Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 5-3;Questions of procedure accepted;Violation of Art. 3;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national born in DATE , resides at GPE ( ORG ) . He is both a shopkeeper and a salaried accountant . At the time of his arrest , he was an active member of a NORP political organisation , which put up candidates for the local elections and of which he was the treasurer .

On DATE the police apprehended him in his shop and placed him in police custody until DATE at GPE central police station .

They suspected him of having taken part in an attack at ORG ) in TIME of CARDINAL DATE against the rest centre of ORG , which was unoccupied at that time of DATE . Senior Corporal PERSON and PERSON , who , unarmed , were responsible for maintaining and guarding the centre , had been shot at and wounded , the former fatally and the latter very severely .

The attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features . The following day the " ex - FLNC " ( ORG ) , a movement seeking independence which had been dissolved by decree , had claimed responsibility for the attack and for CARDINAL other bomb attacks which had been perpetrated the same night .

On CARDINAL DATE the Bastia tribunal de grande instance had opened an investigation relating to charges of murder , attempted murder and the carrying of category CARDINAL and category CARDINAL weapons and ammunition . The same day the investigating judge had issued instructions for evidence to be taken on commission ( commission rogatoire ) to ORG ( SRPJ ) of GPE .

On DATE Mr Pancrazi , investigating judge at ORG , charged PERSON and remanded him in custody following the latter ’s first appearance before him ; he took the same measures in respect of a certain Mr Pieri . On DATE he questioned PERSON on his alleged involvement in the offences .

He took evidence from witnesses on DATE , DATE and DATE , DATE and DATE , DATE and DATE and DATE .

On DATE he questioned PERSON and on DATE another co - accused , PERSON , who had been held on remand since DATE . He organised confrontations between them on CARDINAL and DATE , and then on DATE .

In addition he issued formal instructions for evidence to be taken on DATE and DATE .

The recapitulatory examination of PERSON and PERSON was conducted on DATE , and that of PERSON on DATE .

On DATE the investigating judge visited the scene of the crime .

The case was transferred to another investigating judge , PERSON , with effect from DATE .

ORG escaped from prison on DATE ; he was recaptured on DATE .

DATE and DATE , Mr PERSON issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities .

On DATE he rejected a request by the applicant for documents to be added to the file .

PERSON submitted CARDINAL applications for release .

The investigating judge rejected them by orders of CARDINAL May , DATE and DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL May and CARDINAL DATE . On DATE he issued instructions that the applicant be interviewed in GPE on the conditions of his detention on remand . That interview took place on DATE .

The applicant challenged the orders of DATE , DATE , DATE and DATE , but the indictments division ( chambre d’accusation ) of ORG upheld them on DATE , CARDINAL DATE , and DATE and DATE .

In its judgment of DATE it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses , to prevent unlawful collusion between the accomplices , to protect public order ( ordre public ) from the prejudice caused by the offence and to ensure that PERSON remained at the disposal of the judicial authorities .

On DATE the ORG public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island .

On DATE the principal public prosecutor at ORG referred the matter to ORG ( criminal division ) , which gave its decision on CARDINAL May ; it transferred the case to the GPE investigating judge " in the interests of the proper administration of justice " ( Article CARDINAL of LAW ) .

On DATE Mr Nicod , investigating judge at GPE , interviewed PERSON for the first and last time .

He questioned Mr PERSON on DATE and CARDINAL DATE , and PERSON - another co - accused - on DATE . In addition , he organised a confrontation between them on DATE .

On DATE the investigating judge made an order transmitting the documents to the prosecuting authorities .

On DATE the GPE public prosecutor decided to forward the case - file to the principal public prosecutor ’s office .

From DATE to mid - April CARDINAL , the investigating judge added various documents to the file . On DATE he made a further order transmitting the case - file to the prosecuting authorities , endorsed by the GPE public prosecutor ’s office .

The case - file was forwarded to the principal public prosecutor ’s office by a decision dated DATE .

PERSON submitted CARDINAL applications for his release .

The investigating judge dismissed his applications on DATE , DATE , DATE , CARDINAL DATE , DATE and DATE and DATE .

On appeals against various of the investigating judge ’s orders , the indictments division of ORG upheld them by decisions of DATE and DATE .

The first such decision referred to the particular gravity of the offences , the existence of " precise and convincing evidence " , the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial .

The second decision contained the following reasoning :

" It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order ; without disregarding the pertinent observations of the accused ’s counsel concerning the length of the proceedings , it appears nevertheless that , as the investigating judge decided , PERSON ’s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial ; "

The CARDINAL decisions gave rise to appeals on points of law by the applicant , which were dismissed by the criminal division of ORG on DATE and CARDINAL DATE .

The latter decision was based on the following reasons :

" In the light of the available evidence ORG is satisfied that the indictments division ordered the continuation of the applicant ’s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions , and for cases , specified in LAW ; it may also be seen from the grounds of the decision that there is in this case , as is required under LAW para . CARDINAL ( c ) ( article QUANTITY ) of the LAW , ... reasonable suspicion that the accused has committed an offence ; it follows moreover that , having regard to the specific circumstances of the case and the proceedings , the duration of the detention appears reasonable ; "

On CARDINAL DATE the indictments division of ORG indicted PERSON and PERSON for murder with premeditation , attempted murder with premeditation and carrying category CARDINAL and category CARDINAL weapons , together with the corresponding ammunition ; it committed them - as well as Mr PERSON and PERSON - for trial at the PERSON assize court .

On CARDINAL DATE the criminal division of ORG allowed the appeal lodged by the applicant on DATE on the ground that defence counsel had not been allowed to speak last at the hearing on DATE

It remitted the case to the indictments division of ORG , instructing that court to commit the accused for trial at the PERSON assize court if there were grounds for indicting him ( LAW ) .

On DATE the ORG indictments division committed Mr PERSON for trial at the PERSON assize court .

This decision did not give rise to an appeal on points of law .

On CARDINAL DATE the indictments division of ORG ruled that it lacked jurisdiction to commit the applicant - but not his CARDINAL co - accused - for trial at the specially constituted PERSON assize court , in other words the assize court sitting without a jury . The principal public prosecutor ’s office had requested it to apply the provisions of PERSON no . CARDINAL - CARDINAL of DATE , according to which persons accused of acts of terrorism must be tried before such a judicial body .

On CARDINAL DATE the criminal division of ORG dismissed the appeal on this issue filed by the principal public prosecutor at ORG .

On DATE the ORG indictments division allowed an application lodged on CARDINAL DATE by the prosecuting authority and committed the applicant for trial at the specially constituted PERSON assize court . It thereby acknowledged that the offences of which PERSON was accused were " related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror " ( Article CARDINAL - CARDINAL of the Code of Criminal Procedure ) .

On DATE the criminal division of ORG dismissed a further appeal by the applicant .

By a decision of CARDINAL DATE ( see paragraph CARDINAL above ) , the GPE indictments division dismissed an application for release which PERSON had submitted on DATE It gave the following grounds :

" The detention on remand , which started on DATE , has certainly lasted a very long time . However , the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge . The period of detention , although long , does not in itself constitute a violation of LAW . On the contrary , in this particular case continued detention appears to be essential , given the exceptional gravity of the offences and the fact that PERSON would not hesitate to abscond if he were released . "

The applicant filed an appeal on points of law , but the criminal division of ORG rejected the submission based on the violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention . On this issue its judgment of CARDINAL DATE stated as follows :

" In the light of the available evidence ORG is satisfied that the applicant ’s continued detention was properly ordered in accordance with the conditions laid down in Article CARDINAL - CARDINAL of the [ Code of Criminal Procedure ] , by a decision setting out specific reasons , having regard to the features of the case as is required under Article CARDINAL of that Code and for cases exhaustively listed in Article CARDINAL ;

In addition the indictments division discussed the complexity and the length of the proceedings , carrying out an unfettered appraisal of the facts , which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [ ; it follows ] that the submission must fail ... "

PERSON submitted a new application for release on DATE .

By a decision of CARDINAL DATE ( see paragraph CARDINAL above ) the GPE indictments division found that it lacked jurisdiction as the committal had been decided by the PERSON indictments division .

On DATE the applicant lodged a further application for his release .

On DATE the GPE indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons , the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise .

The applicant lodged a further application for release on CARDINAL DATE with the indictments division of ORG , which dismissed it on DATE for the following reasons :

" A campaign of intimidation against the witnesses , policemen and judges has been waged in the course of the investigation ;

A mere recital ... of the offences which led to PERSON being charged is sufficient , besides the fact that the said offences seriously prejudiced public order , to justify the accused ’s continued detention ; there is a grave danger that if he were to be released he would enter into contact with members of the PERSON , who would no doubt be only too pleased to help him evade trial ; it does not appear that his continued detention is , in the circumstances , such as to infringe the provisions of the Convention ... "

On DATE the applicant once again applied to the GPE indictments division for his release .

On DATE his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby .

He then filed an appeal on points of law , which the criminal division of ORG dismissed on DATE .

On DATE the President of ORG had directed that the session of the assize court was to open on DATE .

On DATE the President decided to postpone the opening of the session until DATE , following an exchange of correspondence in DATE and DATE between the principal public prosecutor ’s office and counsel for PERSON and PERSON .

On DATE and DATE he altered the composition of the trial court .

The trial took place from CARDINAL to CARDINAL DATE . On DATE , the applicant was acquitted and immediately released . His CARDINAL co - accused were given suspended sentences of DATE imprisonment for carrying or possession - as the case may be - of a category CARDINAL weapon .

On DATE PERSON lodged a claim with ORG at ORG under LAW . According to this provision , " ... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer ( non - lieu ) or acquitting him , when that decision has become final , where such detention has caused him damage of a clearly exceptional and particularly serious nature " .

On DATE the principal public prosecutor ( procureur général ) at ORG made the following submissions to ORG :

IN THE MATTER OF THE DETENTION

During his detention , PERSON lodged CARDINAL applications for release , CARDINAL applications to the LOC investigating judge and CARDINAL to the investigating judge and the indictments division in GPE .

CARDINAL judgments confirming decisions were given , CARDINAL by the ORG indictments division and CARDINAL by that of GPE .

Finally , CARDINAL decisions of the criminal division of ORG , of DATE and DATE , dismissed PERSON ’s appeals from the CARDINAL decisions of the GPE indictments division .

In their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences , the prejudice caused to public order , the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses .

DISCUSSION

The length of the proceedings

. From DATE , the date on which the investigation was opened , to CARDINAL DATE , PERSON was not yet implicated .

. From DATE , the date on which PERSON was charged , to CARDINAL DATE , the date of his recapitulatory examination , the proceedings progressed at a normal pace and there were no delays .

. From DATE to DATE the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier .

Thus the result of the commission rogatoire concerning the victim ’s spectacles was not communicated until DATE ; it had not been issued until DATE ... , whereas it could have been right at the beginning of the investigation .

Similarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the ORG camp and for a study and plans to be made of the LOC was not issued until DATE ...

The evidence obtained under that commission rogatoire was produced only in the course of DATE and DATE , which undeniably prolonged the proceedings .

. The lack of progress in the proceedings DATE and DATE is incomprehensible . Thus DATE elapsed between the order of CARDINAL DATE transmitting the papers to the prosecuting authority and the additional prosecution submissions of DATE calling for a ballistic examination , which had already taken place . Yet it was not until the following DATE , DATE , that the investigating judge gave his order dismissing that request for an expert examination .

. From DATE to DATE , the time taken for the transmission of documents to the indictments division and then ORG and the return of the file to GPE seems normal .

. On the other hand it was not until DATE , DATE after the case had been referred to him , that the GPE investigating judge carried out his first substantive investigative measure by interviewing PERSON , after having dismissed the latter ’s applications for release on CARDINAL occasions .

This lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand ; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible .

. From DATE to CARDINAL DATE the interrogations and confrontations were continued at the rate of CARDINAL investigative measure per month . Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly .

. From DATE to DATE the time taken to complete the file and transmit it to the assize court appears normal .

. On the other hand , from DATE there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights .

. Finally , it should be noted that the decision in the course of DATE and DATE to renounce holding the DATE session and to replace it by a session fixed for CARDINAL DATE was taken by mutual agreement between the prosecuting authorities and the defence .

In conclusion , in view of the significance and the complexity of the case the investigation was bound to last longer than average . However , it could have been considerably shortened without the various delays noted above .

The necessity of keeping PERSON in detention during the proceedings

Given the nature and the gravity of the offences and the results of the police investigation , PERSON ’s detention was at first justified , up until his recapitulatory examination of DATE .

Moreover , until DATE , PERSON had not filed an application for release . However , by DATE the witnesses had already been interviewed and the confrontations carried out .

The measures taken after that date , in particular the commissions rogatoires and the expert examinations , did not concern PERSON directly , except the expert medical examinations ordered following his declarations regarding the conditions of his police custody , which clearly could not justify his continued detention .

It should moreover be stressed that DATE , the date of the recapitulatory record , and DATE , the date on which the assize court session opened , in other words for DATE , PERSON was questioned only once , on DATE , and at his request .

The decisions rejecting his various applications for release were based on the exceptional gravity of the offences , the prejudice caused to public order , the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses .

The gravity , even of an exceptional nature , of offences may constitute a ground for detention only if there is sufficient evidence against the person held .

In this case , charges had been preferred against PERSON , who had always protested his innocence and had been on hunger strike several times , exclusively on the basis of PERSON ’s statements , which were far from being as precise as they were claimed to be throughout the proceedings .

In fact , according to various documents from the proceedings , and in particular :

- the report of the public prosecutor to the ORG principal public prosecutor of DATE ... ,

- the memorandum from the SRPJ of GPE of CARDINAL DATE ... ,

- the application by the ORG investigating judge for a transfer of jurisdiction of DATE ... , PERSON stated that PERSON had suggested that he take part in the ` nuit bleue’ ( TIME of terrorist outrages ) of CARDINAL to CARDINAL DATE , and specifically carry out an attack against ORG camp of ORG .

Yet if all PERSON ’s statements are read carefully it may be seen that although he did state that PERSON had suggested that he participate in the ` nuit bleue’ , at no time did he mention an attack against the ORG camp ...

Quite the contrary , PERSON always claimed that he had learned of the attack for the first time DATE after the events .

Thus , for example , in the course of his interrogation at his first appearance before the investigating judge ... PERSON stated as follows :

‘ I was aware that GPE knew PERSON . The latter had indeed suggested DATE that I should take part in a ` nuit bleue’ . I had refused , but at no time did he say what attack I would have been expected to carry out . As for me , I only heard about the legionaries through the newspapers , on TIME CARDINAL February.’

Furthermore , it should be observed that all the witnesses who confirmed PERSON ’s statements merely reported what he had told them . None of them was a direct witness to the events .

In addition , it does not seem that the release of PERSON , who could provide sound guarantees that he would appear for trial and who had no previous convictions , could have represented a risk of pressure being brought to bear on witnesses or on PERSON , a co - accused who was free .

In fact , PERSON , like GPE and PERSON , was not remanded in custody until DATE after the events and GPE , implicated by the same witnesses as PERSON , had escaped from prison on DATE and remained free for DATE until his arrest on DATE , apparently without any pressure being brought to bear on the witnesses .

Finally , it should be noted that on DATE PERSON lodged an application with ORG CARDINAL ( article CARDINAL ) of LAW , making the following complaints :

- excessive duration of his detention on remand ( violation of LAW para . CARDINAL of the Convention ) ( article CARDINAL ) ;

- inhuman and degrading treatment during his police custody ( violation of LAW ) ( article CARDINAL ) ;

- excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim ( violation of LAW para . CARDINAL of the Convention ) ( article CARDINAL - CARDINAL ) .

This application was the subject of a report by ORG adopted on DATE , in which the ORG declared the application admissible and expressed the opinion by CARDINAL votes to CARDINAL that there had been , in the case under review , a violation of LAW ) of the LAW , by CARDINAL votes to one , that there had been a violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and , unanimously , that there had been a violation of LAW para . CARDINAL ( article CARDINAL ) of the Convention .

IN CONCLUSION

In the light of the various considerations set out above , and the particularly distressing conditions of his detention , PERSON , who spent DATE and DATE in detention and in respect of whom the investigation produced only weak and insufficient evidence , suffered considerable damage on this account .

For all these reasons I call upon the ORG to award appropriate compensation . "

By a decision of CARDINAL DATE , which contained no statement of the reasons on which it was based , ORG awarded the applicant MONEY .

PERSON was apprehended on DATE at TIME ( see paragraph CARDINAL above ) . He remained in police custody until TIME on DATE , in other words TIME , Judge PERSON having granted the police an extension of TIME at TIME on DATE .

During this period , the applicant :

( a ) had been present at a search of his home on DATE from TIME to TIME ;

( b ) had undergone several interrogations :

- on DATE from TIME to TIME , from TIME and from TIME to TIME , a total of TIME and TIME ;

- on DATE from TIME to TIME , from TIME , from TIME , from TIME to TIME and from TIME to TIME , a total of TIME and TIME ;

- on DATE from TIME to TIME , TIME ;

( c ) had been examined on DATE at TIME by a doctor , who had concluded that his state of health was compatible with the extension of the police custody .

The applicant signed the recapitulatory record drawn up at the end of his police custody , but refused to sign that of his last interrogation .

On DATE , when he first appeared before the investigating judge ( see paragraph CARDINAL above ) , he made the following statement :

" I note the charges of which you have informed me . I am a declared member of the CCN [ Cunsulta di i cumitati naziunalisti ] . I am not a member of the PERSON . I will make a statement later in the presence of my lawyer , Mr PERSON .

I should like to add , however , that I was struck during my police custody by police - officers ; I do not wish to give their names . I was not allowed any rest . I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich . TIME , I was left naked in front of an open window for TIME . I was then dressed and beaten up . This went on continuously throughout the police custody . I can show you bruises on my chest and a red patch under my left ear . "

The judge had the words " seen , correct " entered at the end of this statement .

On DATE Mr PERSON laid a complaint against persons unknown together with an application to join the proceedings as a civil party ( constitution de partie civile ) , " for assault committed by officials in the performance of their duties and abuse of an official position " .

The following day the senior investigating judge ordered that the applicant lodge a deposit set at MONEY and communicated the file to the public prosecutor ’s office .

On DATE Mr Pancrazi , the investigating judge , interviewed as a witness Dr PERSON , Senior Medical Officer at FAC . He stated as follows :

" I am a medical officer in ORG and I examined PERSON on his arrival at the prison and PERSON , as I do with all the inmates .

In Félix PERSON ’s case , I observed behind the left ear a haematoma which had spread slightly towards the cheek . I noted slight superficial scratches on the chest . In addition , PERSON reported pain in his head and neck , as well as in his legs , arms and back , but , as I have already stated , I was unable to find objective evidence to support these claims .

In both cases the injuries were very slight with no serious features and could not lead to incapacity for work . "

On DATE the same judge had instructed a Dr Rovere , an expert attached to ORG , to carry out the following tasks :

" CARDINAL . Effect an examination of the victim ’s injuries , illnesses or disabilities , describe them , specify their likely sequelae and give an opinion as to their causes ;

Describe the extent of the incapacity and assess its probable duration . "

The doctor , who had examined PERSON on DATE at TIME in the prison , in the presence of the investigating judge , lodged his report on DATE . The report stated as follows :

" III . CURRENT CONDITION

( CARDINAL ) Symptoms complained of Mr PERSON complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of .

( CARDINAL ) Clinical examination

( a ) General examination :

. Weight : QUANTITY ; height : CARDINAL ( estimation ) . Blood pressure : CARDINAL . Pulse rate : CARDINAL beats to TIME . Cardiopulmonary examination : normal .

( b ) Cranio - facial segment :

- Two barely visible abrasions , one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid , measuring QUANTITY in length , colour purplish - red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes ( the patient states that he had this condition before his police custody ) , non- traumatic in origin - Neurological examination : . Pupils equal size , regular and contractile . No nystagmus . PERSON negative . No asymmetry , no dysdiadochokinesis . Tendon reflexes - normal . No deviation in the index finger test and the blind walk test - Left ear : . A dark - red - coloured bruise , warm and allegedly painful on palpation , in the helix and the anthelix . The external auditory meatus and the eardrum show no sign of a traumatic injury .

( c ) Cervical rachis :

- No apparent trace of traumatism . Pressure on the processus spinosis of the cervical vertebrae CCARDINAL and CCARDINAL allegedly painful . Unrestricted neck movement , cracking sounds in articulations could be heard on side movements of the head ( commonplace after DATE ) . No muscular contraction .

( d ) Thorax and abdomen :

- Ecchymotic striae ( vibices ) located as follows : . one at the level of the praesternum . one at the level of the metasternum . CARDINAL others at the level of the epigastric region . one at the level of the right hypochondrium . These marks are red in colour , surrounded by a purplish halo , visible in non - artificial light and allegedly painful on palpation . - No hepatomegaly - No splenomegaly ( enlarged spleen ) - Slight abdominal distension .

( e ) Lumbar region :

- No apparent trace of traumatism . No restriction on scope of trunk movement . No paravertebral muscular contraction .

( f ) Left arm :

On the upper third of the postero - internal face of the arm there is a bruise which is red in colour , with a purplish periphery in its lower part , measuring QUANTITY in length and QUANTITY in width , claimed to be painful on palpation .

Below this bruise , CARDINAL others may be seen , of a circular shape , measuring QUANTITY in diameter , less highly coloured .

IV . DISCUSSION AND CONCLUSION

Mr PERSON has the following symptoms , as observed in the examination of CARDINAL DATE :

- Superficial bruising to the left upper eyelid , the front of the chest , in the epigastric region and that of the right hypochondrium , on the left arm and the left ear

- Two barely visible cutaneous abrasions on the right temple .

The red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as DATE before the examination on DATE .

The simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin ; however , biological tests could be carried out in order to eliminate another medical cause .

Their extent and form offer no indications of how they first occurred ; they are thus consistent with PERSON declarations but could equally have a different traumatic origin .

These injuries entail temporary total incapacity of DATE . "

DATE . On DATE Judge PERSON interviewed PERSON as an accused . After the expert medical reports concerning the victims of the attack of CARDINAL DATE had been read out to the applicant and his co - accused , the applicant stated :

" The injuries which were noted during the examinations made firstly by Dr PERSON and then by PERSON and PERSON , were the result of the acts of Superintendent [ NORP ] , his deputy [ A. ] and some of the other officers of the criminal investigation department .

I was beaten for TIME non - stop . I did n’t have a moment ’s rest . I was left without food and drink .

A police - officer , whom I would be able to recognise , held a loaded pistol to my temple and to my mouth , to make me talk . I was spat upon in the face several times . I was left undressed for a part of TIME , in an office , with the doors and windows open . It was in DATE .

I spent almost all the time in police custody standing , hands handcuffed behind the back . They knocked my head against the wall , hit me in the stomach using forearm blows and I was slapped and kicked continuously . When I fell to the ground I was kicked or slapped to make me get up .

They also threatened to kill me , Superintendent [ NORP ] and officer [ A. ] told me that if I managed to get off they would kill me . They also said that they would kill my parents . They said that there had been an attack at PERSON where there had been a person injured and that the same thing would happen to my parents , that they would use explosives to kill them .

I would like to say in connection with the injuries to my left ear that , in addition to the bruise noted by PERSON , I bled , to be more precise my ear was bleeding , as I realised when I put a cotton bud in my ear . This lasted for a fortnight . I asked if I could see a specialist and PERSON told me that I had a perforated eardrum . I also realised afterwards that I had a broken tooth . I was therefore not able to tell this to the experts .

PERSON and PERSON stated that the bruise to the left upper eyelid could suggest the shape of spectacles ; but my spectacles are worn on the nose and although they may leave marks on the nose , they can not under any circumstances mark the upper part of the eye . "

Following the lodging of PERSON complaint and at the request of the public prosecutor , the President of the LOC tribunal de grande instance appointed another investigating judge , PERSON N’Guyen , on DATE .

Without waiting for the outcome of the application for an order designating the competent court ( see paragraph CARDINAL below ) , PERSON N’Guyen had already appointed CARDINAL experts of ORG , PERSON and PERSON , who had examined the applicant on DATE at the prison and submitted their report on DATE . This document was worded as follows :

" SUMMARY OF THE FACTS :

The patient states as follows :

` On DATE I was beaten up for a period of TIME . I was repeatedly punched and kicked mainly in the abdomen , on the head and on the face.’

SYMPTOMS COMPLAINED OF AT THIS TIME :

The patient complains of the following symptoms : - pain in the left ear ; - buzzing in the ears ; - headache ; - pain in the lumbar region ; - abdominal pain ; - [ illegible ] .

CLINICAL EXAMINATION CARRIED OUT ON DATE ’S DATE

- Weight : QUANTITY : CARDINAL - Blood pressure : CARDINAL - Pulse : CARDINAL beats a minute .

Examination of the face and the skull :

PERSON wears corrective lenses for myopia .

On examining him we noted the following :

- a slight bruising of the upper left eyelid , purplish in colour , QUANTITY in length ; - minor abrasions QUANTITY in diameter : CARDINAL - at the level of the right temple , CARDINAL - above the right eyebrow .

On continuing the examination of the face we observed :

- the area of the masticatory muscles was particularly sensitive on palpation , especially on the right ; - elsewhere , the ocular autokinesis was normal ; - the examination of the surface sensitivity of the face was normal ;

- facial motility was normal .

Further examination revealed :

- pronounced , diffuse erythema in the auricle of the left ear ; - auditory capacity appeared normal , tested by the ticking of a watch and whispering .

ORG - abdominal examination :

Examination showed :

- a number of cutaneous abrasions QUANTITY in diameter , located in the area of the right hypochondrium , the epigastrium , the right lower thoracic region and the left parasternal region , close to the metasternum ; - otherwise , pulmonary auscultation , palpation and percussion of thorax normal ; - likewise examination of the abdomen revealed a supple stomach , no pain ; - examination of the external genital organs showed no bruising , no haematoma , no scar , no trace of traumatism .

Examination of the upper members :

- On the left arm , postero - internal face , at the middle part of the arm , a bruise QUANTITY in length , QUANTITY in width , oval- shaped .

This bruise was a yellowish colour in the middle and greenish at the periphery .

- There were in addition CARDINAL small bruises near to the first bruise , of a circular shape , CARDINAL in diameter , also of a greenish colour .

Examination of the lower members :

Examination entirely normal .

Neurological examination :

- PERSON test : negative - No deviation of index finger - Muscular strength [ illegible ] intact - Tendon reflexes present and symmetrical - Sensitivity : normal - Co - ordination : normal .

DISCUSSION AND CONCLUSION

After questioning and carrying out a full clinical examination of Mr PERSON , we noted the following injuries :

- CARDINAL bruises , a small one on the left eyelid and a larger one on the left arm ;

- in addition , there were abrasions spread out over the thoracic and parasternal region and on the left temple and right eyebrow . These abrasions were of minimal size .

The pains and buzzing in the ear require an opinion from an ear , nose and throat specialist .

The colouring of the bruises makes it possible to fix the date of the originating traumatism at DATE previously .

The bruise on the left arm could be the result of strong manual and digital pressure . The bruise to the left upper eyelid might suggest the shape of the upper frame of the spectacles worn by PERSON .

The cutaneous abrasions noted do not indicate a specific traumatic origin .

We did not find any scar , any burn mark , or any other injury capable of suggesting that acts of torture had been committed . "

On DATE , at the investigating judge ’s request , the CARDINAL doctors filed a further expert opinion . In this they concluded : " Mr PERSON qualifies for temporary total incapacity of DATE " .

On DATE Judge N’Guyen interviewed the applicant in his capacity as a civil party in criminal proceedings . PERSON made the following statement :

" - ... I think that we arrived at the police station at TIME . They began to question me and typed the first record . I said that I was an active member of the ORG . They asked me if I knew why I was there . I replied that it was not the first time that they had detained members of the ORG .

- It was at that moment that they began to hit me ; Superintendent [ NORP ] slapped me repeatedly . Each time he came into the office he egged his men on . He said that they had to make me talk and that they had to use every means of doing so .

He hit me throughout DATE of police custody .

- His deputy [ A. ] also hit me . He used forearm blows to the stomach , saying that that left no mark . He pulled me by the hair and knocked my head against the wall .

There were others there but I do n’t know their names : there was a small , dark - haired man , who I think was called [ G. ] . He slapped me and punched me .

I can also give you the name of [ L. ] because he told me his name .

There were others too , but I can not name them .

These men hit me continuously except when I was speaking . As soon as I stopped speaking they hit me .

- I ’d like to make clear that I had my hands handcuffed behind my back and I had to remain standing QUANTITY from the wall . That started at the beginning of the police custody . The body search was not carried out on the ground floor but on the second floor .

- I remember that there was also a man who was with [ A. ] , of the same height , balding . He too hit me throughout the police custody . He took my head and knocked it against the wall .

- I had no rest the first night or the second .

- I was questioned by CARDINAL police - officers who took it in turns . Sometimes they were CARDINAL ; often they were between ten and DATE . I spent TIME in the same office .

- I was taken down again on DATE around TIME . Until then I had no rest , I had neither eaten nor had anything to drink .

- The first evening I asked for food and drink . The policemen gave me nothing . The following day , as I had asked to see a doctor , he came . I told him that I had been beaten continuously for CARDINAL , that I had not eaten or drunk and that I was being dealt with by torturers . I made him note the marks of the blows to my stomach and face . He did not reply . He took my blood pressure . He told the policemen that I could stand up to it . Indeed I have written to the medical association on this point . When I told him that I had had nothing to eat , he looked at the policemen .

The policemen looked embarrassed and asked me what I wanted . I said that I would like a cup of coffee and a sandwich . They refused to give me the coffee and told me that I would have it if I talked . The sandwich was thrown into the dustbin . It was not until TIME that the municipal police - officers ( l’Urbaine ) gave me CARDINAL coffees with croissants and chocolate rolls . That is why when I arrived at the court house I was in a very agitated state .

- I should also like to say that police - officer [ L. ] took his pistol out of his belt ; it was loaded , and held it to my temple and my mouth . He told me to talk . I replied that I could n’t make things up . He read me the records of the interrogations of the others . He told me that I should say the same thing .

- After that , [ PERSON ] spat at me CARDINAL times in the face and slapped me .

- The torturer [ NORP ] often came into the office and asked several times ` you have n’t undressed him yet?’

- At nightfall they took me into another office . It was still on the second floor but could n’t be seen into from outside . There I was completely stripped . This happened during TIME . I was completely naked , in my socks . [ D. ] arrived ; he asked me why they had n’t taken off my socks . He slapped me and continued to question me like that with the doors and windows open . It was a cold DATE TIME . I repeat that in the room where I had been put I could n’t be seen from the outside . In the other room , they were careful to lower the metal blind when they turned the light on .

- At one moment I was allowed to sit down . That is when [ B. ] arrived . He took me by the shirt or jacket and pushed me . He had the handcuffs with which my hands were bound behind my back taken off and made me sit down . He told all the police - officers and the superintendent to leave . He asked me if I wanted anything . I told him that I would like to go to the lavatory and wash myself . He let me go ; he then spoke to me for TIME . We spoke together as we are speaking DATE .

- That happened on the CARDINALth at QUANTITY in the evening . [ B. ] left . They put back the handcuffs and continued to hit me .

- I should also say that my arms and legs were numb . I was sometimes hit so much that I fell to the ground . The policemen made me get up by kicking me and hitting my head against the wall .

- There were also threats to my family . They threatened to blow up the flat where my parents live . They told me about a woman from ORG who had been blown up and who had been injured and said that they would do the same thing to my parents to kill them . They also told me that they would kill the families of my brother and my sister .

- Police - officer [ L. ] told me that he would make me close the shop . That it would be NORP people who would buy it . He told me that he would make all the NORP leave . He told me that he would also blow up the shop .

- They made threats against me too . The torturers threatened to kill me . They told me that they would take me to the ORG camp at ORG and that they would leave me to the legionaries .

Many other things happened but in TIME it is impossible to recount everything that happened TIME .

[ A. ] called me a left - winger . He said that he was sure that I had voted for PERSON and that this was the result . They also said that they were CARDINAL police- officers who were reliable and that I had better not lay a complaint . They told me that it was n’t the same for the municipal police - officers because there were sympathisers among them and they were n’t sure of them .

I would like to say that if I am released , because I am innocent , if something happens to me , it wo n’t be necessary to look any farther . They told me that if I were freed , they would deal with me . "

By a letter of CARDINAL DATE the applicant ’s lawyer requested the investigating judge to organise a confrontation between his client and the officers who had taken part in the interrogations ; he also suggested that the judge should take evidence from the QUANTITY persons who had been held in custody at the same time because " they could have heard or seen some of the ill - treatment inflicted at GPE police station " , as well as PERSON " who was asked to examine PERSON , who had complained of having problems with his ears " . In addition , he asked that the record of the applicant ’s first appearance before Judge PERSON be included in the case - file .

The participants in the proceedings did not supply either the ORG or the ORG with information regarding any investigative measures which may have been taken DATE and DATE .

On DATE the ORG public prosecutor submitted an application to the criminal division of ORG requesting that the " court responsible for the investigation or trial of the case " be designated . He was acting pursuant to LAW , which concerns cases in which " an officer of the police investigation department is liable to be charged with a criminal offence , allegedly committed in the area in which he performs his duties , whether or not in the performance of those duties " .

On DATE ORG rejected the application , because it did not specify either the names or the position of the persons who were liable to be prosecuted as a result of PERSON complaint .

On DATE the ORG public prosecutor again applied to the criminal division , seeking the designation of the competent court .

On DATE ORG gave its decision . It declared void the investigative measures carried out after DATE , the date on which the applicant as the civil party in criminal proceedings had identified the persons whom he accused .

In addition , it instructed the GPE investigating judge to conduct the investigation into the applicant ’s complaint .

On DATE the GPE public prosecutor lodged an application for the opening of an investigation and the President of the GPE tribunal de grande instance appointed an investigating judge , PERSON .

The latter interviewed PERSON on CARDINAL occasion , on DATE .

On DATE he added to the file the certified copies of several documents from the file opened in GPE , in particular the records of the police custody and of the first appearance before the investigating judge as well as the expert medical reports .

By a letter addressed to the judge on DATE , the applicant requested a confrontation with the police - officers who had interrogated him .

On DATE and CARDINAL DATE the investigating judge interviewed as witnesses persons who had been held in police custody on the same LOC and at the same time as the applicant . Mr PERSON stated that he had seen the applicant on DATE at FAC and had noted that he had marks on his abdomen and that an ear was running .

PERSON was appointed to a new post and the President of the GPE tribunal de grande instance replaced him on DATE by another judge , PERSON .

On CARDINAL DATE the latter issued a commission rogatoire to the Director of ORG of the National Police instructing it to undertake a thorough investigation .

CARDINAL police - officers who had taken part in the arrests , searches and interrogations were interviewed CARDINAL DATE . None of them admitted having assaulted the persons held in police custody and none of them was confronted with PERSON .

The results of the commission rogatoire reached the court on DATE .

On DATE the investigating judge issued an order finding that there was no case to answer . He cited the same grounds as those set out in the submissions made DATE by the GPE public prosecutor :

" ... in view of the formal and precise denials by the officers concerned , the accusations made by the complainant , even if they are supported by a few objective medical observations , can not in themselves constitute serious and concurring indications of guilt such as could justify CARDINAL or several persons being charged . "

By a letter of CARDINAL DATE Mr PERSON appealed from the order finding that there was no case to answer to the indictments division of ORG . He complained among other things that there had been no confrontation with the police - officers and that the sequelae of his police custody had not been taken into account , in particular the fact that his eardrum had been perforated as was shown by subsequent examinations .

On DATE he wrote to the President requesting that a confrontation be organised .

The indictments division gave its decision on CARDINAL DATE . It allowed the applicant ’s appeal and , before ruling on the merits , ordered further inquiries .

On DATE the judge with responsibility for these inquiries issued a commission rogatoire to the Director of ORG of ORG . CARDINAL other police- officers were thus interviewed , as CARDINAL persons - including Mr Filippi - who had been in police custody at the same time as PERSON , and the ear , nose and throat specialist - PERSON who had examined him in DATE .

On DATE Mr PERSON stated that he had seen the applicant on TIME DATE . PERSON face had been " bruised and swollen " , his hair had been " dishevelled " , he had had " bruises on the chest , on the abdomen and under his right armpit " ; he had complained that he had been " beaten all the time " and he had " even taken a tooth out of his pocket " .

On DATE PERSON made the following statement :

I carried out a medical examination of Mr PERSON as an outpatient at ORG . I can not specify the date , but it was in DATE . I treated him for an ear infection and possibly a perforated eardrum . I examined him once or twice , no more than that . I have already told this to the investigating Judge N’Guyen in his chambers . My examination was part of an ordinary consultation and I never issue a medical certificate in those circumstances ; I merely treat the patients who are brought to me .

On DATE the judge submitted the results of the further inquiries .

On DATE the indictments division upheld the order finding that there was no case to answer , on the following grounds :

There is no doubt that PERSON , who was held in police custody at the same time as PERSON , maintained that he had noticed in the hall of the police station that the latter ’s face had been ` bruised and swollen’ and that subsequently he had ` personally seen that he had bruises on the chest , abdomen and under the right GPE ;

His co - accused PERSON had for his part stated that PERSON ` had all his chest grazed and that there was liquid running from an ear’ ;

These statements add somewhat to the observations made by the investigating judge himself when PERSON came to his chambers , namely the presence of bruises on his chest and a redness under the left ear , as well as those of the doctors designated at various stages in the proceedings ;

During the police custody , on DATE at TIME , Doctor PERSON examined PERSON , who complained to him that he had been beaten , but he did not personally observe anything at that stage .

When he arrived at the prison , on DATE , PERSON was seen , as part of the systematic check - ups of detainees , by the Senior Medical Officer , PERSON , who noted the presence of a haematoma behind the left ear spreading slightly down towards the cheek and slight superficial scratches on the chest and took note that the applicant reported pain in the head , the neck , the legs , the arms and back , without any objective symptoms .

An expert , Dr PERSON , appointed by the investigating judge , examined PERSON on DATE at TIME and noted that he had superficial bruising on the left upper eyelid , on the front of the chest and in the epigastric region and that of the right hypochondrium , on the left arm and the left ear , as well as CARDINAL cutaneous abrasions , barely visible , on the right temple ; the expert stated that the red colouring of the bruises with a purple peripheral halo made it possible to fix the date of their occurrence as DATE before the examination and stressed that the fact that abrasions and bruises were present simultaneously gave grounds for affirming their traumatic nature but did not indicate the actual cause of the traumatism ; he fixed at DATE the duration of the temporary total incapacity .

The expert report which was entrusted to PERSON and PERSON , in connection with the investigation opened against persons unknown ... [ see paragraph DATE above ] , revealed in the course of the examination carried out on DATE the presence of CARDINAL bruises , CARDINAL a small one on the left eyelid capable of suggesting the shape of the upper frame of the applicant ’s spectacles and the other , larger , on the left arm , being possibly the result of very strong manual and digital pressure , as well as abrasions spread out about the thoracic and parasternal regions , on the right temple and the right eyebrow , which did not indicate any specific traumatic cause .

The possibility that the applicant had a perforated eardrum and a bleeding ear was not expressly confirmed by PERSON , an ear , nose and throat specialist , and was expressly denied by PERSON and PERSON .

In any event a comparative study of the various observations made by several doctors and experts shortly after the supposed date of the acts of violence of which PERSON complained showed that there was a real discrepancy between such violence ( punches and kicks ; forearm blows ; head hit against the wall for TIME ) and the slight nature of the traumatisms the origin of which is in dispute and can not be determined .

The officers of the criminal investigation police concerned expressly deny the accusations .

Any confrontation appears at this stage pointless .

There is doubt as to the truth of PERSON ’s accusations . "

On DATE Mr PERSON filed an appeal on points of law which the criminal division of ORG declared inadmissible on DATE on the following grounds :

" On the basis of the grounds given in the contested judgment ORG is satisfied that , in upholding the order in question , the indictments division , after having analysed the facts contained in the complaint , set out the grounds from which it inferred that there was not sufficient evidence against anyone of having committed the offence of assault by officials in the performance of their duties ;

The appeal submission , in so far as it amounts to contesting the grounds of fact and law relied on by the judges , does not contain any of the complaints which , under LAW [ of LAW ] , a civil party in criminal proceedings is authorised to formulate in support of an appeal on points of law against a decision that there is no case to answer by the indictments division where no such appeal has been filed by the prosecuting authorities . "

DATE . At PERSON request , PERSON , who was still the Chief Medical Officer at FAC , drew up a certificate on DATE , which he gave to the applicant in person " for the appropriate legal purposes " . This document was worded as follows :

" I , the undersigned , Dr PERSON , ... hereby certify that I examined the X - rays taken of PERSON at ORG on DATE .

The X - rays of the left temple show a thickening of the external auditory meatus with a perforation of the eardrum and the presence of a haematoma behind the eardrum .

The special - angle X - rays ( Hitz ) of the facial structure show , at the level of the bite of the upper left maxillary , the absence of the first molar .

Following these examinations PERSON , the senior consultant in the ear , nose and throat department , prescribed ear drops ( GPE ) and I myself prescribed painkillers and sleeping - pills . "

In reply to a letter of CARDINAL DATE , the Director of ORG communicated to the applicant the following details :

" ( a ) The additional investigations carried out have not revealed any new information of a medical nature in addition to that mentioned in my attestation of DATE as regards your visit to ORG as an outpatient in the ear , nose and throat department , probably on DATE .

( b ) At the time of your visit the former ORG did not have a structured system for dealing with outpatient consultations in the specialised departments ; in these circumstances , in the case of mere visits without hospitalisation for an examination by a specialist , a medical record was not systematically drawn up ( PERSON , who at the time was an ear , nose and throat specialist at the hospital , when contacted by my department in connection with your case , was not able to provide any further information which he might have remembered ) .

( c ) In fact it is highly probable that the X - ray or X - rays concerning you were ( as continues to be the practice in respect of detainees who are not hospitalised ) immediately handed over to the persons accompanying you to be given to the medical service of the prison , without a copy being kept at the hospital .

( d ) Moreover - in the unlikely event of medical documents concerning you having been filed - the move to new premises of the former hospital and the opening of a new hospital , in DATE , involved the multiple transportation of a considerable volume of files and documents , which could inevitably have resulted in the files being disturbed .

( e ) The search for documents concerning Mr PERSON and PERSON was likewise fruitless .

In any event I find it hard to see how an action which , as you suggest , might be brought against ORG , either in the form of an application for an interlocutory injunction or on the merits , would make it possible to discover medical documents , whose presence in the archives is , to say the least , highly improbable and which have been the subject of thorough , albeit unsuccessful , searches . "


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Just satisfaction reserved

The applicant , ORG , is a company incorporated under NORP law .

The background to this case lies in a series of complex contractual arrangements made in DATE concerning importation of electricity from GPE to GPE and involving , in addition to the applicant company , a ORG - owned power distribution company called Moldtranselectro , a NORP ORG - owned power distribution company and a NORP private company . The agreement to which ORG was a party provided , inter alia , that it would pay the NORP private company for the electricity supplied to ORG ( ORG ) and would later be paid back by Moldtranselectro in GPE lei ( MDL ) at the official exchange rate on DATE of payment .

On unspecified dates DATE the applicant company paid over USD CARDINAL,CARDINAL,CARDINAL for the electricity supplied to Moldtranselectro from GPE .

On an unspecified date Moldtranselectro paid the applicant company MDL CARDINAL .

On DATE the Government of GPE adopted Decision no . CARDINAL by which ORG was authorised to issue nominative ORG bonds in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions .

On DATE Moldtranselectro wrote a letter to ORG asking it to issue a nominative ORG bond ( “ ORG bond ” ) with a value of MDL CARDINAL in favour of ORG .

On DATE ORG issued a ORG bond valued at MDL CARDINAL in favour of the applicant company , payable by DATE . The ORG bond provided that the applicant company had to present it to ORG at least DATE before the date of payment . It also provided that Moldtranselectro had to present , by that date , to ORG , documents proving the supply of electricity to state institutions .

The applicant company presented the ORG bond to ORG DATE before the date of payment . However , the latter refused to pay , on the ground that Moldtranselectro had failed to submit evidence concerning the payment by FAC for the imported electricity .

NORP In DATE the applicant company initiated civil proceedings against both ORG and Moldtranselectro . ORG defended the action on the grounds set out in paragraph CARDINAL above while Moldtranselectro declined all responsibility .

On DATE ORG found in favour of the applicant company and confirmed its right to be paid MDL CARDINAL by ORG , in accordance with the ORG bond . It based its judgment on the finding that ORG had paid for energy supplied to Moldtranselectro from GPE in accordance with the agreement between them and that that energy had been consumed by state institutions . The court considered that the fact that Moldtranselectro had failed to comply with its obligation in the ORG bond was not in itself enough to absolve ORG from its obligation to pay . The court also decided to absolve Moldtranselectro of any responsibility .

Since an appeal by ORG was dismissed on DATE for failure to pay court fees , a warrant for the enforcement of the judgment of DATE was issued to the applicant company in DATE .

On DATE the applicant company officially requested a bailiff to start the enforcement procedure under the warrant .

On DATE ORG requested an extension of the time - limit for lodging an appeal against the judgment of DATE and its request was granted . The appeal was examined on its merits and dismissed by a judgment of ORG of GPE on DATE . ORG lodged an appeal on points of law , reiterating that Moldtranselectro had not complied with its obligation in the ORG bond .

On DATE ORG dismissed the appeal and upheld the judgments of DATE and DATE . It found it undisputed that ORG had paid for electricity supplied from GPE to Moldtranselectro and consumed , inter alia , by state institutions . The failure of Moldtranselectro , which was a ORG company , to fulfil its obligations vis - à - vis ORG by presenting it with the documents required by the latter , could not affect the rights of the applicant company , which had paid for electricity supplied from GPE . It noted that the ORG bond did not contain any provision making the payment dependent on the fulfilment of ORG 's obligations towards ORG . The court also noted that the applicant company had on many occasions asked ORG for payment , but that ORG had refused and had asked for the documents which should have been presented by Moldtranselectro . The court considered ORG request to be unlawful and argued that , according to the law , it was Moldtranselectro that should have presented the documents .

In DATE , following a request by ORG , ORG introduced a request for annulment of the final judgment of ORG . On DATE ORG dismissed the request and upheld the judgments favourable to the applicant company . It found , inter alia , that both during the proceedings before the lower courts and before ORG , it had been established that over MDL CARDINAL worth of electricity had been supplied to state institutions . The fact that Moldtranselectro had failed to comply with its obligations to ORG could not have had any influence on the right of the applicant company to be paid .

On DATE the applicant company sold a part of the ORG 's debt , amounting to MDL CARDINAL , to a third company .

Since the judgment of DATE had still not been enforced , on DATE , at the applicant company 's request , ORG agreed to conclude an agreement according to which ORG would pay MDL CARDINAL DATE from DATE in exchange for the applicant 's promise not to initiate further claims for damages .

DATE the Ministry paid MDL CARDINAL to the applicant company .

On an unspecified date the ORG paid MDL CARDINAL to a third company ( see paragraph CARDINAL above ) .

ORG then stopped making the payments , and on DATE the applicant company informed ORG that it had introduced an application with the ORG complaining of the failure to enforce the judgment .

On DATE the Government Agent informed ORG about the applicant company 's application with the ORG and requested it to “ take all the necessary steps in order to avoid a finding of a violation against the ORG by the ORG , with the consequent impairment of the country 's image ” .

On DATE ORG paid MDL CARDINAL to the applicant company . There were no further payments after that date .

On DATE ORG wrote to ORG , informing it , inter alia , that it considered the judgment in favour of the applicant company to be unlawful , but that it had complied with it partially , so that ORG Plus would not complain to the ORG . ORG had informed it that ORG had already complained to the ORG . The ORG asked ORG for advice .

On DATE ORG wrote to the ORG as follows :

“ ... during the proceedings [ between the applicant company , Moldtranselectro and ORG ] the applicant company and Moldtranselectro presented invoices for MDL CARDINAL , of which by DATE only ORG CARDINAL,CARDINAL,CARDINAL had been paid .

No other evidence as to the extent to which ORG had fulfilled its obligations under the agreement [ of DATE ] has been presented . Despite this the courts ruled in its favour .

In that respect ORG has ordered an audit to verify the supply of electricity and the payments between ORG , Moldtranselectro and state institutions . A final decision will be adopted by ORG after the results of the audit become available to it and ORG will be informed accordingly . ”

An attempt to carry out this audit was made in DATE by a representative of ORG at the request of ORG . However , it was unsuccessful because , in accordance with book - keeping legislation , the applicant company had destroyed the accounting documents after DATE .

ORG did not wait for a final reply from ORG and on DATE lodged with ORG a request for revision of the judgments in favour of the applicant company . The request referred to LAW ( see paragraph CARDINAL below ) but did not specify any reasons for revision .

On DATE the applicant company submitted to ORG its observations on the revision request , in which it argued , inter alia , that the Ministry had not indicated any reasons for revision , that the revision request was time - barred and if the request were to be upheld this would amount to a breach of the principle of legal certainty .

On DATE ORG upheld the revision request , following a hearing at which ORG was represented by ORG . It quashed the judgments in favour of the applicant company and ordered the reopening of the proceedings . It relied on ORG office 's letter of DATE ( see paragraph CARDINAL above ) , which had been submitted by ORG during the hearing . The Plenary considered the letter to be a new and essential fact or circumstance which was unknown and could not have been known earlier , in accordance with the provisions of LAW . In particular it considered new and essential the submission of ORG that “ by DATE only ORG CARDINAL,CARDINAL,CARDINAL had been paid ” . ORG did not address in its judgment the objections raised by the applicant company .

On DATE ORG held a hearing in the reopened proceedings . In contrast with the first round of proceedings , Moldtranselectro sided this time with ORG and argued that ORG action should be dismissed because it ( Moldtranselectro ) had already covered the entire debt for the electricity supplied , including MDL CARDINAL provided in the ORG bond , by paying ORG Plus MDL CARDINAL on an unspecified date .

The court upheld the applicant company 's action and ordered ORG to pay it MDL CARDINAL in accordance with the ORG bond . It based its judgment on the fact that the supply of the electricity and the cost of the energy supplied were not disputed by the parties . Referring to the electricity supplied to state institutions , it found that by DATE they had consumed MDL CARDINAL worth of electricity imported from GPE with the participation of FAC .

In the court 's view , the ORG bond constituted an incontestable obligation on ORG towards ORG , which could not depend on the fulfilment of third - party obligations .

Referring to the submissions of Moldtranselectro concerning the payment of MDL CARDINAL to the applicant company , the court argued that that amount represented USD MONEY at the date of supply of the electricity , but not at the date of payment of the MDL CARDINAL . The court held that at the date of payment of the above amount by Moldtranselectro , USD MONEY was worth MDL CARDINAL .

Referring to the amounts indicated by ORG in its letter dated DATE , which served as a basis for the revision of the final judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , the court found that those figures were related to a completely different matter and were irrelevant to the case before it .

ORG appealed against this judgment to ORG .

On DATE ORG upheld the ORG 's appeal and dismissed the applicant company 's action against it . While not contesting the findings of the first - instance court ( see paragraph CARDINAL above ) and while confirming that electricity was supplied to Moldtranselectro and consumed , inter alia , by state institutions , it made its own calculations directly in GPE without converting the amounts to ORG , and came to the conclusion that the entire debt owed by the ORG to the applicant company had been covered by the payment of MDL MONEY by Moldtranselectro to the former . ORG also ordered the applicant company to pay the court fees of MDL CARDINAL .

On DATE ORG lodged with ORG a request for the return of the ORG CARDINAL,CARDINAL,CARDINAL which had been paid in accordance with the judgment of DATE . The applicant company argued , inter alia , that the request had been lodged out of time and that in any event the amount of MDL CARDINAL had never been paid to it , but had instead been paid to a third person ( see paragraphs DATE and CARDINAL above ) .

By a final judgment of CARDINAL DATE ORG upheld the request of ORG . It dismissed the applicant company 's submission concerning the time - limit and ignored its submission concerning the MDL CARDINAL which had been paid to a third person .

On DATE , ORG , having examined the letter from ORG of DATE ( see paragraph CARDINAL above ) initiated criminal proceedings against the applicant company and against the head of Moldtranselectro on charges of large - scale embezzlement of ORG property . ORG referred to the results of the audit which it had attempted to carry out in DATE ( see paragraph CARDINAL above ) and stated , inter alia , that according to the results of that audit , ORG had not paid for electricity supplied to state institutions .

On DATE the Chief Executive Officer of the applicant company ( “ PERSON ) was questioned by ORG .

On DATE the offices of the applicant company were searched and some documents seized .

On DATE the criminal proceedings were discontinued . The prosecutor in charge of the criminal case stated in his decision of discontinuation , inter alia , the following :

“ According to the evidence obtained during the audit , DATE Moldtranselectro 's debt to ORG reached MDL CARDINAL ...

The materials gathered [ during the investigation ] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied . The transfers [ of MDL CARDINAL by ORG ] to ORG accounts were carried out in accordance with court judgments ...

Taking into consideration the evidence gathered , [ the prosecution concludes ] that the acts of ORG management do not disclose any signs of the offence [ of large - scale embezzlement ] or of other offences . ”

On DATE all the bank accounts of the applicant company were frozen by a bailiff to ensure the restitution of MDL CARDINAL . The company had to make all of its employees redundant , except for PERSON

On DATE the ORG communicated the present case to ORG .

On DATE the Deputy Prosecutor General quashed the decision of DATE . He submitted , inter alia , that on DATE Moldtranselectro 's debt to the applicant company for the electricity supplied had been MDL LANGUAGE . He argued that while ORG Plus had paid the NORP partner more than MDL CARDINAL for the electricity supplied to Moldtranselectro , it appeared that the energy for which it had paid had not been supplied exclusively to state institutions . He also noted that ORG Plus had transferred a part of the debt to third companies in exchange for money and goods . He requested , in particular , that an international fact - finding mission be sent to GPE and that the books of the applicant company be seized .

On DATE PERSON was declared a suspect in the criminal proceedings . In a decision of the same date , it was reiterated that on DATE Moldtranselectro 's debt to FAC for the electricity supplied had been MDL CARDINAL . However , the electricity for which Moldtranselectro owed this amount had not been supplied to state institutions .

On DATE a prosecutor issued a decision by which PERSON was officially indicted for misappropriation of MDL CARDINAL and attempted misappropriation of MDL CARDINAL . The charges against him were based on the fact that the energy supplied to Moldtranselectro , for which the applicant company had paid the NORP private company , had not been consumed by state institutions . The prosecution argued that a ORG bond could be issued by ORG only for energy supplied to state institutions . Contrary to that provision , Moldtranselectro had asked ORG on DATE to issue a ORG bond in favour of ORG and such a bond had been issued by ORG on DATE .

After that , Oferta Plus , in the person of GPE , its former chief executive , making use of the favourable environment created for his company by the illegal actions of Moldtranselectro , and seeking to obtain MDL CARDINAL , had initiated civil proceedings against ORG , and in the absence of any proof that electricity had been supplied to state institutions , illegally obtained judgments in its favour .

However PERSON could not fulfil his criminal intention of misappropriating MDL CARDINAL for reasons beyond his control ( he was killed ) .

The criminal intention to misappropriate MDL CARDINAL was continued by PERSON , the present Chief Executive Officer of ORG .

Despite the fact that on DATE Moldtranselectro owed ORG Plus only MDL CARDINAL,CARDINAL.CARDINAL , PERSON had pursued his criminal intention by pressing ORG repeatedly to comply with the judgment of DATE . As a result , on DATE ORG had concluded an agreement with him and later transferred MDL CARDINAL to Oferta Plus .

Later , PERSON transferred the money to the account of a third company , which also belonged to him , from where it was transferred to his wife 's personal account and later withdrawn in cash .

Referring to the reopened proceedings which followed the judgment of ORG of DATE , the prosecutor noted that , despite being well aware that ORG Plus had not paid for energy supplied to state institutions , PERSON had managed to obtain a judgment in favour of ORG Plus before the first - instance court . PERSON had presented evidence which , while showing the payment for electricity , did not prove that the electricity had been supplied to state institutions .

Also , on DATE , according to the applicant company , PERSON was told by the investigating officer , PERSON , that no criminal charges against him would have been brought had he contented himself with MDL CARDINAL .

On the same date PERSON was arrested and a request for him to be remanded in custody for DATE was addressed to ORG .

A detention order for DATE was issued by the investigating judge of ORG on DATE . The judge argued , inter alia , that PERSON had attempted to influence a witness . He relied on a transcript of a telephone conversation of CARDINAL DATE , which , however , was never disclosed to the defence , despite the latter 's requests .

PERSON appealed against the detention order and argued , inter alia , that the criminal proceedings against him had been a form of pressure to persuade PERSON Plus to abandon its application before the ORG . He complained that he and his lawyers had not been allowed to see the transcript of the telephone conversation which was the main reason for his detention and insisted that he had not made any attempt to influence any witnesses .

He also argued that he had become the CEO of ORG Plus only in DATE and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electricity had been supplied to Moldtranselectro , which was a ORG company and held a monopoly on distribution of electricity at that time . The applicant company could not know who were the final consumers of the electricity .

On DATE PERSON 's appeal was dismissed . ORG did not give any assessment of the argument concerning PERSON 's lack of access to the transcript of the telephone conversation .

In the meantime , on DATE , the applicant company 's lawyer in the present case applied to ORG ( “ NORP ” ) to visit PERSON He pointed out that he was ORG lawyer in the proceedings before the ORG and submitted that he needed to see PERSON in order to prepare with him the observations due on DATE . He asked that the meeting between them take place without a glass partition separating them , since he knew that there was such a partition in the ORG lawyer - client meeting room . He submitted that both he and PERSON had reason to believe that conversations through the glass partition in the ORG meeting room were intercepted and that they were convinced that the criminal proceedings against PERSON had been instituted in order to discourage ORG from pursuing its application before the ORG . He argued that their separation by the glass partition , especially in such conditions , would not allow them to speak freely and would seriously hinder his ability to represent the applicant company before the ORG . The lawyer further argued that PERSON was not a violent person and that there was no risk that he would attack his lawyer . In any event he , the lawyer , would bear responsibility for any attack . He also declared that he would allow the ORG representatives to search him , except for the documents he would be carrying , in order to ensure that he had no forbidden objects on his person .

After repeated requests by telephone , on DATE the lawyer was finally allowed to see PERSON in the ORG lawyer - client meeting room , separated by the glass partition . In these circumstances , PERSON refused to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because the conversation would have related to the whereabouts of the company 's accounting documents .

During the conversation with PERSON , the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between ORG , ORG and Moldtranselectro . DATE , on DATE , the criminal investigator PERSON went to the archives of ORG and took the case file in the civil proceedings . The case file was returned to the archives on DATE .

On DATE , in the afternoon , the applicant 's lawyer telephoned ORG and asked for assistance in seeing PERSON without a glass partition . His request was not successful .

On DATE the lawyer telephoned the investigating officer , and asked him for another meeting with PERSON He repeated his request to see PERSON without the glass partition , but this request was again rejected . He was told that the conditions for meetings between lawyers and clients in the LOC detention centre were not contrary to the law . A meeting between the lawyer and PERSON took place DATE .

On DATE the ORG made public a press release according to which it had discovered , in the context of the criminal investigation against PERSON , an illegal scheme for misappropriation of budgetary funds . A similar item , with images of PERSON , was broadcast on TIME news bulletin of NORP national television .

On DATE , the applicant company 's lawyer wrote to ORG that he was the representative of ORG in the proceedings before the ORG . He submitted that , since his client believed that the criminal proceedings against PERSON and his subsequent detention served the purpose of discouraging the pursuit of the Oferta Plus v. GPE application before the Court , on DATE a formal complaint under LAW had been lodged with the Court . He noted that the main piece of evidence relied upon by the courts in placing PERSON in detention was a transcript of a telephone conversation which allegedly proved his attempt to influence a witness . Since PERSON 's defence had not been presented with a copy of that transcript during the pre - trial detention proceedings , he formally requested a copy of it for the purpose of presenting it to the ORG in support of the LAW complaint .

On DATE Mr PERSON 's request was rejected by ORG on the ground that he was not PERSON 's lawyer in the criminal proceedings against him . The court also noted that in any event the materials of the criminal case file were not usually disclosed to the defence unless the criminal investigator decided otherwise .

On DATE the investigation was completed in the criminal proceedings and the case was sent for examination on its merits to ORG . On DATE , PERSON told the applicant company 's lawyer that he had been told that he would be convicted before ORG adopted a judgment in the present case .

In a letter of CARDINAL DATE , the applicant company 's representative informed the ORG that PERSON had been released from detention on DATE .

The relevant provisions of the old Code of Civil Procedure , concerning enforcement , read as follows :

An enforcement warrant shall be issued to the plaintiff by a court , after the judgment has become final ...

The bailiff shall start the enforcement of a judgment upon the request of [ CARDINAL of the parties to the proceedings ] ...

The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order .

The provisions of the new Code of Civil Procedure concerning the revision of final judgments read as follows :

“ Grounds for revision

Revision may be requested :

c ) When new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier ; ”

“ A revision request may be lodged :

c ) within DATE from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him / her earlier and which could not have been known to him / her earlier .... ”

It appears from the photographs submitted by the Government that in the lawyer - client meeting room of the LOC detention centre the space for detainees is separated from the rest of the room by a door and a window . The window appears to be made of CARDINAL plates of glass . Both plates have small holes pierced with a drill ; however the holes do not coincide , so that nothing can be passed though the window . Moreover , there is a dense green net made either of thin wire or plastic between the glass plates , covering the pierced area of the window . There appears to be no space for documents to be passed between the lawyer and his client .

The domestic courts have ruled on complaints about lack of confidentiality in the ORG lawyer - client meeting room in the cases of PERSON ( no . CARDINAL/CARDINAL ) and ORG v. GPE , no . CARDINAL , CARDINAL DATE . On DATE a judge of ORG ordered the ORG authorities to eliminate the glass partition separating lawyers from their clients ; however , the ORG authorities refused to comply with the court order . On DATE the same judge revoked the decision of CARDINAL November CARDINAL , arguing that in the meantime she had been informed by the ORG authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary to ensure the security of the detainees .

On DATE Mr ORG 's lawyer complained again to ORG under LAW that he could not confer with his client under conditions of confidentiality . On DATE the same judge from ORG dismissed the complaint without examining it and referred to her previous decision of DATE .

DATE ORG held a strike , refusing to attend any proceedings regarding persons detained in the LOC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients . The demands of ORG were refused ( see ORG , cited above , § CARDINAL ) .

On DATE ORG held a meeting at which the President of ORG and another lawyer informed the participants that they had taken part , together with representatives of ORG , in a committee of inspection of the LOC detention centre . During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices . They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by ORG . The ORG administration had rejected the proposal .

Recommendation Rec ( CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) , in so far as relevant , reads as follows :

CARDINAL All prisoners are entitled to legal advice , and the prison authorities shall provide them with reasonable facilities for gaining access to such advice . ...

ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential . ...

CARDINAL Prisoners shall have access to , or be allowed to keep in their possession , documents relating to their legal proceedings .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE . At the time of the events in issue in DATE he was living in GPE , GPE - Palatinate , where he was studying mechanical engineering .

On DATE the applicant ’s mother , his brother and his sister ( “ the witnesses ” ) informed the police about an incident that had occurred during TIME DATE at the applicant ’s GPE house in GPE , GPE . The witnesses testified that the applicant , who can not remember the incident , had strangled his sister and had attacked his brother with an axe before being overpowered by his parents . The applicant ’s father did not press criminal charges and did not testify against the applicant .

ORG opened a criminal investigation against the applicant for attempted murder . On DATE the witnesses repeated their statements before the investigating judge ( Ermittlungsrichter ) of ORG in the presence of a police officer . The applicant was not informed of the hearing before the investigating judge . No counsel was appointed for him .

On DATE ORG issued a warrant for the applicant ’s arrest . The applicant was arrested on DATE and remanded in custody . By a decision of ORG of DATE the applicant was transferred to a psychiatric hospital pending trial .

On DATE ORG ordered that the applicant be placed in a psychiatric hospital pursuant to CARDINAL of LAW ( see “ Relevant domestic law and practice ” below ) .

ORG found it established that on TIME DATE the applicant travelled from PERSON to his GPE house in GPE . He entered the house with his own key without notifying his parents or his brother and sister of his arrival . During TIME he went to his sister ’s bedroom , strangled her and then attacked his brother with an axe causing him injuries on his head , hands , arms and legs . Once the applicant had been overpowered by his parents , the entire family gathered in the kitchen . The sister then drove the applicant ’s heavily bleeding brother to hospital where CARDINAL of his wounds were sutured . The applicant stayed with his family in his parent ’s house until DATE . During his stay he was provided with medical care by a local doctor who diagnosed him with having suffered an epileptic seizure . The applicant then returned to ORG but made another unannounced visit to his parent ’s house on CARDINAL DATE . Following this visit the applicant ’s mother , brother and sister who feared a further attack by the applicant decided to inform the police about the incident in TIME DATE and pressed criminal charges against the applicant on DATE ( see above § CARDINAL ) .

ORG qualified the acts as CARDINAL counts of assault occasioning grievous bodily harm ( gefährliche GPE ) . It further held on the basis of expert opinions that the applicant had acted either in a state of diminished awareness of his actions due to epilepsy ( epileptischer Dämmerzustand ) or during a bout of paranoid schizophrenia and could therefore not be held responsible for the acts , pursuant to LAW ( see “ Relevant domestic law and practice ” below ) .

As regards the finding of facts , ORG noted that the applicant did not have any recollection of the events in TIME DATE and that the only available direct witnesses , namely the applicant ’s mother , brother and sister , had availed themselves of their right not to testify against the applicant in court pursuant to section CARDINAL of LAW ( see “ Relevant domestic law and practice ” below ) . The applicant ’s father had refrained from pressing criminal charges and had not participated in the proceedings ( see above LAW ) . The facts could nevertheless be established on the basis of the testimony of the investigating judge , who had heard the witnesses on DATE and had given an account of their pre - trial statements in court . ORG held that it was not prevented from hearing the investigating judge as a witness and taking his testimony about the ORG pre - trial statements into account .

ORG noted that ORG had failed to request the appointment of counsel for the applicant prior to the hearing of the witnesses by the investigating judge in accordance with CARDINAL ( CARDINAL ) no . CARDINAL read in conjunction with LAW as construed by ORG in the light of the requirements of LAW ( d ) of LAW . Furthermore , the unrepresented applicant had not been informed about the hearing before the investigating judge pursuant to section ORG ) ( CARDINAL ) and ( CARDINAL ) of LAW and there would have been no grounds to exclude a potential counsel from the hearing ( see “ Relevant domestic law and practice ” below ) .

ORG reiterated that under ORG case - law the failure to appoint counsel did not compel the exclusion of the investigating judge ’s testimony . However , ORG was bound to proceed to a particularly critical assessment of the investigating judge ’s testimony in view of the fact that neither the accused nor counsel had been able to directly examine the witnesses . The finding of facts could only be based on the investigating judge ’s testimony if the latter was corroborated by other significant considerations .

ORG took several items of evidence as corroborating the investigating judge ’s testimony into account . Firstly , it emphasised that for its establishment of facts it not only disposed of the testimony by the investigating judge but also of CARDINAL consistent witness statements that gave a coherent account of the events in issue . According to the testimony given by the investigating judge , there was nothing to establish that the witnesses had not told the truth or wanted to incriminate the applicant ; the witnesses had testified because they had been concerned about the applicant ’s health and had feared another attack by him . Furthermore , the police superintendent who had registered the ORG criminal charge on CARDINAL DATE had testified that on this occasion he had been spontaneously told by the witnesses - prior to their subsequent questioning - that the applicant had attacked members of his family with an axe . ORG pointed out that as opposed to the ORG subsequent testimonies to the police , these spontaneous statements did not have to be excluded from the trial pursuant to section CARDINAL of the Code of Criminal Procedure but constituted admissible evidence . In addition , another policeman had testified that the applicant ’s mother had called him spontaneously on DATE and had asked what further action would be taken as a result of the criminal complaint with a view to preventing a renewed unannounced visit and attack by the applicant . In ORG view these spontaneous statements supported the ORG description of the events in TIME DATE .

Moreover , the doctor who had treated the applicant ’s brother ’s cuts in hospital on DATE had testified that he had been suspicious of the latter ’s explanation for his injuries at that time , namely that he had fallen through a glass pane . ORG further noted that the applicant ’s brother had later handed over an axe to the police on his own initiative , and that the police officer who had received the implement had testified that the brother had confirmed that the axe was the corpus delicti . Finally , the applicant himself had testified that he could remember seeing his brother covered in blood on TIME DATE when the family had gathered in the kitchen and that his family members had told him that he had attacked his brother and sister during the night . According to the applicant , he himself had proposed that same morning to contact the police but his family had refused to do so . He further remembered that his sister had taken his brother to hospital .

The applicant lodged an appeal on points of law in which he complained that the investigating judge ’s testimony ought to have been excluded from the trial .

ORG lodged an appeal on points of law in which he argued that the attack on the witnesses should have been classified as CARDINAL counts of attempted manslaughter as well as assault occasioning grievous bodily harm .

On DATE ORG moved that the applicant ’s appeal on points of law be dismissed on the grounds that ORG had , in line with the reasoning in the related ORG leading judgment , established that the investigating judge ’s testimony had been corroborated by other important considerations and that ORG holding was free of error .

On DATE ORG dismissed the applicant ’s appeal on points of law as ill - founded . On DATE ORG ordered the ORG to pay the costs of ORG Appeal on points of law which had been withdrawn . These decisions were served on the applicant on CARDINAL and DATE respectively .

On DATE the applicant lodged his first application with ORG ( no . PERSON ) which was declared inadmissible for non - exhaustion of domestic remedies by a Committee of CARDINAL judges on DATE .

On DATE the applicant applied for the reinstatement of the proceedings in regard to his compliance with the DATE period to lodge a constitutional complaint and submitted his constitutional complaint to ORG .

On DATE ORG refused to admit the applicant ’s constitutional complaint for examination and noted that there was no need to decide the applicant ’s application for the reinstatement of the proceedings ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

ORG may order an accused to be placed in a psychiatric hospital if he has committed an unlawful act in a state that excludes a finding of guilt , and if his act reveals that as a result of his condition , future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public ( section CARDINAL of LAW ) . An accused acts without guilt if he is incapable of appreciating the wrongfulness of his act or of acting in accordance with such appreciation due to a pathological emotional disorder , profound consciousness disorder , mental defect or any other serious emotional abnormality ( section CARDINAL of LAW ) .

Pursuant to section ORG ) ( CARDINAL ) of LAW , the prosecutor , the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings . The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation , in particular if it is to be feared that a witness will not tell the truth in the presence of the accused ( section ORG ) ( CARDINAL ) of LAW ) . The persons entitled to be present shall be given prior notice of the dates set down for the hearings . The notification shall be dispensed with if it would endanger the success of the investigation ( section ORG ) ( CARDINAL ) of LAW ) .

Defence counsel may be appointed during preliminary proceedings ; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory ( section CARDINAL ( CARDINAL ) of LAW ) . The assistance of defence counsel is mandatory if , inter alia , the main hearing is held at first instance before ORG , the accused is charged with a serious criminal offence , or the proceedings are conducted with a view to placement in a psychiatric hospital ( section CARDINAL ( CARDINAL ) CARDINAL . CARDINAL , CARDINAL and CARDINAL of LAW ) . Counsel is to be appointed when an indicted accused without defence counsel has been requested to reply to the bill of indictment ( section CARDINAL ( CARDINAL ) of LAW ) .

In a leading judgment of DATE ( published in the official reports , BGHSt , volume CARDINAL , p. CARDINAL et seq . ) ORG held that LAW ( CARDINAL ) of LAW required , in view of LAW ( d ) of the LAW , the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing . The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter ’s testimony about the ORG statements as long as the proceedings , seen as a whole , remained fair . To this end the investigating judge ’s testimony had to be carefully assessed . A conviction could only be based on the investigating judge ’s testimony if this testimony was corroborated by other important considerations .

Parents , brothers and sisters need not testify against their accused son or daughter , brother or sister ( section CARDINAL ( CARDINAL ) no . CARDINAL of LAW ) ; if such a witness makes use of his or her right not to testify at the main hearing , prior witness statements shall not be read out ( section CARDINAL of LAW ) . According to ORG case - law , section CARDINAL of LAW is an exclusionary rule that applies to all statements made prior to a main hearing by witnesses who avail themselves of their right not to testify at the main hearing , with the exceptions of spontaneous statements made by the witness before or outside his or her formal testimony as well as testimonies before a judge after the witness has been advised of his or her right not to testify .