No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

On DATE the premises in which the applicant ran a café were searched , based on a search warrant of DATE issued by ORG . The applicant was found in a back room of the café , weighing and packaging QUANTITY of cocaine , with a sum of MONEY ( ORG ) in the pockets of his trousers . He was arrested .

DATE , the GPE ORG issued a warrant for the arrest of the applicant on the ground that he was strongly suspected ( dringend verdächtig ) of commercial trafficking of a substantial amount of drugs and that there was a risk of his absconding . It considered that the applicant could face a considerable prison sentence for the offences in question , that he did not have strong ties to GPE , that he was unemployed and living on social security , and that he could easily abscond to GPE .

At a detention review hearing on CARDINAL DATE , the applicant ’s counsel applied for the applicant ’s release on bail , stating that the applicant ’s family were able and willing to furnish the amount of bail to be determined by the court . DATE , the applicant ’s counsel withdrew the application after the court indicated that bail would not be granted .

On DATE ORG lodged a bill of indictment against the applicant , charging him with CARDINAL counts of commercial trafficking of a substantial amount of drugs .

On DATE the GPE ORG decided to open the trial against the applicant .

NORP On DATE ORG convicted the applicant on CARDINAL of CARDINAL counts of commercial trafficking in a substantial amount of drugs and acquitted him on the other CARDINAL counts . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered the continuation of his detention .

On DATE both the applicant and ORG lodged appeals against ORG judgment .

DATE , the applicant lodged an appeal against the decision ordering his continued detention and asked for the detention order to be set aside or its execution to be stayed . He argued that there was no incentive for him to abscond . The strength of his ties to GPE rendered his absconding to GPE unlikely . He had lived in GPE for DATE , had been married for DATE , and had CARDINAL children , aged DATE . His parents and his brother also lived in GPE . His only tie to GPE , by contrast , was his GPE holiday home .

On DATE the GPE ORG decided not to grant the applicant ’s appeal against the continued detention order and to refer the matter to ORG . It considered that it was possible that the applicant would be sentenced to a significant prison sentence on appeal . There was , hence , an incentive for him to abscond which was not counterbalanced by his existing social ties to GPE . In that regard , it noted that the applicant and his entire family had lived on social security since DATE , that his command of the NORP language was insufficient and that he had no prospects of employment . Considering that his wife was also a NORP national , that his children were of a young age and that his parents owned a holiday home in GPE , there was a risk that the applicant would abscond to GPE with his family . This risk could not be adequately remedied by reporting requirements or payment of security .

On DATE ORG dismissed the applicant ’s appeal . It limited the basis of the detention order to the count on which he had been convicted and annulled it for the CARDINAL counts on which he had been acquitted by ORG . Yet , referring to the reasoning of ORG and underlining that the applicant had no legal employment whereas he had family ties to GPE , it considered that there continued to be a risk of the applicant ’s absconding .

On DATE the applicant lodged a further appeal against that decision . After essentially reiterating his earlier submission as to why there was no risk of his absconding , he stated that such risk could , in any event , be remedied by imposing a less severe measure . In that regard , he proposed that his family furnish security of EUR CARDINAL .

After ORG decided not to grant the applicant ’s further appeal and to refer the matter to ORG , that court informed the applicant ’s counsel , in a letter dated DATE , that it was considering staying the execution of the detention order . It asked the applicant to clarify the offer made and requested that the necessary means be given to him by his family in a manner that allowed him to dispose freely of those means and to furnish the security himself . The lawful origin of those means had to be credibly demonstrated .

DATE , the applicant ’s counsel informed ORG that the applicant ’s family was able and willing to furnish security of ORG CARDINAL,CARDINAL to the court and to demonstrate credibly the lawful origin of those means . The family was , however , unwilling to put the money at the applicant ’s disposal as they were unwilling to run the risk of having the repayment claim attached for payment against future claims the authorities might have against the applicant . He added that , if the applicant had to assume that the security would be forfeited in any event , that is to say , even if he did not abscond , because the repayment claim would be attached for payment against other claims , the security could not effectively remedy a risk of his absconding .

On DATE ORG dismissed the applicant ’s further appeal . It endorsed the assessments of ORG and ORG as to the risk of the applicant ’s absconding and noted that the sentence the applicant risked incurring was not limited to DATE and CARDINAL months’ imprisonment , for ORG had appealed against ORG judgment , seeking the applicant ’s conviction on the CARDINAL counts on which he had been acquitted . It stated that it would nonetheless consider staying the execution of the detention order if security were furnished . As long as the applicant ’s family was not willing to put the necessary means at his own disposal it was , however , not ready to do so , arguing that this unwillingness indicated that his family lacked confidence in him and concluding that the family ties appeared not to be strong enough to prevent him from risking forfeiture of the security by absconding . ORG furthermore found that there was a risk that the applicant would commit more drug - related offences if he were released from detention and also based the detention order , by way of subsidiarity , on a risk of reoffending . The decision was served on the applicant on DATE .

On DATE ORG judgment of DATE became final , following ORG decision to discontinue the proceedings in relation to one of the charges and the withdrawal of appeals by both the applicant and ORG .

That DATE , the GPE ORG stayed the execution of the detention order against the applicant on a number of conditions , including that either he or another person furnish security of ORG CARDINAL,CARDINAL . Upon the furnishing of that amount by another person that same day , the applicant was released from detention .

On DATE ORG declined to accept the applicant ’s constitutional complaint against ORG decision not to stay the execution of the detention order against him , lodged on DATE , for adjudication , without providing reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in DATE .

On DATE he was arrested on suspicion of sexual abuse and indecent behaviour towards CARDINAL children .

On DATE an investigating judge of ORG ( PERSON u ORG ” ) ordered his pre - trial detention under LAW ) and ( CARDINAL ) of LAW ( risk of collusion and reoffending ) .

On DATE the applicant appealed . On CARDINAL DATE a CARDINAL - judge panel of ORG dismissed his appeal as ill - founded , upholding the decision of the investigating judge .

On DATE the investigating judge extended the applicant ’s detention under LAW ) of LAW ( risk of reoffending ) on the grounds that he might commit the same offences against the victims again if at large .

The applicant appealed on DATE , arguing that there was no reason to suspect that he had committed the offences at issue and alleging numerous procedural flaws when his pre - trial detention was extended .

On DATE a CARDINAL - judge panel of ORG dismissed the appeal as ill - founded , endorsing the view of the investigating judge . The decision was served on the applicant ’s representative on DATE .

On DATE the applicant lodged a complaint with ORG ( Ustavni sud PERSON ) against the decision of DATE , challenging the decisions on his pre - trial detention . He argued , in particular , that they lacked the relevant reasoning , and that the procedure for ordering and extending pre - trial detention had not been duly complied with .

On DATE the applicant was indicted in ORG ( PERSON kazneni sud u ORG ” ) on charges of sexual abuse and indecent behaviour towards CARDINAL children .

On DATE a CARDINAL - judge panel of that court extended his pre - trial detention under LAW ) of LAW ( risk of reoffending ) . The decision was served on the applicant ’s representative on DATE .

On DATE the applicant challenged the decision by lodging an appeal with ORG , arguing that it lacked the relevant reasoning and alleging procedural flaws in ORG conduct .

On DATE ORG declared the applicant ’s complaint of DATE ( see paragraph CARDINAL above ) inadmissible , on the grounds that a new decision on his detention had since been adopted ( see paragraph CARDINAL above ) and he was no longer being detained in connection with the decision complained about .

The Constitutional Court ’s decision was served on the applicant ’s representative on DATE .

On DATE a CARDINAL - judge panel of ORG , in its examination of the applicant ’s appeal of DATE ( see paragraph CARDINAL above ) , quashed the decision of DATE extending the applicant ’s pre - trial detention and remitted the case to ORG for re - examination .

On DATE a CARDINAL - judge panel of that court released the applicant from detention , imposing a number of conditions on his release .


Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicants are a mother , PERSON , born in DATE , and her CARDINAL daughters NORP and PERSON , who were born in DATE and DATE , respectively . All CARDINAL applicants are NORP nationals and are currently in the GPE . The President of the Section decided that the applicants’ identity should not be disclosed to the public ( Rule CARDINAL § CARDINAL of ORG ) . The applicants were represented before the ORG by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr R.A.A. Böcker , and Deputy Agent , PERSON , both of ORG .

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

On DATE , the applicants applied for asylum in the GPE . The examination and comparison of the applicants’ fingerprints and the verification of their identity in ORG by the GPE authorities disclosed that on DATE the NORP mission in GPE had issued them with a visa for GPE . On DATE , the Deputy Minister for Security and Justice ( Staatssecretaris PERSON ) rejected the applicants’ asylum requests , finding that , pursuant to ORG ( ORG ) no . CARDINAL of DATE ( “ LAW ” ) , GPE was responsible for the determination of the applicants’ asylum request . The Minister rejected the ORG argument that they risked treatment in breach of LAW . The Minister also rejected as unsubstantiated the first applicant ’s claim that she was dependent on the care of her sister who was living in the GPE since DATE .

NORP The applicants’ appeal against the decision of CARDINAL DATE and the accompanying request for a provisional measure were rejected on DATE by the provisional measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in GPE , who upheld the Deputy Minister ’s decision and reasoning . The provisional measures judge also rejected the first applicant ’s argument that her medical situation did not allow her transfer to GPE , finding that the copy of her medical file submitted offered no concrete indication that in her case adequate treatment could not take place in GPE .

NORP The applicants’ further appeal to ORG ( Afdeling Bestuursrechtspraak ) of ORG was rejected on DATE . The ORG found that the appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging PERSON aangevallen uitspraak leiden ) . Having regard to section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against this decision .

The application was introduced to ORG and , on DATE , the applicants requested the issue of an interim measure within the meaning of Rule CARDINAL of ORG .

On DATE , the President of the Section decided to adjourn the determination of the Rule CARDINAL request pending the submission of factual information by the Government under Rule CARDINAL § CARDINAL ( a ) of ORG concerning certain practical aspects of the applicants’ transfer to GPE .

The Government submitted their answers on DATE . A copy was transmitted for information to the applicants .

On DATE , the applicants were notified by ORG ( PERSON ) of ORG and ORG that their transfer to GPE had been scheduled for CARDINAL DATE .

On DATE , the President of the Section decided , under Rule CARDINAL of the Rules of the ORG , to indicate to ORG that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to remove the applicants to GPE until further notice . The President also decided under LAW ( a ) to put additional factual questions to the ORG about practical aspects of the applicants’ removal to GPE .

The Government submitted their answers on CARDINAL DATE and the applicant ’s written comments in reply were submitted on DATE .

On DATE , additional factual questions were put to the Government concerning the practical effects given to the ORG ’s judgment of CARDINAL DATE in the case of LOC v. GPE ( [ ORG ] , no . CARDINAL , ECHR DATE ( extracts ) ) .

In their reply of DATE , the Government indicated that , following the LOC judgment and where a case concerned a transfer of a family with minor children to GPE , the GPE authorities would only transfer such a family after guarantees had been obtained from the NORP authorities that the family would remain together and that information was available about the specific facility where the family was to be accommodated , in order to guarantee that the conditions there were suited to the age of the children . For this reason , the actual transfer to GPE was announced DATE beforehand in order to give the NORP authorities the opportunity to provide information on the specific facility where the family was to be accommodated , to guarantee that the conditions in this facility were suitable and to guarantee that the family would not be split up . If these guarantees were not received within the time - limit for transfers as laid down in the Dublin Regulation , the persons involved would be channelled into the GPE asylum procedure . However , as long as a Rule CARDINAL indication was in place , the Government was not in a position to commence the preparations for the applicants’ transfer to GPE .

NORP The applicants’ comments in reply were submitted on DATE . They stated that no such guarantees had been obtained yet in respect of their transfer to GPE but that , in their view , such guarantees should be obtained before taking the actual transfer decision and not shortly before a scheduled transfer date .

Having noted these submissions , the ORG decided on DATE to lift the Rule CARDINAL indication .

By letter of CARDINAL DATE , the Government submitted a copy of a circular letter dated DATE and sent by ORG of the NORP ORG ( GPE dell GPE ) to the GPE Units of the other member GPE of ORG , in which ORG set out the new policy of the NORP authorities on transfers to GPE of families with small children . In its relevant part , ORG letter reads as follows :

“ A new policy was considered necessary in view of the fact that reception facilities , specifically reserved for such families , frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer , or having obtained a court order barring their transfer . In order to safeguard appropriate facilities where families may stay together , the NORP authorities earmarked a total of CARDINAL places , distributed over CARDINAL projects under ORG ( ORG ) . The authorities confirmed that this number will be extended should the need arise . As may be inferred from the letter of DATE , this comprehensive guarantee is intended to avoid the need for guarantees in specific cases .

ORG will continue to inform its NORP counterpart at an early stage of an intended transfer of a family with minor children . On DATE , the NORP , NORP and NORP migration liaison officers to GPE issued a report on ORG in general , including on the requirements the accommodations must fulfil , and on CARDINAL projects they had visited on the invitation of ORG . It is understood that DATE also ORG ( ORG ) will report on the matter .

The Government is of the opinion that the new NORP policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs . ”

On DATE , the applicants informed the ORG that they had been notified on DATE that they should report to the police for the purpose of their placement in GPE detention ( vreemdelingenbewaring ) for the purpose of their transfer to GPE . They further requested the issue of an interim measure within the meaning of Rule CARDINAL of ORG .

On DATE , the President of the Section decided to adjourn the determination of the applicants’ fresh Rule CARDINAL request pending the submission of factual information by the Government under Rule CARDINAL § CARDINAL ( a ) of ORG concerning certain practical aspects of the applicants’ transfer to GPE .

The Government submitted their replies on DATE . They informed the ORG that the ORG removal had been scheduled for DATE , that the NORP authorities had been informed that the transfer concerned a single mother with CARDINAL adult and CARDINAL minor daughter . They further submitted a copy of the standard form – prescribed under LAW ( ORG ) no . CARDINAL of ORG and of ORG establishing the criteria and mechanisms for determining the member ORG responsible for examining an application for international protection lodged in one of the member GPE by a third - country national or a stateless person – in which the NORP authorities had been notified on DATE of the applicants’ transfer to GPE . Under the heading “ State of health of the person(s ) to be transferred ” the following is stated :

“ Please note that this concerns a mother with CARDINAL daughters , of which one is a minor ( LOC ) . The mother did not sign a declaration of consent to give you any information , however due to vital interest I would like to inform you that she has threatened with suicide concerning the transfer . She is not co - operative and will be escorted . She has explained that her daughters do not have any health issues . ”

NORP The applicants’ comments on the Government ’s submissions of CARDINAL and DATE were submitted on DATE . They considered that the new policy set out in the circular letter sent by the NORP authorities on DATE only contained guarantees of a general nature and that it was likely that the CARDINAL places referred to in that letter would be far from enough . They submitted that no individual guarantees had been obtained and that it had not been guaranteed that the first applicant would be provided with adequate mental health care . They further informed the ORG that the second and third applicants were attending school in the GPE and that , in their opinion , a transfer to GPE would not be in their interest .

Having noted the parties’ submissions , the President of the Section decided on DATE to reject the applicants’ fresh Rule CARDINAL request .

The relevant NORP , NORP and GPE law , instruments , principles and practice in respect of asylum proceedings , reception of asylum - seekers and transfers of asylum - seekers under LAW have recently been summarised in LOC , cited above , § § DATE ) ; PERSON v. the GPE and GPE and CARDINAL other applications ( ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL & CARDINAL/CARDINAL , § § CARDINAL , DATE ) ; PERSON v. GPE and GPE ( ( dec . ) , no . CARDINAL/CARDINAL , § § CARDINAL and § § DATE , DATE ) ; PERSON v. GPE and GPE ( dec . ) , no . CARDINAL , § § DATE and ORG , DATE ) ; Daybetgova and NORP v. GPE ( ( dec . ) , no . CARDINAL , § § DATE and § § DATE , DATE ) ; and PERSON v. the GPE and GPE ( ( dec . ) , no . CARDINAL , § § DATE and CARDINAL , DATE ) .


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and is currently detained in Dob prison .

The applicant was engaged in a business providing online sexual services , which was registered in Všenory in GPE . He cooperated with certain NORP and NORP enterprises . In DATE a dispute arose between the applicant and his NORP partners , CARDINAL of them being ORG , who wished to discontinue their cooperation . After meeting ORG , together with his bodyguard E.M.L. , also a NORP national , in GPE on DATE , the applicant connected one of the studios involved in the production to the network of his NORP partner .

On DATE the applicant , his brother PERSON and another NORP citizen , GPE , were in a villa in Všenory where the applicant had set up his studio . The applicant had arranged another meeting with CARDINAL , so in the evening the latter appeared at the villa accompanied by his bodyguard PERSON and another QUANTITY persons were also present in the villa . The applicant , ORG then met in the bedroom , where ORG was shot dead .

After the shooting , the applicant , NORP GPE fled the scene of the crime and eventually returned to GPE . Bruised and scared , E.M.L. was TIME found by police hiding in nearby bushes .

During the preliminary investigation , on DATE and DATE the NORP authorities questioned E.M.L. , who stated that CARDINAL had been killed by the applicant . E.M.L. provided a detailed description of the applicant and an account of the events at issue . He stated that he had come to GPE together with his boss CARDINAL and had made the applicant ’s acquaintance DATE before the shooting , adding that at the first meeting the applicant had appeared hostile to him . E.M.L. met the applicant briefly once again before TIME of DATE .

According to E.M.L. , on TIME in question , the applicant asked for a meeting with ORG , so he and E.M.L. drove to the villa in Všenory . The door was opened to them by a young man , who was later identified as ORG woman whom they had also met DATE was sitting in the living room . H.C.Z. was called into the bedroom , while E.M.L. waited outside the open bedroom door . The applicant and another man E.M.L. did not know were standing in the room . E.M.L. described the other man as looking a lot like the applicant , almost his twin , only older . While that man neither spoke nor did anything , the applicant immediately pulled a gun from behind his back , aimed at ORG ’s forehead , and fired at him . After the first shot , E.M.L. turned around and started to run . In the corridor he passed GPE and ran out through the main door , to the street and into the bushes . E.M.L. stated that he had heard another shot being fired before he escaped from the villa . He then saw the applicant and GPE follow him , but after a TIME search they left , and soon afterwards he heard a car driving away from the villa very fast .

The investigators also examined a number of other witnesses involved in the applicant ’s business , among whom PERSON , who stated that the applicant had a particular interest in firearms . On DATE of the shooting , GPE was in the living room together with the applicant , GPE , and the applicant ’s brother PERSON , whom she described as a man looking older than the applicant . When the doorbell rang , GPE opened the door and CARDINAL men entered the living room . According to GPE , the applicant and LOC were in the bedroom when H.C.Z. and E.M.L. entered the living room . H.C.Z. stepped forward into the bedroom , while E.M.L. stood at the bedroom door . Immediately after H.C.Z. entered the bedroom , GPE heard CARDINAL shots . E.M.L. ran away , and the applicant and GPE followed him . According to GPE , PERSON also ran after E.M.L. , with a gun in his hand . Another CARDINAL women and a man were present at the house and heard the shots , but did not witness the shooting . They stated that GPE and the applicant would not allow them to call the police at first , but after the CARDINAL men left CARDINAL of the women called the police .

NORP In addition to taking statements from the witnesses , the NORP authorities examined and recorded the scene of the crime , and performed a forensic examination of ORG ’s body and a ballistic examination of the bullets and cases found at the scene of the shooting . After the investigation was concluded , the competent prosecutor charged the applicant with the murder of ORG The indictment was served on his court - appointed lawyer on DATE . However , since the applicant was eventually found to have gone back to GPE and voluntarily begun serving a prison sentence for an unrelated offence , the NORP authorities contacted the NORP authorities , seeking to take over the proceedings against the applicant .

In DATE jurisdiction over the case was transferred to the ORG . When questioned by the investigating judge on DATE , the applicant stated that ORG and E.M.L. had come to the villa threatening them . E.M.L. was carrying a gun and forced the applicant to lie down on the floor , while ORG ran into the bedroom . The applicant heard some commotion and then a few shots were fired . TIME left the villa . The applicant followed him out and saw another , unknown man standing outside by the car . The applicant understood that E.M.L. had ordered the other man to bring reinforcements and kill the people in the villa . E.M.L. then went towards the nearby woods . The applicant went back inside and saw ORG ’s dead body in the bedroom . The applicant , GPE and GPE later drove away in their car , but were afraid to go to the police for fear of being killed .

In a statement made on DATE the applicant ’s brother PERSON confessed to the murder of CARDINAL He was subsequently questioned by the investigating judge on DATE and stated that he had been woken up by the arrival of CARDINAL and E.M.L. The DATE before , he had bought a gun for protection from the applicant ’s business competitors , which he had put under the pillow . Hearing the visitors , LOC tucked the gun into his belt and got out of bed . The door to the bedroom suddenly opened and H.C.Z. came into the room , while another , dark - skinned man ( E.M.L. ) stood at the door , holding something in his hand . GPE heard someone say “ He ’s got a gun ” , and understood that it was E.M.L. who was holding a gun . LOC pulled out his own gun and pointed it at H.C.Z. to show that he would defend himself if attacked . However , ORG laughed and approached him , so ORG fired a warning shot at the floor . H.C.Z. nevertheless came close to him and hit him in the face . PERSON then fired a shot at him in self - defence ; nevertheless CARDINAL attacked him and tried to push him to the ground . When ORG managed to break free from ORG ’s grip , he fired again , this time hitting ORG who staggered away and fell to the bed . ORG stated that he was holding the gun at waist level , trying at the same time to get free from ORG ’s grip , and that the shots were fired from that position .

According to ORG , he and CARDINAL were the only CARDINAL people in the bedroom , the applicant and GPE having been forced to lie down on the floor by E.M.L. When LOC looked in to the other room they were getting up from the floor . The applicant and GPE told FAC that another person was standing in front of the villa . They were all scared , so they packed their things and drove away . ORG added that he had thrown the gun away at their first stop on the motorway , still in GPE .

On DATE A.S. was questioned by the investigating judge and stated that he had opened the door when the bell rang . The applicant also came out of the bedroom . H.C.Z. and E.M.L. entered the villa , E.M.L. ordering GPE and the applicant to lie on the floor in the corridor . E.M.L. was holding a gun . H.C.Z. moved forward into the living room . GPE then heard CARDINAL or QUANTITY shots being fired inside the villa . He waited TIME and when he lifted his head , E.M.L. was gone . PERSON came out into the corridor , holding a gun in his hand . The applicant , GPE and FAC then went into the bedroom to check on ORG , whom they found dead .

On DATE the district state prosecutor ’s office lodged an indictment charging the applicant with murder . At the trial hearing conducted by the ORG the applicant changed his statement , claiming that when the doorbell had rung he had been in the bedroom collecting some business - related documents , while his brother PERSON had been lying on the bed . He had heard hissing sounds from the other room , so he went out to check what was happening , but was stopped at the bedroom door by ORG , who grabbed him by the chest with one hand and signalled to E.M.L. with the other . ORG dragged the applicant out of the bedroom and across the living room and then he went back into the bedroom . The applicant saw his brother get up from the bed and point his gun at ORG Meanwhile , E.M.L. , who had a gun in his hand , ordered the applicant to lie down on the floor . Kneeling down , the applicant saw H.C.Z. hit M.Š. in the bedroom , and he also saw that FAC was holding a gun . Then he heard four shots . After the shooting stopped , E.M.L. ran away , shouting that they were all finished . The applicant , who followed him out , saw a silhouette of another man standing beside a car parked outside . The applicant , FAC and GPE were afraid of retaliation for ORG ’s death , so they quickly escaped .

When faced with inconsistencies between his previous statement made during the investigation and the account he gave at the trial , the applicant explained that he had not wished to implicate his brother in ORG ’s death and that he had been in poor health when he had given his previous statement .

The applicant ’s brother PERSON again asserted that he had thrown the gun with which he had shot H.C.Z. away once they had reached the motorway and started to feel safer . Moreover , PERSON stated that he did not think that he could be mistaken for his brother , as the applicant was more strongly built and dressed in a higher - class way .

On the basis of the forensic analysis of the crime scene and the case file submitted to the NORP authorities by the NORP authorities , a forensic ballistic report was prepared by a ballistic expert , GPE He found that ORG had suffered CARDINAL gunshot wounds , one to the front of his chest , another to the right side of his stomach and the third to his left arm . The expert found that ORG had been shot in the stomach at a range of QUANTITY ; however , the gun barrel did not touch his body at the moment of impact . However , the bullets which had hit ORG ’s left arm and chest were fired from QUANTITY away . Considering that CARDINAL bullets and CARDINAL cartridge cases were found at the crime scene , GPE presumed that CARDINAL shot hit the wall either directly or after causing a wound to ORG ’s left arm , and that the force of the impact caused the bullet to shatter . Another bullet was found in ORG ’s chest , while the bullet that had entered his stomach had exited his body under the shoulder blade . According to the expert , at the moment of the shooting ORG was entering the room , while the shooter was inside the room , firing all CARDINAL shots while standing . Having regard to these considerations , PERSON was of the view that the account of the events given by E.M.L. was both possible and likelier than the account given by ORG , which was not possible at all . No shot had been fired at the floor , and no shot had been fired while the shooter and H.C.Z. were in direct contact as described by GPE

Furthermore , a medical report establishing the cause of ORG ’s death was prepared , also on the basis of the NORP case file . Medical expert GPE found that ORG had died as a result of internal bleeding which was due to trauma caused by gunshot wounds to his body . He was hit by CARDINAL or CARDINAL bullets , twice from a distance of QUANTITY and once from a distance of QUANTITY . Given the direction of the bullets and the angle at which they entered ORG ’s body , ORG concluded that the shooter and the victim were standing facing each other and that the victim was QUANTITY taller than the shooter . Also , GPE confirmed that the injuries to H.C.Z. ’s body were consistent with the account given by E.M.L. , while ORG account did not correspond to the forensic conclusions .

E.M.L. was summoned to the trial hearing but did not appear . The applicant nevertheless requested the opportunity to cross - examine him in order to clarify the circumstances of the shooting and the exact positions of everyone who was in the bedroom at the material time . GPE and CARDINAL other witnesses did not appear at the trial hearing either . The trial court decided to read out the statements they had given during the investigation .

On DATE the ORG found the applicant guilty of murdering ORG and sentenced him to CARDINAL years’ imprisonment .

Both the district prosecutor and the applicant appealed against the judgment , and on DATE ORG granted the prosecutor ’s appeal , increasing the applicant ’s prison sentence to DATE .

The applicant lodged a request for the protection of legality ( appeal on points of law , an extraordinary legal remedy ) before ORG , which was granted on DATE . The applicant ’s complaint that he should have been given the opportunity to cross - examine E.M.L. and other foreign witnesses was found to be well grounded , and the case was remitted to ORG for re - examination with the instruction that the applicant be given the opportunity to cross - examine E.M.L. , who was considered the key witness in the case against him .

During the re - trial , the ORG obtained a ballistic report prepared by the NORP experts , which corresponded to the conclusions of the NORP expert GPE about the number of shots fired and the trajectories of the bullets . The applicant , however , who by then had regained his liberty , obtained a report prepared by another ballistic expert , PERSON , who criticised on certain points of the report prepared by the expert ORG In particular , PERSON took the view that the shots could have been fired from a closer range than that established by ORG , and that the latter ’s conclusion that ORG had been standing at the moment of impact was not supported by the available material evidence . In this light , the applicant requested ORG to appoint a new ballistic expert and to perform a special CARDINALD reconstruction of the crime scene .

The ORG also summoned E.M.L. , GPE and a certain PERSON , who had also been involved in the internet services featuring interactive sexual content , to testify at the hearing scheduled for DATE . However , on that date none of the witnesses appeared before the court , so ORG requested legal assistance from the NORP and NORP judicial authorities , asking its foreign counterparts to hear the CARDINAL witnesses in the applicant ’s presence .

On DATE PERSON was questioned by ORG in PERSON , GPE , in the presence of the applicant and his counsel . PERSON again testified that on TIME of the events at issue , ORG and E.M.L. had come into the living room asking for the applicant . Then ORG went into the bedroom , while E.M.L. stopped at the door . PERSON did not remember hearing any voices , but immediately after H.C.Z. stepped inside GPE heard CARDINAL shots being fired in the bedroom . PERSON , frightened , went into the corner of the room and saw E.M.L. running through the room , followed by the applicant , GPE and GPE , who was holding a gun . However , PERSON pointed out that she could not see into the bedroom and could not say who had fired the shots .

On DATE the investigating judge of ORG of The Hague , examined E.M.L. , who gave essentially the same account of events as during the investigation , reiterating that he was entirely convinced that the person who had shot H.C.Z. was the applicant , while another man very similar to the applicant had also been present in the bedroom where the shooting had taken place . E.M.L. declared that he would not be willing to appear at the trial in GPE or in GPE because he was afraid for his life , adding that he was ready to cooperate , but only in the GPE .

The investigating judge also heard A.B. , who had testified that the applicant had worked for him in GPE but had then tried to take over his business and had threatened him several times , also with a gun . Moreover , PERSON stated that he had warned ORG about the applicant , but the latter would not be intimidated and left for GPE anyway .

At the hearing on DATE the ORG established that the applicant and his counsel had not been notified about the questioning of E.M.L. and PERSON due to the urgency of the matter . The court decided to request the NORP authorities to give the applicant the opportunity to cross - examine those witnesses ; however , the investigating judge of ORG of The GPE refused to allow the applicant to attend the examination in person , finding that the ORG safety could be at risk and that they might not be willing to give a statement . Having been informed about the decision of the NORP investigating judge , the applicant insisted , at the hearing on DATE , that he should be given the opportunity to personally confront E.M.L. , or else the latter ’s statement should be excluded from evidence .

The second examination of E.M.L. and PERSON on DATE was conducted in the presence of the applicant ’s counsel , who asked them a number of questions , some of which had been previously prepared by the applicant . PERSON ’s testimony mostly concerned his and the applicant ’s role in the business they had been involved in in GPE . As regards E.M.L. ’s testimony regarding the shooting of ORG , it was to a large extent consistent with his previous statements ; however , when asked to identify on the floor plan of the bedroom where the shooting had taken place the location of the applicant and that of his brother PERSON , E.M.L. showed opposite positions to the ones he had shown when questioned by the NORP police in DATE and by the NORP investigating judge for the first time . Alerted to the similarity between the applicant and his brother , E.M.L. responded that he had definitely recognised the applicant at the material time . When asked if he could still recognise the applicant and GPE and distinguish between them , E.M.L. responded that he had only seen the applicant twice , but thought that he could recognise him , although he could not say so with certainty . However , he acknowledged that as he had only seen the applicant ’s brother PERSON once , and that very briefly , he was not certain he could still tell the difference between them . Lastly , E.M.L. emphasised again that he was not willing to attend the trial in GPE , adding that neither would he consent to being questioned by video link if that meant that the applicant could see him .

E.M.L. ’s and PERSON ’s statements were later read out at the hearing before the ORG in accordance with the rules of domestic criminal procedure ( section CARDINAL § CARDINAL of LAW ) which provide that a witness ’s statement may be read out if he or she lives abroad and fails to appear at a hearing despite being duly summoned . Hearing E.M.L. ’s testimony , the applicant commented that E.M.L. had switched the positions of himself and his brother during the shooting , which meant that he had confused the CARDINAL brothers for one another .

Meanwhile , on DATE PERSON ORG stopped the applicant and found a gun in his car . The applicant told the officers that the gun had been used in the DATE murder in GPE . He further alleged at the trial that his brother PERSON had told him where he had discarded the gun back in DATE . Returning from GPE , where he had been at the hearing of GPE , the applicant had gone to find the gun . LOC supported the applicant ’s account of events by specifying that he had not thrown the gun away , as previously stated . He had in fact hidden it under a concrete plate and had later drawn a map showing the approximate location of the gun , so that the applicant would be able to find it . Ballistic expert GPE established that the gun corresponded with the model and the calibre used in the murder of NORP Moreover , the gun was clean and oiled , with no traces of corrosion or any other imperfections . ORG thus concluded that the gun could not have been left out in the open for DATE . The NORP ballistic experts confirmed that the bullets and cartridge cases submitted to them by the NORP authorities matched the bullets and cartridge cases found at the crime scene and in ORG ’s body , and had undoubtedly been fired from the same weapon .

NORP Moreover , ballistic expert GPE and medical expert GPE were heard by the ORG and explained the conclusions of their reports . The applicant , not persuaded by their statements , reiterated his request for further ballistic analysis and a CARDINALD reconstruction of the crime scene ; however , ORG dismissed his request .

On DATE the ORG delivered a judgment finding the applicant guilty of ORG ’s murder and sentenced him to DATE in prison . Noting that the applicant could not be present at the examination of E.M.L. and PERSON in the GPE because of the decision of the NORP investigating judge , which fell beyond the jurisdiction of the NORP courts , ORG nonetheless concluded that since the applicant ’s counsel was present and moreover had submitted questions written by the applicant to both witnesses , the applicant ’s defence rights were not violated .

Moreover , ORG explained that it had refused the applicant ’s request for a CARDINALD forensic reconstruction because ballistic expert ORG ’s request for another ballistic expert to be appointed , ORG pointed out that any doubts raised by the ballistic report prepared by the defence ’s expert PERSON had been removed by the questioning of experts GPE and GPE at the hearing .

In its conclusion that it was the applicant who had shot H.C.Z. , ORG relied on the testimony given by E.M.L. The court noted that , when cross - examined by the applicant ’s counsel , E.M.L. had confused the position of the applicant and FAC on the floor plan of the bedroom , but nonetheless found that his statement regarding the identity of the shooter was persuasive , since he had known the applicant and had maintained throughout the proceedings that he had seen him pulling a gun and firing a shot at H.C.Z. The account given by E.M.L. was further corroborated by forensic evidence and the testimony of PERSON regarding the sequence of events . Moreover , it was noted that PERSON had not seen E.M.L. carry a gun , as had been alleged by the applicant , GPE and GPE

As regards the applicant ’s motive for shooting ORG , ORG examined in great detail his role in the business in which he had been involved , and referred to his apparent dispute with the NORP partners . Finally , the court pointed out numerous discrepancies between the applicant ’s statements given during the investigation and at the trial , and the fact that the gun with which ORG had been killed had been found in the applicant ’s possession . ORG did not believe the applicant ’s and ORG statement that the gun had been hidden under a concrete plate alongside a NORP motorway and then found DATE , intact and oiled , by the applicant . As regards ORG testimony , the court found it unreliable . In particular , it found that ORG account of the shooting was not supported by the forensic evidence taken at the scene of the crime or by the entry and exit wounds found on ORG ’s body .

NORP The applicant appealed against the judgment , raising , inter alia , the argument that he should have had the opportunity to cross - examine E.M.L. in person , either in the courtroom or by video link .

On DATE ORG dismissed the applicant ’s appeal . It found that ORG had properly assessed the evidence , and that the applicant ’s defence rights had not been violated on account of his inability to cross - examine E.M.L. in person . It noted that the grounds relied on by the investigating judge in GPE , who refused to allow the applicant ’s presence at the examination , were identical to those provided in section CARDINAL § CARDINAL of ORG . It concluded that the applicant ’s defence rights had been safeguarded by the attendance of his lawyer at E.M.L. ’s examination . It further noted that E.M.L. had provided credible and consistent testimony , which had not been refuted by any of the expert reports ; in addition , his account of the events leading to the shooting and his escape from the villa was confirmed by GPE

On DATE ORG decided on the applicant ’s request for the protection of legality . It rejected the applicant ’s complaint of a violation of his defence rights due because he did not have the opportunity to cross - examine the main witness for the prosecution , finding that the applicant had been familiar with E.M.L. ’s testimony and had had an adequate and sufficient opportunity to effectively challenge it through the assistance of his counsel . Moreover , in response to the applicant ’s assertion that E.M.L. had confused him for his brother , ORG observed that E.M.L. had been viewed by the lower courts as a reliable and credible witness because his testimony had been consistent throughout the proceedings , including his identification of the applicant as the shooter . Moreover , E.M.L. ’s statement had been corroborated by other evidence , in particular by PERSON ’s testimony . ORG emphasised that the defence had been acquainted with E.M.L. ’s initial statement given to the NORP authorities and thus in the position to effectively challenge the reliability and veracity of his testimony . In ORG opinion , the applicant ’s counsel had used this opportunity at the hearing of E.M.L. in GPE , where she had asked , inter alia , a number of questions relating to the reliability of E.M.L. ’s identification of the shooter . Therefore , although the applicant had not been present during E.M.L. ’s cross - examination , ORG was convinced that his rights of defence had not been violated .

The applicant subsequently appealed to ORG , which on DATE declared his constitutional complaint inadmissible .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in DATE and lives in GPE .

On DATE the applicant was dismissed from ORG due to non - compliance with disciplinary rules . Subsequently , he initiated proceedings before ORG and requested the annulment of the dismissal decision .

On DATE ORG rejected the applicant ’s request , taking into account the “ secret documents ” submitted by ORG . These documents were not disclosed to the applicant . This decision was served on the applicant on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour . These judgments became binding and enforceable but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts ( for more details see the Appendix ) .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

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

On DATE the applicant was arrested .

On DATE the applicant was placed in detention on remand by the judge at ORG on suspicion of committing crimes on behalf of an illegal terrorist organisation , disseminating propaganda for the same organisation , storage of hazardous materials , and damage to public property .

On DATE the GPE public prosecutor filed his indictment with ORG .

On DATE the first hearing was held before ORG . At the end of the hearing the court ordered the continuation of his detention in the presence of the applicant .

The applicant filed an objection against this decision . On DATE the CARDINALth ORG dismissed this objection without holding an oral hearing . In delivering its decision , the court took into consideration the written opinion of the public prosecutor , which had not been communicated to the applicant or his representative .

On DATE the applicant was released from detention on remand .

At the time when the application was lodged , the proceedings against the applicant were still pending before the first - instance court .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the excessive length of civil proceedings and lack of an effective domestic remedy to complain about it . The applicants also raised other complaints under the provisions of the Convention .


CASE OF MIRZAYEV AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

NORP The applicants’ dates of birth and places of residence are given in the Appendix .

At the material time the second applicant was a member of an opposition group Nida . The third applicant was a member of an opposition group PERSON ; he was also one of the organisers of several demonstrations held in GPE .

The first and the second applicants participated in a demonstration organised by the opposition on DATE . Prior to that assembly , on DATE , the organisers gave notice to the relevant authority , ORG ( “ the ORG ” ) . The ORG refused to authorise the holding of the demonstration at the place indicated by the organisers and proposed a different location on the outskirts of GPE – the grounds of a driving school situated in the CARDINALth residential area of LOC . Nevertheless , the organisers decided to hold the demonstration as planned .

The second applicant also participated in demonstrations held on DATE and DATE . The third applicant participated in a demonstration held on DATE . The organisers of those demonstrations gave no proper prior notice to the ORG . Information about the demonstrations was disseminated on the internet or in the press .

According to the applicants , the demonstrations were intended to be peaceful and were conducted in a peaceful manner . The participants of the demonstration of DATE were demanding democratic reforms in the country and free and fair elections , and protesting against impediments on freedom of assembly . The demonstration of DATE was aimed at protesting about the deaths of soldiers in the army , while the demonstration of CARDINAL DATE condemned the use of force by the police against the participants of previous demonstrations . The participants of the demonstration of DATE were commemorating the victims of a terrorist attack which had been committed in DATE at ORG .

NORP The police began to disperse the demonstrations of DATE , DATE , DATE and DATE as soon as the protesters began to gather .

The circumstances related to the dispersal of the demonstration of DATE , the first and second applicants’ arrests and custody , and subsequent administrative proceedings against them are similar to those in GPE Mammadov v. GPE ( no . CARDINAL/CARDINAL , DATE ) ( see also Appendix ) .

The circumstances related to the dispersal of the demonstrations of CARDINAL DATE , DATE and DATE , the second and third applicants’ arrests and custody , and the subsequent administrative proceedings against them are similar to those in GPE v. GPE ( [ Committee ] nos . ORG and DATE , DATE ) ( see also Appendix ) .


CASE OF A.W.Q. AND D.H. v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are a married couple and were born in DATE and DATE respectively . They have been in the GPE since DATE .

The applicants and their CARDINAL children ( QUANTITY daughters , A and B , born in , respectively , DATE and DATE , and a son C , born in DATE ) entered the GPE on DATE and , on DATE , applied for asylum , fearing persecution within the meaning of the DATE LAW ( “ the DATE LAW ) and/or treatment in breach of LAW from the mujahideen and/or the ORG in GPE on account of the first applicant ’s professional activities during the former communist regime .

The first applicant submitted that he had become a member of ORG of GPE ( “ PDPA ” ) in DATE and that , as a conscript , he had served in a battalion in GPE from DATE to DATE . Feeling a moral obligation to serve his country , he had subsequently decided to join the army for a professional military career .

DATE he had taken a preparatory course for university studies in GPE , which had mainly consisted of LANGUAGE language lessons . He had subsequently been sent by ORG to the GPE Higher Combined Arms Military Political School in GPE , where he had studied DATE . On DATE he had graduated with a Master ’s degree in pedagogic and social sciences .

Holding the rank of captain , the applicant had been assigned to ORG , which was responsible for controlling the border between GPE and GPE . From DATE the first applicant had worked in that area in the political affairs division of the border security unit . He had been responsible for cultural matters , including propaganda , combating illiteracy amongst soldiers , and the creation of patriotic awareness amongst them . He had further been given the task of persuading deserters who had been caught to do their military service in the NORP army . The first applicant stated that he had apprehended CARDINAL such deserters DATE , and that he had only failed in respect of CARDINAL of them to persuade them to do their military service . These QUANTITY individuals had been handed over to ORG . In DATE he had been promoted to the rank of senior captain .

NORP In DATE he had been appointed first secretary or deputy scientific officer of ORG in GPE , which fell under the responsibility of the propaganda division of ORG . He had been responsible for collecting weapons for the museum . He had later been promoted to deputy director of the museum and , holding the rank of major , had worked in that function until DATE .

The first applicant ’s problems had started after the mujahideen had taken power in DATE . PERSON had come to the army museum to take exhibits which they thought were valuable as weaponry or otherwise . When they recognised the first applicant as an army officer who had worked for the former regime , the mujahideen had incarcerated him – together with CARDINAL other officers and a soldier – in the basement of the museum . He had been released after DATE . The mujahideen had wanted him to cooperate with them by helping them to take arms and ammunition out of the museum . He had refused all such requests , which had led to aggressive behaviour towards him on the part of the mujahideen . The first applicant had repeatedly reported this attitude to these mujahideen ’s superiors in ORG , namely CARDINAL generals with whom the first applicant had collaborated during the former communist regime . These CARDINAL generals had both remained in their position at ORG and were working with the PERSON of PERSON . After the museum had been placed under the control of a mujahideen commander , the first applicant had resigned in DATE and taken the keys of the museum to ORG , to be given to CARDINAL of the CARDINAL generals .

The second applicant – who had also applied for asylum on behalf of the applicants’ children DATE had worked as a guide in the same army museum in GPE when the city was captured in DATE by the mujahideen . Under pressure from the mujahideen and in the footsteps of her husband , she had also resigned from her job in DATE .

Shortly after the first applicant had resigned from his post in the museum , the applicants received a written death threat in the courtyard of their house : the house was destroyed DATE . After a brief stay with the second applicant ’s father in another neighbourhood of GPE , the applicants moved in DATE to PERSON , which was under the control of followers of PERSON , who DATE like the applicants DATE was of NORP origin . In PERSON , the applicants lived off the income generated by land owned by the first applicant ’s family , and the first applicant , admittedly not out of any financial necessity , opened a small shop in order to have something to do .

NORP In DATE or DATE after the ORG had seized power in GPE on DATE first applicant ’s cousins appeared at the applicants’ house together with CARDINAL to CARDINAL ORG . According to the first applicant , he had been betrayed by these CARDINAL relatives . They had informed the ORG of his position under the former communist regime and his whereabouts . The ORG conducted a search for weapons in the applicants’ house . Although they found none , the ORG arrested the first applicant and his brother . They were separated shortly after their arrest .

During his detention by the ORG , for DATE in a basement on a military base in PERSON and subsequently in the PERSON prison , the first applicant had been interrogated , ill - treated and forced to perform hard labour . As it happened sometimes that in TIME CARDINAL or CARDINAL detainees were taken away from the cell they shared with the applicant and others and were never seen again , the first applicant feared for his life during his detention .

On DATE he could not remember , the first applicant was taken before a tribunal composed of CARDINAL mullahs , who interrogated him whilst he was being ill - treated . He was subsequently forced to place his fingerprint on documents , most of which were written in LANGUAGE .

During his subsequent transport in a convoy consisting of CARDINAL cars from PERSON to a prison in GPE , the first applicant had managed to escape when the convoy had come under armed attack , he believed by followers of PERSON . The first applicant had then fled to PERSON - i - Sharif , where he had been joined by his family on DATE . On DATE the applicants and their children had left GPE .

The first applicant was interviewed by NORP immigration officials about his flight and the motives for it on CARDINAL occasions ; the second applicant on CARDINAL occasions . On DATE they were informed of the intention ( voornemen ) of the Minister for ORG ( Minister PERSON ) to refuse them asylum . Having noted the first applicant ’s asylum account , an official general report ( ambtsbericht ) , drawn up on DATE by ORG on “ ORG in NORP GPE ( DATE ) . AGSA , ORG , ORG and ORG ( “ PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ” ) , and CARDINAL different person - specific official reports ( individuele ambts - berichten ) , DPC / AM DATE and DPC / AM DATE , both drawn up by ORG on DATE , the Minister decided to refuse the first applicant asylum and to hold LAW DATE LAW relating to ORG ( “ the DATE LAW ” ) against him . On DATE , a lawyer acting on behalf of the applicants submitted written comments ( zienswijze ) on this intention .

After interviewing both applicants once more , the Minister rejected their asylum applications , in separate decisions taken on DATE . The elaborately argued notices of intention of DATE were added to the decisions and formed part of them .

NORP The Minister found , inter alia , that the first applicant constituted a danger to public order ( openbare orde ) , as serious reasons had been found for believing that he had committed crimes referred to in LAW , thus excluding him from international protection under LAW . Although the Minister attached credence to the first applicant ’s statements in terms of his positions and career within the NORP army , the applicant ’s description of his tasks was deemed to be inaccurate . His statements relating to certain of the tasks he said he had performed ( namely his stated activities relating to what was called the ORG ’s national reconciliation policy , amnesty , reconstruction and demilitarisation ) were found to be highly implausible .

On the basis of the CARDINAL person - specific official reports of DATE , the Minister found that , at the relevant time , the political affairs divisions of the NORP army consisted solely of highly loyal and skilled professional soldiers , that people working for these divisions regularly provided the security service ORG with person - specific and general information ( “ ORG - e Dowlati / PERSON GPE ; the ORG was set up in DATE and transformed in DATE into a ministry called “ FAC , which remained in existence until the communist regime fell in DATE . Although the ORG was the successor of the LAW , the security service continued to be commonly referred to as ORG ) ; those working for the political affairs divisions had relatively easy access to the ORG leadership , and one of their tasks had been to remove anti - government soldiers from the army , if need be with the help of the ORG . They were thus inextricably connected to the frequent arrests , torture , disappearances and/or executions of disloyal members of the army by the ORG .

NORP The Minister emphasised the widely known cruel character of the LAW , its lawless methods , the grave crimes it had committed such as torture and other human rights violations , and the “ climate of terror ” which it had spread throughout the whole of NORP society , including the army . The Minister underlined the vague definition of “ enemy of the communist regime ” used by the ORG , how it found those enemies through an extensive network of spies , and how all of this led to widespread and often random arrests of suspects . The Minister relied in this regard on the general official report of DATE .

Having established , on the basis of elaborate argumentation based on various international documents , that those involved in ORG and the political affairs divisions of the NORP army were likely to fall within the scope of LAW , the Minister proceeded to an analysis of the first applicant ’s individual responsibility under that Convention on the basis of the prescribed test known as the “ personal and knowing participation test ” .

On this point , the Minister found that , in view of the contents of the aforementioned official reports of ORG , the first applicant had known or should have known about the criminal character of the LAW , given his position in one of the political affairs divisions of the army and the contacts he had maintained professionally . The Minister further found that the first applicant had directly facilitated the crimes committed by ORG by performing his tasks in the NORP army , inter alia the attributed task of arresting and persuading deserters trying to flee across the border to continue military service , failure of which led to the handing over of these deserters to the office of ORG .

As regards LAW , the Minister noted that , during an additional interview on his asylum motives held on DATE , the first applicant had been explicitly invited to submit specific evidence that he would be exposed to a risk of treatment contrary to LAW in GPE . The Minister found that the first applicant had not furnished sufficient specific grounds to establish that he would run a real risk of treatment contrary to this provision if returned to GPE . Thus , he had failed to indicate which specific persons or groups would be looking for him , and had only stated in generally phrased terms that he feared persecution by the mujahideen . In respect of the first applicant ’s alleged fear of returning to GPE as a ( former ) member of the ORG , the Minister held that the first applicant was in a position not dissimilar to that of many other NORP nationals . Furthermore , the Minister , with reference to the most recent general official report on GPE issued by ORG on DATE , held that the sole fact that an asylum seeker had been a member of the ORG did not in itself suffice to render LAW applicable in the eventuality of an expulsion .

Separate appeals by the applicants were rejected in CARDINAL distinct judgments handed down on DATE by ORG ( rechtbank ) of GPE , sitting in PERSON .

As regards the first applicant , ORG accepted the Minister ’s decision to hold LAW against the first applicant . It also rejected the first applicant ’s arguments based on LAW . It agreed with the Minister that the first applicant ’s fear that he would be subjected to treatment in breach of this provision was based on assumptions , and that he had not submitted any specific evidence of the identity of the person(s ) or group(s ) , or for what reasons , he expected to encounter problems if he were returned to GPE , whereas – according to an official country assessment report on GPE issued by ORG on DATE mere membership of the ORG and active participation in its regime was in itself not enough to raise an issue under LAW in the event of expulsion of the alien in question . It further rejected , for lack of substantiation , the first applicant ’s claim that ORG ( ORG ) in GPE would be unable to provide him with sustained protection .

Further separate appeals by the applicants were rejected on summary reasoning on DATE , in CARDINAL distinct rulings given by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . It found that the further appeals did not provide grounds for quashing the impugned rulings ( kan niet tot vernietiging PERSON aangevallen uitspraak leiden ) . Having regard to section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , no further reasoning was called for , as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against these rulings .

On DATE , the applicants’ fourth child , a daughter named PERSON , was born in the GPE .

On DATE , the applicants applied for a regular , non - asylum - related , residence permit . This request was rejected on DATE . The applicant ’s objection ( bezwaar ) was dismissed on DATE by the Deputy Minister of ORG ( ORG ) . The applicants initially lodged an appeal with ORG of The Hague , but withdrew this appeal on DATE .

In the meantime , on DATE , the second applicant had submitted a fresh asylum claim for herself and on behalf of the CARDINAL youngest children . The ORG eldest daughter had made her own asylum claim . Pursuant to section CARDINAL of LAW ( Algemene wet bestuursrecht ) , a repeat claim – like the one submitted by the second applicant – must be based on newly emerged facts and/or altered circumstances ( “ nova ” ) warranting a reconsideration of the initial refusal . The asylum claim submitted by the second applicant and her eldest daughter was based on the claim that they had become westernised . The oldest daughter further claimed that she feared being forced into marriage .

On DATE , after an initial negative decision had been quashed on appeal , the Minister of Justice allowed the asylum claim submitted by the second applicant and the CARDINAL youngest children . The eldest daughter was also granted asylum .

DATE , namely on DATE and at the ORG request , the President of ORG had decided to indicate to the Government of the GPE that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to remove the applicants to GPE for the duration of the proceedings before ORG CARDINAL of ORG ) . At the same time , the President had decided under LAW ( b ) that the ORG should be invited to submit written observations on the admissibility and merits of the case .

Also , on DATE the first applicant had submitted a fresh asylum claim , based on the alleged deterioration in the general security situation in GPE and an increased individual risk of treatment prohibited by LAW , namely the fact that he was an ex - communist , that he was an atheist and thus belonged to a religious minority , and the fact that he had lived abroad for a long period . He also claimed that , due to his work , he was well known in GPE and was prominent in NORP circles in the GPE . On DATE , the first applicant was informed of the intention of the Deputy Minister of ORG to reject this request . The first applicant submitted written comments ( zienswijze ) on this intention on DATE .

This request was rejected on DATE by the Minister for ORG ( Minister PERSON , ORG ) . An appeal by the first applicant against this decision was rejected on DATE by ORG of The GPE sitting in ‘ s - Hertogenbosch . It found that the first applicant had not shown evidence that the general security situation in GPE had deteriorated since the determination of his first asylum request , or that the further elements relied on by him did not constitute “ nova ” warranting a reconsideration of the decision taken on his initial asylum request . In so far as the first applicant relied on LAW , ORG held that asylum proceedings offered no scope for such arguments , which should be raised in proceedings on a request for a non - asylum - based residence permit , and that it was open for the first applicant to apply for a residence permit based on his family life within the meaning of LAW . A further appeal by the applicant was dismissed by ORG on DATE . No further appeal lay against this ruling .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Legal assistance of own choosing)

The applicant was born in DATE and lives in GPE .

Demonstrations were planned to be held on DATE and DATE in GPE .

On DATE the organisers , consisting of several members of opposition parties , gave notice to the relevant authority , ORG ( “ the ORG ” ) , of the demonstration of DATE . It appears that no prior notice was given to the ORG by the organisers of the demonstration of DATE . Information about that demonstration was disseminated via ORG or the press .

The ORG refused to authorise the demonstration of DATE at the places indicated by the organisers and proposed CARDINAL other locations on the outskirts of GPE – a stadium situated in LOC , a square near FAC in LOC , and the yard of a driving school situated in the CARDINALth habitable area of LOC . The ORG noted that of the locations proposed by the organisers at which to hold the assembly , the squares were all designated public leisure areas and the other places were areas with heavy traffic .

The organisers nevertheless decided to hold the demonstrations in the centre of GPE .

According to the applicant , the demonstrations were intended to be peaceful and were conducted in a peaceful manner . The participants of the demonstration of DATE were demanding free and fair elections and democratic reforms in the country . The participants of the demonstration of CARDINAL DATE were protesting over the deaths of numerous soldiers in the army .

The applicant attended both demonstrations , but shortly after they had begun the police started to disperse those who had gathered . In both cases the applicant was arrested during the dispersal operation and was taken to a police station , where he was questioned .

NORP In both cases on DATE of the applicant ’s arrest , an administrative offence report ( inzibati xəta haqqında protokol ) was issued on him . In the first case the report stated that by deliberately failing to comply with a lawful order of the police , the applicant had committed an administrative offence under LAW ( “ the CAO ” ) . In the second case he was charged with an administrative offence under LAW ( participation in a public assembly organised not in accordance with the law ) .

According to the applicant , he was never served with copies of the administrative offence reports or with other material from his case files . In both cases he was not given access to a lawyer after the arrest or while he was in police custody .

In the first case the applicant was brought before FAC on DATE , the day of his arrest . In the second case he was held in police custody TIME and brought before FAC on DATE , DATE after his arrest .

According to the applicant , the hearing before the court in both cases was very brief . In the second case members of the public were not allowed inside the courtroom , even though the court had not taken a formal decision to close the hearing to the public .

According to the applicant , in both cases he was not given an opportunity to appoint a lawyer of his own choosing .

At the court hearing in the first case the applicant was not represented by a lawyer . According to the material submitted to the ORG by the parties , he refused legal assistance .

It appears that at the court hearing in the second case a ORG - funded lawyer was invited to represent the applicant . None of the material submitted to the ORG contain any records showing that the ORG - funded lawyer , PERSON , made any oral or written submissions to the first - instance court .

At the hearings in both cases the court did not question any witnesses .

By a decision of DATE the first - instance court convicted the applicant under LAW of the ORG and sentenced him to CARDINAL days’ administrative detention . By a decision of CARDINAL DATE the same court convicted the applicant under LAW ORG and sentenced him to CARDINAL days’ administrative detention .

On unspecified dates the applicant lodged appeals with ORG , arguing that his convictions were in violation of his rights because the demonstrations in which he had participated had been peaceful . The applicant also complained that his arrests had been unlawful and that the hearings before the first - instance court had not been fair .

In the first case the applicant was not represented by a lawyer . In the second case the applicant prepared his appeal with the assistance of a lawyer of his own choosing , but that lawyer did not attend the hearing .

On DATE and DATE respectively ORG dismissed the applicant ’s appeals and upheld the decision of the first - instance court .

According to the applicant , the decision of ORG of DATE was sent to him on DATE , after he complained that the court had failed to serve him with that decision .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

On DATE the applicant ’s husband filed a petition for divorce with ORG . This was on the ground that his marriage to the applicant had broken down irretrievably because , among other reasons , he and the applicant had been separated for DATE ( that is , DATE longer than the minimum period required by law : see relevant domestic law and practice at paragraph CARDINAL below ) .

The case was set for a directions hearing on DATE . On that date the applicant appeared in person and asked for additional time to file her defence to the petition : ORG acceded to her request and adjourned the hearing to DATE .

On DATE the applicant applied to ORG for legal aid . The hearing of that legal aid application was fixed for DATE . On DATE the applicant appeared before the court and asked for a DATE extension as she was not sure if she would maintain her application . The court adjourned the legal aid hearing to DATE .

On DATE , the applicant attended court and requested a further extension for filing her defence to the petition on the ground that her legal aid application was pending . The court adjourned the case to CARDINAL DATE and directed that the applicant file her defence by that date .

The applicant did in fact decide to maintain her legal aid application . When this legal aid application came before ORG on DATE , the court considered that the application came within the scope of ORG ( see relevant domestic law and practice at paragraph CARDINAL below ) so it instructed ORG to prepare a social welfare report on the applicant and adjourned the hearing of the legal aid application to CARDINAL DATE .

The applicant failed to file her defence to the petition for divorce by DATE as directed . She also failed to appear in court on DATE . In her absence , counsel for the applicant ’s husband requested that the case be set for trial . The court acceded to this request and a trial date of DATE .

NORP The legal aid application came before the court on DATE as scheduled . The applicant attended court . However , because no one from ORG was present , the court adjourned its examination of the application to DATE .

NORP On DATE the applicant did not appear at court for the trial in the main proceedings . The applicant ’s husband attended with counsel . In the applicant ’s absence , the court proceeded to hear the evidence of her husband who stated that the couple had been suffering problems and had been separated since DATE . No other witnesses were heard . The court gave an ex tempore judgment granting the petition for divorce .

Although the petition for divorce had been granted , the hearing in the legal aid application went ahead as scheduled on DATE . The applicant was not present at court . A representative of ORG informed the court that , from a letter in the court file dated DATE , which had been sent by a welfare officer to the court registrar , it appeared that the applicant was no longer interested in receiving legal aid . The court accordingly dismissed the legal aid application for want of prosecution .

On DATE the applicant appealed against ORG judgment to ORG . She was legally represented on appeal .

The applicant submitted CARDINAL grounds of appeal : that ORG had wrongly proceeded with the hearing of the petition for divorce in her absence , and that it had wrongly decided on the dissolution of the marriage . In respect of both grounds , she submitted that ORG had acted in breach of LAW ( the right of access to court and to a fair trial : see paragraph CARDINAL below ) , ORG , and the rule of natural justice , including the right to be heard ( audi alteram partem ) .

In the reasons accompanying her grounds of appeal , she again made reference to LAW and the right of litigants to present their case before the court and to be defended by counsel . The applicant again submitted that the rules of natural justice safeguarded the right to be heard . She further stated that she had informed ORG that she had applied for legal aid . She had been under the impression that her legal aid application would be examined by the same bench that would hear the petition for divorce . As the legal aid application had been fixed to be examined at a date subsequent to the date the divorce petition was fixed ( DATE for the legal aid hearing as against CARDINAL DATE for the divorce petition hearing ) , she presumed that the divorce petition would be examined following the granting of legal aid so she could file a defence through a lawyer . It was for this reason that she had not appeared in court on CARDINAL and DATE .

On DATE , the applicant ’s husband died . In his will he bequeathed part of his property to another woman . As a consequence of the divorce , the applicant was not entitled to inherit from his estate or to receive a widow ’s pension . The applicant maintained her appeal against ORG judgment .

On DATE , ORG directed the parties to file skeleton arguments ( written outlines of their submissions ) , in effect accepting the applicant ’s notice of appeal . ORG further directed that once the skeleton arguments were submitted , the appeal was to be set down for a hearing .

In her skeleton argument dated DATE , the applicant developed her ground of appeal relating to LAW , stating that ORG had acted contrary to PERSON ) ( the right of access to court ) , Article CARDINAL ) ( the right to present one ’s case and to have sufficient time for its preparation ) , and Article CARDINAL(CARDINAL)(d ) ( the right to counsel and to free legal assistance ) . She relied on both the relevant case - law of the NORP courts on these provisions and on the relevant case - law of this Court on the corresponding provisions of LAW , including PERSON v. GPE , DATE , Series A no . CARDINAL . In respect of her submission as regards the rules of natural justice , she referred to GPE ’s ORG ( CARDINALth ed . , PERSON , § DATE ) and the court ’s duty to provide every party with a fair chance to set his case before the court .

A hearing on the merits of the appeal took place before ORG on DATE . At the hearing , the applicant adopted her written submissions . Counsel for the applicant ’s ex - husband submitted that PERSON could be distinguished on the basis that the Convention did not grant a general right to legal aid and , in any event , the present case was not so complex as to require it . The hearing was adjourned to CARDINAL DATE . On DATE , counsel for the applicant provided the court with copies of the relevant case - law cited in the applicant ’s written submissions . No further submissions were made and the court reserved judgment .

On DATE ORG dismissed the appeal . It found :

“ It is the appellant ’s position that she had informed the court that she had submitted an application for legal aid and , because she believed that her application would be examined by the court which would examine the substance of the petition for the dissolution of the marriage , she failed to appear on DATE , with the consequence that the case was heard in her absence and the petition for divorce was granted against her .

Regarding the allegations of violation of the provisions of LAW CARDINAL(I)/CARDINAL and the principles of natural justice , no specific reasons have been put forward which could substantiate the above allegations , which are accordingly dismissed .

Regarding the alleged violation of LAW , the appellant has not specified which particular paragraph has been violated and this allegation is dismissed for vagueness . Independently of this conclusion , we have already made detailed reference to what took place both in the proceedings concerning the application for legal aid and the divorce proceedings . From the above , it appears that judgment under appeal was the result of the complete indifference of the appellant to respond to the directions of the ORG to file her defence and her failure to appear before the court . The appellant can not claim that her failure to appear was due to the fact that she believed that the divorce petition would be examined by another court .

The appeal is dismissed with costs . ”


András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE of GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG .

On DATE ORG were informed of their right to intervene in the proceedings , in accordance with LAW CARDINAL § CARDINAL(b ) of ORG . On DATE ORG informed the ORG that they did not wish to exercise their right to intervene in the present case .

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

On DATE the applicant was detained in Bad PERSON ( GPE ) on the basis of an international arrest warrant issued by the GPE district authority ( PERSON ( GPE ) ) on DATE . According to the arrest warrant , the applicant was suspected of having committed the offences of serious assault , endangering the life of another person and damaging property , because he had allegedly participated in a brawl on DATE in GPE and shot one of the victims in the leg during the fracas .

On DATE the applicant was convicted in GPE of a number of offences , including illegal entry , illegally staying in the country and forgery of a document .

On DATE the NORP authorities extradited the applicant to GPE . On DATE his lawyer was appointed to represent him . That same day the Sursee Prefect ( Amtsstatthalter ) ordered that the applicant be placed in pre - trial detention . In the detention order the ORG established that the applicant was suspected of having committed a number of offences , including serious assault and endangering the life of another person . The applicant ’s pre - trial detention was considered to be further justified because serious concerns existed that he would seek to evade the criminal proceedings by absconding or compromise the efforts of the investigation if left at large .

Based on the same reasons , an application for immediate release from pre - trial detention made by the applicant on DATE was dismissed by the ORG on DATE .

On DATE the applicant appealed against the ORG ’s detention order to ORG for the GPE of GPE ( ORG , hereinafter “ the ORG of Appeal ” ) . He claimed that the requirements for detaining him had not been fulfilled in a number of respects .

ORG invited the public prosecutor to submit observations on the applicant ’s appeal . On DATE the public prosecutor sent an e - mail to the ORG in response . In this e - mail he stated the following :

“ Good morning A.

As stated DATE on the phone , I have been asked to submit before DATE , DATE , observations on the representative ’s appeal in the pre - trial detention matter regarding LAW [ PERSON ] .

Please send me , for the attention of ORG , [ details of ] which ( investigation ) activities have been carried out since the accused ’s detention and which investigative activities are planned in the near future .

In addition I would ask you – as discussed DATE to issue as soon as possible the new international arrest warrant against S.S. “ amended ” with respect to the crimes of assault , brawling , assault and theft ; to pass it [ in accordance with standard procedure ] ( keyword : granting of the right to be heard ) to the person concerned ( not as an accused ! ) and to subsequently submit both [ documents ] to ORG . ORG will then take the next steps ( together with [ the assistant ] ) .

Please also send the new arrest warrant and the record of the questioning session with ORG to me by fax or e - mail , so that I can refer to them in my observations to ORG .

Many thanks for your efforts , which are appreciated . I am at your disposal in case of any questions .

Kind regards ,

G. ”

On DATE the public prosecutor submitted his observations to ORG . The applicant was invited to submit observations in response .

NORP On DATE the ORG issued a new , amended international arrest warrant against the applicant . By letter of DATE , the applicant wrote to the ORG stating that he would prefer that the decision regarding the approval of the amended arrest warrant be suspended until ORG had decided on his appeal against the order for his pre - trial detention .

The applicant submitted observations on CARDINAL and DATE to ORG . Having become aware of the e - mail exchange ( see paragraph CARDINAL above ) , he claimed that the ORG was acting under the instructions of the public prosecutor . He alleged that from an objective point of view the ORG could not be considered as an independent “ officer authorised by law to exercise judicial power ” , within the meaning of LAW . He therefore sought the ORG ’s withdrawal from the case .

On DATE ORG dismissed the applicant ’s appeal and established that the requirements for detaining him pending trial had been fulfilled . It held that there were no indications , either in the e - mail exchange between the ORG and the prosecutor or in other documents , that the ORG had been acting under the prosecutor ’s instructions when ordering the applicant ’s pre - trial detention . It found that the prosecutor ’s request regarding the amendment of the international arrest warrant of DATE had nothing to do with the detention order against the applicant , which had already been issued by the ORG on DATE . Since the e - mail exchange between the prosecutor and the ORG had occurred DATE after the detention order had been issued , no doubts as to the ORG ’s independence when ordering the applicant ’s pre - trial detention existed . In addition , according to LAW hereinafter “ the ORG ” , see paragraph CARDINAL below ) , the Prefect was not bound by any instructions of the public prosecutor when ordering pre - trial detention . Furthermore , according to LAW see paragraph CARDINAL below ) , he was not competent to bring criminal charges against the applicant before the domestic courts . In addition , the prosecutor ’s supervisory responsibilities , as set out in Article CARDINAL(CARDINAL ) and ( CARDINAL ) of the ORG ( see paragraph CARDINAL below ) , were limited to investigative activities , with a particular emphasis on responsibility for their proper and expeditious completion . Therefore , the legal provisions in force sufficiently guaranteed the ORG ’s independence when ordering pre - trial detention and no conflict of interest existed .

The applicant appealed against this decision to ORG ( hereinafter “ the ORG ” ) . He reiterated that in the given circumstances the ORG could not be considered as an independent officer authorised by law to exercise judicial power within the meaning of LAW and accordingly had to be excluded from the case . He also alleged that ORG had failed to consider whether the international arrest warrant of CARDINAL DATE had been issued by the ORG under the prosecutor ’s instructions .

By a judgment of DATE the ORG upheld ORG judgment . It ruled that the provisions of the ORG sufficiently guaranteed the impartiality and independence of the ORG in accordance with LAW . With regard to the e - mail exchange , the ORG further reiterated that it had mainly concerned the amendment of the international arrest warrant and that the prosecutor ’s actions had been fully compliant with LAW ORG . Moreover , the email exchange had occurred DATE after the detention order had been issued and contained no indications that the prosecutor had given the ORG instructions when the latter was ordering the applicant ’s pre - trial detention on DATE .

By penal order of CARDINAL DATE the ORG sentenced the applicant to CARDINAL days’ imprisonment for having taken part in a brawl on DATE in GPE . The applicant accepted this sentence and the penal order entered into force on DATE , in accordance with LAW ORG ( see paragraph CARDINAL below ) .

On DATE LAW Procedure entered into force and replaced the ORG ( see paragraph CARDINAL below ) .

Articles DATE , DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE and CARDINAL of LAW the GPE of GPE of DATE , as in force at the relevant time , provided as follows :

CARDINAL The ORG investigates crimes , an offender ’s criminal record and his personal circumstances .

" CARDINALThe Prefect leads investigations .

CARDINAL The accused normally remains at liberty .

CARDINAL The accused can be put in pre - trial detention if there is a strong suspicion that he has committed a crime or an offence and if CARDINAL of the following requirements is applicable :

A reasonable suspicion that he will seek to evade the criminal proceedings or the anticipated sanction by absconding ; [ such ] a suspicion will be further strengthened if the person is accused of having committed a serious crime or offence ; ( ... )

Circumstances which give reason to fear that the accused would seek to compromise the efforts of the investigation ; ( ... )

CARDINAL An arrest warrant must be issued in writing and provide the reason(s ) for the arrest .

CARDINAL The following authorities are entitled to issue an arrest warrant : the ORG , ORG , ORG before which the case is pending , and their presidents .

CARDINAL An authority which issues an arrest warrant shall decide immediately after a questioning session with the accused whether he should be kept in detention . ... A detention order shall be issued in writing and provide the reasons for the pre - trial detention .

CARDINAL The accused has the right to appeal to ORG against a detention order of the ORG , the public prosecutor , a first - instance court or its president . ( ... )

If sufficient indications of a punishable offence exist , the Prefect shall refer the case to the competent court if the investigation can not be closed by a penal order .

If ORG or ORG has subject - matter jurisdiction , the ORG may submit a written application regarding [ the accused ’s ] guilt , the penalty [ to be imposed ] and [ other ] measures [ to be taken ] if he has not previously ordered pre - trial detention .

CARDINAL The accused may accept in writing , within DATE , a penal order if :

( a ) the penal order concerns imprisonment alone , or in combination with another penalty or measure ;

( b ) the penal order concerns community service alone , or in combination with another penalty or measure .

CARDINAL Provided that the accused accepts a penal order regarding a crime or an offence within the [ above - stated ] period , the penal order shall have legal effect from DATE of the accused ’s declaration of acceptance , if the public prosecutor has subsequently signed it off .

CARDINAL The Public Prosecutor shall execute direct supervision over the Prefects . He shall supervise investigations , [ with ] particular [ responsibility for ] their proper and expeditious completion .

CARDINAL He can require reports on the progress of investigations , issue instructions and assist investigative activities .

CARDINAL The ORG shall regularly provide ORG with updates about pending investigations , especially those of long duration .

CARDINAL The Public Prosecutor shall examine the ORG ’s case management , give the necessary instructions and make reports to ORG .

In matters regarding pre - trial detention , the ORG takes decisions freely and independently .

CARDINAL The Public Prosecutor shall bring criminal charges if ,

( c ) the ORG has ordered the accused ’s pre - trial detention and ORG or ORG has subject - matter jurisdiction .

CARDINAL ORG can not file criminal charges if he has previously issued an arrest warrant or a pre - trial detention order against the accused or if he has dismissed an accused ’s application for release from pre - trial detention .