Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

CARDINAL .

On DATE the applicant murdered PERSON in the latter 's apartment , cut the victim 's body into pieces and disposed of some of them in rubbish bins around the town .

He was apprehended by police on DATE while trying to leave the country . He was convicted of murder and sentenced by the first - instance court on DATE . The decision became final on DATE .

NORP Throughout the criminal trial against him and the proceedings complained of in the case at hand the applicant remained in detention .

DATE and DATE a series of articles was published in the local newspaper PERSON concerning the criminal trial against the applicant .

The following articles were submitted by the applicant :

– “ The PERSON ' PERSON ' committed to trial ” ( “ PERSON ' PERSON ' , trimis în judecată ” ) , written on DATE by ORG ;

– “ The indictment of horror ” ( “ PERSON groazei ” ) a detailed article written on DATE by the same ORG ;

– “ PERSON ' the PERSON ' 's trial postponed ” ( “ PERSON ' a fost amânat ” ) written on DATE by the same ORG ;

– “ Key - witness in PERSON the PERSON 's trial ” ( “ Martor - cheie în procesul PERSON ” ) , written on DATE by PERSON ;

– “ PERSON the PERSON is caught up in the victim 's relatives ' games ” ( “ Gogu Măcelaru este ţinut in şah de rudele victimei sale ” ) ; written on DATE by PERSON ;

– “ PERSON ' the PERSON ' unhappy with his sentence ” ( “ PERSON ' GPE ' nemulţumit de pedapsa primită ” ) , written on DATE by ORG

A photograph of the applicant 's face accompanied the articles published on DATE and CARDINAL DATE .

V.T. 's article 's introductory paragraph read as follows :

“ The [ man ] who , DATE , had killed his friend , chopped his body into several pieces and spread his internal organs all around the town , appealed against the judgment by which he has been convicted to DATE imprisonment . ”

The article went on to reiterate the main facts of the case , the qualification given by the prosecutor to the crimes committed , the fact that “ the [ first - instance court ] laid a distraint upon the applicant 's apartment in order to secure payment of the compensation ” , and that “ the defence counsel had tried to lend weight to the idea that the applicant was not mentally responsible when he had committed the crime ” ( “ nu era în toate minţile ” ) but that “ the psychiatric expert evaluation the murderer underwent concluded that he had been responsible for his acts ” .

Lastly , GPE reported on the first hearing in the appeal proceedings as follows :

“ ... [ The applicant ] asked the judges ... to find that he had been provoked by the victim who , allegedly , had tried to kill him . This aspect does not justify the horror [ the applicant ] committed after ... ”

On DATE the applicant filed a criminal complaint for defamation against PERSON and its reporters , giving as an example the article published by ORG on DATE . He sought MONEY in damages . He argued that he had been defamed by the name given to him “ Gogu the PERSON ” and by the mention of his alleged insanity , which had not been proven by any medical report .

The Galaţi District Court held CARDINAL hearings in the case .

At the hearing on DATE , upon the court 's request , the applicant clarified his complaint as referring only to GPE

On DATE and DATE the applicant requested legal aid , arguing that his financial situation was precarious . On DATE the court dismissed his request as unfounded , after it carried out the necessary checks .

On DATE the applicant requested that other articles published about his criminal trial be adduced in the case . The court noted that the applicant was detained , considered that it was difficult for him to obtain evidence and therefore ordered the newspaper to produce copies of the other articles .

NORP The publisher informed the court that no other articles had been published .

At the hearing on DATE the applicant contested that information and asked the court for a new postponement in order to adduce copies of other relevant articles . However , the court noted that on DATE the applicant had declared that he had not wished to present other evidence and that , in any case , he had had enough time , from the beginning of the proceedings , to produce copies of other articles he might have considered relevant . It therefore dismissed the request and proceeded to hearing evidence from the parties and the prosecutor , after which it withdrew for deliberations .

NORP The court delivered its judgment DATE . It acquitted the journalist on the grounds that he had not intended to insult or defame the applicant and that he had acted within the limits of his profession and based the article on court decisions which , in its opinion , constituted credible sources . The relevant parts of the judgment read as follows :

“ The facts [ committed by the defendant ] do not constitute the offence of insult or defamation , as the defendant did not act with the intention to commit such an offence .

The defendant had the professional obligation to report on current issues of public concern ...

Given the extreme gravity of the crime imputed to the victim , and its social consequences , the victim exposed himself to public disapproval ( oprobriu public ) ; the defendant did not intend to defame or insult the victim but rather to meet his obligation to inform the public about his acts .

The defendant is a journalist and the victim used to work for a company that raised and processed poultry ; therefore a certain degree of exaggeration in describing the victim in the title is acceptable .

Furthermore , ... the defendant wrote that the victim had been mentally responsible for his acts and it is a well known fact that only a person that is mentally responsible may be convicted ...

The court decision was an official and credible source for the defendant when he drafted the article ; therefore it is obvious that by presenting the victim as mentally responsible for his acts , he had no intention of interfering with the victim 's reputation . ”

The applicant appealed . Before the Galaţi County Court he complained about the acquittal and considered that his right to present his case adequately had been restricted as he had not benefited from legal aid . He did not request further evidence .

In a final decision of DATE ORG upheld the firstinstance court decision . ORG re - examined the facts and the evidence and concluded that the journalist had not intended to insult or defame the applicant and that the affirmations complained of were not capable of producing such consequences . It also considered that given the nature of the offence and the applicant 's situation , he was capable of defending himself .


Preliminary objection rejected (non-exhaustion);Violation of Art. 5-3;No violation of Art. 6-1;Just satisfaction reserved

The facts of the case , as they appear from the report of the Commission , the documents produced and the addresses of the representatives made before the ORG , may be summarised as follows :

Mr. PERSON is an NORP citizen , born in GPE in DATE . During DATE , he was in business as an insurance agent in GPE , GPE ; he also negotiated loans and dealt in real estate .

Sometime in DATE , Mr. PERSON , a shopkeeper at PERSON , answered a newspaper advertisement seeking a loan of CARDINAL NORP Schillings ( AS ) . In this way he came into contact with PERSON to whom he advanced , in DATE and DATE , CARDINAL AS in several instalments . At the time of this transaction , PERSON mentioned to PERSON that he needed this money for a Mr. PERSON but PERSON did not meet him . At PERSON ’s instigation , a contract was signed in DATE naming the couple PERSON as creditors and the couple ORG , amongst others , as debtors . Subsequently , PERSON repaid CARDINAL AS to ORG . Also in DATE and DATE , PERSON negotiated in the name of Mrs. PERSON a loan of CARDINAL AS from CARDINAL PERSON .

On DATE and CARDINALth DATE , PERSON obtained general powers of attorney from the PERSON couple with whom he had previously had business relations . These powers of attorney were granted in consideration of a loan made by PERSON to the PERSON couple and enabled him to act in their name in dividing up and selling , leasing and encumbering land which they owned at ORG and was entered in ORG , GPE . As part of the same transaction PERSON was given an option to purchase the property ; at the same time the PERSON couple undertook that , in the event of PERSON exercising the option and of approval of the transfer of ownership to him being refused by the competent administrative body , they would not sell the property to anyone else , would refrain from acting as owners , and would grant PERSON the right of exclusive occupation ( letters of CARDINALrd , CARDINALth and CARDINALth DATE ) .

On DATE , PERSON made a contract with Mr. and Mrs. PERSON for the purchase of the property ; the purchase price was CARDINAL AS . The contract for sale was submitted on DATE to ORG ( Bezirksgrundverkehrskommission , hereinafter referred to as ORG " ) for approval .

The Upper Austrian Real Property Transactions Act ( Grundverkehrsgesetz ) provides as follows :

- ( CARDINAL ) Every transfer of ownership and granting of usufructuary rights by legal act inter vivos in respect of a piece of land wholly or partly given over to agriculture or forestry is subject to approval according to the provisions of this LAW .

( CARDINAL ) Refusal of such approval renders the transaction null and void .

- ( CARDINAL ) Legal transactions must correspond to the public interests in creating and maintaining agricultural or forest areas and in maintaining and reinforcing a productive farming community or in maintaining and creating economic small or medium - sized agricultural properties .

( CARDINAL ) Transactions which do not satisfy the requirements of sub - sections ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) above , shall not be approved .

- In particular , the requirements for approval of a transaction ( LAW ) shall not be satisfied where there is reason to fear

( a ) that the purpose of the purchaser is to resell the land as a whole or in lots for profit ;

( b ) that peasant farm holdings or small agricultural businesses or economically substantial parts thereof are being acquired to create or enlarge great estates ;

( d ) that estates are to be ... diverted from their use as farmland or forest for no adequate reason ;

( e ) that only a speculative capital investment is envisaged ;

- If a legal transaction requires approval under the provisions of this LAW , the contracting parties shall apply for approval to ORG Commission within DATE of concluding the transaction . "

ORG refused , on DATE , to approve the contract for sale . It found that the property could provide a farming family with a livelihood and that PERSON was an insurance agent and not a farmer . Referring to applications which PERSON had made for the approval of the purchase by him from the PERSON couple of other properties and which had been refused , ORG considered that the files revealed clearly a picture of speculation in land . It also observed that PERSON had already marked out CARDINAL plots for building . In conclusion , ORG remarked that , while fear of certain intentions on the part of a purchaser was sufficient under LAW for refusal of approval , the fact that in this case there was clearevidence that such intentions existed must carry even more weight .

In DATE , PERSON had begun to sell part of the property in building sites ; he continued to do this throughout DATE and up to DATE . After having obtained an expert opinion from ORG ( GPE ) on the basis of which he had the property surveyed and marked out , he was granted permission to build on the property by ORG ) on DATE . These CARDINAL bodies operate independently of ORG and their opinion or permission has no bearing on its decision : on the contrary , it is given expressly subject to the decision of ORG .

PERSON , it appears , has failed to inform prospective purchasers that he was acting under a power of attorney he held from the PERSON couple and if any of them remarked that PERSON was not himself the vendor it was explained that the transaction was being effected in this way for taxation purposes . The purchasers were informed at the time by PERSON that permission had been obtained for building and were assured that work could begin at once . The purchase contracts drawn up by PERSON ’s lawyer included a clause stating that ORG approval was necessary to implement them , but PERSON had informed the purchasers that this was a mere formality . The last twenty or so purchase contracts were not concluded through the same lawyer and did not contain that particular clause . In all cases the purchase price was payable immediately .

In DATE , the PERSON couple purported to withdraw the powers of attorney from PERSON . He disputed their claim and a final decision ordering him to deposit the powers of attorney with the court was taken on DATE .

PERSON appealed to ORG ( Landesgrundverkehrskommission , hereinafter referred to as ORG " ) against ORG refusal to approve the contract for sale he had made with Mr. and Mrs. PERSON .

The relevant provisions of the Upper Austrian Real Property Transactions Act are :

( CARDINAL ) ORG shall be set up in the office of ORG for decisions in last instance . Its members shall not be bound by any instructions in the exercise of their duties and their decisions shall not be subject to repeal or alteration by the administration .

( CARDINAL ) ORG shall consist of CARDINAL members , namely

( a ) a judge appointed by ORG as president ;

( b ) CARDINAL member appointed by the Head of ORG in his capacity as President of ORG ( ORG ) ;

( c ) CARDINAL members appointed by ORG from the persons representing the interests of townspeople and residents in housing estates ;

( d ) CARDINAL member appointed by ORG from the representatives of industry and commerce ;

( e ) CARDINAL agricultural expert appointed by ORG ;

( f ) CARDINAL members appointed by ORG Landwirtschaftskammer ) for GPE .

( CARDINAL) Members are appointed for a term of DATE ...

( CARDINAL ) Appeal against the decision of ORG Commission may be made to ORG .

( CARDINAL ) ORG shall take their decisions by majority votes and in private . ... No information about the contents of deliberations , and in particular the voting , shall be divulged to a third party .

ORG met on DATE and decided to inspect the property which it did on DATE , on which date it also held an oral hearing . On CARDINALth DATE , ORG dismissed ORG appeal ; it found that PERSON had made contradictory statements concerning his intended use of the property that he had divided up and had sold - in all CARDINAL building plots - land which was farmland of good quality . For this and various other reasons , it was to be feared that he would withdraw land from agricultural use on a large scale without adequate reason and that he intended to make a speculative capital investment ( Section CARDINAL ( d ) and ( e ) of ORG ) .

On DATE , PERSON made an appeal ( ORG ) to ORG ) against the decision of ORG ; he alleged violation of the rights of all citizens to equality before the law and to have proceedings held before the judge established by law ( gesetzlicher ORG CARDINAL , No . CARDINAL and DATE , No . CARDINAL of the LAW ) . In the appeal it was alleged , inter alia , that at the meeting of ORG on CARDINALth DATE , CARDINAL members took part and voted who had not been present at CARDINAL or both of the previous meetings at which ORG had examined the appeal .

ORG gave its decision on DATE . Following its own precedents dealing with the question of the proper legal composition of a board ( ORG ) within the meaning of LAW , No . CARDINAL , of LAW , it found that the circumstances complained of by the appellant had led to a violation of the right to have proceedings held before a judge established by law . It accordingly set aside the decision of ORG .

As a result of this judgment , ORG had to make a new decision on ORG appeal against ORG decision of DATE .

At the opening of the new proceedings , PERSON challenged several members of ORG on the grounds of bias : he pointed out that the president had represented ORG in DATE before ORG ; CARDINAL members had been heard as witnesses in those proceedings and CARDINAL of them , Mr. PERSON , was alleged to have stated that a different contract for the sale of the same property had already been approved ; a third member , appointed by ORG , was said to have already pronounced himself against the approval of the contract for sale of CARDINALth DATE ; lastly , a fourth and a fifth member had taken part in the decision of CARDINALth DATE which ORG had set aside on DATE . In support of his challenge , PERSON relied on Section CARDINAL of the DATE LAW ( Allgemeines Verwaltungsverfahrensgesetz ) which provides in sub - section CARDINAL as follows :

" ( CARDINAL ) Administrative official ( PERSON ) shall refrain from performing their duties and shall delegate their functions :

( iii ) In cases in which they have been or are appointed as the agents of a party ;

( iv ) When there are other serious grounds giving rise to doubt as to their complete impartiality ;

ORG took its decision on DATE .

It first observed that although PERSON was not entitled in law to a right of challenge under the aforementioned LAW , his allegations of bias should nevertheless be examined ex officio . These allegations proved , however , to be unfounded . In its decision , which dealt at length with the allegations made , ORG found , in particular , that the approval which Mr. PERSON had mentioned concerned in fact the sale of different property owned by the PERSON couple .

ORG appeal was also refused by ORG . In the light of enquiries it had caused to be made , it found that , in all , CARDINAL building sites had been marked out on the properties in question ; that PERSON had already concluded contracts for the sale of QUANTITY building plots and that approval of CARDINAL of these contracts had been definitively refused by ORG authorities ; that PERSON had encumbered the different properties with charges for substantial amounts of money and that he had made contradictory statements in his different applications for approval . ORG held that PERSON ’s plans were incompatible with the principles enunciated in LAW ) of the NORP Real Property Transactions Act as it was to be feared that CARDINAL of the various properties in question were to be sold for building . The contract for sale of CARDINALth DATE was therefore found to be designed to destroy and break up a farm which had up till then been a workable unit , to bring about the abandonment of farm buildings and to effect a resale of valuable agricultural land for profit ( Section QUANTITY of the Upper Austrian LAW ) .

PERSON made an appeal on DATE to ORG against this decision . Among other grounds , he reiterated the charges of bias he had made against CARDINAL members , including the president , of ORG ( paragraph CARDINAL above ) .

ORG rejected the ground of appeal on DATE :

" It has not been necessary for the ORG to deal with the allegations in the appeal to the extent that they attempt to show that the challenged members of the ORG were biased within the meaning of LAW and ought therefore to have refrained from acting since , even if these allegations were correct on this point , the applicant was not affected in his right to be judged by the judge established by law by the refusal of his challenges . For a party has no right to challenge a body competent to decide or take part in the making of the decision on the grounds of bias . A board does not cease to be competent because a biased member takes part in the proceedings . Nor does the participation of a biased member - unless a special law expressly provides otherwise - affect the proper composition of a board any more than the competence or proper composition of an authority consisting of a single person ( monokratische PERSON ) is called in question through the bias of the regularly appointed office holder ( PERSON ) . It was therefore not necessary to go into the question whether bias actually existed as alleged ( see to the same effect earlier decisions of ORG of DATE , ORG Nr . CARDINAL , CARDINALth DATE , ORG Nr . CARDINAL , and DATE , NORP . Nr . CARDINAL ) . "

The other grounds of appeal were also rejected in the same judgment .

On dates which the documents before the ORG do not disclose , PERSON and PERSON laid charges of fraud against PERSON .

On DATE , Mr. and Mrs. PERSON laid charges with the public prosecutor ’s office at GPE against PERSON for abuse of the power of attorney given to him and for unlawfully encumbering and selling their property . On DATE , the public prosecutor ’s office requested that preliminary inquiries ( Vorerhebungen ) be instituted against Ringeisen .

On DATE , PERSON appeared for the first time before the investigating judge and was interrogated .

In DATE , DATE and DATE , further complaints were made by Mr. and Mrs. PERSON to the prosecuting authorities that PERSON continued to misuse the powers they had delegated to him . In the light of ORG decision of CARDINALth DATE ( paragraph CARDINAL above ) , the prosecuting authority at PERSON made an application to ORG ( PERSON ) on DATE that a preliminary investigation ( ORG ) should be instituted against PERSON on the ground that he was suspected of having committed offences under ORG and CARDINALc of LAW . On DATE , the public prosecutor ’s office further requested that the documents authorising PERSON to act on behalf of the PERSON couple should be taken away from him and kept in safe custody , or , if this should not prove possible , that PERSON should be detained on remand for danger of committing further offences ( paragraph CARDINAL below ) . On DATE , the authorities were informed that the PERSON couple had obtained a decision from the civil court that PERSON should return the said documents .

DATE , the prosecuting authorities were informed by Dr. PERSON , a lawyer acting on behalf of CARDINAL purchasers of plots that the applicant had converted to his own use the purchase monies they had paid without being in a position to transfer to them the title of the properties purchased .

Acting on this information , the public prosecutor ’s office applied for an extension of the preliminary investigation . On DATE , DATE after his arrest ( paragraph CARDINAL below ) , PERSON appeared before the investigating judge and was heard on the charges made against him . On DATE , Mr. and Mrs. PERSON made a statement in which they denied that investments which PERSON claimed to have made in their property had increased its value ; they also alleged that PERSON had harvested and sold the fruit and crops for his own benefit .

Criminal charges were made by Dr. PERSON on DATE on behalf of CARDINAL further complainants : it was alleged that PERSON had published a new advertisement for the sale of building plots on DATE and CARDINAL of the complainants intimated that a copy made by Ringeisen of the Roths’ power of attorney was being produced . The police drew up a report which was submitted to ORG on DATE . Ringeisen was released from custody on CARDINALrd DATE ( paragraph CARDINAL below ) .

DATE , CARDINAL further charges and supplementary information were laid by other purchasers of building plots and by the PERSON couple . In the same period , the investigating judge held CARDINAL hearings at which PERSON or witnesses were examined , directed that comprehensive enquiries be made and ordered the extension of the preliminary investigation to cover the new complaints . The investigating judge closed the preliminary investigation on DATE .

On CARDINALth DATE , PERSON lodged with ORG a disciplinary complaint ( PERSON ) against the authorities and courts at PERSON who were dealing with his case . Upon his request , the applicant ’s counsel was given the case - files from CARDINALth to DATE The case - files were also unavailable DATE and CARDINALth DATE because of proceedings in ORG of ORG .

The public prosecutor dealing with the case was absent on leave from DATE to CARDINALth DATE . On DATE , PERSON lodged with the public prosecutor ’s office an application for transfer of his case to another court area and challenging judges ( Delegierungs- PERSON ) . On DATE , the public prosecutor ’s office transmitted this application to the court with unfavourable comment .

The case - files were transmitted on DATE for decision on the application to ORG ( Oberster Gerichtshof ) which refused it on DATE .

In the meantime , an investigating judge at ORG had made an order on DATE that these fraud proceedings ( CARDINAL Vr . CARDINAL ) were to be conducted separately from other investigations of charges of fraudulent bankruptcy ( CARDINAL Vr . CARDINAL , paragraph CARDINAL below ) , which had been made on CARDINALth DATE .

In accordance with LAW , the case - files were forwarded to the public prosecutor ’s office on DATE . Under that provision , the public prosecutor ’s office should , within DATE , file the indictment or inform the investigating judge that it does not intend to pursue the prosecution ; it may also apply to have the preliminary investigation extended . On DATE , the public prosecution applied for an extension of the preliminary investigation to cover a new complaint laid on DATE by Dr. PERSON on behalf of another purchaser . On DATE , the files were sent , in connection with other proceedings , to ORG ( Bezirksgericht ) and then , on DATE , to ORG ( Arbeitsgericht ) ; they were returned to PERSON on DATE . DATE the investigating judge examined CARDINAL witnesses .

PERSON was summoned to appear before the investigating judge on DATE but arrived late and excused himself ; his examination then took place on DATE .

On DATE , he was allowed to inspect the case - files and make photostat copies .

On DATE , a supplementary complaint was made by the lawyer , Dr. PERSON , and the public prosecutor ’s office applied , on DATE , for an extension of the preliminary investigation to include this complaint . The investigating judge decided , on DATE , to extend the preliminary investigation to include the supplementary complaints made since DATE .

On DATE , Ringeisen deposited with ORG a decision of GPE dated DATE and relating to the entry of a charge on his property ( paragraph CARDINAL below ) ; while he was at the court he was , however , arrested in connection with the fraudulent bankruptcy proceedings , No . CARDINAL Vr . CARDINAL ( paragraph CARDINAL below ) .

The indictment ( PERSON ) was filed with ORG on DATE and notified to PERSON on DATE . It charged him with the offences of aggravated fraud ( PERSON , Articles CARDINAL , CARDINAL , CARDINAL ( d ) and CARDINAL of LAW ) and of aggravated fraudulent conversion ( PERSON , Article CARDINAL of the same Code ) .

He was accused of :

I. Having falsely pretended , between CARDINALrd DATE and CARDINALth DATE , to be an honest real estate seller , borrower and agent with a view to induce :

A. CARDINAL persons to acts detrimental to them , namely to make payments of CARDINAL AS . It was alleged that PERSON had concealed from them the fact that the contracts for sale which he made with them could be implemented only with the approval of ORG ; PERSON had only submitted CARDINAL of these contracts to ORG DATE after making them and a further CARDINAL after DATE ; in the end , his contracts for sale no longer included a clause stating that such approval was required for their implementation . It was also alleged that PERSON had received CARDINAL AS from his business of " killing " real estates ( gewerbsmässige ORG ) and that he refused to repay the money ;

B. two other persons , ( CARDINAL ) PERSON and ( CARDINAL ) PERSON , to grant loans of which a large part had not been repaid ( paragraph CARDINAL above ) ;

II . Having misused , with intent to profit , the power of attorney which had been given to him by the PERSON couple on CARDINALth DATE and revoked by them as of CARDINALnd DATE , by encumbering their land at GPE with various charges after DATE .

On CARDINALrd DATE , PERSON lodged an objection ( PERSON ) with ORG ( Oberlandesgericht ) against the indictment . He alleged in particular that he had no intention of causing loss to the purchasers of sites and that he had invested CARDINAL AS in the property . In the same document , he also requested the transfer of all civil and criminal proceedings to courts outside the jurisdiction of ORG : he alleged that it was absolutely impossible to find at PERSON a really impartial and objective judge who was not prejudiced against him on account of either having taken part in the work of ORG or having been concerned with litigation arising out of his dealings with the property .

The public prosecutor ’s office opposed these applications DATE .

On DATE , ORG dismissed PERSON ’s objection against the indictment for the reason that the results of the investigation sufficed to ground the suspicion that he had committed the offences of which he was charged .

The case - files were transmitted to ORG on DATE On DATE , PERSON appeared in court and was heard ; he withdrew various complaints he had made and maintained only his application for transfer . In consequence , the case - files were submitted on DATE to ORG which refused the application on DATE .

On CARDINALrd DATE , PERSON made a challenge before ORG against all the judges at ORG . ORG ordered him to specify the grounds for the challenge which , however , he withdrew on CARDINALth DATE except as regards the investigating judge who had ordered his arrest in the fraudulent bankruptcy proceedings on DATE ; he also entered a further general application for transfer . The challenge was rejected by the President of ORG on DATE and ORG ruled , on DATE , that there was no jurisdiction to hear an appeal on this point .

The application for transfer was transmitted on DATE to ORG which refused it on DATE .

PERSON was notified on CARDINALrd DATE that the trial would open on DATE . On DATE , he made various applications for transfer and to have the trial cancelled . On DATE , the presiding judge at ORG informed him that , as ORG had already refused CARDINAL earlier applications for transfer , his further applications of CARDINALth DATE would not be entertained and there was no reason to cancel the trial .

The trial opened on DATE and , on DATE , was adjourned to CARDINALth January CARDINAL on the application of both the prosecution and the defence in order to have further evidence taken . CARDINAL experts were nominated by the court on DATE to evaluate the amount of money which PERSON had invested in the property .

On DATE , PERSON made an application to the effect that a plea of nullity for safeguarding the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) should be entered on his behalf by the Attorney General ( PERSON ) . However , on CARDINALth DATE he was informed by the presiding judge that , in view of the hearing beginning on DATE , the files could only be submitted thereafter to the Attorney General ’s office ; similarly , new applications for a transfer which the applicant had intended to make could not be submitted to the competent authority for the time being as this would delay proceedings .

The trial was resumed on DATE and ended DATE .

PERSON was found guilty of aggravated fraud on the counts concerning the CARDINAL purchasers and PERSON ( GPE and ORG of the indictment ) . He was acquitted of the other charges ( ORG ) , PERSON , the PERSON couple ) . He was sentenced to CARDINAL years’ severe imprisonment ( schwerer PERSON ) with the additional punishment of fasting and " sleeping hard " ( hartes Lager ) DATE . In fixing sentence , ORG took account of aggravating and of extenuating factors : on the one hand , the purchasers of the building plots were poor persons who had lost their savings or borrowed money to pay PERSON , the criminal conduct of PERSON had continued over a long period , the damage caused greatly exceeded the amount of CARDINAL AS fixed in Article CARDINAL of LAW ; on the other hand , PERSON ’s previous record was unblemished , some purchasers had not sustained loss and the damage would be made good in part from payment out of the PERSON couple ’s bankruptcy . The court found , in PERSON ’s favour , that there were circumstances for " special mitigation " ( ausserordentliches ORG ) as provided for in Article PERSON of LAW . In accordance with LAW , the court reckoned as part of the sentence the time which PERSON had spent in custody on remand ( from DATE and from DATE to CARDINALth DATE , paragraphs CARDINAL and CARDINAL below ) .

Immediately after the delivery of judgment , PERSON gave notice of his intention to enter a plea of nullity ( PERSON ) and an appeal ( GPE ) against his conviction and sentence ; the public prosecutor gave notice that he would enter a plea of nullity in respect of the acquittal and an appeal against the sentence as being too lenient .

The public prosecution lodged , on DATE , a plea of nullity and an appeal . ORG plea of nullity and appeal were lodged on DATE .

The case - files were forwarded on DATE to ORG which fixed a hearing for DATE . On DATE , ORG dismissed an application by PERSON to have witnesses examined and for leave to be present at the hearing .

The pleas of nullity and the appeals were heard on DATE by ORG which gave judgment on DATE .

ORG set aside the decision of DATE and referred the case back to ORG for rehearing as regards the conviction for fraud under ORG ( PERSON ) , the acquittal on the charge of fraudulent conversion under II ( the PERSON couple ) and the sentence . ORG decision was upheld as regards the conviction for fraud under count GPE ( CARDINAL purchasers ) and the acquittal on the charge of fraud under count ORG ) ( PERSON ) .

The judgment was drawn up and transmitted to ORG on DATE . On DATE , the case was referred to a different chamber of ORG .

On application made by the prosecution on CARDINALth DATE ( Article CARDINAL , paragraph CARDINAL , first sub - paragraph , of LAW ) , ORG decided , on DATE , that the proceedings on the charges of fraud under count ORG ) and of fraudulent conversion under count PERSON ( the PERSON couple ) should be discontinued . Consequently , the only matter left outstanding was a decision on the sentence for the conviction of fraud under count GPE ( CARDINAL purchasers ) . PERSON was given notice that the further hearing before ORG would be held on DATE .

On DATE and the days which followed , PERSON made numerous applications for transfer , joinder of the case to other criminal proceedings , review ( PERSON ) etc . , which were all rejected by ORG on DATE and by ORG on DATE .

The rehearing of the case took place before ORG on DATE .

In its judgment of DATE , the court first noted that , since the prosecution had also appealed against the sentence imposed on DATE , the prohibition against passing a more severe sentence ( reformatio in pejus ) did not apply .

The court took into account certain extenuating circumstances : PERSON had no previous convictions , he had made restitution - although to a very small extent - for the loss caused and he affirmed he would do so for the remainder , though the court expressed a reservation about his sworn statement of assets ( PERSON ) . On the other hand , the court pointed out that there were aggravating factors : the people who had suffered loss were not affluent and this had caused particular hardship , the offences had continued over a considerable period and the damage had been particularly high . Weighing the extenuating and aggravating circumstances against each other , the court concluded that it could not be said that the extenuating circumstances predominated within the meaning of Article CARDINALa of LAW with the result that the punishment had to remain within the limits fixed by LAW severe imprisonment - though it could be fixed at the minimum .

The sentence was therefore fixed at DATE severe imprisonment with the additional punishment of fasting and " sleeping hard " once DATE . The court reckoned as part of the sentence the time ( CARDINALth DATE and DATE ) Ringeisen had spent in custody on remand . PERSON gave notice that he would lodge a plea of nullity and an appeal ; he also made an application for transfer .

PERSON lodged the plea of nullity and an appeal on DATE . The case - files were submitted to ORG on DATE but were returned to PERSON from DATE for the consideration of an application made by ORG ( paragraph CARDINAL below ) .

Subsequently , PERSON laid criminal charges for perversion of justice ( ORG ) against a presiding judge at ORG . On DATE , ORG was informed by the GPE public prosecutor ’s office that this matter would not be dealt with for the time being and on DATE ORG fixed CARDINALth DATE as the date for a hearing on the applicant ’s appeal and plea of nullity .

On DATE , PERSON made an application to ORG challenging the president and other judges of the chamber which was to decide on his appeal and plea of nullity ; PERSON maintained that a preliminary investigation had been opened against the president before ORG in GPE for perversion of justice . By decision of CARDINALrd DATE , ORG cancelled the hearing fixed for DATE and referred ORG challenge to the competent chamber . Before that chamber could take a decision , ORG of GPE requested the case - files , on DATE , in order to take a decision on an application made by PERSON that preliminary investigations should be opened against the president of the chamber of ORG dealing with the case .

On DATE , the files were returned to ORG which , on DATE , rejected the challenge of the judges . Subsequently , a new date for the hearing was fixed for DATE .

On DATE , PERSON once more challenged the judges of ORG on the ground that a civil action for damages in the amount of CARDINAL AS was pending against the president of the chamber before ORG in GPE . ORG refused the challenge on DATE .

On DATE , ORG dismissed an application made by PERSON to adjourn the hearing fixed for that day on the ground that certain files should be consulted in connection with these proceedings . On DATE , ORG , in a final judgment , dismissed the plea of nullity but reduced the sentence . In computing the sentence , ORG held that the reasons for mitigation predominated in substance if not in number and that it was therefore possible to apply Article CARDINALa of LAW ; the sentence originally imposed in DATE had been appropriate to ORG convictions at that time but account should be taken of the fact that the charge of defrauding PERSON had been abandoned later on ; the sentence was therefore reduced to DATE and QUANTITY months’ severe imprisonment with the additional punishments ordered by the court of first instance .

On DATE , ORG decided that the entire time PERSON had spent in detention on remand should be reckoned as part of the sentence .

DATE . In DATE , creditors laid criminal charges against PERSON ; they accused him of unlawfully attempting to prevent them from obtaining execution of judgments awarded in their favour against him after it had become known that the sales of building sites could not be completed ( paragraphs CARDINAL above ) and ordering him to refund the purchase money . On the application of the public prosecutor ’s office at GPE , the investigating judge decided , on DATE , that preliminary investigations should be opened and conducted separately from those relating to the charges of fraud ( CARDINAL Vr . CARDINAL ) which were for the time being closed pursuant to LAW ( paragraph CARDINAL above ) .

PERSON was examined on DATE and then on DATE by the investigating judge who later extended the preliminary investigation to cover further similar complaints made in the latter part of DATE and early in DATE .

On DATE , DATE after PERSON ’s detention on remand was ordered in these proceedings ( paragraph CARDINAL below ) , he was brought before the investigating judge ; he challenged that judge and all the other judges in the jurisdiction of ORG . The case - files were transmitted to ORG which dismissed the challenges on DATE . Further challenges of judges were refused in DATE .

On the application of CARDINAL creditors , ORG appointed , on DATE , a receiver ( GPE ) over property owned by PERSON at GPE .

On CARDINALth DATE , PERSON was adjudged bankrupt ( Eröffnung des Konkurses ) by ORG . The principal effects of such a decision are set out in LAW , sub - sections ( CARDINAL ) and ( CARDINAL ) , of LAW ( GPE ) :

" ( CARDINAL ) The effect of the commencement of bankruptcy is to remove all assets liable to execution which belong to the bankrupt at the time or which accrue to him during the bankruptcy ( the bankrupt ’s estate ) from his free disposition . ...

( CARDINAL ) The bankrupt ’s estate shall be taken in charge and administered in accordance with this LAW and shall be employed for the joint satisfaction of those personal creditors who had pecuniary claims against the bankrupt at the commencement of bankruptcy ( the bankruptcy creditors ) .

In application of Sections CARDINAL of the same Act , notice of the adjudication was given to a series of authorities at GPE , including various courts , the revenue office , the social security office , the central railway station , the freight station , the GPE navigation company , the post and telegraph office , the Bar association , the chamber of commerce , etc . A notice was put in the local official gazette ( ORG ) . The assignee was appointed by the court on DATE .

The indictment was filed on DATE with ORG at PERSON and notified to PERSON on the following day . PERSON was accused of having committed fraudulent bankruptcy , defined in LAW as follows :

" whoever intentionally defeats or curtails the satisfaction of his creditors or some of them by concealing , disposing of , alienating or damaging a part of his assets , by alleging or acknowledging a non - existent liability or in any other way diminishing his assets , shall be punished ... " .

It was alleged that PERSON , in order to frustrate execution of judgments given against him , had negotiated , in DATE , a fictitious loan of CARDINAL AS from an insurance company for whom he worked as an agent and then consented to a court settlement in favour of the insurance company for the same amount . It was further alleged that before he had been adjudged bankrupt he had used CARDINAL AS to satisfy CARDINAL creditors who had obtained writs of seizure and had kept the remaining sum of CARDINAL AS for himself .

PERSON was , at his own request , brought before ORG on DATE ; he lodged an objection to the indictment and asked that ORG or ORG should rule on it on the ground that the courts at GPE were prejudiced against him . By a document dated DATE , PERSON put forward further grounds in support of the objection .

On DATE , ORG rejected , for lack of jurisdiction , PERSON ’s application that it should rule on the objection to the indictment and as ill - founded the application for transfer . ORG dismissed the objection to the indictment on DATE for the reason that the results of the preliminary investigation grounded the suspicion that PERSON had committed the offence of which he was accused .

On DATE and CARDINALth DATE , ORG rejected as inadmissible CARDINAL applications made by PERSON for review of the proceedings . A further application for transfer was dismissed by ORG on DATE .

On DATE , the prosecution gave notice , under LAW , paragraph CARDINAL , first sub - paragraph , of LAW , of the withdrawal of the charges of fraudulent bankruptcy in view of ORG final conviction and the sentence imposed on DATE in the fraud case . ORG ordered the discontinuance of the prosecution for fraudulent bankruptcy and PERSON was so notified on DATE .

On DATE , the investigating judge at PERSON in charge of the preliminary investigation in the fraud case ( paragraphs CARDINAL et seqq . above ) issued a warrant for ORG arrest on the ground of danger of his committing further offences ( PERSON ) under LAW , paragraph CARDINAL , sub - paragraph CARDINAL , of LAW ; the judge stated that PERSON continued , although aware of ORG refusal to approve the contract for sale he had made with the PERSON couple , to commit punishable acts by having further advertisements for the sale of sites inserted in newspapers . PERSON was arrested on CARDINALth DATE and brought DATE before the investigating judge who remanded him in custody on the ground that there was a danger of his committing further offences .

In DATE and DATE , PERSON applied for release . The application was dismissed by ORG ( Ratskammer ) of ORG on DATE ; the court considered that there was both a danger of Ringeisen committing further offences and a danger of suppression of evidence ( GPE , Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL , of LAW ) . ORG dismissed PERSON ’s appeal on DATE CARDINAL on the grounds that it could be assumed from ORG conduct that he would commit further offences and that there was a danger of suppression of evidence .

Another application for release pending trial was made by Ringeisen on DATE . This was refused by the investigating judge on DATE and , on appeal , by ORG on DATE for the same CARDINAL reasons .

On further appeal , the application was allowed by ORG on DATE subject to PERSON giving a solemn undertaking ( NORP ) in accordance with LAW . ORG pointed out , inter alia , that :

The orders made in chambers ( Beschlüsse auf PERSON Verfügungen ) by ORG granting an injunction have now come into force ; the accused is thereby instructed to deposit with the court the powers of attorney he holds from Mr. and Mrs. PERSON , and is prohibited from selling or encumbering the properties in GPE ... When it is further taken into consideration that the accused ’s transactions with regard to the above - named properties and the criminal charges and civil actions relating to these transactions have been given very wide publicity , then it can not be supposed that the accused will still be able to advertise and to find purchasers for building plots . Furthermore , the investigations so far have failed to yield any conclusive indications that the accused might commit criminal offences in other ways , particularly since the complaints against him are essentially concerned with his conduct in connection with the purchase and resale of Mr. and Mrs. PERSON ’s property . Moreover , any further fears that the accused might frustrate the safeguarding of building plot purchasers’ claims can be dismissed as a result of his offer to deposit with the court the decision of ORG dated DATE on the entry of the priority notice of a contemplated charge ( ORG über die beabsichtigte LOC ) for CARDINAL AS on his property in GPE . There are thus no special grounds to justify the fear that the accused might repeat the criminal offences that he is suspected of having previously committed . There is thus no longer any ground for detention under LAW , paragraph CARDINAL , sub - paragraph CARDINAL , of LAW .

In the same way , there are no longer grounds for maintaining detention on remand under LAW , paragraph CARDINAL , sub - paragraph CARDINAL , and LAW , paragraph CARDINAL , of the DATE Code of Criminal Procedure . According to Article CARDINAL , paragraph CARDINAL , of this Code , detention on remand in cases where the accused is held merely on the ground set out in DATE , paragraph CARDINAL , sub - paragraph CARDINAL , must not be extended beyond DATE , or beyond DATE if the extension is approved by ORG . These time - limits have already expired . It is true that several fresh complaints have been made out against the accused , but these relate mainly to the same series of facts , namely the accused ’s actions in connection with the purchase of Mr. and Mrs. PERSON ’s property and the resale of building plots . Moreover , the persons named in these fresh complaints ... have already been heard on the major issues by the investigating judge , so for this reason too there is no longer any danger of collusion or suppression of evidence ( Verabredungs- PERSON ) .

As regards the deposit , offered by the accused , of the decision on the entry of a priority notice , or the prolongation of this decision when it expires , the investigating judge will have to take the necessary measures , particularly since the accused has expressly offered to deposit this decision if he is released . "

The offer thus accepted by ORG had been made by PERSON when he had applied to be released on DATE ; ORG of ORG had refused it on DATE as being insufficient to dispel the danger of his committing further offences .

PERSON was then released on DATE CARDINAL on his giving the solemn undertaking and depositing with the court the decision for the entry of a priority notice of a contemplated charge . His first detention had lasted DATE and DATE .

On being convened by the investigating judge , PERSON stated on DATE that he wished to consult a lawyer about a new entry of a priority notice ( the first one was due to expire DATE ) . The judge allowed him until DATE to deposit such security . In a letter of DATE , PERSON made an offer of an entry of a priority notice on the proceeds of a contemplated sale ( ORG beabsichtigten PERSON ) of his property at GPE for the sum of CARDINAL AS . He renewed this offer when he appeared before the investigating judge on DATE ; the judge accepted the offer while remarking that the priority notice offered could not be considered as a substitute ( Ersatz ) for the former CARDINAL . On DATE , PERSON obtained from ORG a decision , valid until DATE , for the entry of the new security he had offered and he deposited it with the investigating judge on DATE .

On DATE , the public prosecutor ’s office applied to the investigating judge , in the fraudulent bankruptcy proceedings ( CARDINAL Vr . CARDINAL ) , for , inter alia , an order for the arrest and detention of Ringeisen on remand pursuant to LAW , paragraph CARDINAL , sub - paragraphs CARDINAL ( danger of collusion ) and CARDINAL ( danger of committing further offences ) of LAW .

The investigating judge granted the application . PERSON , who happened to be at the court in connection with the other criminal proceedings , was arrested immediately and informed of the reasons for his remand in custody .

The warrant of arrest recited the offences of which PERSON was suspected in the CARDINAL criminal proceedings and in conclusion stated :

" The accused has ... in full knowledge of his very considerable financial liabilities arising from his unsuccessful land speculations , diminished the assets available for the satisfaction of claims in damages by contracting a large loan , accepting advance payments of rent , transferring property , etc . ; he has prejudiced the interests of creditors not belonging to the priority classes and frustrated execution of judgments .

The present warrant is issued as requested by the prosecution in order to counter the danger of collusion between the accused and parties contracting with him and to prevent the danger that he continues activities which could lead to a further diminution of his assets or the frustration of execution . "

DATE , CARDINALth DATE , PERSON appeared before the investigating judge where he declared he was appealing against the order for his arrest and detention on remand .

On DATE , PERSON appealed in writing to be provisionally released ; he took up in some detail the various considerations set forth in the warrant . He emphasised that it was absolutely impossible for him to cause damage to his creditors because of a sworn statement of assets he had made on DATE and the fact that his personal property and all debts due to him were under seizure . He added that he needed to work on the land at DATE . In support , he appended some documents , including a civil court order of CARDINALth DATE refusing him free legal aid for the reason that he was still the owner of property which an expert valued at CARDINAL AS .

In a supplementary document submitted on DATE , PERSON filed an account showing that he had made a claim for CARDINAL AS against the PERSON couple in their bankruptcy proceedings . He stated that his detention in DATE and DATE was going to cause him a loss of sales of agricultural produce , in DATE and DATE , amounting to CARDINAL AS . He also asked to be released in order to be able to provide for his son .

The appeal was refused by ORG of ORG on CARDINALth DATE . The court held that the ground of danger of collusion had ceased to be operative by reason of the expiry of the time - limit ( Article CARDINAL , paragraph CARDINAL , of LAW ) but that ORG continued detention on the ground of a danger of his committing further offences

" is however necessary and expedient in view of the factual and legal position , which is described in detail in the warrant of DATE , taken together with the appellant ’s attitude obstinately denying all guilt ... in spite of the partial results of the preliminary investigation , which clearly incriminate him . For the accused ’s attitude of mind as already known to the court gives rise to the fear that he would use his freedom to renew the criminal conduct with which he is charged " .

On further appeal , in which PERSON referred to the fact that he had been adjudged bankrupt on DATE , ORG nevertheless confirmed , on DATE , ORG decision for the reasons set out therein .

In the meanwhile and at the same time as the indictment was filed in the fraud case ( DATE ) , the public prosecutor ’s office had requested ORG to remand PERSON in custody in that case too for danger of absconding ( PERSON , Article CARDINAL , paragraph CARDINAL , sub - paragraph CARDINAL , of LAW ) and for danger of committing further offences . The request was based on the grounds that the decision for the entry of a priority notice for a contemplated charge , which PERSON had deposited in court on his release on DATE , had expired on DATE and had not been renewed ; that by reason of ORG " abusive and hopeless " litigation his creditors had been unable to avail themselves of that security while it was still valid ; that enquiries had revealed that PERSON kept concealed considerable sums of money which he might use to abscond in view of the indictment preferred against him ; that , in addition , there was a risk that the damage caused would become irreparable and , in view of PERSON ’s particular pertinacity , there was a danger of his committing further offences .

ORG ordered , on CARDINALth DATE , that PERSON should again be held in detention in the fraud case . It began by stating in its reasons that his first detention had been terminated in DATE

" ... in particular because the accused , through his offer to deposit the decision of ORG dated DATE ... relating to the entry of a priority notice for a contemplated charge for a sum of CARDINAL AS , was able to dispel the suspicion that he might frustrate the guaranteeing of the claims of the purchasers of building plots " .

The court continued :

" PERSON who had stated that he was willing , in the expiration of this priority notice , to obtain a corresponding further guarantee for the purchasers of plots , was only able after the expiry of this priority notice ( DATE ) to deposit on DATE a decision of ORG dated DATE ... relating to the entry in the PERSON register of a priority notice of a contemplated sale of the property No . CARDINAL . The purchasers had not been able to make any use of the priority notice DATE because PERSON through his persistent litigation made it impossible for the individual creditors to obtain execution orders . The chances of receiving reparation thus appear not merely doubtful but , as far as many creditors are concerned , quite out of the question , owing to the heavy prior encumbrances on the premises situated at No . CARDINAL , PERSON .

It can not be assumed that the accused did in fact invest the whole one and a MONEY received from the purchasers of plots in the incomplete building on the ORG property ; moreover , enquiries addressed to all the financial institutions at PERSON show that PERSON has no money deposited there . It is quite natural to conclude from this that the accused is keeping money hidden which , in his reaction to the charge now preferred , he could use in order to abscond .... A further consideration is that the accused ’s real property is so encumbered that to abandon it , should he abscond , would not involve any serious loss .

In its decision [ DATE ] ORG has already explained that the numerous sales , which continued for DATE after the refusal of approval by ORG , were evidence of conduct by the accused revealing particular pertinacity in attempting to obtain money by the sale of building sites . Although the accused is also in detention on remand on account of the separate proceedings before this court relating to frustration of execution ( CARDINAL Vr . CARDINAL ) the ground of detention specified in DATE , paragraph CARDINAL , sub - paragraph CARDINAL , of LAW is nonetheless established since it is to be feared that , were the accused to be released in the other proceedings , he might cause the damage to purchasers of building plots to become final or , considering the large number of previous acts , might commit further similar offences . "

This decision was confirmed on appeal by ORG on DATE for the reasons of danger of absconding and danger of committing further offences . At DATE or early in DATE , PERSON attempted to make a further appeal but withdrew this complaint when he appeared in court on DATE ( paragraph CARDINAL above ) .

PERSON made further applications for provisional release in both criminal cases on DATE , DATE , CARDINALth August and CARDINALth September CARDINAL . These applications were refused by the investigating judges , in the fraudulent bankruptcy case on DATE and in the fraud case on DATE . Both judges found that the reasons for his detention continued .

Against these decisions PERSON lodged appeals , which were separate but couched in almost identical terms , in the fraudulent bankruptcy case on DATE and in the fraud case on DATE ; he filed supplementary documents on DATE and DATE . He alleged that the reasons given to continue his detention were fictitious and artificial and that the authorities wished to deprive him of his property and rights and to prevent him from protecting the interests of the purchasers of plots . He claimed that if he was at liberty he could defend himself against these measures , prove that the prosecution was covering up for the real villains and consult the court files whereas persons unknown had , during his detention , suppressed documents which were damning for the witnesses and the prosecution . He further complained that he was sustaining heavy losses as he could not work on his land or at his insurance agency and he asserted that his son of DATE had had to abandon his studies and take a job as an unskilled labourer .

The appeal in the fraudulent bankruptcy case was refused by ORG on CARDINALth DATE by reference to its previous decision of CARDINALth DATE confirmed by ORG on DATE : it was stated that the circumstances which had then justified the continued detention of PERSON on remand still held good . On DATE , ORG dismissed a further appeal , approving the reasons stated in the decision of ORG .

No separate decision appears to have been taken on the appeal of DATE in the fraud case .

In the course of the trial in the fraud case , PERSON applied , on DATE and in both criminal proceedings , to be released for DATE ; the judge who was presiding at the trial refused the application on DATE .

On DATE , PERSON had made another application for provisional release in the fraudulent bankruptcy case in which he maintained that there was no danger of his committing further offences as his property was no longer at his disposal on account of his bankruptcy ; the investigating judge refused the application on DATE , on the ground that this danger continued .

On appeal , ORG confirmed this decision on DATE referring to the earlier decisions relating to ORG detention on remand ( ORG on DATE and CARDINALth DATE ; ORG on DATE and CARDINALth DATE ) .

A further appeal by PERSON was dismissed by ORG on DATE ; ORG found that the appeal was unsupported by any facts to rebut the reasoning that there was still a danger of his committing further offences and that the adjudication in bankruptcy did not remove this danger ; it referred to its decision of DATE and CARDINALth DATE .

Immediately after PERSON ’s conviction for fraud on DATE ( paragraph CARDINAL above ) , his counsel had requested ORG to release him from detention pending the hearing of the plea of nullity and appeal . Counsel stated that his client had no previous convictions and that after spending DATE in detention on remand it would not be worthwhile absconding ; as the property had been sold there was no longer any danger of his committing further offences . The public prosecutor opposed this application on the grounds that the reasons for detention remained valid and , as PERSON was in detention on remand in the other criminal proceedings , he would gain nothing by an order for his release in this case .

ORG decided that PERSON should be released in this case subject to his giving a solemn undertaking in accordance with LAW ; it found that the reasons for his detention on remand no longer obtained .

The public prosecution lodged an appeal against the decision on the grounds that : it was not completely clear what had become of the money received by PERSON and he might use it to abscond ; the danger of his absconding was even enhanced by the fact that he had been sentenced to a term of CARDINAL years’ imprisonment of which he still had DATE to serve ; it was possible that ORG would increase the sentence ; on account of his frequent repetition of fraudulent acts it could be concluded that there was a danger of PERSON ’s committing further offences ; although PERSON did not have real estate available any longer , fraudulent contracting of loans could doubtless also be effected by other methods . As this appeal had suspensive effect ( LAW ) , PERSON stayed in custody on remand .

On DATE , ORG allowed the public prosecution ’s appeal . It held that there had been no favourable change of circumstances since its decision of DATE ; on the contrary , the sentence passed on PERSON and the fact that it might be increased as a result of the prosecution ’s appeals might prompt him to abscond , particularly as his property in GPE was encumbered beyond its value and to abandon it would be no real loss ; moreover , the frequency of his punishable acts and his obstinate attitude justified the fear that he would repeat the offences . This danger was not removed by the fact that further dealings with the property at Alkoven were impossible , as PERSON was also charged with offences unconnected with that property .

DATE . At the same time as he lodged on ORG the plea of nullity and appeal against his conviction and sentence of CARDINALth DATE in the fraud case ( paragraph CARDINAL above ) , PERSON requested his immediate release on the grounds that he had already spent DATE in custody on remand . The case - files were first transmitted to ORG , which dismissed on DATE various procedural applications made by PERSON , and then returned to ORG for consideration of the request for provisional release . PERSON ’s lawyer withdrew that request on DATE in order that the files should be transmitted again immediately to ORG for the hearing of the pleas of nullity and the appeals which had been fixed for DATE .

In the fraudulent bankruptcy case , PERSON had made a further application for provisional release on DATE , again combined with a request for transfer . He referred to the earlier decisions ( CARDINALth DATE , CARDINALth DATE and CARDINALth DATE ) refusing his release in which it had been held that the danger of his committing further offences continued in spite of his having been adjudged bankrupt and he said that this " fictitious " reason might have been given either because ORG was not aware of the true facts or because of the intrigues of an official of the prosecution whom he suspected of scheming in the ORG business . In this connection , he alleged in particular that there were political considerations involved : his building schemes would have brought to the district numerous purchasers of modest means whose votes would have reinforced the socialist majority in the town council to which ORG and certain officials were opposed ; the judges in the jurisdiction of ORG were prejudiced against him as many of them served on ORG and the others were influenced by their colleagues as well as by the wide publicity given to his affairs . He complained in detail of the unfair way in which the various proceedings against him , including his bankruptcy , had been handled , he protested his innocence and he emphasised that he had been held in detention for DATE . He threatened to go on hunger strike as from DATE and he insisted that his application be referred to ORG for an order that it be decided upon by a regional court other than that within the jurisdiction of ORG .

He reiterated the application on DATE in a document supplementing his objection to the indictment , explaining in a further document filed on CARDINALth DATE that the investigating judge had informed him that an application for release could not be combined with the objection to the indictment .

ORG , when rejecting the objection to the indictment on DATE ( paragraph CARDINAL above ) , also decided that PERSON should remain in custody since the danger of his committing further offences continued ; the court observed that there had been no change in the legal or factual circumstances since its decision of CARDINALth DATE .

On DATE , DATE after the pleas of nullity and the appeals in the fraud case had been at hearing ( paragraph CARDINAL above ) , PERSON applied to be released from detention in each of the criminal proceedings .

In his application in the fraud case , he said that the representative of the Attorney General ( ORG ) had asked at ORG for his conviction to be set aside on all counts ; PERSON inferred from this that there was no longer any basis for the charges made in the indictment and no suspicion to justify the detention on remand . He complained of having spent DATE in detention in spite of being innocent . He added that when he had been at liberty from DATE he had not attempted to abscond and there was therefore nothing to show he might do so now . As to the danger of his committing further offences , he stated that the dividing up of the land at ORG was a unique operation which could not be repeated and that , as the PERSON couple has been made bankrupt , their assets were in the hands of the official assignee .

His application in the fraudulent bankruptcy case referred to that made in the fraud case .

The investigating judge refused the application for release in the fraudulent bankruptcy case on DATE .

PERSON appealed on DATE ; stating that his NORP was not fluent enough to enable him to explain in writing his appeal and circumstances correctly and in full detail , he said the reasons given in ORG decision of CARDINALth DATE were fictitious and he applied to be allowed to prove this orally before the court ; he complained of having spent DATE in detention though innocent and referred to newspaper articles on his trial and to court documents to show he was being denied justice . He said he had done all he could to help the purchasers , who were of modest means , to obtain their rights . He exhibited a document to show he had never been insolvent and said his detention and his bankruptcy prevented him from arranging for the payment of his debts . He denied having frustrated execution of judgments by paying some debts preferentially ; he said that , apart from the land at GPE , he had other means to secure and later refund the money which had been paid to him . If he was released as soon as possible , he stated , the purchasers would be spared further loss .

ORG dismissed the appeal on DATE for the reason that the situation as regards the facts and the law had remained unchanged since the decisions of ORG of DATE , CARDINALth DATE and CARDINALth DATE and the circumstances therein set out still justified continuation of the detention for the danger of committing further offences .

The public prosecutor ’s office opposed PERSON ’s application for release in the fraud case on DATE on the ground that the reasons for his detention continued to exist having regard , in particular , to ORG decision ( paragraph CARDINAL above ) .

The application for release was refused by ORG on DATE . The court found that there was a danger of PERSON absconding as he had been finally convicted of fraud involving CARDINAL AS and was faced with the prospect of a heavy sentence ; there was also a danger of repetition of offences as found by ORG on DATE ; as the case was to be reheard before ORG on DATE the detention on remand would in any event be terminated soon .

PERSON appealed against this decision DATE . As to the danger of absconding , he argued that his sentence would not be greater than that he had received on DATE because his conviction on CARDINAL count ( PERSON ) had been quashed and there were mitigating circumstances in his favour ; furthermore , it had to be taken into consideration that he had spent DATE in detention and that GPE was the centre of his private and business affairs . As to the danger of his committing further offences , he stated that the passage of time , the advanced stage reached in his bankruptcy and , once again , DATE spent in detention on remand showed that this danger did not exist . Finally , he invoked the imminent rehearing by the trial court as a special reason for his immediate release in order that his defence should not be seriously impeded .

ORG refused ORG appeal on DATE , finding that there was still a danger of absconding and a danger of his committing further offences . On the first point , it approved the decision of the lower court ; on the second , it referred to its own decision of DATE .

PERSON had made another application for release in the fraudulent bankruptcy case on DATE in which he disputed there was any danger of further offences . First , he recalled that the facts on which he was charged dated back for DATE and that the prosecution alleged he had put CARDINAL AS aside for himself . Although he had submitted an account showing an expenditure on his part for DATE which exceeded that sum and in spite of his repeated requests , the investigating judge had never made enquiries into the matter and this was delaying his release . Lastly , he emphasised that his property and assets were frozen in bankruptcy and all his income went to the official assignee .

The investigating judge refused the application on DATE and , on an appeal in which PERSON declared that the decision was an abuse of the law , ORG confirmed on DATE the decision for the same reasons which it had given in its decision of CARDINALth DATE ( paragraph CARDINAL above ) .

A further appeal , in which PERSON again alleged that the reasons for his detention were fictitious , was dismissed by ORG on DATE by reference with approval to the reasons given by ORG ; ORG went on , solely for the sake of completeness , to note that PERSON would not gain any substantial advantage by obtaining a decision releasing him from detention in these proceedings , since he was also provisionally detained in the proceedings against him for fraud in which he had been sentenced on DATE by ORG to DATE severe imprisonment and his appeal for annulment and against sentence was still pending before ORG .

PERSON applied again for provisional release , in each of the criminal proceedings , on DATE . In both applications , PERSON pleaded that on account of bad health he was unfit to be kept in detention . He asserted , moreover , that the alleged dangers of absconding and committing further offences were artificial in the fraud case ; in the fraudulent bankruptcy case , he stated that the allegation made against him of having set aside CARDINAL AS for his own use , would be shown to be untrue if his statements were checked but the court refused to do this .

On DATE , ORG of ORG refused the application for provisional release in the fraudulent bankruptcy case for reasons similar to those it had given on DATE and DATE ( paragraphs CARDINAL and CARDINAL above ) .

DATE . The application for release in the fraud case was opposed by the public prosecutor ’s office on DATE . ORG rejected the application on DATE , stating :

" In view of the existing conviction for fraud on numerous counts , which caused heavy loss , and of the sentence ( DATE ) pronounced against the accused ... , both grounds for detention must still be assumed to be valid . The length of detention on remand up to now has no bearing on the danger of his committing further offences . Nor , in view of the sentence pronounced , can his lengthy detention be allowed to rule out the possibility of his absconding . As regards both these grounds for detention reference is made for the rest , to ORG decision of DATE .... "

As regards his plea of ill - health , the court noted that this could not justify release but , at most , transfer to a closed section of a hospital and that in any case the prison doctor had found ORG general state of health to be good on DATE .

PERSON appealed against this decision to ORG which decided , on DATE , that the appeal should be allowed and ordered that he should be released from detention on remand on his giving a solemn undertaking . ORG found that PERSON ’s situation had changed considerably since its decision of ORG . After CARDINAL half years spent in detention on remand it could no longer be reasonably assumed that he would abscond in order to avoid prosecution , even having regard to the sentence pronounced on DATE . As to the danger of his committing further offences , ORG observed that CARDINAL charges unconnected with the ORG property ( fraud on PERSON and fraudulent conversion ) had been discontinued on DATE ; the only count remaining was that which concerned the fraud perpetrated on the CARDINAL purchasers of sites at ORG . The court had already pointed out in the decision of DATE that Ringeisen could no longer deal with that property . Moreover , it could be expected that the length of his detention on remand would suffice to deter PERSON from committing further offences , especially as he had had no previous convictions .

Invoking this decision , PERSON applied again , on DATE , for his provisional release in the fraudulent bankruptcy proceedings . On this occasion , the public prosecutor ’s office expressed a favourable opinion on the application which was granted by the investigating judge . PERSON was accordingly released from detention DATE on his giving a solemn undertaking . His second detention had lasted DATE and DATE .

DATE . In his application to the ORG ( no . CARDINAL/CARDINAL ) , PERSON submitted a series of complaints , some concerning the criminal proceedings brought against him and the others relating to administrative and civil cases which he had introduced before the NORP authorities . He alleged the violation of LAW , DATE , DATE , DATE , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , LAW , article DATE ) of the Convention and of ORG , CARDINAL and CARDINAL of LAW ( PCARDINAL - CARDINAL , PCARDINAL - CARDINAL , PCARDINAL - CARDINAL ) .

After having declared inadmissible , on DATE , certain parts of the application , the Commission , on DATE , accepted the applicant ’s complaints as regards :

- Article CARDINAL , paragraph ( CARDINAL ) ( article CARDINAL ) , of the LAW concerning the length of ORG detention on remand in the fraud and fraudulent bankruptcy cases ;

- Article CARDINAL , paragraph ( CARDINAL ) ( article DATE ) , concerning the length of the proceedings in the same criminal cases ;

- Article CARDINAL , paragraph ( CARDINAL ) ( article DATE ) , concerning the refusal of ORG to examine the allegations of bias on the part of members of ORG .

After the failure of the attempt to arrange a friendly settlement made by ORG , ORG drew up a report as required under LAW article CARDINAL ) of the LAW . The report was adopted on DATE and transmitted to ORG DATE . ORG expressed therein the following opinion :

- by CARDINAL votes to CARDINAL : the applicant ’s detention lasted beyond " a reasonable time " , with the result that , in the present case , there was a violation of LAW ) ( article CARDINAL ) ;

- neither in the fraud case ( unanimously ) nor in the fraudulent bankruptcy case ( CARDINAL votes to CARDINAL ) did the length of the criminal proceedings taken against PERSON exceed " a reasonable time " within the meaning of LAW ) ( article DATE ) ;

- by CARDINAL votes to CARDINAL : Article CARDINAL ( CARDINAL ) ( article DATE ) has not been violated in the proceedings for approval of the contracts for sale because these proceedings did not involve the determination of " civil rights and obligations " .

The report contains several separate opinions , some concurring , others dissenting .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage -award;Pecuniary damage - claim dismissed

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicants were born in DATE . They are currently detained .

On DATE Mr PERSON confessed that he , PERSON and PERSON . had killed PERSON

On DATE Mr PERSON made a similar confession .

On DATE criminal proceedings against both applicants were initiated .

On DATE the pre - trial investigation was completed and the applicants were given time to study the case file .

From DATE until DATE the applicants and other parties studied the case - file material . PERSON did so from DATE to DATE , and PERSON from DATE to DATE .

On DATE the case was referred to ORG ( “ the ORG ” ) , acting as a first - instance court .

On DATE the court committed the applicants for trial .

On DATE ORG convicted both applicants of aggravated murder and robbery ; and sentenced each of them to CARDINAL years’ imprisonment .

On DATE ORG of GPE quashed the judgment and remitted the case for additional pre - trial investigation .

On DATE the criminal case against the applicants was sent to the prosecutor ’s office for an additional investigation .

On DATE the Prosecutor General lodged a request for extraordinary review of the decision of ORG of DATE with ORG .

On DATE the ORG rejected the request for the review and the case was sent back to the investigator .

On DATE the additional investigation was completed and the applicants were given time to study the case file .

On DATE the case was referred to ORG .

On DATE ORG remitted the case for additional investigation .

On DATE ORG upheld that ruling of DATE .

On DATE , after additional investigation , the case was referred again to ORG .

On DATE ORG committed the applicants for trial .

On DATE ORG convicted PERSON and PERSON PERSON of aggravated murder and robbery ; and sentenced them , respectively , to CARDINAL and ten years’ imprisonment .

On DATE ORG upheld the judgment of ORG .

Mr Solovey and Mr PERSON were arrested on CARDINAL DATE and CARDINAL DATE respectively .

On DATE ORG ordered the detention of PERSON for DATE on the ground that he had committed a serious offence and might abscond .

On DATE the same preventive measure was chosen for Mr Solovey on the same grounds .

On DATE ORG prolonged the applicants’ detention DATE until DATE for Mr PERSON and DATE for Mr Solovey .

On DATE ORG , in the committal hearing , maintained the applicants’ detention without giving any grounds or fixing any time limit .

In its judgment of DATE ORG , having convicted the applicants , also decided that they should remain in custody until the judgment became final .

On DATE ORG , having quashed the judgment of DATE in full , made no ruling in respect of the ORG further detention .

On DATE ORG ordered the applicants’ detention for DATE until DATE .

On DATE the Deputy Prosecutor General extended the applicants’ detention to DATE without giving any grounds – up to DATE for PERSON and up to DATE for Mr Solovey .

On DATE ORG , having remitted the case for additional investigation , maintained the applicants’ detention without giving any reason or fixing any time - limits .

On DATE ORG ordered the applicants’ further detention for DATE until DATE .

On DATE ORG , in the committal hearings , maintained the applicants’ detention without giving any reason or fixing any time - limits .

On DATE ORG convicted the applicants .

From DATE the applicants and their representatives lodged numerous procedural applications with ORG , ORG and ORG , requesting the ORG release . They also submitted several complaints to the prosecutors and ORG alleging that their detention had been unlawful between DATE and DATE when they had been studying the case file and their detention had not been covered by any detention order ( see paragraphs CARDINAL , CARDINAL and DATE above ) .

NORP ORG , in reply to the applicants’ requests and complaints , informed them that their detention had been in compliance with the law and that there had been no grounds for their release . It did not advance any other reasoning to justify the applicants’ detention .

ORG , in its decisions of CARDINAL DATE , CARDINAL DATE and DATE , maintained the applicants’ detention on remand stating that the preventive measure chosen by the investigation was correct ( see paragraphs CARDINAL , DATE and DATE above ) . It did not , however , address the applicants’ complaints about the alleged unlawfulness of their detention DATE .

ORG , in its decisions of DATE and DATE , did not make any ruling on the applicants’ further detention ( see paragraphs CARDINAL and CARDINAL above ) .

The relevant provisions of LAW read as follows :

“ If there are sufficient grounds to consider that the accused , if at liberty , will abscond from an investigation or the court , or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities , and in order to ensure the execution of the sentence , the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by LAW ... ”

“ The preventive measures shall be as follows :

( CARDINAL ) a written undertaking not to abscond ;

( CARDINAL ) a personal surety ;

( CARDINAL ) the surety of a public organisation or labour collective ;

( DATE ) NORP bail ;

( CARDINAL ) NORP remand in custody ;

( CARDINAL ) NORP supervision by the command of a military unit . ”

“ Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of DATE imprisonment . In exceptional circumstances this preventive measure can be applied also in cases concerning offences for which the law envisages a penalty of DATE imprisonment ... ”

“ The term for remanding a person in custody during the investigation of criminal offences shall be not DATE . This term may be extended to DATE by district , city or military prosecutors , prosecutors of the fleet or command garrison , or other prosecutors of the same rank , if it is not possible to terminate the criminal investigation , and in the absence of any grounds for changing the preventive measure . A further extension of this term to DATE from the time of arrest shall be effected only if the case is exceptionally complex , by ORG , regional prosecutors , GPE prosecutors , military prosecutors of the district or fleet , or other prosecutors equal to them in rank .

Further periods of remand in custody may be extended for DATE by ORG , and DATE by ORG .

Subsequent to the above , no further extensions of detention on remand shall be allowed . The accused must then be immediately released .

If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure , the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved . As regards the incomplete investigation , the case shall be divided into separate proceedings and completed in accordance with the general rules .

The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not DATE before the expiry of the remand period , as established by paragraph CARDINAL of this Article .

The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody .

If the court refers the case back for a freshtime he receives the case file . Further prolongation of such detention , before the case is remitted to the court , shall be governed by DATE , CARDINAL and CARDINAL of this Article . ”

Article CARDINAL

Terms of examination of the case by a single judge or a court in the committal hearing

“ A criminal case shall be examined by a single judge or a court in the committal hearing within DATE or , in complex cases , DATE after its receipt by the court . ”

Article CARDINAL ( as worded at the material time ) : Issues considered when committing the accused for trial

“ Single judges or a court in a preparatory sitting shall consider the following issues with respect to each of the accused :

( CARDINAL ) whether the preventive measure with respect to the accused has been selected correctly ... ”

Article CARDINAL ( as worded at the material time ) : Decision of a court or of a single judge at the preparatory hearing

“ ... If it is necessary to change the preventive measure , the court in a ruling and the judge in a resolution shall give reasons for the decision taken to that effect . ”


CASE OF KOENDJBIHARIE v. THE NETHERLANDS

Violation of Article 5 - Right to liberty and security (Article 5-4 - Order release);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

ORG Mr PERSON is a GPE national , born in GPE . He resides at present in GPE .

ORG On appeal from a judgment of ORG ( Arrondissementsrechtbank ) of GPE , ORG ( Gerechtshof ) of GPE sentenced him on DATE to a term of CARDINAL months’ imprisonment , to be followed by CARDINAL years’ placement at the ORG ’s disposal ( see paragraph CARDINAL below ) , for rape aggravated by a previous conviction for the same offence . On CARDINAL DATE ORG ( PERSON ) dismissed his appeal on a point of law .

ORG On coming out of prison , PERSON was committed on DATE to the ORG psychiatric clinic " Veldzicht " at GPE , from where he absconded on DATE . Suspected of a further rape , he was arrested on DATE and placed in detention on remand , but was acquitted by ORG on DATE . After a period spent at a remand centre in GPE , he was examined at ORG " from DATE to DATE , when he was taken back to the " Veldzicht " clinic .

In the meantime , on DATE , his placement had been extended by ORG until DATE .

Mr PERSON ’s lawyer , PERSON , learned in DATE that , according to ORG , the applicant ’s period of placement would end on DATE rather than DATE , because it had been suspended during his detention on remand from DATE to CARDINAL DATE ( see paragraphs CARDINAL above and CARDINAL below ) . The applicant objected to this , claiming that his acquittal had deprived the detention of any legal basis and , accordingly , of any effect on the application of LAW ( b ) § QUANTITY of LAW ( see paragraph CARDINAL below ) .

On DATE he filed an interlocutory application ( kort geding ) , for his immediate release , with the President of ORG , relying on this argument . He added that his placement had ended on DATE since no application to extend it had been submitted within the statutory time - limit ( see paragraph CARDINAL below ) .

The President , before whom the ORG had argued in favour of the position taken by ORG , dismissed PERSON application on CARDINAL DATE . The latter appealed .

ORG In the intervening period , on CARDINAL DATE , the Attorney General at ORG had requested ORG , which had jurisdiction pursuant to LAW b ) of LAW , to extend by DATE the applicant ’s placement at the ORG ’s disposal .

At the hearing on DATE ORG outlined the opinion of the " Veldzicht " clinic , then questioned the member of staff who was responsible for co - ordinating the applicant ’s treatment at the clinic . PERSON put forward the arguments summarised above ( see paragraph CARDINAL above ) , contending that the Attorney General ’s application was inadmissible . In the alternative she referred to Mr PERSON ’s marriage plans which , she maintained , would reduce the risk of his re - offending . She also asked the court to hear , before giving its decision , CARDINAL of the CARDINAL experts which she had named .

By an interlocutory judgment on DATE the court decided to hear , on DATE , the views of the senior physician of the " Veldzicht " clinic .

ORG On that date the physician in question failed to appear , but the court did not consider it necessary to call him again , because Mr PERSON no longer intended to marry .

On DATE it extended by DATE the applicant ’s placement , stating that it had been interrupted during his detention on remand .

The applicant , who had absconded on DATE , was informed of this decision by his lawyer , who , after making numerous representations , received a copy of it on DATE .

ORG On DATE before ORG , to which he had appealed against the interlocutory order of CARDINAL DATE ( see paragraph CARDINAL above ) , the applicant relied on LAW ( h ) of LAW . He considered that his continued confinement was unlawful inasmuch as the judgment of CARDINAL September CARDINAL had not been rendered within DATE of the application for extension submitted by the Attorney General ( see paragraphs CARDINAL above and paragraph CARDINAL below ) . By a judgment of DATE , the court rejected this argument on the ground that the delay in giving judgment did not affect the validity of the decision delivered on DATE by ORG . It also dismissed the complaints directed against the President ’s order , which it upheld .

ORG On DATE Mr PERSON unsuccessfully requested the Minister for ORG to order his conditional release . On DATE he went voluntarily to ORG " , where he was confined .

ORG On DATE the Attorney General filed an application for a further extension of the applicant ’s confinement for a period of DATE . During the hearing PERSON repeated her earlier arguments ( see paragraphs CARDINAL and DATE above ) , but the court rejected them by a decision of DATE . However , it refused to allow the Attorney General ’s application , finding that there were not sufficient reasons for granting it .

ORG Since DATE LAW ( PERSON ) has contained special provisions applying to persons suffering from a mental deficiency or mental illness . The provisions were substantially amended by an LAW of DATE , which came into force on DATE . According to LAW as applicable to the events in the present case ) , the perpetrator of an offence which can not be imputed to him because he suffers from a mental deficiency or mental illness is not liable to punishment . If the protection of public order so requires , the court may direct that such a person be placed at the ORG ’s disposal so that he can receive treatment at the ORG ’s expense .

Such a measure may also be taken in conjunction with a criminal sanction if the convicted person ’s responsibility was merely diminished at the time of the offence ( LAW ( a ) ) .

Under LAW ( b ) LAW , the placement lasts for DATE unless the Government terminates it earlier . This period commences as soon as the judgment ordering it has become final ( paragraph CARDINAL thereof ) ; it is suspended by any other deprivation of liberty resulting from a judicial decision ( paragraph CARDINAL , according to the most widely accepted interpretation ) .

ORG The court which makes the initial order may extend the confinement , on each occasion for DATE ( Article CARDINAL ( b ) § CARDINAL ) , on an application by the crown prosecutor , himself acting on the opinion of the director of the clinic . To this end , the crown prosecutor has to submit an application to the court in question not DATE and not less than one month before the placement period is due to expire ( Article CARDINAL ( f ) § CARDINAL ) . According to case - law , failure to comply with this requirement renders the application inadmissible .

The prosecutor must attach to his application a copy of the clinic ’s report on the physical and mental health of the person concerned together with a reasoned declaration - preferably by the doctor treating the patient - on the appropriateness of extending the confinement ( LAW ( f ) LAW ) .

Article CARDINAL ( g ) governs the procedure to be followed for the examination of the application : if possible the court is to hear the person in question and , if it considers additional information to be necessary , interview witnesses and experts . The crown prosecutor and the lawyer of the person confined may attend any hearing , of which a record is drawn up .

By a circular of DATE , the Minister for ORG issued instructions to the courts to hear the person concerned before extending his placement .

ORG By virtue of LAW ( h ) LAW , the court is to give its decision within DATE following the lodging of the application . However , LAW b ) § CARDINAL states that the person concerned remains at the Government ’s disposal until the court has ruled on the extension . In a judgment of DATE ( PERSON ( GPE ) DATE , no . CARDINAL ) , ORG ) took the view that the last - mentioned rule applied even if the court exceeded the DATE time - limit , which was merely of an exhortatory nature . While recognising how inconvenient this interpretation might be for the person concerned , the court noted that this did not mean that the latter was entirely without a remedy against such a breach :

" if , once the time - limit laid down in LAW ( h ) has expired , the decision provided for in that provision is arbitrarily delayed , the Government may find itself required , if necessary as a result of legal action by the person confined , to terminate the placement extended pursuant to LAW . "

By a judgment of CARDINAL DATE ( GPE DATE , no . CARDINAL ) ORG ) gave the following clarification regarding the DATE decision : in itself the failure to comply with the time - limit laid down in LAW ( h ) does not give rise to an obligation to terminate the placement ; the existence of such an obligation depends in particular on the extent to which , and the reasons for which , the time - limit is exceeded as well as the personal and social interests at stake .

According to a judgment of ORG ) of DATE ( GPE DATE , no . CARDINAL ) , it falls to the court to decide to what extent it must state its reasons in the order extending the confinement , which is neither delivered in public nor appealable ( LAW ( h ) § CARDINAL ) , but is served on the person concerned ( LAW ( h ) § CARDINAL ) .

ORG A person placed at the Government ’s disposal may at any time request the Minister for Justice to revoke the measure . By virtue of LAW ) , the Minister may terminate the confinement at any moment , unconditionally or conditionally , if personal or material circumstances justify such a decision .