8.  The applicant was born in 1954 and lives in Tallinn. 9.  On 5 June 2000 the Tallinn police initiated criminal proceedings against the applicant on suspicion of having committed extortion under Article 142 of the Criminal Code. On 17 June 2000 the applicant was taken into custody.
The applicant was charged with having threatened, by way of telephone calls, to explode a bomb in the supermarket Pirita Selver if his demands for a sum of money were not met. 10.  Following the conclusion of the preliminary investigation the criminal case-file was sent to the Tallinn City Court (Tallinna Linnakohus). On 11 January 2001 witnesses K., R. and V. failed to appear at the hearing in the City Court and the hearing was adjourned to 5 February 2001. At the hearing of 5 February 2001 the applicant was questioned. The City Court again adjourned the hearing, since the witnesses had not appeared. Subsequently, the City Court heard the case on 20 February 2001. 11.  According to the record of the City Court hearing, which set out the documents disclosed to the prosecution and defence at the public hearing, the City Court’s case-file included, inter alia, written witness statements made during the preliminary investigation by K. and R., who were both employees of the supermarket. Witness K. had stated that the phone calls on 2 and 4 June 2000 had been made by a male person, probably 40-50 years of age or more. She had submitted that it was possible that she would recognise the voice. Witness R. had submitted that she had received phone calls from a male person on 3 and 4 June 2000. The case-file further contained six tapes with recordings of several phone calls made to the supermarket (from 4, 5, 7, 8 and 11 June 2000) and one tape with an undercover recording of a phone call by the applicant from 29 June 2000, as well as transcripts of the tape recordings.
According to the written records of witness V.’s statements during the preliminary investigation, on 13 June 2000 the applicant had asked him to dial a phone number of the applicant’s girl-friend and hand the handset over to the applicant. They tried to make four phone calls, but none of the calls was answered. The number called to was a local number, the last three digits containing a combination of “fives”, possibly “550” or similar.
The City Court’s case-file also included a written statement of witness R.’s testimony, according to which, on 10 August 2000, she had been presented with an undercover recording of a phone call made by the applicant for recognition. She had been of the opinion that the male voice in the recorded conversation closely resembled the voice of the person who in June 2000 had made the bomb threats to the supermarket. She had answered four phone calls to the supermarket. When the threats were made, the voice had been more nervous, but otherwise the voices were identical.
The case-file further contained a written record of the examination of an anonymous witness “Artur”, who stated that in June 2000 he had met the applicant at a party, where the latter had said that he had made the threats to the supermarket. In this way the applicant had had a chance to make good money. The owner of a shop located near the supermarket had asked him to make the threats. Every time after making the threats he had called the owner of the shop. Witness Artur stated that from the recordings of the bomb threats on six tapes he recognised the applicant’s voice. Witness Artur considered that the sound of the voice bore a resemblance to that of the applicant, as did some expressions and the manner of speaking.
In the case-file there was included a written record of an examination of witness R., who said that, as of 11 June 2000, the information line of the supermarket did not answer calls made from public payphones. Witness R. stated that, based on the voice, the manner of speaking and the references to earlier phone calls, the threats had been made by one person. 12.  All the witnesses failed to appear at the City Court’s hearing of 20 February 2001. Witnesses K. and R. submitted that they were unable to attend the hearing but that they maintained the statements given during the preliminary investigation; witness V. did not live at the address noted by the City Court. At that hearing the City Court refused the request of the applicant’s lawyer to call witnesses K. and R. The record of the hearing does not disclose the reasons why the request was refused. 13.  By a judgment of 20 February 2001 the Tallinn City Court convicted the applicant of the charge and sentenced him to 3 years’ imprisonment. It relied on the testimony of the witnesses K., R., V. and of the anonymous witness Artur, given during the preliminary investigation, as well as on the transcripts of tape recordings of telephone conversations. 14.  According to the judgment, the anonymous witness Artur had recognised the applicant’s voice on the tape and had heard him brag about his bomb threats. Witnesses K. and R. testified that they had received repeated phone calls from the same person, approximately 40-50 years of age, threatening to explode a bomb and demanding a sum of money. In addition, witness R. stated that the applicant’s voice on the tape played to her closely resembled the voice of the man who had made the bomb threats. According to the testimony of witness V., the applicant had told him that he was in need of money and asked him to dial a number, using public phones, of which he remembered the first and last digits. In the event that somebody should answer, he was supposed to hand over the phone to the applicant. The first and last digits of the phone number corresponded to the phone number of the supermarket. 15.  On 26 February 2001 the applicant’s lawyer filed an appeal against the judgment requesting the applicant’s acquittal. She argued that the City Court had not heard any of the witnesses at its hearing and that her request to summon the witnesses had been denied. The City Court had convicted the applicant on the basis of insufficient evidence. The record of the court hearing had stated incorrectly that several items of evidence in the case-file had been disclosed. In fact, this had not been done. As regards the voice identification, the applicant’s lawyer noted that, as the witness R. had been presented with only one voice for recognition, she had not been able to compare voices. In his appeal the applicant noted that the bomb threats continued in July and August 2000, after he had been taken into custody.
The applicant’s lawyer did not request in her appeal that any witnesses be called to the appeal court’s hearing. 16.  On 28 March 2001 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) heard the appeal at a public hearing. The applicant’s lawyer reiterated that at the hearing in the City Court it had not been possible to put questions to the witnesses and that her request to summon the witnesses had been denied.
According to the record of the Court of Appeal’s hearing neither the applicant nor his lawyer requested that any witnesses be summoned to the hearing.
The Court of Appeal dismissed the appeal. It noted in its judgment:
“The [Criminal] Chamber [of the Court of Appeal] finds, as did the City Court, that [the applicant’s] guilt has been established on the basis of an aggregate of evidence and that this aggregate [of evidence] does not include solely the statements of witnesses; all the evidence collected during the pre-trial investigation and examined at the court hearing has been taken into account.”
The Court of Appeal found no substantial infringement of the procedural law which would have entailed a reversal of the lower court judgment. 17.  On 18 April 2001 the applicant’s lawyer filed an appeal with the Supreme Court (Riigikohus) repeating the arguments raised before the Court of Appeal. She reiterated that, in violation of the law of criminal procedure, the City Court had not based its judgment on evidence examined at the hearing. The applicant requested in his appeal that an independent expert assessment of the voice be carried out. 18.  On 17 May 2001 the Supreme Court refused the applicant leave to appeal.


5.  The applicant was born in 1955 and lives in İzmir. 6.  The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7.  The applicant’s daughter, Gülperi O., worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital. 8.  According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions. 9.  At 5.30 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”. 10.  A police officer at the hospital took a statement from O.O. at 6.45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital. 11.  It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6.50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O. 12.  At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O.’s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m. 13.  The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased’s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary. 14.  The post-mortem examination was carried out the following day and samples taken from Gülperi O.’s body were sent for forensic analysis. 15.  On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”. 16.  On 22 July 2005 the applicant’s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all. 17.  Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral. 18.  On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death. 19.  On 29 July 2005 police officers forwarded photographs of Gülperi O.’s body to their head office with a covering letter stating “...find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines”. 20.  Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”. 21.  On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records. 22.  According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O.’s body. 23.  On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O.’s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. 24.  On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death. 25.  In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “Prent” and “Muscaril” (see paragraph 9 above) ‒ in Gülperi O.’s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs. 26.  On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband. 27.  On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor’s decision. The applicant drew the Assize Court’s attention to the prosecutor’s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor’s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention. 28.  On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor’s decision to be set aside. 29.  The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor’s decision had been correct and in accordance with domestic law and procedure. 30.  When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above-mentioned existing medical reports and the prosecutor’s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute’s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death. 31.  The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013. 32.  In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O.’s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O.’s husband, O.O. (see above in paragraph 9) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database. 33.  The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O.’s death could not be established.


6.  The applicant was born in 1974 and lives in Cologne. At the time of the events at issue he had been a police officer. He was subsequently dismissed when his conviction for inflicting bodily harm causing death while exercising a public office (Körperverletzung im Amt mit Todesfolge) as a consequence of the trial which forms the subject of the present application became final. 7.  Prior to the proceedings at issue the applicant had already been the subject of preliminary investigations by the public prosecution authorities on eight separate occasions on suspicion of having caused bodily harm while on duty. At the time of the events at issue, seven of these preliminary proceedings had been discontinued in lack of sufficient evidence for the charges and one of the proceedings was still pending. In 2001 he had further been convicted of two counts of libel (Beleidigung) and compulsion (Nötigung) committed in the course of police operations. 8.  On 11 May 2002 the applicant was called to assist other police officers in arresting a man who was acting violently. The man (“the victim”) was overpowered using force by the police officers, including the applicant, arrested and transferred to the Cologne Eigelstein Police Station. One police officer sustained minor injuries during the victim’s arrest. The arrested person was subsequently transferred to a hospital where he fell into a coma and died without having regained consciousness. 9.  Police officer G. and his female colleague H. belonged to an earlier shift but were still present at the police station when the victim was brought to the station. At the time of the events at issue G. and H. had an intimate relationship while G. was married to another woman. They witnessed the victim’s ill-treatment by several police officers at the police station without helping the victim and later discussed the events and what, if any, further action was required in view of the incident. 10.  On 12 May 2002 H. informed her former supervisor that G. and herself had witnessed several police officers surrounding the victim and repeatedly and jointly kicking him in the head, body, arms and legs as he had lain handcuffed on the floor of the “watergate”, a tapered room whose width decreased from approximately 2.5 meters to 1.5 meters and which functioned as the police station’s entry room. The victim had also been kicked and beaten later in a cell. 11.  H.’s former supervisor immediately informed his hierarchical superiors who summoned G. and H. to the police station and questioned them later that day. G. and H. named several police officers, including the applicant, as participants in the victim’s ill-treatment and identified several of them, including the applicant, during an identity parade. 12.  All officers named by G. and H. were suspended from active duty. Criminal investigations were instituted against those officers as well as against G. and H. and conducted by a special team (Sonderkommission) established for this purpose. The head of the Cologne Eigelstein Police Station, who had not been involved in the events at issue, was posted to another police station with a view to enabling an impartial clarification of the circumstances of the case. 13.  On 23 May 2002 counsel for the witnesses G. and H. submitted their written testimonies on the incident of 11 May 2002. As recommended by their respective counsel, G. and H. did not specify their own actions. 14.  The criminal investigations against G. and H. on suspicion of having participated in the victim’s ill-treatment, of not having rendered assistance to the victim and of having attempted to obstruct the prosecution of the police officers involved in the ill-treatment, were discontinued on 24 February 2003. The prosecution authorities specified that there was no evidence that G. and H. had actively participated in the ill-treatment. They further found that in view of the fact that the events had occurred within a short space of time it had been impossible for G. and H. to intervene and effectively prevent the ill-treatment. Furthermore, a psychiatric opinion obtained by G. and H.’s respective counsel from a professor at Munich university hospital expressed doubts as to whether G. and H. would have been personally capable of confronting their colleagues and helping the victim while having regard to the psychological pressure they had been exposed to at the time of the events at issue. 15.  On the same date, 24 February 2003, the applicant and five other police officers involved in the events were charged with jointly inflicting bodily harm causing death while exercising a public office (gemeinschaftliche Körperverletzung im Amt mit Todesfolge) before the Cologne Regional Court sitting in a jury formation (Schwurgericht) with three professional and two lay judges (Schöffen).
The subsequent trial was conducted in the period from 26 June to 25 July 2003. 16.  On 8 July 2003, the fifth of in total eleven hearing days, witnesses G. and H., the only eye witnesses of the events in the “watergate” and the cell, testified in court. In reply to the Regional Court’s related question they denied having an intimate relationship. 17.  G. gave an account of his recollection of previous statements made by him in the course of the preliminary proceedings and answered questions posed by the presiding judge, another judge and the public prosecutor. Then counsel assisting the witness declared that the latter would not answer questions by the accused, defence counsel or by the victim’s relatives acting as joint plaintiffs to the prosecution (Nebenkläger). Counsel pointed out that the criminal investigations against the witness for participating in the victim’s ill-treatment had been discontinued but could be reopened and there was thus a risk that the witness could incriminate himself. The Regional Court observed that two of the accused, including the applicant, had indeed declared in the course of the trial that G. had participated in the ill-treatment. He was therefore entitled not to reply to questions of the defence after having testified and having answered questions by members of the court and the prosecutor. Consequently, the court ordered that the witness be granted the right not to answer questions posed by defence counsel or the accused pursuant to section 55 of the Code of Criminal Procedure (see “Relevant domestic law” below). The court further ordered that G. not be put under oath. 18.  Subsequently, witness H. testified, gave an account of her previous testimonies during the investigations, and answered questions by the court and an expert witness. She refused to answer questions by the defence counsel and counsel for the victim’s relatives. Counsel for one of the applicant’s co-accused formulated questions to be put to H. by the court. Counsel for H. then declared that H. would also not answer further questions by the court since there was a risk that the witness could incriminate herself. The Regional Court observed that criminal investigations had been pending against H. on suspicion of not having rendered assistance to the victim and of having attempted to obstruct the prosecution of the police officers involved in the ill-treatment. The court thus ordered that H. be granted the right not to testify pursuant to section 55 of the Code of Criminal Procedure (see “Relevant domestic law” below) and for this reason also refrained from submitting the questions formulated by counsel to the witness. The Court specified that once a witness had invoked his or her right to remain silent pursuant to the said provision any further questions were inadmissible. Furthermore, H. had explicitly stated that she would not answer any further questions even if put by the court. 19.  On 13 July 2003 the applicant and another accused applied for two witnesses to be examined by the court with a view to demonstrating that G. and H. had lied to the court as regards their extramarital affair. They further alleged that G. had not told the truth concerning certain information provided on his past career as a police officer and regarding an intimate relationship with a further female colleague. The Regional Court, assuming that these allegations were correct, considered that the hearing of the proposed witnesses could be dispensed with. 20.  On 14 July 2003 the applicant requested that G. and H.’s statements be excluded as evidence from the trial. 21.  In its judgment of 25 July 2003 the Regional Court held that the accused police officers by jointly and wilfully inflicting bodily harm on the victim had negligently caused the latter’s death and found them guilty as charged. It sentenced the applicant to a suspended prison term of one year and four months.
(a)  The facts established by the Cologne Regional Court 22.  According to the facts as established by the Regional Court, the victim suffered from an acute boat of psychosis. He threatened two police officers with death who had arrived at the victim’s flat following a neighbour’s emergency call. The officers requested reinforcements, used pepper spray and subsequently subdued the victim using considerable force. The victim thereupon entered into a state of “excited delirium” and displayed extreme agitation, violent behavior, insensitivity to pain, and “superhuman” strength. The applicant and another police officer then arrived as further reinforcements, repeatedly hit the victim’s legs and managed to shackle the victim who nonetheless continued to struggle. No police officer involved in the arrest was aware that the victim was suffering from a psychotic bout. One of the police officers involved, police officer A., sustained minor injuries. 23.  The police officers transported the handcuffed and shackled victim to the Cologne Eigelstein Police Station. In the “watergate” the victim fell to the ground. The officers stood in a circle around the victim and jointly kicked and beat him while being aware that he did no longer present a serious danger. They were angry that the victim continued with his futile resistance which was perceived as particularly unruly. They also wanted to take revenge for their colleague A.’s injuries. As a consequence of his ill‑treatment the applicant’s nose started bleeding. One of the officers called an ambulance, a procedure generally observed in the event a person in police custody sustains, even minor, injuries. 24.  The victim was then pulled from the “watergate” to a cell, leaving a clearly visible trail of blood on the floor. Some officers, including the applicant, continued to jointly beat and kick the victim who was no longer offering any resistance in the cell, leaving stains of the victim’s blood on the wall. 25.  The victim was then transferred to a hospital where the medical personnel at first did not recognise the psychotic bout and did not order that handcuffs and shackles be removed. The victim’s pulse and breathing were not checked continuously. Following the victim’s apnoea and cardiac arrest, he was transferred to the intensive care unit where he was reanimated, possibly causing rib fractures. The victim sustained irreparable brain damage and died on 24 May 2002. 26.  The coroner concluded on the basis of a post-mortem that the victim had collapsed because of psychic excitement that had resulted in an “excited delirium”. The coroner could not decide whether the force used by the police officers or the medical maltreatment in the hospital had caused the victim’s death.
(b)  The assessment of the testimonies of witnesses G. and H. 27.  The Regional Court declared that it had based its finding on the victim’s ill-treatment in the “watergate” and in the cell on the statements of the witnesses G. and H. While the fact that the defendant had been deprived of the opportunity to examine the witnesses required the court to subject the credibility of their testimonies to particular scrutiny, it had nevertheless not been necessary to exclude them altogether. 28.  In this context the Regional Court noted that there was no plausible reason why the witnesses should have wrongly accused their colleagues. They did not have any tangible benefits from their testimonies but, as also pointed out by the psychiatric expert who had examined the witnesses, risked on the contrary being branded as traitors by other police officers. They had further risked incriminating themselves for not having assisted the victim. 29.  The court was further of the opinion that allegations indicating that G. had accused his colleagues with a view to concealing a possible own involvement in the victim’s ill-treatment were not convincing. Even assuming such involvement, there had been no reasons for G. to expect that any of the police officers participating in the ill-treatment would disclose the underlying events at their own initiative. In fact such allegations were made for the first time by one of the accused after G. and H. had revealed the circumstances of the case. 30.  The court further observed that the witnesses – from their point of view – had a plausible justification for their decision not to answer questions by the defence. G. and H. had an intimate relationship while G. was married to another woman. As it had had transpired already in the course of the preliminary proceedings, they had to expect questions concerning their intimate relationship in a highly publicised trial by the defence with a view to casting doubt on their credibility. 31.  The court considered that the witnesses’ testimonies were credible, consistent and that there was nothing to establish that they had coordinated their testimonies. The psychiatric expert who had examined the witnesses had also confirmed that their description of the events at issue was credible and their behaviour plausible while taking into account the strain G. and H. were exposed to. In contrast, the account of the events given by the applicant and the co-accused and their denial of any involvement in the applicant’s ill-treatment in the “watergate” were contradictory and not supported by the further available evidence. 32.  The witnesses’ descriptions of the events on their part were corroborated at least in part by the statements of some of the accused or other evidence. For instance, the applicant himself had conceded that in the cell he had kicked the victim once in the hip as a warning and with a view to preventing a possible attack by the latter. Another accused, D., had confessed that he had also beaten the victim one time in the cell, not because it was necessary to prevent an attack but rather because he could not control his anger at the victim. Police officer A. who had sustained minor injuries on the occasion of the victim’s arrest and had been heard as a witness on the occasion of the trial had testified that when the victim had been taken to the ambulance one of the accused police officers had told him “We have taken revenge for you”. In the court’s view these additional testimonies constituted evidence that the police officers’ treatment of the victim had not constituted an ordinary and appropriate reaction to the resistance of an arrested person. The Regional Court further referred to two medical expert opinions confirming that while the injuries sustained by the victim were not particularly serious and had not directly led to his death, they could nevertheless be aligned with the description given by G. and H. of his ill-treatment in police custody. 33.  Having regard to the above considerations, the Regional Court concluded that there was nothing to cast doubt on the veracity of G. and H.’s testimonies to the extent they concerned the circumstances of the victim’s ill-treatment. The court conceded that it could not be established whether the force used by the police officers or, alternatively, the medical maltreatment in the hospital had caused the victim’s death and considered that this uncertainty had a mitigating effect on the sentences imposed. The Regional Court nevertheless maintained that the ill-treatment in the “watergate” had led to the victim’s bleeding and consecutive transport to the hospital and that there had therefore been a causal connection between the physical abuse in police custody and the latter’s death. Since the co-accused had acted jointly their respective participation in the ill-treatment was imputable to each of them. 34.  On 28 July 2003 the applicant lodged an appeal on points of law. In his appeal brief of 1 December 2003 he complained in particular that the testimonies of witnesses G. and H. had not been excluded despite the defence’s inability to examine those witnesses in breach of Article 6 § 3 (d) of the Convention. 35.  On 2 July 2004 the Federal Court of Justice dismissed the applicant’s appeal on points of law. 36.  On 16 August 2004 the applicant lodged a constitutional complaint. He argued that the Regional Court’s reliance on the testimonies of witnesses G. and H. had violated his right to a fair trial pursuant to Article 6 §§ 1 and 3 (b) and (d) of the Convention because the Regional Court had failed to provide for a possibility for the defence to examine witnesses G. and H. 37.  On 27 December 2006 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination (no. 2 BvR 1657/04). The decision was served on the applicant on 11 January 2007. 38.  The Federal Constitutional Court observed that the constitutional right to a fair trial was both affirmed and substantiated by Article 6 §§ 1 and 3 of the Convention; that it needed to be concretised on a case-by-case basis; that specific procedural requirements could only be deduced from it if basic requirements of the rule of law were at stake; that the accused had to have access to and a right of participation in the establishment of the facts and that illegally obtained evidence had not always to be excluded. It emphasised that the domestic courts were under a constitutional obligation to take Article 6 §§ 1 and 3 of Convention, as interpreted by this Court, into account and to duly consider the factors found to be relevant by this Court in balancing competing rights when deciding the case before them. 39.  Turning to the circumstances of the case at hand, the Federal Constitutional Court held that there had been no violation of the applicant’s constitutional right to a fair trial and Article 6 § 3 (d) of the Convention. Although the criminal courts had based their findings on the testimonies of witnesses G. and H. whom the defence had had no opportunity to question at any stage of the proceedings, the right to a fair trial did not require that these testimonies be excluded. 40.  The witnesses’ autonomous decision not to answer questions had been based on a sustainable ground, namely their right to remain silent. Public authorities had not caused the applicant’s inability to examine or have examined witnesses G. and H. to such an extent as to warrant the exclusion of their testimonies. The applicant had not had a right to be present during the police interrogation of G. and H. who at that time had been co-suspects. There had been no need to allow for the presence of the applicant’s counsel during the pre-trial examinations of G. and H. because it had not been foreseeable that the witnesses would refuse to answer questions of the defence in court. The witnesses had freely chosen not to answer questions of the defence. H. had declared that she would not answer further questions by the court. The state authorities had thus not been responsible for the inability of the defence to confront the witnesses. Furthermore, the Regional Court had been aware of the reduced evidentiary value of the witnesses’ testimonies. It had extensively questioned the witnesses in open court and, taking into account expert advice, had carefully assessed the testimonies as regards their content, development and possible adjustments. It had thus analysed the testimonies extensively, critically and thoroughly. 41.  Following expiry of the probation period (Bewährungszeit), the Regional Court by a decision of 17 July 2006 remitted the applicant’s sentence.


4.  The applicant was born in 1980 and lives in Yerevan. 5.  On 25 June 1998 the applicant was drafted into the army and assigned to military unit no. 33651, situated next to the border with Azerbaijan. 6.  On 3 December 1998 the applicant, together with five fellow servicemen, was placed on watch in position no. 24. 7.  On 4 December 1998 one of the six watchmen, serviceman H., was found dead in a nearby trench, having been killed by a machine-gun shot. At the time of the killing, only three of the remaining five watchmen were in the area of position no. 24, namely the applicant and servicemen T. and A. The latter two were apparently cutting wood together not far from the position. It appears that the applicant had been seen to have an argument with H. earlier that day. 8.  On 4 March 1999 servicemen T. and A. were brought to a military police station. On 5 March 1999 the applicant was also brought to the same police station. The military police officers started to beat them, seeking to force them to confess to serviceman H.’s murder. According to the applicant, they told the police officers that serviceman H. must have been shot from the other side of the border, to which the officers replied that it had already been established that serviceman H. had been killed at close range, and continued to beat them. 9.  The applicant was initially punched and kicked. The police officers then began to hit him with rubber clubs. The applicant lost consciousness on several occasions but was revived and continued to be beaten. After a while the police officers began to squeeze the applicant’s fingertips with pliers. The same torture techniques were applied to servicemen T. and A. 10.  On 5 March 1999 serviceman T. confessed to the investigator that he had witnessed how the applicant had taken his machine gun and shot H. Since serviceman A. was with serviceman T. at the time of the murder, he was coerced into making a statement to the effect that serviceman T. had told him that he had witnessed the murder. 11.  The police officers subsequently continued to torture the applicant, forcing him to confess to the murder. According to the applicant, this continued for over a month. He was unable to walk and talk properly, and all his fingertips were swollen. 12.  On 16 April 1999 the applicant was interrogated as a suspect by the investigator examining the case, to whom he confessed that he had accidentally shot serviceman H. 13.  On 17 April 1999 the applicant was formally charged with premeditated murder and questioned as an accused by the investigator; during this interview he repeated his confession. Thereafter he was taken to the crime scene, where he made the same statement in front of a video camera and the relevant record was drawn up. On the same date the applicant was placed in pre-trial detention. 14.  According to the applicant, immediately after their release from the police station on an unspecified date, servicemen T. and A. informed the Military Prosecutor of Armenia (ՀՀ զինվորական դատախազ) in writing that they had been coerced into slandering the applicant. 15.  On 19 June 1999 the applicant and servicemen T. and A. were subjected to medical examinations, during which various injuries to their fingers and A.’s head were noted. 16.  On 11 August 1999 a confrontation was held between the applicant and serviceman T., during which the latter confirmed his earlier testimony against the applicant. 17.  On an unspecified date, the applicant’s criminal case was brought before the Syunik Regional Court (Սյունիքի մարզի առաջին ատյանի դատարան). 18.  On 26 October 1999 a hearing was held during which serviceman T. confirmed his earlier testimony against the applicant. 19.  On 6 December 1999 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. 20.  On 15 June 2000 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) quashed this judgment and remitted the case for additional investigation. 21.  On 12 September 2000, following the additional investigation, the case was brought again before the Syunik Regional Court. 22.  On 13 June 2001 the Syunik Regional Court decided to remit the case for further investigation. 23.  On 3 August 2001 the Criminal and Military Court of Appeal quashed this decision on an appeal by the prosecutor and remitted the case to the Syunik Regional Court for examination on the merits. 24.  In the proceedings before the Syunik Regional Court, the applicant’s lawyer asked that the applicant’s confession statements of 16 and 17 April 1999 and the statements made by witnesses T. and A. during the investigation in 1999 be declared inadmissible, since they had been obtained under torture. By that time criminal proceedings had already been instituted against the relevant military police officers on account of the torture of the applicant and servicemen T. and A. 25.  On 19 June 2002 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to ten years’ imprisonment. The sentence was to be calculated from the first day of the applicant’s detention on 17 April 1999. In its judgment, the Regional Court stated that “[T]he following ha[d] been established during the court examination” and went on to describe the circumstances in which the applicant had shot serviceman H. The Regional Court then stated:
“For these actions [the applicant] was charged [with premeditated murder].
During ... questioning on 16 April 1999 [the applicant] admitted to the investigating authority that [serviceman H.] had died from a bullet accidentally shot from [the applicant’s] machine gun.
On 17 April 1999 during questioning as an accused he again admitted that [serviceman H.] had died from a bullet which had been shot by [the applicant] as a result of a violation of the rules for the handling of weapons.
[The applicant] confirmed this statement during the re-enactment of the circumstances of the incident [on 17 April 1999], the video recording of which has been examined during the court proceedings.
[The applicant] later revoked this confession.
During the court proceedings [the applicant] pleaded not guilty and stated that he had not killed [serviceman H.]; they had not had an argument on the day of the incident, they had not sworn at each other, he was unaware of the circumstances of [serviceman H.’s] death, and his confession had been made under the influence of the violence and threats inflicted on him by the [police officers].
Such arguments [by the applicant] are unfounded, contradict the evidence obtained during the court examination and cannot serve as a basis for avoiding criminal liability and punishment.
[The applicant’s] ... arguments have been rebutted and his commission of the offence has been proven by the following evidence obtained during the court examination: ...” 26.  As an example of such evidence, the Regional Court went on to cite the statement made by witness T. on 5 March 1999. It further stated:
“[Witness T.] made the same statement before the Syunik Regional Court at [the hearing of 26 October 1999].
During the investigation [witness T.] confirmed this statement at a confrontation with [the applicant on 11 August 1999]. Thereafter [witness T.] revoked this statement and submitted that he had not witnessed the circumstances in which [serviceman H.] had been killed. He also made a similar statement during this court examination, indicating that his statement about witnessing the killing of [serviceman H. by the applicant] had been made under the influence of the violence inflicted on him by the [police officers].
A similar statement was also made by [witness A.].” 27.  The Regional Court went on to cite a number of circumstantial and hearsay witness statements and an expert opinion to the effect that the shot had been fired at close range, and concluded that:
“Having evaluated the contradictory statements made by [witnesses T. and A.] during the investigation and the court examination, the court finds that in reality the coercion was applied by [the police officers] at the military police station for the purpose of ensuring disclosure of the truth.
... The revocation at a later stage by [witness T.] of his [statements made during the investigation] was aimed at helping [the applicant] to avoid criminal liability. The fact that [witness T.] was aware of the circumstances of [serviceman H.’s] death was confirmed by the unconstrained submissions he made at the [court hearing of 26 October 1999], without being subjected to any ill-treatment or threats, and the stories he told to [two fellow villagers] following his demobilisation.” 28.  The Regional Court concluded by citing other evidence substantiating the applicant’s guilt, such as (i) a forensic examination of the victim’s tissue samples and a medical examination of his corpse, according to which he had died from a shot fired at close range; (ii) a ballistic examination, to the effect that the shell found at the crime scene had been fired from AK-74 type machine gun no. 916236, which had been issued to the applicant; (iii) the record of examination of the crime scene, drawn up on 17 April 1999, and a number of other materials. 29.  On 9 October 2002 the Avan and Nor Nork District Court of Yerevan (Երևան քաղաքի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) found military police officer M. and three other police officers guilty of abuse of power and imposed sentences ranging from three to three and a half years’ imprisonment. The District Court found:
“On 4 March 1999, in connection with the murder of [serviceman H.], ... [police officer M.] brought [servicemen A. and T.] and others to the military police station. On 5 March 1999 [the applicant was also brought to the station]. There [the police officers] beat them for several days, delivered numerous blows to [the applicant] and others with a rubber club and squeezed their fingertips with pliers, causing injuries of various degrees. Then [the police officers] forced them to take off their shoes, put their hands on the backs of their heads and get down on their knees, and started to club their soles. By threatening to continue the ill-treatment, [the police officers] forced [the applicant] to confess that he had murdered [serviceman H.], [serviceman T.] to state that he had witnessed that murder, and [serviceman A.] to state that he was aware of the murder. [The police officers] also threatened the victims with retaliation if they informed any higher authority about the ill-treatment ...
On 5 January 2000, in his office in the military police department in Yerevan, [police officer M.] forced [serviceman A.] to state in relation to the ill-treatment that he was not familiar with [police officer M.], that nobody had beaten him and that the injuries on his fingers had been sustained as a result of his hand being squashed by a car door ...
The systematic, unprecedented, essentially cruel and degrading actions inflicted by [the police officers on the applicant and others], which had the attributes of torture, entailed grave consequences in that such actions violated the legally guaranteed rights and interests of [the] servicemen ...” 30.  This judgment was based on various witness statements, including those of the applicant and servicemen T. and A., and the results of the medical examinations. 31.  In his witness statement, the applicant submitted, inter alia, that he had been detained until the end of March 1999 in the military police station, where he was regularly beaten. At the end of March 1999 he was transferred to a military prosecutor’s office but then brought back to the police station on 10 April 1999. On his return journey, police officer M. threatened him with retaliation if he refused to confess. On the same day another police officer also threatened him, but promised to qualify the offence as accidental if the applicant agreed to confess; after this the applicant made his confession statement. 32.  In his witness statement, serviceman A. submitted, inter alia, that after testifying to the investigator, he and serviceman T. were kept in the canteen of the police station for about a month. At the beginning of April, police officer M. called him and serviceman T. and demanded that, when questioned by the investigator, they tell him that they had not been beaten or ill-treated in the police station, and that the injuries on their fingers had been sustained as a result of their fingers being squashed by a car door. On 5 January 2000 police officer M. threatened to kill him if he informed the investigator about the ill-treatment. 33.  In his witness statement, serviceman T. submitted, inter alia, that on 30 November 1999, under pressure from police officer M., he had testified to the investigator that nobody had beaten him. 34.  On an unspecified date the applicant’s lawyer lodged an appeal against this judgment. 35.  On 14 November 2002 the Criminal and Military Court of Appeal refused to examine the appeal since, according to the domestic law, a victim in criminal proceedings had the right to appeal only if the proceedings had been instituted on the basis of his or her complaint. 36.  On 26 December 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld this decision. 37.  On an unspecified date the applicant lodged an appeal against his conviction of 19 June 2002. 38.  In the proceedings before the Criminal and Military Court of Appeal, the applicant submitted that he was not aware of the circumstances of serviceman H.’s death and that he had been coerced into making his confession statement. 39.  Witness T. submitted that he had not seen who had killed serviceman H., since he and witness A. had been absent at the material time. He further submitted that the statement made by him during the preliminary investigation, to the effect that he had witnessed the murder, was untrue and that he had been forced to make it. Immediately after the incident all five servicemen had agreed to say that serviceman H. had been killed by an Azeri sniper, but in reality he knew nothing about the circumstances of H.’s death. Witness A. made similar submissions. 40.  On 1 April 2003 the Criminal and Military Court of Appeal decided to uphold the applicant’s conviction. In doing so, the Court of Appeal found that the above submissions were made as a result of collusion between the applicant and the witnesses, aimed at helping him to avoid criminal liability. These submissions were rebutted by the evidence obtained in the case, such as:
(a)  The applicant’s confession of 16 April 1999 to the investigator. Later and in court the applicant had revoked this statement, as having been made under coercion, but had failed to indicate the details of any coercion applied to him in the investigator’s office.
(b)  Submissions by witnesses T. and A. to the Syunik Regional Court at the hearing of 26 October 1999, to the effect that one of them had witnessed and the other was aware of the murder. Witnesses T. and A. had later revoked these submissions but accepted that no coercion had been applied to them in court and that these submissions, albeit untrue, had been made voluntarily.
(c)  Other circumstantial and hearsay witness statements, the relevant expert opinions, various records and the video recording. 41.  The Court of Appeal concluded by stating that the evidence obtained under coercion in the military police station, which was corroborated by the factual circumstances of the case, had not constituted the basis for the charges and had not been used as evidence. 42.  On 14 April 2003 the applicant’s lawyer lodged an appeal. He argued, inter alia, that the applicant’s confession statement of 16 April 1999, and the record and the video recording prepared at the crime scene on the following day, had been made as a result of the beatings, ill-treatment and threats inflicted on the applicant, and could not therefore be used as evidence against him. Furthermore, the Court of Appeal should not have relied on the submissions made by witness T. at the very early stage of the proceedings, including the hearing of 26 October 1999, to justify the credibility of his first accusatory statement, made under torture. These submissions had been the result of the fear experienced by witness T. following the unprecedented violence inflicted on him. He had been under constant pressure from the investigators, having been detained on several occasions, and at the time of the above-mentioned hearing he had not yet been demobilised and was afraid of being taken back into custody and subjected to ill-treatment again. As an example of witness T.’s fear of telling the truth, the applicant’s lawyer referred to T.’s testimony of 30 November 1999, in which he had submitted that the injuries to his fingers had been sustained as a result of his fingers being squashed by a car door. For the last three years, however, since he had revoked his earlier statements, witness T. had been insisting that he was not aware of the circumstances of serviceman H.’s death. Finally, the applicant’s lawyer argued that, contrary to what had been indicated in the Court of Appeal’s judgment, witness A. had never made any accusatory submissions against the applicant during the court examination of the case. On the contrary, he had always insisted that witness T. could not have witnessed the murder since they had been together at the material time. 43.  On 8 May 2003 the Court of Cassation dismissed the lawyer’s appeal and upheld the Court of Appeal’s judgment. In doing so, the Court of Cassation found, inter alia, that:
“The conclusions in the judgment are corroborated by the evidence examined in court, in particular, statements by [witnesses T., A. and others, and the results of various expert opinions].
... It has been established that after the incident [servicemen T. and A., the applicant and others] agreed ... to testify that [serviceman H.] had been killed by [the Azeris], nevertheless, [serviceman T.] testified in the first-instance court on 26 October 1999 that [serviceman H.] had been killed ... by [the applicant].
The arguments of [the applicant’s] lawyer that the judgment was based on statements by [witnesses T. and A.] which had been obtained under torture are groundless, contradict the materials of the case and are rebutted by the following evidence.
[The applicant and witnesses T. and A. were beaten for several days by the police officers] who demanded that they make honest statements concerning the murder of [serviceman H.]. The police officers did not take any statements from them. The statements were taken by the relevant investigator from the military prosecutor’s office, who did not ill-treat them ...
[The relevant police officers were convicted]. No criminal proceedings were brought against any of the investigators dealing with the case.
... On 11 August 1999 a confrontation was held between [the applicant and serviceman T. in the presence of the applicant’s lawyer], during which [serviceman T.] contended that [serviceman H.] had been killed with a machine gun [by the applicant]. It has been established that no ill-treatment was inflicted on him at that time.
At a later stage [serviceman T.] revoked the above statements and submitted that he had not seen who had killed [serviceman H.], although he did not deny that on several previous occasions he had submitted that it was [the applicant] who had killed [serviceman H.]. The Court of Appeal rightly considered [T.’s] confession statement as reliable and regarded it as proof of [the applicant’s] guilt.
During the preliminary investigation [the applicant] testified to the investigator from the military prosecutor’s office that it was he who had killed [serviceman H.], albeit accidentally.
Thus, irrespective of the fact that during the preliminary investigation the military police officers ill-treated [the applicant and witnesses T. and A.], the evidence obtained in the case, if evaluated from the perspective of relativity and admissibility, is sufficient in its entirety to convict [the applicant] of the incriminated crime.” 44.  On 22 December 2003 the applicant was released on parole.


5.  The applicant was born in 1953 and lives in Grozny. 6.  At the material time the applicant’s family lived in a dwelling comprising several houses in one courtyard in Shakhterova Street in the Staropromyslovskiy District of Grozny. The family included the applicant, her husband Mr Ali (also sometimes written as Alik) Dudayev, their sons, Mr Alikhan Dudayev and Mr Aslan Dudayev, Ms Amnat (also sometimes written as Aminat) Yakhyayeva, the wife of Mr Aslan Dudayev, and their five children, including Mr Adam Dudayev. The dwelling was located two blocks from the military commander’s office and the Staropromyslovskiy district police station (the ROVD). The area was under curfew. 7.  On the night of 8 to 9 July 2002 (in the documents submitted the date was also referred to as the night between 7 and 8 July 2002) the applicant’s family were at home. The applicant was not there as she had left to spend the night at her relatives’ house in Grozny. 8.  At about 2 a.m. on 9 July 2002 a group of about fifteen federal servicemen in uniforms and balaclavas, armed with automatic weapons, arrived in an armoured personnel carrier (APC) at the applicant’s home and unlocked the gate. They then started shooting and throwing grenades at the applicant’s house. 9.  One of the applicant’s sons, Mr Alikhan Dudayev, who was a police officer, shot back for about half hour. After that he managed to leave the house and inform the police about the incident. Meanwhile, the applicant’s family lay on the floor to avoid being hit. The applicant’s grandson Adam was injured in the foot and lower back by a hand-grenade explosion. Another APC had arrived at the house in the meantime. 10.  About two hours later the servicemen stormed the building. The applicant’s son Mr Aslan Dudayev stood up and started moving towards the servicemen, trying to warn them that there were women and children in the house. He was shot in the head before the eyes of his wife and five children. His body was moved to another room where he was shot in the head again. 11.  The servicemen then took the applicant’s husband, Mr Ali Dudayev, outside and put him in the APC and drove off. The applicant’s husband has been missing ever since. 12.  At the end of their special operation, the servicemen took the applicant’s family outside and set the house and family car on fire. 13.  The applicant heard of the incident at about 4 a.m. and immediately went home. Upon her arrival, the applicant was told by relatives of the circumstances of her son’s killing and of her husband’s abduction. 14.  In their submissions before the Court the Government did not contest the facts as presented by the applicant. However, they denied any involvement by State agents in the alleged killing of her son and the alleged disappearance of her husband. 15.  In reply to a request from the Court to submit a copy of the documents reflecting the most important steps taken by the investigation into the events of the night between 8 and 9 July 2002, the Government furnished copies of criminal case files nos. 54042 and 54108, running up to 224 pages. The information submitted may be summarised as follows. 16.  On 9 July 2002 a group of investigators from the Grozny prosecutor’s office examined the crime scene. As a result, they collected 408 spent cartridges, two bullets and a machine gun as evidence. 17.  On 9 July 2002 the investigators questioned the applicant’s other son, Mr Alikhan Dudayev, a police officer at the ROVD at the time. He stated that at about 2 a.m. he had been at home and had been woken up by someone opening the outside gates. He had then heard a group of men running into the courtyard. He had asked in Chechen and then in Russian who the men were, but had received no reply. He had seen that one of them was in camouflage uniform and a balaclava and was armed with a machine gun. The witness had warned the man that he was a police officer. In reply, the man had opened fire and the witness shot back. Then the other intruders had opened fire with machine guns and grenades, in an attack of about twenty minutes. The witness had been wounded by grenade splinters in the hand and the torso. He had managed to leave the house and run into the neighbouring courtyard. Meanwhile, the shooting continued. The witness had seen five ROVD officers come out after they heard the gunfire. He had explained the situation to them and they had contacted the local military commander’s office and the ROVD by radio. The witness and the police officers had then heard an APC arriving at the witness’s house, after which the shooting had intensified and had lasted for another half an hour. Then the two APCs had driven off and the gunfire stopped. The police officers had left one of their colleagues with the witness and had gone to the house. Upon their return, they had told him that his brother and father had been taken away in the APCs. 18.  On 9 July 2002 the investigators questioned the applicant’s neighbour, Mr V.M., who stated that on the night between 8 and 9 July 2002 he had been woken up by intense gunfire from automatic firearms at the applicant’s house, which had lasted for about fifty minutes. Then he had seen that the applicant’s house had been set on fire. A group of men had shouted and sworn in unaccented Russian and had then driven off in an APC. 19.  On 9 July 2002 the investigators questioned another neighbour of the applicant, Mr A.T., who stated that the night before he had been woken up by intense gunfire at the applicant’s house. When he had tried to open the door to see what was going on, he had been ordered to stay inside or be shot. He had heard men swearing in Russian. 20.  On 9 July 2002 the investigators questioned the applicant’s neighbours Mr V.A., Mr A.Ch. and Ms Ay.V., whose statements were similar to the one given by Mr V.M. Ms Ay.V. also stated that at about 3 a.m. someone had demanded that she open her door and let in the wife of Mr Aslan Dudayev, Ms Amnat Yakhyayeva, and her children, including the wounded Adam Dudayev. Ms Amnat Yakhyayeva told the witness that all of the men who had been in their house had been killed by the armed men who had arrived in the APC. On the following morning the witness had found a spent 5.45 mm calibre cartridge at her home, presumably from an automatic gun. 21.  On 9 July 2002 the investigators also questioned the applicant’s neighbour, Mr A.I., whose statement was similar to those of the other neighbours (see paragraphs 18-20 above). In addition, he stated that the shooting at the Dudayevs’ house had continued for at least one and a half hours, that the armed men who had attacked the applicant’s family had been an organised group of fifteen to twenty men in camouflage uniforms, that they had sworn a lot in unaccented Russian and that they had driven in an APC. After the shooting he had gone to the house and found the walls and furniture riddled with bullet holes. He had also found the body of the applicant’s son, Aslan, who had been killed in the gunfire. 22.  On the same date, 9 July 2002, the investigators also questioned the applicant’s neighbours Ms A.Ya., Ms B.Dzh. and Mr Ab.V., whose statements were similar to those of the other neighbours (see paragraphs 18‑21 above). 23.  On 10 July 2002 the investigators opened criminal case no. 54042 (in the documents submitted the number was also referred to as 54048) in connection with the murder of the applicant’s son Mr Aslan Dudayev “by a group of fifteen to twenty armed men in camouflage uniforms and balaclavas who had arrived at the [the applicant’s] house”. 24.  On 10 July 2002 the investigators ordered a forensic examination of the body of the applicant’s son Mr Aslan Dudayev. On 12 August 2002 the forensic experts concluded that he had died from two gunshot wounds to the head. 25.  On 13 July 2002 the investigators ordered a forensic examination of the applicant’s grandson Adam Dudayev. On the same date the experts concluded that he had received a perforating shrapnel wound and a gunshot wound to the torso. 26.  On 15 July 2002 the applicant’s son Mr Alikhan Dudayev complained of the incident to the Chechnya Prosecutor. In particular, he stated that on the night of the events he had warned the intruders that he was a police officer, but they had opened fire. After an hour and a half of intense shooting, the perpetrators had taken his brother, Mr Aslan Dudayev, outside and executed him in the courtyard. They had then wounded his nephew Adam, and had taken away his father, Mr Ali Dudayev. Neither the military commander’s office nor the nearby police station had reacted to the gunfire or intervened in any way. 27.  On 18 July 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva, whose statement concerning the events was similar to that of her brother-in-law, Mr Alikhan Dudayev. In addition, she stated that her husband, Mr Aslan Dudayev, had been shot dead by the perpetrators, who had been in military uniform and had driven around in two APCs. The perpetrators had also taken away the applicant’s husband, Mr Ali Dudayev. 28.  On 18 July 2002 the investigators questioned the applicant’s neighbours Mr A.V. and Mr M.Kh., whose statements were similar to the applicant’s account before the Court. In addition, Mr M.Kh. stated that after the shooting had stopped, several military vehicles had driven down their street in the direction of the applicant’s house. In the morning he had learned that the attack had been carried out by federal servicemen who had been driving in three APCs. 29.  On 28 July 2002 the investigators ordered a ballistics report on the cartridges, bullets and machine gun collected from the crime scene on 9 July 2002. On 12 August 2002 the ballistic experts concluded that the machine gun had been set for single shots only and that the cartridges had come from several different Kalashnikov machine guns. 30.  On 30 July 2002 the investigators granted the applicant’s son Mr Alikhan Dudayev, the status of victim in the criminal case and questioned him again. He reiterated his previous statement (see paragraph 17 above). 31.  On 1 August 2002 the investigators granted the applicant’s daughter-in-law Ms Amnat Yakhyayeva the status of victim in the criminal case and questioned her. Her statement was similar to the one given on 18 July 2002 (see paragraph 27 above). In addition, she stated that the perpetrators had wounded her father-in-law and taken him away in their APC. 32.  On 1 August 2002 the investigators questioned the applicant’s neighbour Ms Yakh. Dzh., whose statement about the events was similar to those given by the other neighbours and to the applicant’s account before the Court. 33.  On 1 August 2002 the Chechnya Prosecutor wrote to the Chechnya Military Prosecutor asking for assistance in the investigation of the criminal case. The letter stated, inter alia, the following:
“... The Chechnya prosecutor’s office is investigating a criminal case concerning the killing of Mr A. Dudayev and the wounding of Mr A.M. Dudayev by a group of unidentified persons armed with automatic rifles.
One of the theories being pursued by the investigation is that of the involvement in the crime of military servicemen from the United Group Alignment (the UGA). In connection with this I request that an investigator from unit no. 20102 of the military prosecutor’s office be included in the investigators’ group to assist in solving the crime...” 34.  On 21 August 2002 the Grozny military commander’s office informed the investigators that they had no information about the possible identity of the perpetrators and had not issued orders for a special operation at the applicant’s house. 35.  On 10 September 2002 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this. 36.  On 18 July 2003 the Staropromyslovskiy district prosecutor overruled the decision to suspend the investigation as unlawful and premature. He pointed out, among other things, that the investigators had failed to take basic steps, such as questioning the police officers whom Mr Alikhan Dudayev had met after his escape from the house or questioning the officers from the military commander’s office about the attackers’ use of APC military vehicles. The investigation resumed on the same day. 37.  On an unspecified date in July 2003 the applicant complained of her son’s killing and her husband’s abduction to the Staropromyslovskiy district administration, which on 30 July 2003 forwarded her complaint to the investigators for examination. 38.  On 10 August 2003 the investigators questioned the applicant’s neighbour Mr S.D., whose statement was similar to the applicant’s account before the Court. 39.  On 18 August 2003 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this decision. 40.  On 2 June 2009 the investigators again took up the criminal case on the orders of their superiors after receiving a request for information from the applicant. 41.  On 5 July 2009 the investigators granted the applicant the status of a victim in the criminal case and questioned her. The applicant’s statement concerning the circumstances of her son’s killing and the abduction of her husband by military servicemen was similar to her account before the Court. In addition, she stated that even though the servicemen had known that her son Mr Alikhan Dudayev worked in the police, they had still opened fire. 42.  On 7 July 2009 the investigators again suspended the investigation owing to a failure to identify the perpetrators. They informed the applicant of this decision. 43.  The applicant appealed against that decision to the Staropromyslovskiy District Court in Grozny. On 29 September 2009 the court rejected the complaint because earlier that day the investigators had resumed the proceedings in the criminal case. 44.  On 30 September 2009 the investigations in criminal cases 54042 and 54108 were joined under the number 54042 (see below). 45. On 4 October 2009 the investigators suspended the proceedings in the joint criminal case and informed the applicant. 46.  On 9 November 2011 the investigation was resumed by the supervising body as having been unlawfully suspended and the investigators were ordered to take fresh steps. 47.  On 15 December 2011 the investigators again suspended the proceedings in the joint criminal case. 48.  The document submitted shows that the investigation is still pending. 49.  On 11 December 2002 the Grozny prosecutor’s office opened criminal case no. 54108 in connection with the disappearance of the applicant’s husband, Mr Ali Dudayev. 50.  On 20 December 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva and her son Mr Alikhan Dudayev. Their statements were similar to the applicant’s account before the Court. 51.  On 24 and 25 December 2002 the investigators questioned the applicant’s neighbours Ms A.V. and Ms Z.I., whose statements were similar to the applicant’s account before the Court. In addition, they stated that the perpetrators of the abduction had been military servicemen. 52.  On an unspecified date in February 2003 the investigators informed the applicant’s lawyer that they were taking search measures to establish the whereabouts of the applicant’s missing husband. 53.  On 11 February 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed. 54.  On 18 June 2003 the investigation resumed and was again suspended on 18 August 2003. The applicant was not informed of either decision. 55.  On 2 June 2009 the investigators resumed the investigation at the applicant’s request. 56.  On 5 July 2009 she was granted victim status in the criminal case and questioned. Her statement was identical to the one given in criminal case no. 54042 (see paragraph 41 above). 57.  On 7 July 2009 the investigators suspended the investigation on account of a failure to identify the perpetrators and informed the applicant. 58.  The applicant appealed against the decision to suspend the proceedings to the Staropromyslovskiy District Court. On 29 September 2009 the court rejected the complaint because earlier on the same day the investigators had resumed proceedings in the criminal case. 59.   On 30 September 2009 the investigation in the criminal case was joined with the investigation in criminal case 54042 under a joint number, 54042. 60.  On 4 October 2009 the investigators again suspended the proceedings in the criminal case and informed the applicant. The document submitted shows that the joint investigation is still pending (see above).


9.  The applicant was born in 1977 and lives in Spain. 10.  On 1 October 1997 the applicant was charged (under Articles 193, first alternative, and Articles 229 and 233, first and second sub-paragraphs of the Penal Code-straffeloven) of having committed on Saturday, 6 May 1995, offences of violent assault, sexual assault and homicide against his cousin Ms T. (aged 17). 11.  The Karmsund District Court (herredsrett), sitting with 2 professional judges and 3 lay judges, held a hearing from 20 October to 19 November 1997, during which 84 witnesses and 5 experts were heard. On 27 November 1997 the District Court convicted the applicant of the charges and sentenced him to 14 years’ imprisonment. Moreover, under Article 3-5 of the Damage Compensation Act 1969, the District Court ordered the applicant to pay NOK 100,000 in compensation to Ms T.’s parents for pain and suffering and additional inconvenience. 12.  The applicant appealed to the Gulating High Court (lagmannsrett), which held a hearing between 4 May and 18 June 1998, during which it took oral evidence from 115 witnesses, 2 of whom were experts appointed by the High Court. Statements by 10 expert witnesses were submitted. Giving its verdict, the jury answered all the questions put to it in the negative. When the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. The professional judges withdrew and deliberated for approximately 50 minutes, before they came back to announce that they accepted the jury’s verdict. The High Court thence acquitted the applicant of the charges. 13.  On the following day, after hearing the pleas of counsel for the applicant and for the victim’s parents lasting approximately one hour, but without further evidence being submitted by the parties or taken by the court, the High Court judges unanimously upheld the District Court’ decision to award NOK 100,000 in compensation to Ms T.’s parents. On this point the High Court relied on the following considerations:
“It has been established in case-law that in such a serious case as the present one, and where the question of guilt has been decided in favour of the accused, a condition for making an award of compensation for non-pecuniary damages is that it must be clear on the balance of probabilities that the accused has committed the infringements specified in the indictment, see Norsk Retstidende 1996:864.
Considering the evidence adduced in the case as a whole, the High Court finds it clearly probable that [the applicant] has committed the offences against Ms T. with which he was charged and that an award of compensation to her parents should be made under Article 3-5 (2) of the Damage Compensation Act.
With respect to the compensation matter the High Court finds the following circumstances established.
On Friday, 5 May 1995 the applicant went to the cinema in Kopervik with some of his friends. Around midnight he was in the centre of town. The same night Ms T. had attended a Christian event at Avaldsnes. After this event she hitchhiked to the centre of Kopervik, where she arrived around midnight. She talked to some friends who were in the main street of Kopervik and then left the centre at approximately 12.10 a.m. About the same time [the applicant] left the main street and went for a short while to one of his friend’s house. Thereafter he cycled towards his home. He caught up with his cousin, Ms T., and they continued together. [They] lived about 1 km from one another. They took a road called Gamle Sundsveg. This is a short cut to Ms T.’s home, but a detour for [the applicant]. ...
When they approached the habitation in Sund they stopped. [The applicant] stroked Ms T.’s breasts. She rejected him, kicked his bike, yelled at him and continued on her own. [The applicant] feared that, should Ms T. find his conduct completely unacceptable, it would have disastrous consequences for him when his conduct would be known. He thought about earlier incidents of flashing and obscene behaviour and got scared of the consequences. He charged after her and performed the acts described in the indictment. The High Court considers that his acts had their origin in an explosion of emotion, combined with a sexual attraction to Ms T. According to forensic expert statements, it is established that by the time she was on the road she had already suffered lethal injury. It has not been fully ascertained whether she was dead when he dragged her from the road to the bushes in a field. Here he lifted a 23-kg stone and hit her at least twice on the head. There was blood on both sides of the stone. The accused himself stated that he had the evil idea to conceal her face, so she could not tell anyone, by any means, what he had done.
He then left the scene, washed himself clean from the blood and earth in [a lake] nearby and then cycled at random towards Kopervik. After a while he cycled towards his home and encountered a witness. ... She stated that this was at around 1.45 a.m.
A neighbour, who was the owner of the field, found Ms T. the next morning. ... The police were called.
An extensive investigation was carried out and [the applicant] was summoned for questioning at an early stage. He was considered suspect, particularly because the police had some knowledge about his previous sexual acts, of which one incident had led to a formal complaint. At the end of January 1997 [the applicant] gave a new statement to the police and changed his version as to the time of his arrival at home and his choice of roads from the town centre back home. It was inter alia against this background that [the applicant] was apprehended on 8 February 1997. On 10 February 1997 he was placed in custody with a prohibition on correspondence and visits. At the court hearing he accepted his remand in custody. Ten days later [the applicant] delivered to his defence counsel at the time two notes stating that he had killed Ms T. Counsel is thought to have asked the defendant whether he could recall this. He denied it and counsel handed the notes back to [the applicant]. A few days later he confessed and gave detailed information about the course of events and the background. During questioning on 2 March 1997, after having gone through the statements with his counsel, he declared that he was guilty of a crime in accordance with the confession. Approximately one month later the confession was repeated to psychiatric experts. After having been transferred to Bergen regional prison, he began to doubt the accuracy of his confession. ... During a police inquiry on 11 August 1997, his counsel gave notice that [the applicant] would not maintain his previous statement.” 14.  The applicant sought to appeal against the High Court order that he pay compensation, according to the rules of the Code of Civil Procedure 1915 (tvistemålsloven). Ms T.’s parents and the applicant, represented by their respective counsel, took part in these proceedings, but not the prosecution.
On 1 February 1999 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal in so far as it concerned the High Court’s assessment of the evidence, but granted leave in so far he was challenging the High Court’s procedure and interpretation of the law. 15.  By a judgment of 24 September 1999 the Supreme Court, by 3 votes to 2, rejected the appeal. 16.  The majority, Mr Justice Skogstad, joined by Mrs Justice Gjølstad and Mrs Justice Coward, stated:
“Appeal concerning the procedure
Apart from the fact that neither the wording of the Code of Criminal Procedure nor the preparatory works suggest that an authorisation to pass judgment on civil claims in spite of a defendant’s acquittal should depend on the reasons for the latter, I cannot find any real grounds to support this proposition. Although it is evident that – in cases like the one at hand – it must be a condition for passing judgment on compensation for non-pecuniary damage that it is clear on the balance of probabilities that the act has been committed [handlingen er begått], the evidentiary standard is not as strict as that applying to a criminal conviction. I have problems seeing that in cases where the defendant has been acquitted, because it has not been found proven that the act has been committed [handlingen er begått], should be placed in a somewhat different position than where there are other grounds for acquittal – as for example where the conduct is not punishable, where it has not been established that the defendant acted with the required criminal guilt, where the defendant is not found to be liable under the criminal law, or where there is self-defence or any other ground of exemption from criminal liability. Should it not be permissible to adjudicate civil claims in criminal proceedings in which the defendant has been acquitted because it has not been established that he has committed the act that was the factual basis for the indictment [begått handlingen], the consequence would be that the claim must be brought up in separate civil proceedings. However such a lawsuit is both time consuming and expensive [and] .... the aggrieved party’s possibilities to pursue such claims will depend on his economic situation. I find no attraction in such a solution.
I should also point out that if one were to operate a rule whereby an acquittal on the ground that it has not been established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling han er tiltalt for] is treated differently than acquittals on other grounds, it might give rise to difficulties in instances where the case has been tried by a High Court sitting with a jury, as in the present case. A verdict of conviction requires that at least seven of the ten jurors have answered ‘yes’ to the question of guilt and, regardless of whether the jury has answered ‘yes’ or ‘no’, no grounds are given for the verdict. In most instances one will have more or less well-founded perceptions, but never total certainty, as to why the jury has answered in the negative.
On several occasions the courts have had to deal with the question whether a civil claim can be adjudicated in spite of the defendant having been acquitted in the criminal case. On those occasions, where the question has been submitted to the Supreme Court or the Appeals Selection Committee, it has not been a condition for dealing with the civil claim in connection with the criminal case that the [criminal] court ... has found it established that the defendant has committed the act that was the factual basis for the indictment [har begått den handling tiltalen gjelder]. ...
In my opinion, in the light of existing legal sources, there cannot be any doubt that, under the Code of Criminal Procedure 1981, it is not a condition for adjudicating a civil claim in connection with criminal proceedings that the court in [the latter] proceedings has found it proven that the defendant has committed the act that was the factual basis for the indictment [har begått den handling saken gjelder]. ...
Consequently, no procedural errors were committed when the High Court, in spite of [the applicant’s] acquittal in the criminal proceedings, passed judgment on the civil claim. ...
Appeal concerning the application of the law
The appellant has based his appeal on law on the argument that it would be contrary to the presumption of innocence in Article 6 § 2 of the Convention if the court, after the defendant has been acquitted in the criminal case, passes judgment for compensation for non-pecuniary damage in the same case. In any event, he submits, it must be contrary to the presumption of innocence to give such reasoning on the compensation matter as done by the High Court. ...
[Article 6 § 2] is primarily addressed to judges in criminal proceedings and its main message is that judges shall not prejudge the defendant as having committed the crime of which he is indicted, or that there shall be no prejudgment through statements by public authorities (see Frowein/Peukert: “Europäische Menschenrectskonvention”, “ECHR”, 2. edition (1996) page 280 and following, and Rehof/Trier: Menneskerett – Human Rights (1990), page 164). Both according to legal doctrine and the case-law of the Strasbourg institutions, the provision may also have importance after the criminal case has been terminated (see Harris/O’Boyle/Warbrick: “Law of the ECHR” (1995), pages 246-247 with further references to practice). For instance, in the Sekanina v. Austria judgment, the Court stated that if the defendant has been acquitted by a final judgment, the courts might not, in a subsequent case concerning compensation for unjust prosecution, base its judgment on the fact that the accused is guilty. However, how far these points of view go is somewhat uncertain. While it is the accused and the State who are parties to the compensation proceedings regarding unjust prosecution, such proceedings can be seen as a prolongation of the criminal case. In my view, however, the presumption of innocence can hardly apply to civil proceedings between the accused and the person who has been prejudiced or has suffered damage by the act [which was] the factual basis for a criminal charge in respect of which the defendant has been acquitted [en handling som siktede er frifunnet for]. In any event, it must be evident that Article 6 § 2 of the Convention cannot bar the courts – in a civil case (for example a case for compensation; on dismissal or parental responsibilities) – from establishing facts regarding the course of events in question, even if it should disclose the occurrence of a criminal offence and even if the person against whom the claim is directed has been acquitted of the offence in a preceding criminal case (see, inter alia, Lorenzen/Rehof/Trier: “Den Europæiske Menneskeretskonvention med kommentarer” “The ECHR with comments” (1994), page 199, and Frowein/Peukert, op. cit. page 285). Should the presumption of innocence apply at all to civil proceedings between the aggrieved party and the accused, it must at any rate be a condition for finding a violation of Article 6 § 2 that a decision establishing criminal guilt has been taken. Were the court in a civil case not permitted to base its decision on the fact that the person acquitted of a criminal offence, has in fact committed the act [begått handlingen], the acquittal would deprive the victim, or the person who has suffered damage, of the possibility to obtain a judicial review of claims that he or she might have against the accused. This would, in my view, be contrary to the fundamental right to a fair hearing in Article 6 § 1.
[The applicant] has argued that a distinction must be made between cases where a civil claim is being reviewed together with the criminal matter and cases where the claim is examined in separate civil proceedings. I do not agree that there is any basis for making such a distinction. The system whereby civil claims may be raised in the criminal case is based upon well-founded considerations of procedural economy and ... can also benefit the defendant. In criminal proceedings the accused is, as a main rule, entitled to defence counsel paid for by the State and, bearing in mind also the thoroughness with which evidence is presented in a criminal trial, the accused, in the event of a civil claim being determined together with the criminal matter, enjoys particular protection against being wrongly judged. If the defendant is acquitted in the criminal case but is ordered to pay compensation for non-pecuniary damage, the accused will be left with a feeling of not having been ‘totally acquitted’. But it should not matter to him whether the compensation claim is determined in connection with the criminal proceedings or in ensuing civil proceedings.
...
As mentioned above, the presumption of innocence under Article 6 § 2 of the Convention can, in my view, hardly be applied in a civil case between the person acquitted and the aggrieved party. Bearing in mind the nature of this case, I do not, however, find it necessary to take a definite stance on this question, the High Court did not in my view base its decision in the compensation claim on a finding of criminal guilt, which under any circumstance must be a condition for a violation of Article 6 § 2. ...
The appellant has pleaded that the courts in practice will have difficulties in applying different evidentiary standards to criminal conviction and compensation. Moreover, he has submitted that when, as in this case, it is a requirement for making an award of compensation for non-pecuniary damage that it is clear on the balance of probabilities that the the accused has committed the act [begått handlingen], the evidentiary requirement is so close to that applying to a criminal conviction that this in itself contributes to casting a suspicion of criminal liability. I have difficulties in understanding these arguments. The fact that the evidentiary requirements are different in various relations is nothing special for cases such as the present one. ... [I]t is based on the general view that a qualified probability is required in order for the court to ground its decision on a fact that is strongly incriminating ... The fact that a stricter standard of proof applies in order to protect the interests of the defendant cannot entail a breach of the Convention.” 17.  The minority of the court, Mr Justice Flock joined by Mr Chief Justice Smith in the main reasoning and the conclusion, expressed the following opinion:
“I am ... of a different opinion as to the main issue in the case. In my view, the appeal on procedure ... should be upheld. When a court primarily has found that the defendant was not the perpetrator of ‘the act with which the case is concerned’, the court may not, in my opinion, in the same judgment order the defendant to pay compensation for non-pecuniary damage on the ground that he nevertheless has performed the same ‘act’.
Under the 1981 Code of Criminal Procedure – as noted by the first voting Justice – it was authorised to pass judgment on civil claims even though the defendant had been acquitted of the criminal act. ...The former [limitation in this respect] was repealed. However, in my view, the far reaching application of the new rule made by the High Court in this case does not necessarily follow from the statute or from former Supreme Court rulings. Besides, it would be more consistent with the presumption of innocence under Article 6 § 2 of the Convention, now incorporated into Norwegian law, if the court did not both brand the defendant as the perpetrator of the act under civil law and acquit him of criminal liability in the same judgment. Against this background, the best solution would be to interpret the possibility – and the corresponding duty for the courts – under the statute to adjudicate civil claims in the criminal case with the qualification that the most extreme consequences should be avoided.
Below I shall deal with each of the reasons for my position.
When the 1981 Code improved the possibilities of the aggrieved party to have civil claims determined in connection with the criminal proceedings, some instances were mentioned in the preparatory work of claims that could be adjudicated even though the defendant had been acquitted. This was, inter alia, where the purpose, intent or gross negligence required by the Penal Code had not been proved but where it had been shown that the defendant had displayed sufficient negligence to be held liable to pay compensation. However, the preparatory works did not include ... those instances where the defendant had been acquitted because it had not been established that he or she had performed the act as cited in the indictment. This would be the most frequent reason for acquittal in, for example, cases of aggravated sexual assault against minors ... and where compensation for non-pecuniary damage is a recurrent issue.
Special questions arise in this kind of acquittal. A conviction and an order to pay compensation are not only different legal consequences based on different aspects of the case, but also, in the same case and on the same evidence, the court assesses the evidence twice with the possibility of reaching different results. Legally, this would be justified by the fact that the evidentiary requirements for criminal conviction are stricter than those with respect to an order to pay compensation for non-pecuniary damage. However, this situation is so special – and was excluded under the former legislation – that one would expect that the subject be discussed, or at least be explicitly mentioned, in the preparatory works. As this was not the case, it can be deduced that the legislators probably did not have such cases in mind, or at least did not regard them as essential when the rules were amended in 1981.
It is undoubtedly correct that the Supreme Court – and other courts in our country – in certain rulings have noted that an award can be made for pecuniary and non-pecuniary damage even if the defendant has been acquitted in the same case. ... However, ... I can hardly see ... that there is such an established case-law in this area as to prevent certain limitations being made in the interpretation of the law.
As regards the presumption of innocence in Article 6 § 2 of the Convention, it is somewhat uncertain how far this requirement extends in Norwegian law. ...
When taking a decision in the present case, one is faced with the need to strike a balance between, on the one hand, the accused’s interests and, on the other hand, those of the victim and his or her closest relatives. It is important to take into account the fact that the 1981 revision was intended to strengthen the victim’s position. However, I find that an acquittal for having committed the incriminated act – and in particular an act of murder – must clearly appear from the judgment. This is such a prominent consideration that it should in my view be predominant in the interpretation of the law.
...
In following this reasoning, some issues of delimitation will arise as to when the court should abstain from determining civil claims together with an acquittal. The limitation, that is implied in my opinion, on the possibility to adjudicate such claims is inter alia that it must be ascertainable that the acquittal is based on a finding that there is insufficient evidence to show that the accused committed the offence of which he/she was charged. This might be a problem in all cases before the High Court where the question of guilt is decided by a jury, without a reasoned verdict.”