He denies raping K.S. and so it is not possible to address that issue from a clinical viewpoint.
3. The subject is not in a dangerous state in the psychiatric sense.
4. It would not be inappropriate to impose a criminal penalty on him.
5. Rehabilitation will not pose a problem, but a cure will depend on clearer identification of the subject’s underlying sexual problem.
6. The subject was not insane within the meaning of (former) Article 64 of the Criminal Code when committing the offences of which he stands accused.
7. His state is not such as to require confinement or psychotherapeutic assistance.”
14. In November 1993 the experts’ conclusions were served on the applicant. The applicant’s detention pending trial was extended several times during the investigation of the case.
15. On 19 October 1995 the applicant and his co-defendants (J.C.H., C.H. and S.C., the applicant’s wife) were committed for trial at the Morbihan Assize Court by a judgment delivered by the Indictment Division of the Rennes Court of Appeal. The Indictment Division pointed out, in particular, that the applicant had initially denied any sexual abuse of his niece and nephews and then admitted to the conduct of which he was accused only to retract that admission. It related what had been said during the examination of the applicant’s niece on the one hand and his nephews on the other, the latter having also been accused of rape and sexual abuse by the niece. The Indictment Division also mentioned the previous convictions on the applicant’s criminal record, namely driving under the influence of alcohol, insulting a member of the police force in the performance of his duties, a hit-and-run offence and a further conviction for driving under the influence of alcohol.
16. The applicant appealed on points of law against the decision to commit him for trial, drawing attention to the vagueness of the terms used in the operative provisions of that decision. In a judgment of 26 February 1996 the Court of Cassation rejected that appeal.
17. The trial at the Assize Court began on 13 March 1997. The registrar read out the decision of the Indictment Division committing the applicant for trial. At that point the advocate-general stated that he wished to file certain documents regarding the personality of the defendants, including the applicant, and relating primarily to offences reported in 1979 and 1980.
18. The documents in question were records of evidence taken from witnesses, a procedural report by a police superintendent, a psychiatric report on the applicant at the age of 17 and a judgment relating to educational assistance. They comprised mainly a description of the applicant’s sexual conduct when he was a minor and information about his family background. They related firstly to a charge of indecent assault on a girl under 15 brought against him in 1979 in proceedings during which the applicant had said that he had done the same thing “at least a dozen times both with little girls and with little boys aged between 7 and 9” and, secondly, to several counts of indecent assault without violence on three children under the age of 15. The proceedings concerning these offences, brought in 1979, and those mentioned above were discontinued.
19. The applicant’s lawyer objected to the filing of those documents and requested an adjournment to prepare a pleading to that effect. The hearing was adjourned for thirty-five minutes. The applicant’s lawyer lodged an application for all the documents to be rejected on the ground that they related to offences that were subject to limitation and had occurred prior to various amnesty laws which could apply to them. According to the defence, the documents were so old that they contravened the principle that a defendant’s antecedents were inadmissible in evidence against him.
20. In an interlocutory judgment delivered on the same day the Assize Court rejected that application on the following grounds:
“... The prosecution, like every other party to a criminal trial, is entitled to produce at the hearing any documents that appear to be helpful in establishing the truth provided that they relate to the offences of which the defendants stand accused and shed light on their personality.
Provided that they are communicated to all the parties and can thus be examined adversarially, the production of such documents cannot have any adverse effect on the rights of the defence. ...”
21. Copies of the documents filed by the prosecution were distributed to each of the civil parties’ lawyers and the defence lawyers but the case was not adjourned.
22. When the examination of the defendants began as to their backgrounds, the applicant’s hearing was deliberately put back until the end of the afternoon. Exercising his discretionary powers, the President of the Assize Court called a teacher of children with special needs as a witness to be heard for information purposes only. Following that hearing, the respective lawyers of C.H., who stood accused along with the applicant, and of P.H. declared that they were bringing civil-party proceedings on their clients’ behalf and made a written application.
The trial was adjourned.
23. At the beginning of the afternoon the lawyer representing the applicant’s wife in turn applied for the investigation to be reopened to take account of the documents relating to her that had been filed by the prosecution. Those documents included a judgment delivered by the Lorient tribunal de grande instance in 1996, records of the hearing by that court’s registrar and written statements by S.C. The applicant’s wife’s lawyer requested that in the course of the reopened investigation the statements on the proceedings made by Mr and Mrs B. in the documents filed by the prosecution be added to the file. Failing that, the trial would have to be adjourned to a subsequent session. In support of his requests, the lawyer relied on the requirement of a fair trial.
24. In an interlocutory judgment the Assize Court deferred its decision on the above application pending completion of the hearing of evidence. The President continued his examination of the defendants until 6 p.m. with one short adjournment of fifteen minutes. At 6.20 p.m. the examination of the defendants resumed and thereafter a witness was heard.
25. Lastly, on the evening of the first day of the trial, that is on 13 March 1997, the Court heard one of the experts who had been appointed to prepare an opinion during the pre-trial investigation. He made an oral presentation of the report he had submitted on 29 October 1993 during the investigation proceedings (see paragraph 13 above).
26. The President then adjourned the proceedings for fifteen minutes during which the expert studied the new documents produced by the prosecution.
27. As soon as the hearing of the expert resumed, the latter allegedly changed his opinion, stating, among other things, that the applicant was a “paedophile” and that “psychotherapy [was] necessary, but would be ineffective for the time being”.
28. The examination of the expert lasted about two hours, at the end of which the President authorised him to withdraw permanently, a decision on which he had consulted the parties and to which none of them had raised any objection.
29. On the following day, 14 March 1997, the applicant’s lawyer disputed the expert’s oral submissions and applied for a second opinion, on the following grounds:
“After ... one of the two experts appointed by the investigating judge had made his statement before the Assize Court, he was informed of the two discontinued sets of proceedings that had been brought against G.B., who is now 34, when he was 16 years old. The depositions made by G.B. at that time were read out to the expert. Immediately after being informed of those facts, of which he had been unaware when preparing his expert opinion, the expert radically altered his submissions, stating that:
– in his view G.B. is unquestionably a paedophile;
– psychotherapeutic treatment is necessary, but, given G.B.’s current state of mind, would be totally ineffective because he has no feelings of guilt;
– the length of a prison sentence has no effect on an individual of that type as the potential to be cured depends solely on a feeling of guilt, which G.B. lacks;
– in the absence of a feeling of guilt, there is a major risk that G.B. will reoffend even after a long sentence, meaning that imprisonment can only serve as a means of protecting society. ...
G.B. formally disputes the expert’s oral submissions. A second opinion is indispensable. If it had considered it necessary, it was during the investigation that the prosecution should have filed the documents it produced at the beginning of the trial relating to proceedings brought over fifteen years ago. In that case the expert would have drawn up his report in the light of the evidence contained therein and G.B. would undoubtedly have requested a second opinion, prepared by two experts.
The Assize Court therefore heard an oral report that differed radically from the written report by the two experts.
Respect for the rights of the defence requires that a new expert opinion be ordered in the context of an application for the investigation to be reopened. Everyone has the right to a fair trial.”
30. The lawyer also applied for the applicant’s release on the ground that his client should not have to suffer the consequences of the prosecution’s having taken three years and nine months to file documents that it considered indispensable.
31. In an interlocutory judgment of 14 March the Assize Court deferred its decision on the application for further investigative measures pending completion of the hearing of evidence and rejected the application for release on the ground that detention was “necessary to ensure that the defendant remain[ed] at the disposal of the judicial authorities”.
32. The President continued to examine the defendants and obtained their statements. After that he took evidence from the applicant’s mother, from a person sentenced for a serious crime and from eight witnesses.
33. The applicant’s lawyer then reiterated his previous submissions while his wife’s lawyer withdrew the interlocutory application he had lodged with the Assize Court.
34. On 15 March 1997 the Assize Court took formal note of the withdrawal by S.C.’s lawyer. On 15 March 1997, after a procedural defect vitiating the interlocutory application made by the applicant’s lawyer had in the meantime been cured, the Assize Court nevertheless refused it. It made the following points regarding the complaint of an infringement of the rights of the defence:
“Firstly, the new documents produced by the prosecution and duly communicated to each of the parties to the proceedings could have been contested, particularly by G.B., whether directly or through the intermediary of his counsel.
Secondly, once the above documents had been brought to the notice of the expert ... and he had completed the presentation of his report, G.B. and his counsel were in a position to request any further information or explanations from him that they required.
Thus it cannot legitimately be argued that the production of new documents and their consideration by the psychiatric expert were capable of infringing the rights of the defence.
At all events, in view of the outcome of the oral examination at the hearing, it does not seem essential for the establishment of the truth to seek a second psychiatric opinion.
Consequently, there is no cause for the proceedings to be adjourned ...”
35. The Assize Court also rejected the applicant’s application for release.
36. On 15 March 1997 the Assize Court sentenced the applicant to eighteen years’ imprisonment for a number of counts of raping his niece, a child under 15, sexually assaulting a girl under 15 and sexually assaulting his nephews. The sentences imposed on the three other co-defendants were less severe (ten years’ imprisonment, a fully suspended five-year prison sentence with probation, and a five-year prison sentence, one year of which was suspended with probation).
37. The applicant appealed on points of law. In his first ground of appeal he argued that the Assize Court’s consenting to file the documents produced by the prosecution amounted to a violation of his right to a fair trial, particularly the principle of equality of arms, since his lawyer had only had half a day to study the documents in issue whereas the prosecution had had them for some time. Relying also on Article 6 of the Convention, the applicant submitted another plea regarding the Assize Court’s refusal to order a second opinion. He argued that the examination by the expert of the new documents that had been produced at the hearing, which had made him radically change his initial submissions, required an effective second opinion for the sentence imposed to satisfy the legal requirement that it must be suited to the personality of the defendant.
38. In a judgment of 11 February 1998 the Criminal Division of the Court of Cassation rejected the appeal in its entirety. Regarding the grounds of appeal based on an infringement of the right to a fair trial, the Court of Cassation stated as follows:
“When, after the decision committing the defendant for trial had been read out, the advocate-general produced various documents including the records of a number of discontinued proceedings relating to the defendant, the defence objected and requested that those documents should not be filed.
As justification for its rejection of that request, the Assize Court stated that the prosecution, like every other party to criminal proceedings, is entitled to produce at the trial any documents that appear to afford assistance in establishing the truth in so far as they relate to the offences of which the defendants stand accused and shed light on their personality. If they have been communicated to all the parties so that there has been an opportunity for adversarial argument about them, the production of such documents cannot legitimately be said to have any adverse effect on the rights of the defence.
In ruling to that effect, the Assize Court provided a legal basis for its decision without laying itself open to the objection raised in the ground of appeal because, the adversarial principle having been respected, no statutory or treaty provision prevented documents relating to offences subject to limitation but not covered by an amnesty being filed in that way. ...
As justification for its refusal to order the second expert opinion sought by the defence, the Court, having deferred its decision on the examination of that application, held, after taking evidence, that the requested measure was not indispensable for the establishment of the truth.
In ruling to that effect, the Assize Court, which was not obliged to respond to mere arguments in submissions, determined a matter over which it alone had jurisdiction, deciding that there was no reason to allow the application.”
39. The relevant provisions of the Code of Criminal Procedure on hearings before assize courts provide as follows:
“If the investigation appears to him to be incomplete or if new evidence has emerged since its closure, the president may order any further inquiries he deems necessary. ...”
“The president may, of his own motion or on an application by the public prosecutor, order cases which do not seem to him to be ready to be tried during the session in which they have been listed for hearing to be adjourned to a subsequent session.”
“The president shall be responsible for the proper management of the trial and shall direct the proceedings.
He shall reject anything that is calculated to undermine their dignity or prolong them without creating the hope of more certain results.”
“The president is vested with a discretionary power under which he may, on his honour and according to his conscience, take any steps that he believes may assist in establishing the truth. He may, if he deems it appropriate, place the matter before the court, which shall rule in accordance with the conditions set out in Article 316.
During the trial he may summon any person, where necessary by means of a warrant, and examine him, or demand to see any new evidence which he considers likely, in the light of argument at the trial, to assist in establishing the truth. Witnesses called in this way shall not be required to take an oath and their statements shall be regarded as being solely for information purposes.”
“All interlocutory issues shall be decided by the court, after the prosecution, the parties or their lawyers have been heard.
Interlocutory judgments may not prejudge the merits.
They may be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits.”
“Once the evidence has been heard, civil parties or their lawyers shall be heard. The prosecution shall make its submissions.
The defendant and his lawyer shall submit their defence pleadings.
Civil parties and the prosecution have the right to reply but the defendant or his lawyer shall always speak last.”
40. According to the established case-law of the Criminal Division of the Court of Cassation (Cass. crim.) (see, in particular, Cass. crim. 13 May 1976, Bulletin criminel (Bull. crim.) no. 157, and Cass. crim. 4 May 1988, Bull. crim. no. 193):
“The prosecution shall be free to decide the content of its submissions. It shall be entitled to produce any documents and provide any explanations that it considers necessary, subject to the right of the parties concerned to reply.”
41. According to other established precedents of the Criminal Division of the Court of Cassation (see, in particular, Cass. crim. 19 April 1972, Bull. crim. no. 132, and Cass. crim. 5 February 1992, Bull. crim. no. 51):
“Under Article 287 of the Code of Criminal Procedure, defendants are not entitled before the opening of the trial to file an application for the case relating to them to be adjourned to a subsequent session.”
42. Evidence given by experts is governed by the following provisions of the Code of Criminal Procedure:
“Experts shall, if necessary, give evidence in court on the results of their technical investigations, after swearing to assist the court on their honour and according to their conscience. When giving evidence, they may consult their report and its annexes.
The president may, of his own motion or at the request of the prosecution, the parties or their counsel, ask experts any questions falling within the sphere of the task assigned to them.
Following their statement, experts shall attend the hearing unless the president authorises them to withdraw.”
“If at the hearing of a trial court a person heard as a witness or for information purposes contradicts the conclusions of an expert report or provides new technical insights, the president shall ask the experts, the prosecution, the defence and, if the case arises, the civil party, to submit their observations. The court shall declare in a reasoned decision either that the contradiction shall be disregarded or that the case shall be adjourned to a subsequent date. In the latter case, the court may order any measure it deems necessary with regard to the expert opinion.”
43. The provisions of the Code of Criminal Procedure relating to such records provide as follows:
“To ensure that the required formalities have been carried out, the registrar shall draw up a record which shall be signed by the president and the registrar.
The record shall be drawn up and signed within three days at the latest of the delivery of judgment.”
“Unless the president orders otherwise, of his own motion or at the request of the prosecution or the parties, the record shall include neither the defendants’ replies nor the content of depositions, subject nonetheless to the implementation of Article 333 regarding additions, changes or variations in witnesses’ statements.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-23465
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CLARKE and 3 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: See attached table.
The relevant domestic law is set out in various decisions in respect of similar applications, see, for example, Dodds and others v. the United Kingdom ((dec.), no. 59314/02, 8 April 2003).


ITEMID: 001-93886
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SEMENOVYCH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1944 and lives in the town of Chervonograd, Ukraine.
5. On 17 September 2003 the Chervonograd Court awarded the applicant 34,041.65 Ukrainian hryvnas (about EUR 5,887) in salary arrears and other sums, to be paid by the State company Chervonogradske girnichomontazhne upravlinnya.
6. The judgment became final and enforcement proceedings were instituted.
7. On 25 June 2007 the Bailiffs’ Service returned the writ of enforcement to the applicant since there was a tax lien over the company’s property and it was therefore not possible to attach it. The applicant did not challenge this decision before the domestic courts; nor did he relodge the writ of execution with the Bailiffs’ Service.
8. The judgment in the applicant’s favour remains unenforced.
9. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, §§ 16-19, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, §§ 20-25, 29 June 2004.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-80480
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF A.H. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3-d
JUDGES: Nicolas Bratza
TEXT: 6. On 24 February 1997 T., a six-year old boy, described to S., a psychologist, that he had experienced improper touching while in day care and referred to the applicant in this connection. The interview was recorded on videotape in the Family Advice Centre.
7. The next day the alleged offence was reported to the police. On 13 March 1997, T. was interviewed again by S., on that occasion in the course of the pre-trial investigation which had been opened. That interview was also recorded on videotape.
8. The applicant was questioned on 26 and 27 March 1997. He was not aware of the existence of the above recordings.
9. On 7 April 1997 S. submitted a written opinion on the credibility of T.'s statements.
10. In his closing argument on an unspecified date the applicant contested the alleged improper touching. He noted that the videotape, which he had become aware of following the submission by S. of the above-mentioned written opinion, and the opinion itself, were indirect evidence, which in the light of the Convention had to be treated with extreme care. He questioned whether the questions put to the boy had not been leading in nature. He also submitted that the boy would have to be heard in court, should charges be brought. He did not request an additional investigation.
11. The applicant was charged with having indecently touched the boy when working at a day nursery which the boy attended. The alleged offence had taken place repeatedly over a period of several months beginning in the autumn of 1996.
12. The video recording was played back in the District Court (käräjäoikeus, tingsrätten) and the court heard evidence from the applicant, T.'s mother and S., the psychologist who had interviewed the boy. H., a doctor in psychology specialising in criminology and forensic psychology, who had not interviewed the boy herself, was also heard as a witness. Several other witnesses, including the applicant's colleagues and the parents of other children in day care, gave testimony. None of the witnesses made any observations on the alleged acts. The parents gave evidence only on the perceived changes in their children's personality. The psychologist testified only about the reliability of T.'s statements.
13. On 29 October 1997 the District Court convicted the applicant of sexual abuse and sentenced him to a suspended term of seven months' imprisonment. It reasoned:
“...
S. has interviewed T. and the interviews have been recorded on videotape. The videotape has been played back in the District Court where witnesses S. and H. have also seen it. S. and H. have been heard as witnesses and [the applicant] has had an opportunity to put questions to them. The fact that [the applicant] had no opportunity to put questions to T., for example during the pre-trial investigation, does not mean that the above-mentioned evidence could not be taken into account. At the time of the pre-trial investigation T. was six years old and he had his seventh birthday in August 1997. Thus, he could not be heard before the court. Even though [the applicant] has had no opportunity to put questions directly to T., the rights of the defence cannot be considered to have been jeopardised. In the light of the evidence submitted to it, the District Court has no doubt that [the applicant] is guilty [...].
...”
14. The applicant, the prosecution and the complainant appealed, arguing that the lower court had based his conviction on T.'s testimony as given to his mother and also later recorded on videotape. He requested the appellate court to hold that this indirect evidence could not be used in evidence. He also repeated his view that leading questions may have been put to the boy. He stated that his right to examine witnesses had been violated as he had not had an opportunity to put questions to T.
15. On 26 June 1998 the Court of Appeal (hovioikeus, hovrätten), having held an oral hearing, upheld the conviction but increased the sentence to fourteen months' imprisonment with immediate effect. It found that the technical quality of the videotape, which had been played back in the court, was poor as regards its image and sound reproduction and that the contents of T.'s statements could not be reliably assessed merely on the basis of that recording. The recording however showed that S. had carried out the interview without any preconceived idea of its outcome. The statements of two of the applicant's colleagues showed that it would have been possible for the applicant to have acted as described in the indictment without anyone noticing. The statements of T.'s mother and other day care children's parents showed that there had been changes in their children's behaviour after they had been in contact with the applicant. The court did not mention the applicant's argument that he had not been able to put questions to T.
16. The applicant sought leave to appeal, arguing that he had not been afforded an opportunity to put questions to T. The indirect evidence should therefore have been rejected.
17. On 25 September 1998 the Supreme Court refused leave to appeal.
18. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).
19. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3)). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8).
20. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1)). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34).
21. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42).
22. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony.
23. A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948).
24. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten.
25. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence.
26. The Code of Judicial Procedure was amended with effect from 1 October 1997 to the following effect. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit as evidence such a statement, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997).
27. The Code of Judicial Procedure was again amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence.
28. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows:
“(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and:
(i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and
(ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development.
(2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997).
(3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.”
29. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows:
“The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d