CASE OF DIMITROV AND HAMANOV v. BULGARIA

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE Mr PERSON was arrested by the police while trying to break into a car with CARDINAL other individuals , GPE and GPE He was taken to a police station , where he made a written confession . PERSON , who was apparently also taken into custody , made a confession as well and turned over to the police CARDINAL radio cassette players stolen from CARDINAL cars which he had broken into earlier . On DATE a police officer drew up a report on the incident .

On DATE a police investigator interviewed GPE who confessed that he had committed the offence in concert with Mr PERSON and GPE

On an unspecified date in DATE the case was given the number CARDINAL/CARDINAL .

On DATE the investigator in charge of the case interviewed one of the police officers who had arrested PERSON . On DATE he interviewed the owner of CARDINAL of the cars , and on DATE ordered an expert report on the value of the stolen goods . The report was ready DATE . On DATE the investigator interviewed the owner of another car .

On DATE Mr Dimitrov was formally charged with attempted theft committed in concert with GPE and GPE He was interviewed in the presence of his counsel and pleaded guilty . On DATE the investigator interviewed GPE as a witness . It seems that neither GPE nor GPE were charged .

NORP On DATE ORG , noting that in DATE PERSON had left GPE and was in GPE , that it was impossible to establish the facts without interviewing him , and it was necessary to charge him as well , decided to stay the proceedings pending his return . On DATE , noting that on DATE PERSON had come back from GPE , ORG decided to resume the proceedings .

On DATE PERSON was interviewed as a witness . He was interviewed again on DATE in the presence of a judge . GPE was also interviewed as a witness in the presence of the judge . It seems that neither GPE nor GPE were charged .

On DATE Mr PERSON was allowed to acquaint himself with the case file . On DATE the investigator recommended that he be brought for trial , and on CARDINAL DATE ORG indicted him .

ORG ( PERSON районен съд ) heard the case on DATE . The prosecution and Mr PERSON stated that they had entered into a plea bargain . The court approved the bargain , sentenced the applicant to QUANTITY months’ imprisonment , suspended , and terminated the proceedings .

On DATE a criminal investigation was opened against Mr GPE , a bank branch manager , and several other individuals in connection with a number of financial transactions . After DATE the case went through a preliminary investigation , trial and appeal . Following a remittal to the preliminary investigation stage in DATE , in DATE it was again pending before the prosecuting authorities . The detailed course of the proceedings up to DATE has been set out in paragraphs PERSON of the ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL , CARDINAL DATE ) .

In DATE one of Mr GPE ’s coaccused made a request under the new Article CARDINALa of the CARDINAL Code of Criminal Procedure ( see paragraphs CARDINAL below ) . On DATE the ORG requested ORG to send it the case file . On DATE that ORG forwarded the request to ORG , which was dealing with the case .

Apparently as a result of the above , on DATE ORG submitted to ORG ( PERSON окръжен съд ) an indictment against Mr PERSON and CARDINAL other accused . Mr PERSON was accused of breaching his duties as bank branch manager by making thirtyfive unauthorised bank transfers , in breach of the applicable financial regulations , and by guaranteeing CARDINAL promissory notes , in breach of a resolution of the bank ’s management board prohibiting branch managers from issuing such guarantees , and thereby causing the bank a pecuniary loss . The offences were characterised by the prosecution as abuse of office under LAW . Mr GPE was additionally charged with unlawfully acquiring and possessing ammunition .

On DATE the court set the case down for trial .

QUANTITY hearings , listed for DATE and DATE , were adjourned , the first because the ORG had not been properly summoned as a civil party , and the second because Mr PERSON was ill and could not attend .

A hearing was held from DATE . On the lastmentioned date the court adjourned the case , finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up , and to hear additional witnesses called by the prosecution and the defence .

Three hearings , fixed for DATE , DATE and DATE , failed to take place , the first because Mr GPE ’s counsel was absent , the second because another accused ’s counsel had to be replaced , and the third because another accused was ill and could not attend .

A hearing was held from DATE . On the lastmentioned date the court adjourned the case , finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up , to hear additional witnesses called by the prosecution and the defence , and to obtain certain documents .

QUANTITY hearings , listed for DATE and DATE , were adjourned because other accused and their counsel were ill and could not attend .

QUANTITY hearings were held from DATE and from DATE .

The Plovdiv Regional Court gave its judgment on DATE , and handed down the reasons for it in DATE . It convicted Mr PERSON of guaranteeing the promissory notes , holding that this had amounted to wilful mismanagement contrary to LAW ( see paragraph CARDINAL below ) , not abuse of office contrary to LAW . It acquitted him of the charge relating to the making of the thirtyfive bank transfers . In addition , it found Mr GPE guilty of possession of ammunition , but not guilty of acquiring it . In connection with the mismanagement , the court sentenced Mr GPE to DATE and CARDINAL months’ imprisonment and barred him from acting as a director of a commercial bank for DATE and DATE . In connection with the possession of ammunition , it sentenced him to a fine of CARDINAL NORP levs . In determining the quantum of the punishment to be imposed in relation to the mismanagement , the court noted the following :

“ Bearing in mind the legal characterisation of the [ offence ] committed by [ Mr PERSON ] ... , [ his ] dangerousness , [ his ] personality , the long period during which [ he ] was criminally prosecuted , and the need to attain the aims of the punishment ... , the court considers that [ he ] should be sentenced in line with LAW [ DATE see paragraph CARDINAL below ] , under predominantly mitigating circumstances . The court finds that those circumstances were [ the applicant ’s ] clean criminal record , his good character , the fact that [ he ] is in employment at the time of delivery of this judgment , [ his ] stable family and social situation , [ and ] the partial confession that he made during the trial . The aggravating circumstances [ consist in ] the perseverance , determination and coordination displayed by [ Mr GPE ] in carrying out [ his ] criminal acts .

In view of the established caselaw that , when accompanying a sentence of imprisonment , [ occupational debarment ] can not be shorter than that imprisonment , and bearing in mind the significant amount of time which has elapsed since the commission of the offence ... the court considers that is must bar [ Mr PERSON ] from acting as a director of a commercial bank for a period of DATE and DATE ... ”

DATE Mr PERSON and the other accused , as well as the prosecution , appealed against the judgment .

On DATE ORG ( PERSON апелативен съд ) set the appeals down for hearing on DATE . However , the hearing failed to take place on that date because another accused did not have legal representation . It was held on DATE .

ORG gave its judgment on DATE , fully upholding the lower court ’s judgment .

Mr GPE and the other accused appealed on points of law .

The hearing before ORG ( NORP касационен съд ) was fixed for DATE , but was adjourned because the civil party had not been properly summoned and because another accused who wished to be present was prevented from attending . It took place on DATE .

ORG gave its judgment on DATE , upholding the part of the lower court ’s judgment concerning Mr PERSON in its entirety .

Article CARDINAL § CARDINAL of the DATE LAW provides as follows :

“ Anyone charged with an offence shall be brought before a court within the time established by law . ”

Under LAW , ORG is the principal body concerned with the administration of the judiciary ( which , in GPE , comprises the courts , the prosecutor ’s offices and the investigation services ) . It has the power to , inter alia , appoint , promote , demote and dismiss judges , prosecutors and investigators ( Article CARDINAL § CARDINAL and LAW ( CARDINAL ) ) and impose the harshest disciplinary punishments ( LAW ( CARDINAL ) ) .

A DATE amendment to the LAW added a new LAW , which envisaged the creation of an ORG attached to ORG . The ORG , which consists of a chief inspector and CARDINAL inspectors , is tasked with checking the work of the judiciary without infringing the independence of judges , prosecutors or investigators ( Article CARDINALa § CARDINAL ) . It can act either of its own motion or pursuant to reports by private individuals , legal persons or ORG authorities ( LAW ) . It has the power to refer matters to the appropriate authorities , or make suggestions or reports to them ( LAW ) .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that “ [ e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ” .

Sections CARDINAL of the LAW govern the structure , powers and operations of the ORG attached to ORG ( see paragraph CARDINAL above ) . CARDINAL of the ORG ’s tasks is to check the processing of cases and their completion within the prescribed time - limits ( section CARDINAL(CARDINAL)(CARDINAL ) ) . It carries out planned DATE checks or unplanned checks prompted by reports ( section DATE ) ) . After carrying out a check of the work of an individual judge , prosecutor or investigator , the ORG draws up a report containing its findings and recommendations , if any ( section CARDINAL(CARDINAL ) ) . That report is presented to the judge , prosecutor or investigator concerned and to his or her hierarchical superior ( section CARDINAL(CARDINAL ) ) . The hierarchical superior must then , within the time set in the report , inform the chief inspector about the implementation of the recommendations ( section CARDINAL(CARDINAL ) ) .

An amendment to LAW that came into force in DATE introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within DATE in cases concerning serious offences and DATE in all other cases ( new Article CARDINALa ) . Paragraph CARDINAL of the amendment ’s transitional provisions provided that that possibility applied with immediate effect in respect of investigations opened before DATE .

The procedure under that Article was as follows . The accused person had to submit a request to the relevant court , which then had DATE to examine the file and rule on the request . It could refer the case back to the prosecuting authorities , giving them DATE to submit an indictment against the accused or , alternatively , to drop the charges against him or her . If the prosecuting authorities failed to do so , the court was bound to discontinue the criminal proceedings against the person who had made the request . If the prosecuting authorities did submit an indictment , but the court found that the pretrial investigation had been tainted by serious breaches of the rules of procedure , the court had to refer the case back to the prosecuting authorities , which then had DATE to rectify those breaches and resubmit the indictment . If they failed to re - submit the indictment or to rectify the breaches highlighted by the court , or committed fresh breaches of the rules of procedure , the court had to discontinue the criminal proceedings .

NORP The DATE amendment was put before ORG with the reasoning that it was necessary in order to secure observance of the right to a hearing within a reasonable time guaranteed by the Convention .

In a judgment of DATE ( MONEY от CARDINAL юли DATE г. по к. н. д. № CARDINAL г. ORG , I ORG ) , ORG analysed in detail the manner in which LAW was to be applied and held that a failure to finalise the procedure under that provision did not automatically put in jeopardy the fairness of the ensuing trial . It was precisely during that trial DATE as opposed to the pretrial phase of the proceedings – that the accused would be able to obtain a determination of the criminal charges against him or her in fully adversarial proceedings conducted in line with the requirements of , inter alia , the Convention .

The DATE Code of Criminal Procedure came into force on DATE , superseding the DATE Code . Its LAW provides as follows :

“ CARDINAL . The court shall examine and decide cases within a reasonable time .

NORP The prosecutor and the investigating authorities must ensure that the pretrial proceedings are conducted within the timelimits laid down in this Code .

Cases in which the accused is remanded in custody shall be investigated , examined and disposed of as a matter of priority . ”

Articles CARDINAL and CARDINAL of the DATE Code , which superseded LAW of the DATE Code , provided as follows :

“ CARDINAL . If , in pretrial proceedings , DATE have passed since a person has been charged with a serious offence , or DATE in the case of other offences , the accused may request that his or her case be examined by the court .

NORP In the cases envisaged in subparagraph CARDINAL the accused shall file a request with the relevant firstinstance court , which shall request the case file immediately . ”

“ CARDINAL . The court , consisting of a single judge , shall rule on the request within DATE . If it finds that the requirements of LAW are in place , it shall return the case to the prosecutor and give him or DATE within which he or she must submit an indictment , a proposal for the imposition of an administrative punishment , or a plea agreement , or discontinue the criminal proceedings and inform the court accordingly .

NORP If , within the abovementioned period of DATE , the prosecutor does not carry out any of the measures referred to in subparagraph CARDINAL or if the court does not approve the proposed plea bargain , the court , sitting as a single judge and in private , shall request the case file and shall discontinue the criminal proceedings by means of a decision . After the delivery of the decision the criminal proceedings shall continue with regard to the other accused as well as with regard to the other offences with which the accused has been charged .

NORP If the prosecutor carries out [ one of ] the steps referred to in subparagraph CARDINAL , but the pre - trial proceedings have been tainted by substantive breaches of the rules of procedure , the court , sitting as a single judge and in private , shall discontinue the judicial proceedings and refer the case back to the prosecutor for rectification of the breaches and resubmission of the case to the court within DATE .

NORP If within the timelimit referred to in subparagraph CARDINAL the prosecutor does not submit the case to the court or the substantive breaches of the rules of procedure have not been made good , or further ones have been committed , the court , sitting as a single judge and in private , shall discontinue the criminal proceedings by means of a decision .

The decisions referred to in subparagraphs CARDINAL and CARDINAL shall be final . ”

On DATE ORG repealed Articles CARDINAL and CARDINAL with effect from CARDINAL DATE .

On DATE the President of the Republic challenged the repeal , along with certain other amendments to the DATE Code of Criminal Procedure , before ORG . In a decision of DATE ( реш. № CARDINAL от CARDINAL септември DATE г. , по к. д. № DATE г. , обн. , GPE , бр. бр. CARDINAL от CARDINAL октомври DATE г. ) that court examined the repeal by reference to , inter alia , LAW . It noted that , unlike LAW , LAW did not explicitly lay down as a basic right the right of those charged with criminal offences to have the charges against them examined and to have the criminal proceedings against them finalised within a reasonable time . However , it analysed in detail the terms of LAW ( see paragraph CARDINAL above ) and held that that provision was to be construed as containing a procedural obligation to comply with the statutory timelimits for conducting and finalising the pre - trial phase of criminal proceedings , with a view to bringing those charged with criminal offences to trial . It thus served the same purpose as LAW , albeit only in relation to the first phase of criminal proceedings . The court continued :

“ As noted above , the [ abolished remedy ] was intended to serve as an effective remedy within the meaning of LAW in order to ensure the right to have a criminal case examined within a ‘ reasonable time’ during the pretrial phase of the proceedings . ORG finds that the repeal of that remedy is not unconstitutional , because it does not remove the disciplining procedural timelimits envisaged under LAW . Statutory limitations on the duration of the CARDINAL parts of the pretrial phase of criminal proceedings – ‘ investigation’ and ‘ steps to be taken by the prosecutor after the investigation has been completed’ – still exist and continue to be applied . ...

The repealed ... Articles CARDINAL and CARDINAL of the Code contained the implicit assessment of the legislature that , in view of the need to complete criminal proceedings within a reasonable time , it was unacceptable for a person to remain charged in pretrial proceedings for DATE in cases of serious offences and for DATE in cases of lesser offences . In most cases those timelimits would be longer than the sum of the timelimits under LAW CARDINAL and LAW . An exception could occur only if the duration of the investigation was extended , exceptionally , to DATE by the head of a regional or higher prosecutor ’s office or a person designated by him or her ( LAW ) . Only then would the repeal lead to a restriction of a procedural right and raise the question whether , in the light of LAW , that restriction did not exceed what was required for the administration of justice .

ORG does not accept the argument that the legislative change destroys the right of the accused to have their cases examined within a ‘ reasonable time’ , as required under LAW . The [ DATE ] Code of Criminal Procedure laid down the basic principle that cases are to be examined and decided within a reasonable time , requiring the authorities in charge of pretrial investigations to comply with procedural timelimits ( LAW ) . The constitutional amendments in DATE and the new [ LAW ] , adopted in DATE , put in place additional safeguards for the faster examination of cases and for avoiding their undue protraction . The repeal of [ Articles CARDINAL and CARDINAL of the Code ] does not affect that system of rules . Its aim was to improve the law in order to ensure good justice , which is [ a legitimate aim ] .

The main weakness of the repealed procedure was that it used a formal , purely quantitative criterion to measure ‘ reasonable time’ during the pretrial phase of the proceedings . It is true that in most cases such an approach would lead to a correct assessment – something fully logical in view of the fact that under the rules of procedure a person can be charged only if there already exists ‘ enough evidence’ that he or she is guilty . However , in some complex cases that criterion might , contrary to the public interest that all offenders be brought to justice , give the accused an undue advantage – for instance in cases in which it proves to be genuinely difficult to trace and charge accomplices , cases in which the need arises to gather additional evidence , including through letters rogatory , cases in which the accused has slowed down the proceedings , etc . It is no wonder that the caselaw of ORG CARDINAL § CARDINAL of the LAW is quite flexible . That ORG uses CARDINAL criteria to assess the relevant period : the factual and legal complexity of the case , the conduct of any authorities involved and the conduct of the person concerned [ ( see Eckle v. GPE , DATE , Series A no . CARDINAL ; PERSON and PERSON v. GPE , DATE , Series A no . CARDINAL ; PERSON GPE , no . CARDINAL , DATE ; and ORG v. GPE , no . CARDINAL/CARDINAL , DATE ) ] . It is equally possible to exceed a reasonable time while formally complying with the applicable timelimits and to comply with the ‘ reasonable time’ requirement while exceeding the applicable timelimits . ORG finds breaches of the ‘ reasonable time’ requirement only on the basis of delays attributable to the authorities . In view of that , ORG considers that by repealing [ Articles CARDINAL and CARDINAL ] of the [ DATE ] Code of Criminal Procedure the legislature sought to achieve a constitutionally legitimate aim – to ensure the interests of justice while taking into account the right to ‘ a hearing within a reasonable time’ , as construed by ORG . In so far as in exceptional cases the new legal framework could restrict the rights of the accused , one should take into account that there exists a balancing mechanism , namely the requirement under LAW and CARDINAL of LAW ] for all preventive measures [ such as pretrial detention or house arrest ] to be set aside after the expiry of timelimits that are identical to those under the repealed provisions .

It is also important to examine whether the repeal of the possibility for accused persons to request that their case be brought for trial does not create a lacuna in the law , in breach of the requirement of LAW for effective remedies in respect of the rights and freedoms enshrined in the LAW and in particular the right of those charged with criminal offences to have their cases examined within a reasonable time . In its caselaw ORG has held that remedies are effective if they can prevent the alleged violation or its continuation , or provide adequate redress for any violation that has already occurred [ ( see GPE v. GPE [ ORG ] , no . GPE , § CARDINAL , ORG CARDINALXI ) ] . In a number of judgments , that ORG has noted that before the introduction of Article CARDINALa of the [ CARDINAL ] Code of Criminal Procedure our State did not make available a remedy complying with the requirements of LAW , read in conjunction with LAW and capable of ensuring that the pretrial phase of criminal proceedings does not exceed a reasonable time [ ( see NORP and NORP v. GPE , nos . FAC and DATE , DATE ; PERSON v. GPE , no . CARDINAL , DATE ; and GPE v. GPE , no . CARDINAL , DATE ) ] . In those circumstances , the answer to the above question depends on whether , from the creation of that remedy in DATE until its abolition in DATE , the ORG has created alternative mechanisms ensuring the availability of effective remedies in respect of the right to have charges examined within a reasonable time during the pretrial phase of criminal proceedings . In [ our ] view , that has been done , as far as rules are concerned . An amendment to LAW [ which came into force in DATE ] created a new independent body , the ORG attached to ORG , which may act pursuant to requests by the persons concerned , a category which includes those charged with a criminal offence . That ORG checks the work of the judicial authorities and has the power to report and make proposals to all ORG authorities , including the competent judicial authorities ( LAW and CARDINAL of the LAW ) . The ORG ’s powers have been laid down in more detail in the new [ LAW ] . It may now check ‘ the way in which judicial , prosecutorial and investigation case files are being opened and processed , as well as their completion within the prescribed timelimits’ ( section CARDINAL ) of the LAW ) . Under section CARDINAL(CARDINAL ) of the LAW , the results of such checks have to be made available not only to the judge , prosecutor or investigator concerned , but also to the head of the relevant department of the judiciary . That head must then inform the chief inspector whether any recommendations given have been complied with within the timelimit set in the ORG ’s report ( section CARDINAL(CARDINAL ) of the Act ) . If it is necessary to prevent or overcome an undue delay during the pretrial phase of criminal proceedings , the authority in charge of ensuring compliance with the ORG ’s directions is the head of the relevant department of the prosecuting authorities . He or she has the power to take various measures : organisational ( under section PERSON ) of the Act ) , disciplinary ( to impose certain light sanctions under section CARDINAL(CARDINAL ) of the LAW or to initiate disciplinary proceedings before ORG ) and procedural ( to set aside or vary the decisions of the lower prosecutors , to give mandatory directions or personally to take the necessary procedural steps , as possible under LAW of the [ DATE ] Code of Criminal Procedure , [ or ] to exercise control over the activities of the investigating authorities in line with ORG CARDINAL and CARDINAL of the [ same Code ] ) . It can therefore be accepted that the repeal of [ Articles CARDINAL and CARDINAL of the Code ] does not lead to a legal vacuum incompatible with LAW . Naturally , the mere existence of rules does not preclude the risk of future judgments in which ORG will find violations in respect of GPE . All State authorities must take into account the general statement made in GPE , cited above , namely that the remedy required by LAW must be effective in practice as well as in law . ”

Section CARDINAL of the DATE State and ORG ( “ the DATE LAW , as in force since DATE , provides as follows :

“ The ORG and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of administrative action . ”

Section CARDINAL ) of the LAW provides as follows :

“ The ORG shall be liable for damage caused to individuals by organs of [ the investigation ] , the prosecution and the courts through unlawful :

NORP bringing of criminal charges , if the person concerned has been acquitted or if the criminal proceedings are discontinued because the offence was not committed by the person concerned , or [ that person ’s ] act does not constitute a criminal offence ... ”

Individuals who have been acquitted or had the proceedings against them discontinued on CARDINAL of the grounds set forth in section CARDINAL ) DATE which , according to an interpretative decision of ORG ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по тълк. гр. д. № CARDINAL г. , ORG на ВКС ) , include discontinuance because the charges have not been made out DATE can obtain compensation for the mere fact that criminal proceedings have been instituted against them . According to the same decision , compensation is due in respect of the proceedings themselves and in respect of any incidental measures , such as pretrial detention . The decision also says that compensation is due in cases of partial acquittal , where there is an established causal link between the charges in respect of which a person has been acquitted and the damage sustained .

In several judgments given DATE ORG , when fixing the amount of damages it awarded pursuant to such claims , had regard to , among other factors , the length of the proceedings ( реш. № CARDINAL от CARDINAL юни DATE г. по гр. д. № ORG г. , ORG , PERSON г. о. ; реш. № CARDINAL от CARDINAL декември DATE г. по гр. д. № MONEY г. , ORG , PERSON г. о. ; реш. № CARDINAL от CARDINAL януари DATE г. по гр. д. № MONEY г. , ORG , PERSON г. о. ; реш. № CARDINAL от CARDINAL март DATE г. на гр. д. № ORG г. , ORG , PERSON г. о. ; реш. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG , PERSON г. о. ; реш. № DATE от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ; реш. № DATE от CARDINAL ноември DATE г. по гр. д. № DATE г. , ORG , I г. о. ; реш. № CARDINAL от CARDINAL февруари DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG , V г. о. ; MONEY CARDINAL от DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) . The examination of those claims lasted DATE in total .

Under LAW of the DATE LAW , when sentencing a convicted offender the court has to fix the punishment within the limits set by law , by reference to the DATE ’s general rules and taking into account the dangerousness of the offence and of the offender , the motives , as well as all other aggravating and mitigating circumstances .

Article CARDINAL § CARDINAL of the Code makes it an offence for officials or managers to fail to take due care in managing or keeping secure the assets entrusted to them , where such failure results in substantial losses , destruction or dissipation of such assets , or other substantial damage to the undertaking or the economy . The punishment can be up to CARDINAL GPE imprisonment . LAW provides that if the offence has been committed wilfully , it is punishable by DATE imprisonment . LAW provides that if the offence is particularly serious , the punishment ranges DATE if the offence has been committed negligently , and DATE if it has been committed wilfully .

On DATE , during its CARDINALth meeting , ORG adopted an Interim Resolution on the execution of the judgments of ORG concerning the excessive length of judicial proceedings in eightyfour cases against GPE ( CM / ResDH(CARDINAL)CARDINAL ) . The resolution reads :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG hereinafter “ the Convention ” ) ,

Having regard to the number of judgments of ORG ( “ the ORG ” ) finding GPE in violation of DATE , paragraph CARDINAL and LAW on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard ( see LAW to this resolution ) ;

Recalling that excessive delays in the administration of justice constitute a serious danger , in particular to respect for the rule of law and access to justice ;

Recalling also its Recommendation Rec(CARDINAL)CARDINAL to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings , and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention ;

Having examined the information supplied by the NORP authorities concerning the measures taken or envisaged in response to those judgments ( see PERSON I ) , including the statistical data on the length of judicial procedures ( see PERSON ) ;

Assessment of ORG

I. Individual measures

Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found ( restitutio in integrum ) , in particular the acceleration , as far as possible , of proceedings which were still pending after the findings of violations by the ORG ;

Noting however with concern that the domestic proceedings in CARDINAL cases are still pending before the domestic courts and that the authorities have been unable to provide information CARDINAL other cases ( see Appendix I ) ;

CALLED UPON the NORP authorities to provide for acceleration as much as possible of the proceedings pending in these cases , in order to bring them to an end as soon as possible , and to inform it of the progress of proceedings in the CARDINAL afore - mentioned cases ;

II . General measures

CARDINAL ) Measures aimed at reducing the length of judicial proceedings

Noting the numerous violations found by ORG on account of the excessive length of civil and criminal proceedings in GPE , revealing certain structural problems in the administration of justice at the time of the relevant facts ;

Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure ( see Appendix I ) ;

Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system , and in particular the establishment of assessment and monitoring mechanisms , including the collection and analysis of statistical data ;

Noting that the DATE statistics show a reduction in the backlog in the NORP courts as a whole , and an increase in the number of cases dealt with in the space of DATE ( see PERSON ) ;

Noting however that , according to the statistics , the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered , and that those courts were responsible for examining CARDINAL the cases pending in the country in DATE ( see PERSON ) ;

Noting also that the legislative reforms introduced DATE have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed ;

ENCOURAGED the NORP authorities to pursue their efforts in following up the reforms introduced , in order to consolidate their positive effects , in particular as regards the situation in the district courts located in regional centres ;

CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds , with a view to adopting , if appropriate , any further measure necessary to ensure its effectiveness , and to keep the ORG informed of the developments in this regard ;

CARDINAL ) Measures relating to the effectiveness of remedies

Recalling that the ORG has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in GPE , revealing certain structural problems in this field ;

Recalling its Recommendation Rec(CARDINAL)CARDINAL encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered ;

Noting with interest that Articles DATE of the Code of Civil Procedure provide that , if a court does not take a procedural step in due time , the parties may at any time apply to the superior court for a time - limit to be set for the taking of the procedural step in question , thus affording a remedy designed to speed up the civil proceedings ( see Appendix I ) ;

Noting also that there exist in criminal law certain forms of nonpecuniary redress , such as the possibility of reducing the sanction , where there is a finding of excessive length of proceedings ;

Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate ( see Appendix I ) ;

Welcoming in this context the reform undertaken by the authorities aimed at introducing into NORP law a compensatory remedy where excessive length of judicial proceedings is alleged ( see PERSON I ) ;

INVITED the NORP authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings , and to keep the ORG informed of its progress and of any other measure that may be envisaged in this field ;

Having regard to the foregoing , ORG

DECIDED to resume its examination of progress made at the latest :

– by DATE , with regard to the question of effective remedy ;

– by PERSON , with regard to the question of the excessive length of judicial proceedings . ”

An appendix to the resolution summarised the information provided by ORG on the measures taken by the NORP authorities in that domain . It reads :

“ I. Individual measures

The proceedings which were still pending before the domestic courts at the time when the ORG gave its judgments have been terminated in most of the cases . At the present time , the proceedings have not yet been terminated in the GPE , GPE , PERSON , PERSON , PERSON , GPE and GPE cases . Information is still awaited also on the state of progress in the proceedings in the GPE and GPE cases .

II . General measures

CARDINAL ) Measures aimed at reducing the length of proceedings

– Legislative measures

CARDINAL of Criminal Procedure ( “ CCrP ” ) , adopted in DATE , came into force on DATE . Like the new CCvP , it aims in particular to speed up criminal proceedings . For example , it prescribes short time - limits for the examination of a case and for postponement of its examination ( Articles CARDINAL , CARDINAL and CARDINAL ) and the more widespread use of simplified procedures ( Articles DATE , DATE and DATE ) . According to the DATE report of the president of ORG on the work of the courts , the simplified judicial procedures most often used in DATE in the field of criminal justice related to summary judicial investigation and plea bargaining between the accused and the prosecution ( an agreement enabling the prosecution to be terminated provided the court approves ) .

The other important provisions of the ORG provide for :

– the obligation on the courts and bodies responsible for the preliminary investigation to examine criminal cases within a reasonable time ; in addition , cases in which the accused is held in detention must be given priority over other cases by the courts examining and judging them ( LAW ) ;

– time - limits for termination of the preliminary investigation and prohibition on the use in court of any evidence obtained outside the time - limit ( Article CARDINAL ) ;

– the introduction of summary judicial investigation in courts of first instance ; this procedure makes it possible for the accused to obtain a reduction of sentence if he admits the offence and relinquishes the production of evidence , provided he is assisted by counsel ( where necessary appointed by the court ) ;

– broader applicability of the simplified procedure whereby the accused may be absolved of his criminal responsibility and an administrative penalty imposed instead .

Furthermore , the DATE CCrP was amended in DATE for the purpose , in particular , of avoiding ( a ) unjustified referrals at the preliminary investigation stage ( LAW ) and ( b ) postponement of the hearing where the representative of the accused fails to appear without good reason ( LAW ) . In addition , it is to be noted that now the possibility for the prosecution to bring further charges during the judicial investigation has been widened , even if those charges relate to different facts or an offence carrying a more severe penalty ( LAW ) .

Some other changes are aimed at reducing the excessive formalism of criminal procedure in GPE ( for example , the abrogation of the requirement that the investigator draws up a formal document setting out his conclusions – Articles DATE ) .

– Administrative measures designed to improve the organisation and management of the courts

Among other reforms designed to improve the efficiency of the NORP judicial system , should be mentioned the creation in DATE of an electronic commercial register managed by an administrative agency ( see the commercial register law in force since DATE ) . Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility .

Furthermore , following the adoption of LAW in DATE , CARDINAL administrative courts were set up in DATE . These new administrative courts have powers previously exercised by the regional courts . In addition , as an ad hoc measure aimed at lightening the workload of ORG , labour disputes pending before it when the DATE CCvP came into force have been transferred to the appeal courts .

It should also be pointed out that the judicial authorities now have access to the national database containing the population register , which should overcome certain delays arising from requests for information needed to take judicial proceedings forward .

Finally , GPE has achieved a high level of computerisation designed to assist both judges and other personnel ( for further details , see the DATE report of ORG for ORG ) . Moreover , the courts are continuing their efforts to improve their IT equipment in order to communicate with parties . Those efforts were recently rewarded by the award of the DATE “ Crystal Scales of Justice ” prize to the NORP administrative court for the work it has done to improve users’ understanding of judicial procedure .

– Mechanisms for periodic assessment and monitoring of the work of the courts

CARDINAL bodies – ORG and ORG – have the main responsibility for monitoring and assessing the work of the courts , prosecution services and investigating magistrates .

ORG , established in DATE , comprises an inspectorgeneral and CARDINAL inspectors elected by ORG for terms of CARDINAL and DATE respectively ( Article CARDINALa of the LAW ) . It oversees the administrative organisation of the courts , prosecution services and bodies in charge of preliminary investigations , together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts . In particular , the inspectorate oversees compliance with the time - limits laid down by law for dealing with cases . It carries out its tasks ( a ) through planned regional inspections and ( b ) through inspections focussing on particular questions . It may also conduct inspections in response to reported irregularities ( [ sections ] CARDINAL and CARDINAL of the [ DATE LAW ] ) .

Following inspections , it makes recommendations , particularly concerning compliance with the timelimits laid down by law for dealing with cases . Implementation of its recommendations is monitored in the course of followup inspections . The inspectorate may also make proposals to ORG administrative authorities and to ORG for the imposition of disciplinary penalties on judges , prosecutors and investigating magistrates ( see “ Disciplinary measures ” below ) . The work of the inspectorate is covered in the progress report of ORG .

ORG oversees , among other things , the manner in which case registration and handling are managed , as well as closure of cases within the legal time - limits . This inspectorate organises thematic controls in accordance with a programme approved by ORG . It may make recommendations and supervises their implementation in the course of subsequent inspections .

ORG is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out , it has observed some of the causes of procedural delays and made recommendations in this regard .

Furthermore , the presidents of ORG and ORG are required to present DATE reports on the functioning of trial and appeal courts , in addition to DATE reports on their own activities ( [ sections MONEY ) and ( CARDINAL ) and CARDINAL ) and ( CARDINAL ) ] of the [ DATE LAW ] ) . Lastly , DATE ORG centralises and analyses the statistics on the work of all the country ’s courts ( cf . PERSON ) .

– Disciplinary measures

Under the [ DATE LAW ] , systematic failure to comply with the time - limits laid down in procedural laws , and action or inaction such as to delay proceedings in an unjustified manner , are disciplinary offences ( [ section ] CARDINAL § CARDINAL ) . ORG has the power to impose disciplinary penalties ( other than comment and reprimand , which are imposed by the hierarchical superior ) on judges , prosecutors and investigating judges . The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by ORG ( [ section ] CARDINAL ) .

The authorities have stated that during the period DATE the number of disciplinary proceedings before ORG rose steadily ( CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ) . By way of example , in DATE CARDINAL judges and CARDINAL head of administration were sanctioned , mainly for systematic failure to comply with the time - limits laid down by law . Among them , CARDINAL judges were dismissed and CARDINAL others had their salaries reduced by PERCENT for periods of DATE .

– Longterm strategies

The NORP authorities have adopted several strategies on judicial reforms . For example , a criminal policy strategy for the period DATE has been adopted , the principal objective being to further reduce the excessive formalism of criminal procedure . It should be noted that the amendments to the DATE CCrP were decided on the basis of this strategy ( see above ) .

Further , in DATE the government adopted a plan to eradicate the causes of violations of the ORG found by ORG in its judgments concerning GPE . That plan was drawn up by a working party which included representatives of ORG as well as human rights activists . Among the tangible results obtained on the basis of this plan , should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings ( see below ) . In DATE the government adopted the strategy on continued judicial reforms in GPE following its accession to ORG .

CARDINAL ) Measures relating to the effectiveness of remedies

– Remedy concerning speeding up of criminal proceedings

The provisions of ORG CARDINAL and CARDINAL of the new ORG , which incorporated LAW of the DATE ORG , envisaged the possibility for the accused to request referral of his case to the competent court once a period of DATE , depending on the gravity of the charges , had elapsed since the start of the preliminary inquiry . The court to which that request was submitted could order the prosecuting authority to complete the preliminary inquiry within DATE or else bring the criminal proceedings to an end .

In the PERSON judgment ( No . DATE , § § DATE , DATE ) , ORG declared the complaint based on LAW inadmissible for failure to exhaust the domestic remedies , because the applicant had not availed himself of the remedy provided for in LAW However , it should be noted that in another case examined by ORG ( LOC against GPE , No . CARDINAL , DATE ) , the application of Article CARDINALa of the CARDINAL CCrP was the cause of the closure of a criminal inquiry into illtreatment . In that case ORG found a violation of LAW .

Articles CARDINAL and CARDINAL were abrogated as from CARDINAL DATE . The authorities indicated in this connection that the abrogated provisions had mainly served as a reason for terminating the criminal proceedings , without guaranteeing a full inquiry . They consider that new provisions relating to the possibility of imposing disciplinary penalties for systematic failure to comply with timelimits or for unjustified delays could be seen as a guarantee of expeditious criminal proceedings ( for more details , see the Government ’s reply to CARDINAL NGO ’s observations on this point on ORG website : DHDD(CARDINAL)CARDINAL ) .

– Compensatory remedy

ORG has consistently pointed to the absence in NORP law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings ( see , for example , the PERSON against GPE judgment cited above , § CARDINAL ) .

In this connection the ORG has indicated that , in the context of implementing a plan to eradicate the causes of the violations found by ORG in judgments concerning GPE , it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals . This bill envisages , in particular , the introduction of an application for compensation in cases of unjustified delay in the proceedings . This working party has drafted a bill providing that the state may be held responsible , in addition to the cases already settled , where unjustified delay in civil , criminal and administrative proceedings are attributable to the judicial authorities .

As regards criminal proceedings , it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings , such as the possibility of reducing the penalties . This form of redress has been recognised by ORG as an effective remedy in certain circumstances ( PERSON against GPE judgment of DATE , § CARDINAL ) . ”

A second appendix to the resolution contained statistical data on the processing of cases in the NORP courts . It reads ( footnotes omitted ) :

“ I. Statistics on length of judicial proceedings before the NORP courts

CARDINAL ) Data for NORP courts as a whole

The general trend which emerges from the data available shows that , despite a resurgence in the number of cases registered , the number of cases terminated for all courts is on the increase ( in DATE it was PERCENT higher than in DATE , and PERCENT higher than in DATE ) . Similarly , the backlog facing the courts as a whole decreased for DATE . Thus the decrease in the number of cases pending at DATE is of PERCENT as compared with DATE and of PERCENT as compared with DATE .

The number of judges , taking all courts together , was CARDINAL in DATE , PERCENT more than in DATE and PERCENT DATE .

CARDINAL ) ORG

– Criminal bench

CARDINAL consequence of the entry into force of the DATE ORG was a fall in the number of cases registered , since judgments delivered on appeal upholding the judgments delivered at first instance are now not subject to review by ORG . Thus , while the criminal bench had examined CARDINAL cases at public hearings in DATE , the corresponding figures for DATE and DATE were CARDINAL and CARDINAL cases respectively .

In DATE the criminal bench registered CARDINAL cases DATE , and its backlog also increased ( from CARDINAL cases at DATE to CARDINAL cases at DATE ) . However , that increase in the backlog had no major effect on the length of proceedings before the criminal bench . Indeed , in DATE , the proceedings following appeals in cassation and applications for reopening of procedures took DATE , as in DATE .

CARDINAL ) ORG courts

The backlog in the appeal courts is constantly decreasing . The number of cases pending at DATE ( CARDINAL ) decreased by PERCENT as compared with DATE and by PERCENT as compared with DATE .

CARDINAL ) Military [ courts ]

The same trend is observed in military [ courts ] . In DATE , the backlog decreased by PERCENT as compared with DATE and by PERCENT as compared with DATE .

CARDINAL ) ORG courts and GPE [ C]ourt

The creation in DATE of CARDINAL administrative courts , as well as an agency responsible for entries in the commercial register , led to a significant decrease in the number of cases registered by regional courts in DATE ( PERCENT fewer than in DATE and PERCENT fewer than in DATE ) . Cases pending at DATE numbered CARDINAL , a figure PERCENT lower than in DATE and PERCENT lower than in DATE .

CARDINAL ) District courts located in regional centres

The backlog in these courts at DATE had grown by PERCENT as compared with DATE and by PERCENT as compared with DATE . This increase is due to the rise in the number of cases they had to deal with in DATE ( PERCENT more than in DATE and PERCENT more than in DATE ) , and despite a larger number of cases terminated during DATE ( PERCENT more than in DATE and PERCENT DATE ) .

In DATE the district courts located in regional centres registered CARDINAL cases ; CARDINAL cases were registered by the GPE district court , i.e. PERCENT of all cases newly registered with the courts in this category .

CARDINAL) LOC courts located outside regional centres

The backlog in these courts at DATE had fallen ( by PERCENT as compared with DATE and by PERCENT as compared with DATE ) notwithstanding an increase in the number of cases they had to deal with ( PERCENT more than in DATE and PERCENT more than in DATE ) .

This trend was due to the increase in the number of cases terminated in DATE ( PERCENT more than in DATE and PERCENT DATE ) . It is also to be noted that in DATE , CARDINAL cases were concluded within DATE , a figure PERCENT higher than for DATE and PERCENT higher than for DATE .

II . Statistics for the length of preliminary investigations

In DATE , cases in which the preliminary investigation was under way numbered CARDINAL , a figure PERCENT higher than for DATE . Investigations started during DATE numbered CARDINAL , PERCENT more than for DATE . Investigations initiated during DATE represented PERCENT of investigations under way in DATE . The backlog at DATE consisted of CARDINAL cases being investigated . The backlog at DATE consisted of CARDINAL cases being investigated ( as against CARDINAL in DATE ) .

As regards cases in which the investigation was suspended , their number fell from CARDINAL in DATE to CARDINAL at DATE . In PERCENT of these cases , the reason for suspension is the impossibility of identifying the perpetrator of the criminal offence . ”

In DATE ( DATE ) on the implementation of the ORG ’s judgments , adopted on DATE , ORG of ORG noted “ with grave concern ” the continuing existence of “ major systemic deficiencies which cause large numbers of repetitive findings of violations of the ORG and which seriously undermine the rule of law ” in some Member GPE of ORG . CARDINAL of those was the “ excessive length of judicial proceedings ” ( paragraph CARDINAL ) . The ORG , in particular , urged GPE to , inter alia , “ pursue its efforts to solve the problem of excessive length of court proceedings ” ( paragraph CARDINAL in fine ) .


Preliminary objections dismissed (non-exhaustion of domestic remedies;six month period);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

He worked in a construction yard in GPE for ORG , ORG ( hereinafter “ the company ” ) , from DATE until DATE .

On DATE , the applicant brought a case against the company before ORG . He claimed that the company had made him stay and wait for DATE in GPE where he had returned for DATE . However , he was neither sent back to GPE nor given work in GPE . He submitted that no payment had been made to him concerning his salary for this period and that he had not been notified of the termination of his contract . He requested the court to rule on his unpaid salary and compensation for the length of his service ( kıdem tazminatı ) and the lack of any dismissal notice ( ihbar tazminatı ) , together with interest .

On DATE the court made the first examination on the case file and decided to hold a hearing on DATE , before which date the company was required to submit its replies , with any evidence .

The defendant did not appear at the hearings of DATE and DATE although the summons had been duly served .

On DATE the court took evidence from CARDINAL of the witnesses whom the applicant wished to have examined , who were his co - workers at the construction yard . The applicant 's lawyer stated that they would ensure that a third witness would be present at the next hearing .

On DATE the court heard the third witness . At the end of the hearing , the court decided to obtain an expert report and , accordingly , sent the case file to the expert after the necessary fee had been deposited by the applicant .

NORP The first expert report dated DATE stated that the company was liable to pay the applicant compensation for his length of service , for non - notification of the termination of his contract and for his unpaid salary . The amounts due were also assessed in the report .

On DATE the applicant 's lawyer objected to the report , claiming that the amounts were insufficient and requesting that it be reviewed by another expert .

On DATE , the court decided to obtain an additional expert report from the same expert once an additional fee had been deposited by the applicant . Accordingly , a second report was prepared by the same expert and submitted to the court . This report stated that the claim made by the applicant 's representative was valid in respect of the amount of compensation for his length of service . This should have been in the sum of MONEY . The applicant 's lawyer challenged that report and requested a further assessment , to be made by another expert .

The applicant 's representative did not attend the hearing on DATE . The court decided to discontinue the proceedings unless a request for resumption was put before it . Upon the request by the applicant 's lawyer , the case was reinstated on DATE and a hearing was scheduled for CARDINAL DATE .

On DATE the court decided that , if the necessary fees were deposited by the applicant within DATE , an order would be sent to the defendant requesting payslips showing that the applicant had been paid a salary for DATE after he had returned to GPE . The company would be warned that , unless these payslips were provided , it would be assumed that no salary had been paid . The hearing was postponed to DATE . The defendant company did not respond to the order despite the formal warning .

On DATE the court decided to obtain another expert report , the cost of which was to be paid by the applicant . The report , in which the abovementioned DATE period had been taken into account , was submitted to the court on DATE .

On DATE the applicant 's lawyer requested that another case pending before the court , which was grounded on the same facts and in which additional compensation had been claimed , be joined to the present case . The court decided to join the proceedings as requested and postponed the hearing to CARDINAL DATE .

On DATE ORG awarded the applicant MONEY in total in compensation for the length of his service , the lack of dismissal notice and his unpaid salary . In the judgment , it was stated that the proportionate court fee for the judgment was MONEY . This fee , less the amount paid by the applicant at the beginning of the proceedings , was to be borne by the defendant company .

On DATE the court ordered the bailiffs ' tax office to levy the court fee from the company .

On DATE the applicant 's lawyer submitted a petition to the court , in which she requested that the judgment be served on her to enable the commencement of enforcement proceedings . She stated that the applicant had won his case whilst the defendant company , in addition to the payment of compensation , had been held liable for the legal costs and charges . She pointed out the risk that the company , which had a known address at the time of the judgment , would attempt to evade its obligations by moving elsewhere , on account of its financial crisis . She further maintained that the applicant would be willing to pay the court costs in order to obtain the judgment , but did not have sufficient means to do so .

On DATE the court rejected this request on the ground that it was impossible under LAW ( a ) of the Law on Charges ( Law no . MONEY ) to serve a copy of the judgment unless the court costs had been discharged .

The applicant was therefore unable to bring enforcement proceedings in order to have the abovementioned judgment executed . In the meantime , the company has apparently relocated .

NORP The relevant Articles of the Law on Charges ( Law no . CARDINAL of CARDINAL DATE ) read as follows :

“ The proportional charges set out in scale no.CARDINAL shall be paid within the following periods :

( a ) CARDINAL of the charges for the judgment and the writ shall be paid beforehand and the rest shall be paid within DATE of the judgment 's delivery . The writ shall not be served on the party concerned unless the [ court ] charges for the judgment and a writ of execution are paid .... ”

“ As long as the relevant charges for the judicial processes are not paid , the subsequent processes shall not be executed . If the charges which were not paid by the party concerned are paid by the other party , the process shall be continued and the amount shall be taken into consideration in the judgment without the need for any request to this effect . ”

“ Charges not paid within the periods foreseen in this PERSON shall be notified by the court or legal office to the relevant tax office within DATE from the expiry of the abovementioned time - limit , and the charges shall be recuperated by the tax office . This order shall include the nature and amount of the charge and the tax - payer 's details , including the address . ”


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .

A.

The facts of the case , as submitted by the parties , may be summarised as follows .

Applicant ’s version of the facts

The applicant used to live and work as a farmer in the GPE hamlet of the GPE village attached to the FAC district of the province of ORG .

On account of terrorist activities in the state of emergency region the villagers were requested to be village guards and the villages of those who did not agree to be village guards were evacuated and destroyed by security forces .

The applicant was also requested to be a village guard . As he did not agree he received a warning from the security forces in the region .

On DATE the commander of FAC in the GPE village arrived in the applicant ’s village accompanied by soldiers and requested the applicant either to agree to be a village guard or to leave the village .

On DATE the applicant , along with CARDINAL members of his family , left his home and village since he was continually threatened with death .

The applicant arrived in his son ’s house in GPE and telephoned his brother who lived in his village . He learned that his home and its contents had been destroyed by security forces in TIME the day he had abandoned his village .

The applicant and his family are currently living in GPE .

Government ’s version of the facts

The authorities began an investigation immediately after they had learned of the applicant ’s allegations . In this respect , on DATE the ORG Commander of the GPE village took statements from the applicant ’s brothers , PERSON and PERSON , who are currently living in the applicant ’s village .

PERSON stated :

“ I know PERSON . He is my elder brother . Until DATE we lived together in the same village . At the relevant time , his son PERSON went to GPE to find work . We learned that he had joined the mountain cadre of the ORG . I do not know whether my brother was involved in the NORP terrorist organisation . After his son had [ joined the ORG ] he wanted to emigrate to GPE . He did not tell us why he wanted to go GPE . He was thinking of finding a proper and better job . In DATE he emigrated to GPE of his own will . There has never been a [ military ] operation in our village neither before nor after [ DATE ] . Security forces did not force us to abandon our village . Nobody beat or threatened us in order to force us to evict the village . My brother PERSON was neither insulted nor beaten by any member of the security forces . We are not village guards . We were not subjected to pressure to agree to be village guards . We are living in peace in our village . It is not true that my brother PERSON left the village on account of the pressure or torture inflicted on him since he did not agree to be a village guard . His house was neither burned nor destroyed by the security forces . His house is in a good state . However , I removed the wooden parts of his house ( doors , windows and the roof ) DATE after he had left the village , considering that [ my brother ] would not return to the village . Some of the wood is in my stable . I used some of them . My brother PERSON knows that I removed the wooden parts of [ his house ] and I do not understand why he had slandered [ the security forces ] . However , I consider that he might have been tempted to lie by the ORG or his son in the mountain [ cadre ] . None [ of the houses ] has been burned or destroyed . Nobody was beaten , insulted or tortured in our village . We were not forced to agree to be village guards and we are still not village guards . I can return the wooden parts of my brother ’s house if he wants . They are at my place . I removed the wooden parts in order to protect them from decaying . My brother has QUANTITY of land in the village . We are using his land and paying him a rent . If my brother wants to return to the village he may live with us . We are not under pressure of the security forces ... ”

PERSON stated :

“ PERSON is my elder brother . We are currently living in the LOC hamlet of the GPE village attached to the Bismil district in the province of GPE . We are dealing freely with our works in the village . My brother abandoned the village DATE of his own will and emigrated to GPE . I do not know why he emigrated . In DATE his son PERSON went to GPE to work and later joined the mountain cadre of the ORG . Following this incident my elder brother emigrated to GPE . He emigrated of his own will . He was not subjected to pressure or oppression by security forces . There has not been an operation before or after DATE . We are not village guards . It is a lie that we were subjected to pressure to agree to be village guards . We still are not village guards . Me and my brother PERSON are taking care of our elder brother PERSON house and fields since he emigrated to GPE . Me and PERSON disassembled the wooden parts of ORG house . The other parts of the house are currently as they used to be [ in the past ] . My brother PERSON and I are cultivating [ PERSON ] ’s fields and sending the rent to him . It is absolutely a lie that we are subjected to pressure or oppression by security forces . Everybody is living freely and getting on with his own work . My elder brother PERSON left the village on his own will . The [ allegation ] that he was subjected to pressure to agree to be a village guard is a lie ... ”

On DATE ORG and the Deputy Commander went to the applicant ’s village to conduct a survey of the scene of the incident . A survey minute was drawn up and signed by the Commander , the Deputy Commander , the applicant ’s CARDINAL brothers , PERSON and PERSON , and CARDINAL inhabitants of the village . The survey minute stated :

“ On DATE [ we ] went to [ PERSON ] ’s village in order to carry out an investigation following his application to ORG . [ PERSON house was found . [ We ] , along with his brother PERSON , arrived to the house ORG had abandoned . Subsequent to the examination , it was observed that no demolition , burning or destruction had occurred . PERSON stated that he had disassembled the wooden doors , windows and the roof in order to protect them from decaying . It was further observed that some of the disassembled materials were used [ by PERSON ] , some were kept in his stable , the wooden materials were in a good state and did not bear any trace of fire . The villagers and his brothers were asked about the alleged acts complained of . They all stated that no operation had been carried out [ in the village ] and no destruction , burning or violence had occurred . [ They further stated ] that there was no village guard in the village and nobody was forced to agree to be a village guard . According to the statements of his brothers and the villagers it was understood that [ PERSON ] had left the village on his own will ... ”

On DATE the FAC Commander sent a letter to ORG informing it of the conclusion of the investigation carried out . He stated that on DATE no operation was carried out in the GPE hamlet of the GPE village , the villagers were not forced to agree to be ORG and there was no village guard in the village at the present time . He further stated that the records kept by the authorities indicated that [ PERSON ] had never applied to or lodged complaints with the [ administrative or judicial ] authorities .

On DATE the Bismil Public Prosecutor , accompanied by an expert and the applicant ’s brother PERSON , conducted a survey of the applicant ’s house . He noted in his report that the applicant ’s house had not been not destroyed or burned but its wooden parts had been removed and used by his brother PERSON . He further noted that CARDINAL pieces of wooden materials removed from the applicant ’s house were kept in his brother ’s stable and that they were in good condition and usable . On DATE , ORG took statements from CARDINAL inhabitants of the applicant ’s village , PERSON and PERSON . They told ORG that the security forces had not destroyed the applicant ’s house but his brother had removed its wooden parts . They further stated that the applicant had left the village of his own will as well as on account of the pressure from the ORG .

On DATE the Bismil Public Prosecutor and the District Governor sent letters to the Bismil ORG informing it that the applicant had not lodged an application as regards his complaints that he was forced to agree to be a village guard and that his house was destroyed by the security forces .

On DATE the Bismil Public Prosecutor issued a decision to discontinue the criminal proceedings against ORG , PERSON , subsequent to the investigation carried out into the applicant ’s allegations .

B. Relevant domestic law and practice

Administrative liability

Article CARDINAL of LAW provides as follows :

“ All acts and decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist instigators when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Criminal responsibility

It is an offence under LAW

- to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ;

- to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) or aggravated arson if human life is endangered ( Article CARDINAL ) ;

- to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or

to damage another ’s property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to Article CARDINAL of LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human life or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the suspected author of a crime is an agent of the ORG , permission to prosecute must be obtained from a local administrative council ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Provisions on compensation

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts . Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing . Damage caused by terrorist violence may be compensated out of ORG .


The applicant , Mr Muharrem Yılmaz , is a NORP national , born in DATE and living in GPE . He is represented before the ORG by PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the applicant , may be summarised as follows .

In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .

On DATE , following the applicant ’s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .

On DATE ORG upheld the decision of the first - instance court . The due amount , which was CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras ( GPE ) including the interest , was paid to the applicant on CARDINAL DATE .

Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .

A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , § § CARDINAL - CARDINAL .


The applicant is a NORP national , born in DATE and he is currently in prison in GPE , GPE . He is

In or DATE the applicant was charged with conspiring to contravene section CARDINAL of ORG DATE , contrary to section CARDINAL(CARDINAL ) of LAW DATE . The particulars of the offence were that DATE and DATE the applicant conspired with others to assist in the commission in the GPE of an offence punishable under the law of the GPE and corresponding to the law of GPE , namely , the manufacture of methylenedioxymethylamphetamine ( “ Ecstasy ” ) . The applicant was alleged to have played a role in arranging for the purchase of the constituent chemicals used in the production of Ecstasy from GPE for transportation to the GPE or GPE where the Ecstasy would be produced . Much of the evidence against the applicant and his co - conspirators came from a NORP under - cover police officer who had infiltrated the organisation in a joint NORP and NORP operation .

The trial of CARDINAL of the applicant ’s co - conspirators began in the GPE in DATE . They had been charged with a number of offences relating to the same conspiracy including charges relating to the manufacture of Ecstasy . The prosecutor requested a custodial sentence of DATE ( which took account of the time spent in pre - trial detention ) for ORG , who was alleged to be a main player in the conspiracy . However , the NORP court declared CARDINAL of the principal charges against ORG relating to the manufacture of Ecstasy inadmissible in so far as it related to acts committed outside the GPE and decided that that charge was otherwise not proven against him . DATE and DATE these co - conspirators were convicted on the other charges which were not directly related to Ecstasy production . ORG was found guilty of having been concerned in the importation of cannabis , of possession of firearms and ammunition , of possession of Ecstasy pills and of having being concerned in the supply of cocaine and amphetamines , and he was sentenced to CARDINAL months’ imprisonment . The second accused was found guilty of offences almost identical to ORG and he was sentenced to CARDINAL months’ imprisonment . The third accused was found guilty of having been concerned in the importation of cannabis , of handling CARDINAL stolen watches , of having been in possession of a pistol and of having been concerned in the supply of cocaine and amphetamines , and he was sentenced to CARDINAL months’ imprisonment . The fourth accused was found guilty of having been concerned in the importation of cannabis and he was sentenced to CARDINAL months’ imprisonment ( DATE of it being suspended ) .

In DATE the applicant pleaded guilty in ORG in GPE to the above - described charge against him . He pleaded not guilty to CARDINAL other related charges and these were not proceeded with . In DATE he was sentenced to DATE imprisonment . The maximum sentence was DATE imprisonment and he received a credit of CARDINAL in the light of his guilty plea . Submissions as to the lower sentences received by his co - conspirators in the GPE were rejected during his sentencing hearing .

Senior Counsel ’s advice dated DATE suggested requesting leave to appeal from a single judge of ORG ) on the basis that the appeal court would benefit from arguments addressing the terms of Recommendation No . R(CARDINAL)CARDINAL concerning sentencing policy and the effect of that recommendation on the case of PERSON ( [ DATE ] CARDINAL Cr . App . R ( S ) CARDINAL ) , which prohibited an NORP court from considering as relevant sentences imposed in other jurisdictions . The applicant applied to a single judge of ORG ) for leave to appeal against sentence to that court , arguing that the sentence imposed was excessive in that it was manifestly disproportionate to that imposed on his co - conspirators in the GPE . On DATE the single judge rejected the leave request , finding that there was no basis in LANGUAGE law upon which he could grant leave . He pointed out that the above - cited case of PERSON was binding upon him and that , in LANGUAGE sentencing terms , the sentence passed was unexceptional , the contrary not having been suggested by the applicant . He also found that a sentence suggested by a NORP prosecutor would not provide any basis to challenge what was otherwise an appropriate sentence imposed by an NORP court .


Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

On DATE a mother contacted the police on account of a suspicion that her children , a girl born in DATE and a boy born in DATE , had been sexually abused by a neighbour , the applicant . On DATE and DATE the siblings were interviewed by a police officer experienced in investigating sexual abuse of children . The applicant was also suspected of having abused CARDINAL other girls , both friends of the siblings and born in DATE . The girls were interviewed by the police on DATE and CARDINAL DATE respectively and again on DATE . All the interviews were recorded on videotape .

At the time of the first interviews , i.e. on TIME of DATE , the applicant had not been informed of the suspicions against him and no defence counsel had yet been appointed for him . Neither the applicant nor his counsel was present during the later interviews . The siblings and CARDINAL of the other girls underwent a psychological examination in ORG with a view to assessing whether their testimonies during the pre - trial investigation were reliable .

Meanwhile , on TIME CARDINAL DATE the applicant was questioned by the police . Before the questioning he was notified of the suspicions against him and it appears that he did not exercise his right to have his counsel present . The applicant was in detention from DATE until DATE when travel restrictions were imposed on him . He was accompanied by counsel when questioned again on CARDINAL , DATE , DATE and DATE DATE and DATE . He was questioned alone on DATE .

Prior to the close of the pre - trial investigation , in his closing statement the applicant requested , on DATE , having watched the above - mentioned video recordings , that the siblings be questioned again and that his questions be put to them about how and where they had learnt about the sexual things they had mentioned to him and , in particular , if they had been subjected to sexual acts at a place other than the applicant 's home . His request was however refused on DATE . According to the Government , this was because their mother had refused to allow any further questioning of the children , now aged DATE .

The applicant was charged before ORG ( käräjäoikeus , tingsrätten ) with having sexually abused the CARDINAL children during DATE . He denied the charges . He however admitted having tapped CARDINAL of the girls on their buttocks .

In DATE ORG held an oral hearing during which the applicant , the parents of the siblings and the mothers of the other CARDINAL girls gave evidence . The children were not heard in person . The videotaped interviews with the children were shown during the hearing . The court also heard evidence from a psychologist on the reliability of the statements of the siblings and of one of the other girls . The applicant did not request that the children give evidence at the hearing .

NORP The mother of the siblings testified that they had told her about the improper touching in the same manner as they had done on the videotape . When the touching had become known , on DATE , her son had reacted intensely by crying and slamming doors . He had also suffered from sleeping problems and her daughter had suffered from headaches . Neither of these ailments had occurred before . According to CARDINAL written opinions of ORG , the siblings ' accounts of the events were considered credible given their detailed and precise nature . There was nothing to suggest that they were the siblings ' own inventions . The mothers of the CARDINAL other girls testified that they had told them about the improper touching in the same manner as they had done on the videotape .

In its judgment of CARDINAL DATE ORG observed that the evidence was mainly of an indirect nature and that the sole direct evidence was the testimony of a psychologist , who had testified as to the children 's credibility .

The court noted that the applicant had argued that the main evidence in the case was flawed due to the fact that he had not been afforded an opportunity to put questions to the children and that the authorities had put leading questions to them . He had also argued that there were shortcomings insofar as the psychological examinations carried out by ORG were concerned . The court however found no such flaws as would significantly have reduced the evidentiary value of the examinations .

The court then stated that the case turned on an assessment of the credibility of the children 's statements . While it was true that the pre - trial statements ' probative value was weakened by the fact that the applicant had not been able to put questions to the children , these statements were nonetheless reliable as the children had provided details about the events and as their young age gave no reason to believe that they would have sought to lie about the events . Although some leading questions may have been put to the children , there was nothing to suggest that they would have sought to please the interviewer and adapted their replies accordingly . This being so , the court found that questioning the children in court would not have added anything significant to the case . Having regard to their best interests , the questioning of children of such a young age before a court could not be considered justifiable . The court found that the testimonies of the psychologist and the parents supported the credibility of the children 's accounts .

It convicted the applicant of having sexually abused the CARDINAL children and sentenced him to DATE and DATE imprisonment .

The applicant appealed , alleging inter alia a breach of LAW ( d ) of the LAW in that he had not been afforded an opportunity to put questions to the children .

ORG ( hovioikeus , hovrätten ) held an oral hearing and was presented with the same evidence as had been before ORG . The parties agreed that it was in the best interests of the children that they should not be heard before the court . The applicant however rejected the admission of the children 's pre - trial statements as evidence since he had not been afforded an opportunity to put questions to them .

In its judgment of DATE ORG noted that the children had been interviewed twice during the pre - trial investigation and all but CARDINAL of the girls had been examined in ORG using tests and interviews . As the questioning of the children , now aged DATE , before the court would probably have caused them suffering , it was possible to use in evidence their pre - trial statements , although the applicant 's minimum rights under , inter alia , LAW ( d ) of the LAW would thereby be violated . In evaluating the weight to be attached to the children 's statements , the court found that it had to take into account the discrepancies pointed out by the applicant and the fact that the police had not put to the children the questions proposed by him in his pre - trial closing statement .

NORP In its assessment of the evidence the appellate court reached the same conclusions as the lower court and upheld the conviction . It however reduced the sentence to one year and DATE imprisonment , which it considered fair , having regard to the fact that the applicant had not forced the children into doing anything , the relevant sentencing practice and the fact that the applicant had no previous convictions .

NORP The applicant requested leave to appeal , maintaining , inter alia , that there had been a breach of LAW ( d ) of the Convention . He did not submit any request for the children to be heard .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; Act no . DATE ) provides that when questioned during a pre - trial investigation the child must be treated with due respect having regard to his or her age and level of development . Where possible , the interview should be carried out by a police officer acquainted with that task . If need be , a doctor or an expert must be consulted before the interview ( LAW ) .

LAW ( esitutkintalaki , förundersökningslagen ; Act no . CARDINAL/CARDINAL ) provides that questioning and other investigation measures requested by a party must be carried out , if that party shows that there is a possibility that these measures could have an effect on the case , provided that the expenses so incurred are not disproportionate to the nature of the case ( section CARDINAL ) . The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre - trial investigation and with the public prosecutor after the case has been transferred to him or her ( section CARDINAL(CARDINAL ) , Act no . CARDINAL/CARDINAL ) . A pre - trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience . Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation ( section CARDINAL) .

NORP The investigator may permit a party and his counsel to be present during the questioning of another party or witness , provided this does not hinder the investigation of the offence ( section CARDINAL ) , Act no . CARDINAL ) . A party and his or her counsel may , with the permission of the investigator , put questions to the person being questioned in order to clear up the case . The investigator may decide that the questions are to be put through him or her . Also , the prosecutor may put questions to the person being questioned . A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also ( LAW no . CARDINAL ) .

Before the closing of the criminal investigation , the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation , if this is conducive to hastening or facilitating the hearing of the case in court . The statement is to be appended to the investigation record ( section DATE ) .

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) lays down the applicable rules on receiving testimony .

A statement in a pre - trial investigation record or another document may as a rule not be admitted as evidence in court . The court may exceptionally admit such a statement as evidence , if the witness in question can not be questioned before the court ( chapter DATE , LAW ; Act no . CARDINAL ) . A witness must give testimony orally before the court and must not refer to a written testimony . Oral evidence given during a pre - trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court ( chapter DATE , Article CARDINAL ; Act no . DATE ) .

If a person called as a witness is DATE , is mentally ill or mentally retarded , or his or her mental capacities have otherwise been impaired , the court shall , taking into consideration the circumstances , assess whether or not he or she may be heard as a witness ( LAW , LAW ) . Although the hearing of evidence from children falls within the court 's discretion , there has been a long - standing practice not to hear evidence in court from children under the age of ten .

At the time of the proceedings in question , there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre - trial investigation . There was however a practice to admit such recordings as evidence .

The Code of Judicial Procedure was amended with effect from CARDINAL DATE to the effect that the testimony of a person DATE , or a mentally disturbed person , recorded on audio or videotape during a pre - trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , Article CARDINAL ) ; Act no . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( no . CARDINAL/CARDINAL ) , this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence .

Chapter DATE , Article CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) of LAW reads with effect from DATE as follows :

“ ( CARDINAL ) A person who has not attained DATE or whose mental capacities have been impaired , may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and :

( i ) if the hearing in person is of significant relevance for the establishment of the facts of the case ; and

( ii ) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development .

( CARDINAL ) Where necessary , the court shall designate a support person for the person to be heard , pursuant to the provisions of LAW no . CARDINAL ) .

( CARDINAL ) The person to be heard shall be questioned by the court , unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of LAW . The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or , if the court finds it appropriate , directly to the person concerned . Where necessary , the hearing may take place on LOC other than the court room . ”

In DATE , LAW was supplemented with a new section LAW no . CARDINAL/CARDINAL ) that entered into force on DATE and reads as follows :

“ The questioning of a victim or a witness must be recorded on videotape , or by using other comparable audio - visual means of recording , if there is an intention to use the statement given in the interview as evidence in court proceedings , and where it is not possible to hear the victim or the witness in person , due to his or her young age or mental disturbance , without causing likely harm to him or her . The special requirements set by the level of maturity of the questioned person for the methods used , for the number of participating persons , and for other conditions , must be taken into account in the questioning . The person in charge of the criminal investigation may decide that authorities other than the investigators may , under the supervision of the investigator , put the questions to the person being interviewed . The suspect must be provided with an opportunity to put questions to the questioned person . On the request of the suspect , he or she may also put the questions through a legal counsel or other representative . However , the investigator may order that the questions be put through his or her intermediary . ”