Violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant , a NORP national born in DATE , is resident at GPE , in the GPE of GPE ; he is a journalist by profession .

ORG On DATE , he published in ORG a GPE DATE newspaper which is no longer in existence - an article containing accusations of fraud against a company , ORG , and its director , Mr. PERSON . In the article he called for a search to be effected at Mr. Vass’ home , offices and other LOC and , should the search prove positive , for his arrest . DATE , Mr. PERSON had lodged with the LOC Attorney ’s office ( PERSON ) a complaint which , for reasons of jurisdiction , was transferred to the GPE authorities . The latter , after hearing evidence from Mr. PERSON on DATE , discharged the case on DATE .

The facts recounted by the applicant had already been the subject of an article by another journalist , Mr. PERSON , which appeared on DATE in the DATE newspaper " Blick " . Mr. PERSON complained that in order to promote sales of a telephone directory , the company in question had been using subscription forms ( ORG ) that resembled telephone bills . In his view , such conduct could create the impression that this was an ordinary service provided by the NORP postal authorities , giving rise to a debt that had to be paid in the same way as a periodical invoice .

Télé - Répertoire S.A. and Mr. PERSON brought against both journalists a criminal complaint of defamation ( ORG ) committed through the press .

The complaint against Mr. PERSON was filed on CARDINAL DATE in the ORG . On DATE , the investigating judge questioned the parties in the presence of their lawyers . Previously , the applicant ’s lawyer , Mr. PERSON , had supplied certain documents and called for evidence to be submitted ; on DATE , he requested that several witnesses be heard . However , on DATE ORG suspended the proceedings , at Mr. Vass’ request , until completion of the proceedings instituted against Mr. PERSON , the " Blick " journalist .

The latter proceedings , which had begun on DATE and had encountered numerous procedural vicissitudes , resulted on DATE in a judgment of ORG ( Obergericht ) : Mr. PERSON was fined CARDINAL GPE and ordered to pay CARDINAL GPE in court costs , together with compensation of CARDINAL GPE to each of the private prosecutors in respect of their expenses .

ORG On DATE , even before that judgment had been delivered , Mr. PERSON had formally requested that the proceedings against Mr. PERSON be resumed ; when doing so , he drew the ORG court ’s attention to the statutory limitation period .

On DATE , the court granted the request and asked Mr. PERSON to indicate whether he demanded that his case be heard before an assize court . Mr. PERSON replied in the affirmative and ORG therefore relinquished jurisdiction on DATE .

On DATE , ORG ( Anklagekammer ) of ORG declared the complaint admissible and directed that the case be remitted to the GPE of ORG ( Geschworenengericht ) ( Article CARDINAL of the Zürich Code of Criminal Procedure ) . On DATE , the applicant entered a public law appeal against this decision ; it was dismissed by ORG on DATE .

On DATE , the registry of ORG had told Mr. PERSON , Mr. Vass’ lawyer , by telephone that the hearings would be held DATE , but they were subsequently postponed to await ORG judgment . When that judgment was delivered on DATE , it was too late , according to the Government , to hold the hearings on the date originally envisaged . However , on DATE ORG invited the parties to present their submissions on the apportionment of costs , having regard to the fact that the " absolute " limitation period ( see paragraph CARDINAL below ) was close to expiring . Both parties did so in writing . Mr. PERSON also asked ORG to obtain certain evidence .

ORG On DATE , ORG ( PERSON ) decided that it could not hear the complaint ( ORG der ORG ) against the applicant because the " absolute " limitation period of DATE had expired on DATE ( Articles CARDINAL and CARDINAL of LAW ; see paragraph CARDINAL below ) . It directed that Mr. PERSON should bear CARDINAL of the court costs ( ORG der PERSON ) , namely CARDINAL GPE out of a total of CARDINAL GPE , the balance being payable by the private prosecutors ; it also ordered him to pay to each of them compensation of CARDINAL GPE in respect of their expenses , as against their claim of CARDINAL GPE .

ORG The decision on this point was based on LAW , whereby the losing party is to bear the costs of the proceedings and is to pay to the other party compensation in respect of his expenses , unless special circumstances warrant a departure from this rule .

ORG found that in the instant case it was the private prosecutors who were the losing party : as a result of limitation , they had not obtained the applicant ’s conviction . It then referred to GPE case - law according to which , in cases ending in an acquittal ( Freispruch ) on account of criminal irresponsibility or in a decision to terminate the proceedings ( ORG ) following the death of the accused , it is of significance to know , when the costs are being apportioned , what the judgment would have been had the accused been criminally responsible or survived . In its opinion , the same applied when the prosecution was terminated on account of limitation ; " the obligation to bear the costs and expenses " must in such circumstances " depend on the judgment which would have been given had there not been limitation " . The ORG added that the costs of a private prosecution could never be left to be borne by the ORG and that according to the established practice in the matter there was no call to conduct a further investigation into the facts .

To discover what the result of the prosecution would have been in the absence of limitation , the ORG referred to the judgment ( which has since become final ) which ORG had given on DATE in the case of the journalist , Mr. PERSON ( see paragraph CARDINAL above ) . After summarising the judgment and citing extensive extracts , the ORG stated ( translation from NORP into NORP supplied by the Government ) :

" It can be accepted , as is done by the private prosecutors , that the present case is , with slight variations , the same as that referred to , namely the proceedings before ORG against the journalist PERSON for defamation . In fact , PERSON , by maintaining that there had been fraud in the instant case and calling for Mr. PERSON to be placed in detention on remand , has brought much more serious accusations against the private prosecutors . Unlike PERSON , the accused apparently made no effort to verify his accusations . PERSON was a target of the private ORG publicity campaign when , in DATE , he received from the company ORG Editions PERSON a printed subscription form . However , according to his own statement , he was not deceived . Looking at the card more carefully , he found on the back a printed note ‘ which gave it to be understood in a rather indirect manner that the invoice was intended to pay for an entry in heavy print in a telephone directory’ ( ref . CARDINAL ) . When , DATE , PERSON ’s article appeared in " Blick " , PERSON himself formulated the accusations in question , with the object , according to his own statement , of inducing the postal authorities to take action . Nevertheless , he did not previously contact either the private prosecutor Mr. PERSON or his company because the facts seemed to him so clear that he did not consider it necessary to do so ( ref . CARDINAL p. CARDINAL ) .

By failing to obtain more precise information from the private prosecutors , the accused committed a breach of his duty of care . He ought in fact to have made himself aware of the steps taken by them with a view to avoiding all risk of confusion . After obtaining this information he could at most have indicated his disapproval of their methods , but he did not have the right to accuse them of fraud publicly and in such a flagrant manner . As he nevertheless did so , he would in all probability have been convicted of defamation if the present proceedings had not been terminated on account of limitation . This conclusion is rendered more compelling by the fact that the proceedings for fraud initiated on the complaint of the accused against Mr. PERSON in GPE ended in a discharge ( DATE ) ; the costs of the proceedings were ordered to be paid by the ORG . The discharge was based on the absence of facts which would have made it possible to find that the constituent elements of the offence of fraud existed ( ref . CARDINAL and DATE ) . The arguments the accused adduces against this decision can no longer be examined in the present proceedings . That would have been possible if ORG had been required to reach a decision on the merits of the charge .

Given that LAW authorises the court to take account of the ‘ special ORG , this means that it must take into consideration all the relevant circumstances in making its decision on the apportionment of costs . As stated by the GPE of ORG in its unpublished decision of DATE , cited above , these circumstances include the fact that the private prosecutors contributed by their behaviour to the initiation of the proceedings , within the meaning of LAW . The fact that the subscription forms were sent without envelopes until DATE and , sporadically , in DATE may have given the accused the impression that the prosecutors had sought to create confusion or were at least not concerned about it . The fact of combining the offer and the invoice in their communication must also be considered as improper , as was moreover already noted by ORG in its judgment . The private ORG commercial practices , which had already been publicly denounced , were indeed the cause of the article complained of . The accused ’s reactions were accordingly provoked by the private prosecutors . Even though the accused acted for a specific purpose , his attack was nevertheless excessive . It clearly went beyond the bounds of what was tolerable .

It must therefore be assumed that if the proceedings had not been terminated on account of limitation , the article against which the complaint was filed would very probably have led to the conviction of the accused ; on the other hand , it was the private ORG behaviour which caused the accused to draw their reprehensible commercial practices to the attention of the public and the competent authorities . It is therefore justified to order the accused to pay CARDINAL of the court costs and the prosecutors CARDINAL . The parties’ expenses must be settled in the same proportions , on the basis that the total sum involved amounts to MONEY ; ... "

On DATE , Mr. PERSON filed , on behalf of Mr. PERSON , an application for this decision to be quashed ( PERSON ) ; reliance was placed , inter alia , on LAW ( article LAW ) of the Convention .

The GPE of ORG ( Kassationsgericht ) dismissed this application on DATE . It treated the presumption of innocence as being a rule of evidence . It noted that it was undisputed that the publication complained of was defamatory . Accordingly , the applicant could not have avoided conviction , if the proceedings had not been terminated on account of limitation , unless he had had grounds for believing his allegations to be true ; however , ORG had found that this was not the case . According to ORG , LAW ( article DATE ) could not be interpreted to mean that the good faith of a person charged with defamation must be presumed until the contrary was proved , in other words , that it was for the private prosecutor to prove bad faith on the part of the accused . It could not be supposed that the LAW intended to overturn ( umwälzen ) in such a way the criminal law of GPE . Moreover , the field of application of LAW ( article LAW ) was not very clear . For the reason stated , it could not be accepted that it extended to the establishment of the truth in a criminal prosecution for defamation . It followed that ORG had not violated this provision by reaching the conclusion , without taking evidence ( GPE ) , that Mr. PERSON had not succeeded in proving the truth of his allegations against the private prosecutors .

ORG directed that the applicant was to pay CARDINAL GPE in court costs and ordered him to pay to the private prosecutors compensation of CARDINAL GPE in respect of their expenses .

ORG On DATE , Mr. PERSON , on behalf of Mr. PERSON , filed with ORG a public - law appeal based on LAW ( article LAW ) of the Convention .

On DATE , at the applicant ’s request , the President of the ORG suspended the proceedings , on the ground that various cases raising similar issues were pending before ORG ( applications nos . CARDINAL/CARDINAL and CARDINAL , PERSON and GPE , respectively , against GPE ; application no . CARDINAL/CARDINAL , GPE against GPE ) . The proceedings were resumed after these cases had formed the subject of friendly settlements under LAW , sub - paragraph ( b ) ( article CARDINAL-b ) , of the LAW .

ORG LAW of ORG dismissed the appeal on DATE .

It recalled first of all that since this was a private prosecution for defamation , without the intervention of the public prosecutor , the costs could not be borne by the ORG : they had to be apportioned ( aufteilen ) between the parties in some way or another . Account also had to be taken of the fact that not only the accused ’s criminal responsibility but also the private prosecutor ’s reputation were at stake in such proceedings . This special situation might have repercussions on the method of apportioning the costs .

According to ORG , if , owing to a subsequent procedural obstacle , criminal proceedings did not terminate in a judgment on the merits but in a decision which left open the question of guilt ( discharge or declaration that the complaint could not be heard ) , reasons of equity might necessitate the taking into account , in the decision on costs , of the probable result of the proceedings in the absence of such obstacle . It was therefore justified to consider , after a provisional examination of the merits of the case ( " aufgrund einer provisorischen ORG materiellen ORG " ) , which party would probably have been successful in the absence of limitation .

In the instant case , there had been no violation of the presumption of innocence as the result of the imposition of a punishment without guilt being established in accordance with the law . Neither had there been any measure implicitly amounting to a judicial finding of a criminal offence , equivalent to a conviction . Admittedly , ORG came to the conclusion , " by anticipating partially the assessment of the evidence , that the applicant should probably have been convicted of defamation " . This was , however , not " a formal finding of criminal guilt , but an estimation of the probable result of the proceedings ( " Würdigung der Prozesschancen " ) " . As the ORG had to come to its decision on the basis of the evidence before it and as Cantonal practice prohibited its making any further investigation into the facts for the sole purpose of apportioning the costs , it was still possible that the proceedings might have resulted in an acquittal had they run their ordinary course . An order to pay costs was not in itself to be regarded as equivalent to a criminal conviction . Since the ORG had rendered a decision only on the apportionment of costs and not on criminal guilt , the applicant ( and also the private prosecutor ) could not rely on LAW ( article LAW ) of the LAW to insist that the provisional examination undertaken in the present case should follow the procedure required for a decision on the merits .

ORG added that the criterion of the probable result of the proceedings could be utilised only if the data available enabled a sufficiently reliable estimate to be made and if the parties had previously had an opportunity to express their views on the matters relevant to the apportionment of costs . However , the limits to be respected in this context were based not on the presumption of innocence but on the general principle forbidding arbitrary decisions and on the right to be heard . And the applicant had made no complaint in this respect .

Finally , ORG noted that ORG had not only considered whether the proceedings would have ended in Mr. PERSON ’s conviction had there not been limitation , but had also had regard to the conduct of the CARDINAL private prosecutors before the trial . ORG directed that the applicant was to pay CARDINAL GPE in court costs and ordered him to pay to the respondents’ compensation of CARDINAL GPE in respect of their expenses .

Offences involving an attack on a person ’s honour ( délits contre l’honneur ) are governed by ORG CARDINAL to CARDINAL of the Swiss Federal Criminal Code of DATE . Simple defamation ( diffamation ) entails liability to a sentence of imprisonment for not DATE ( Article CARDINAL ) and serious defamation ( calomnie ) , a sentence of imprisonment for not DATE ( Article CARDINAL combined with Article CARDINAL ) .

Under LAW , prosecution for these offences is subject to a DATE limitation period . However , the running of time will be interrupted and will commence afresh whenever any measure of investigation is taken . Nevertheless , for offences involving an attack on a person ’s honour there is in any event " absolute " limitation after DATE , that is twice the normal limitation period ( Article CARDINAL § CARDINAL of LAW ) .

ORG In GPE , criminal proceedings for such offences are instituted by means of a private complaint ( PERSON ) . In the GPE of GPE , as in MONEY , the proceedings are known as LOC ( LAW ) : it is for the injured party , not the ORG authorities , to take the initiative . The public prosecutor does not take part in the proceedings .

Cases are normally heard by ORG ( Bezirksgericht ) , but the accused may apply for a transfer to ORG if the alleged defamation has been committed through the press ( LAW and LAW of LAW of LAW ) . In that event , FAC of the GPE of ORG - rather than the President of the ORG - rules on the admissibility ( GPE ) of the complaint ( LAW ) .

If the court decides that the complaint can not be heard , the private prosecutor may appeal ( LAW ) , but if the court decides that the complaint can be heard , the accused can not appeal except on the ground that the court lacks jurisdiction .

Under section CARDINAL § CARDINAL of LAW , judgments in criminal matters must include decisions both on the question of guilt and the consequences thereof - acquittal , sentence , imposition of measures of prevention or assistance - and on damages ( NORP ) , costs and compensation ( ORG ) .

Details of the apportionment of costs and expenses , unlike those of the sentence passed , are entered only in the court ’s register of criminal cases and not in the judicial criminal records ( casier judiciaire ) .

ORG In the context of private prosecutions , costs include compensation to the parties in respect of their expenses ( ORG ) as well as court costs properly so - called ( court and registry fees ) ; their incidence is determined by reference , inter alia , to what caused the court costs and expenses to arise . It follows that the costs are in principle never paid by the ORG but must be borne by the parties themselves ( LAW ) . In this connection , LAW provides :

" The losing party shall bear the court costs and shall pay compensation to the other party in respect of his expenses ; a departure from this rule can be made only if special circumstances so warrant . "

When determining the apportionment of costs and expenses , the court , according to the ORG , enjoys a certain discretion in the choice of the criteria to be applied . It can take account , inter alia , of reprehensible or irresponsible behaviour by the parties before or during the investigation ( ORG CARDINAL and CARDINAL of LAW ) ; of their having violated the principles of good faith or morality ; of the principle of equity ; and , finally , of questions of causation , which may lead it to form an estimate of the probable result of the proceedings .


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

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

On DATE the applicant and other suspects were arrested on suspicion of assault . By a decision of CARDINAL DATE of ORG , the applicant was remanded in custody . His detention was ordered for DATE , i.e. until DATE CARDINAL.The prosecutor referred to the strong probability of the applicant ’s guilt , the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses .

On DATE the ORG prolonged the applicant ’s detention until DATE . The court noted that the investigation had not yet been completed since CARDINAL of the co - accused had lodged a complaint concerning an anonymous witness and , in addition , some of the witnesses whose whereabouts were unknown had still to be heard . The court further noted that , in spite of the fact that the victims of the assault had changed their initial testimony , there were still serious grounds for believing that the applicant had committed the offences in question . The court also observed that the law did not require that the evidence in support of detention had to be such as to justify a conviction .

On DATE the bill of indictment was lodged with ORG .

On DATE the ORG informed the applicant that he could not intervene in the pending proceedings because this might constitute an interference with judicial independence .

On DATE the applicant lodged a motion , requesting suspension of the criminal proceedings due to the fact that the whereabouts of the victims of the alleged assault were unknown and he was unable to put questions to them . The applicant relied on his right to be given an opportunity to question witnesses on his behalf on the same conditions as those against him , as guaranteed by ORG .

On DATE ORG refused to release the applicant , observing that he had failed to indicate any new circumstances justifying his request .

By a decision of DATE ORG dismissed the applicant ’s motion for the suspension of the proceedings , finding that LAW allowed for a possibility of using indirect testimony in case the witnesses could not be examined at a hearing .

On DATE ORG convicted the applicant and sentenced him to CARDINAL GPE imprisonment . On DATE the court decided to uphold the applicant ’s and other GPE detention , finding that all of them had been sentenced to CARDINAL GPE imprisonment and that the grounds for release provided by LAW were insufficient .

In a letter of DATE to the applicant ’s lawyer , ORG observed that the appeal against the first - instance judgment submitted by him was not entirely consistent with the appeal prepared by his client and asked him to respond to the applicant ’s allegations that he had failed in his duties as a legal counsel by not discussing with him the issue of the appeal .

On DATE ORG quashed the judgment of DATE and referred the case back to ORG , concluding that the reasoning of the first - instance court , which had led to the applicant ’s conviction , contained a number of flaws regarding both fact and law and was thus not entirely satisfactory . The court also expressed its concern that the rights of the defence had been violated . On DATE the court decided to uphold the applicant ’s detention on remand , considering that there was still a strong probability of his guilt and that it was necessary to ensure the proper conduct of the proceedings . The court found no circumstances justifying the applicant ’s release under LAW .

On DATE ORG dismissed the applicant ’s request for release , considering that his detention was necessary to ensure the proper conduct of the proceedings and finding no particular family circumstances requiring his release . The court observed that burdensome effects on a detainee ’s family were inherent in detention . On DATE ORG refused to release the applicant , invoking the same arguments as above .

In a letter of CARDINAL DATE the President of ORG confirmed the view expressed in his letter of DATE to the applicant concerning the question of determining the period of detention on remand once a first - instance judgment had been rendered . The fact that the first - instance judgment had been quashed did not affect his opinion . He further stated that it was not his function to assess the evidence gathered in the proceedings . Concerning the complaint about the excessive length of the proceedings , the President noted that the case file had been transferred back to ORG and that the case would be allocated to a judge rapporteur after he was back from holidays .

On DATE ORG , referring to the resolution I KPZ CARDINAL of DATE by ORG , informed the applicant that the period of detention on remand was limited only until the delivery of the first - instance judgment even though it was to be quashed by the second - instance court .

On DATE ORG informed the applicant that it examined complaints concerning detention on remand only in accordance with the procedure prescribed under LAW

On DATE ORG dismissed the applicant ’s request for release . The court expressed the opinion that the applicant ’s concerns as regards his family ’s situation were premature .

On DATE , in reply to the applicant ’s letter of CARDINAL DATE , ORG observed that all the applicant ’s motions with regard to quashing his detention on remand could be only examined by the court at the disposal of which he was placed .

On DATE the President of ORG sent an explanatory letter to ORG . It transpires from this report that the courts refused to quash the applicant ’s detention on remand on DATE , DATE , DATE , DATE , on CARDINAL and DATE , DATE and DATE , DATE , DATE , on DATE and DATE and on DATE . The President admitted that the problem of the indefinite time - limit of the detention on remand after the delivery of the first - instance judgment , until it was decided by ORG , might be a controversial one . In his view , the notion of “ the judgment ” under LAW of LAW covered the notion of “ the judgment quashed by a second - instance court ” since “ lege non distinguente nec nostrum est distinguere ” . The phrase “ delivery of the first - instance judgment ” must have been used by the legislator knowingly and clearly indicated the date until which the court was obliged to determine the time - limit of the detention on remand .

At the hearing of DATE ORG refused to release the applicant , considering that in view of the seriousness of the charges , his detention was warranted . The court also noted that the time - limits for detention on remand set out in LAW procedure did not apply to the applicant ’s case . As regards the applicant ’s family ’s situation , difficult as it might be , it was not so critical as to justify his release .

On the same date the president of ORG informed the applicant that the detention order given by the prosecutor was in compliance with the then ( i.e. in DATE ) applicable provisions of procedural law . The entry into force of the new provisions on DATE did not result in the unlawfulness of the detention orders issued prior to that date . In addition , the preventive measure imposed on the applicant had been repeatedly examined by the courts , i.e. on DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE and DATE and DATE . He further stated that he was not in a position to interfere with the decisions of independent courts , including those concerning the imposition of preventive measures and determining the time - limit of the detention on remand . He finally observed that the applicant could at any time apply to the court to be released .

On DATE the Chancellery of the President explained to the applicant that the President could not interfere with court proceedings since , in accordance with the constitutional principle of division of powers , the judicial authorities were independent of the executive organs .

At a hearing of DATE ORG dismissed the applicant ’s request for release , considering that his detention was justified by the strong evidence of his guilt . The court reiterated that the obligation to determine the period for which detention could be prolonged existed only until the judgment of the first - instance had been given .

In a letter of DATE the Minister of Justice shared the view put forward by the President of ORG in his letter of DATE , as regards the interpretation of the notion of “ the judgment ” in the phrase : “ until the date of the delivery of the first - instance judgment ” , arguing that it also referred to “ the judgment quashed by a higher instance ” . He further stated that he was not empowered to review the grounds on which the courts ordered detention on remand and that the applicant could at any time file a request for release .

In a letter of DATE the applicant complained about the refusal of ORG at the hearing on DATE to allow his request for his release and the suspension of the proceedings . He observed that the alleged victims had given contradictory testimony and had left GPE . Further , the applicant stated that the proceedings served mainly the purpose of establishing the truth and therefore , reading out the indirect evidence at the hearing would be in breach of his defence rights and contrary to the requirements of a fair trial . The applicant relied on his rights guaranteed by LAW and LAW .

At the hearing of DATE ORG dismissed the applicant ’s request for release , which had been submitted by his lawyer , reiterating its position as regards the time - limits for the detention on remand after the delivery of the first - instance judgment . The court invoked the resolution no . I KPZ CARDINAL/CARDINAL OSNKW of DATE of ORG .

On DATE ORG dismissed the applicant ’s request for release , considering that he had failed to indicate any new circumstances justifying his request .

In a letter of CARDINAL DATE the President of ORG informed the applicant that on DATE ORG had quashed the first - instance judgment of DATE and upheld the applicant ’s detention without fixing the date up until which the detention was to last . On DATE the applicant had been in detention for DATE . The case had been referred to ORG for re - examination . ORG had not found it necessary to determine the point until which the detention should last or to file a request with ORG to prolong the applicant ’s detention on remand , considering that there were no time - limits for the detention on remand after the delivery of the first - instance judgment . The court admitted that there was a legal problem as regards the interpretation of LAW of LAW , which should be resolved by ORG in order to establish common practice . The court maintained its position on this matter , declaring that the period of detention on remand was limited only until the delivery of the first - instance judgment even though it was quashed by the second - instance court .

On DATE ORG dismissed the applicant ’s request for release , relying on the grounds invoked in the previous decisions .

By a judgment of DATE of ORG , the applicant was found guilty of the charges against him and sentenced to CARDINAL years’ imprisonment . On DATE the court decided to release the applicant , observing that the judgment had been pronounced and there was no further need for the applicant ’s continuing detention . The court observed that the family situation of the applicant and the co - accused was difficult and that they had been already detained for DATE .

On DATE the ORG informed the applicant that the stance on the issue of time - limits for detention on remand taken by the President of ORG as well as ORG was in line with the jurisprudence of ORG at that time . As regards the preventive measure imposed on the applicant , he did not consider it contrary to LAW . In addition , LAW , the applicant could at any time apply to have a preventive measure quashed or altered . As to the applicant ’s complaint relating to the length of the proceedings , the ORG had requested ORG to inform him about the state of the proceedings .

Apparently on DATE the applicant was again detained on remand in connection with certain investigative proceedings concerning unspecified charges .

On DATE ORG , having examined the applicant ’s appeal against the judgment of DATE acquitted him of all charges . The prosecutor filed a cassation appeal against this judgment .

At the hearing of DATE ORG decided not to examine the cassation appeal due to the fact that the public prosecutor had withdrawn it .

At the material time the domestic provisions governing detention on remand were contained in LAW of DATE , which is no longer in force as it was repealed and replaced by LAW DATE ( currently referred to as the “ GPE Procedure ” ) .

The Code of Criminal Procedure of DATE listed detention among the so - called “ preventive measures ” ( those measures were , inter alia , detention on remand , bail and police supervision ) . Until DATE ( i.e. the date on which the PERSON of DATE on LAW to LAW and Other Criminal Statutes came into force ) a prosecutor was empowered to order all preventive measures as long as the investigation lasted . Also , at the material time the national law did not set out any statutory time - limits concerning the length of detention on remand in court proceedings ; however , under LAW a prosecutor was obliged to determine in his decision the period for which detention was ordered .

That Article stated ( in the version applicable at the material time ) :

“ Preventive measures shall be ordered by the court ; before a bill of indictment has been lodged with the competent court , those measures shall be ordered by the prosecutor . ”

Article CARDINAL of LAW ( in the version applicable until DATE ) , insofar as relevant , stated :

“ CARDINAL . The prosecutor may order detention on remand for a period not exceeding DATE .

( CARDINAL ) the court competent to deal with the case , upon the prosecutor ’s request , for a period not exceeding one year ;

( CARDINAL ) ORG , upon request of ORG , for a further fixed term required to terminate the investigations . ”

Article CARDINAL of LAW , as applicable after DATE , provided , insofar as relevant :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning ordinary offences . In cases concerning serious offences this period may not exceed DATE .

In particularly justified cases ORG may , upon the request of the court competent to deal with the case ( ... ) prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

The courts , when ruling on a prosecutor ’s request under LAW of the code , were obliged to determine the precise period for which detention should be prolonged . If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order ( regardless of whether it had been made by him or by a court ) , the detainee had to be released immediately .

Article CARDINAL § CARDINAL of LAW provided :

“ CARDINAL . A preventive measure ( including detention on remand ) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one . ”

Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) ( in the version applicable at the material time ) provided :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means ;

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society . ”

In its resolution no . I ORG CARDINAL of DATE , ORG stressed that :

“ ... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect ( accused ) should in no case be detained indefinitely until the first - instance judgment is rendered in his case ...

It should be noted that , from the point of view of procedural safeguards for an accused , what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings , but the total period of his detention and whether his detention and its length are subject to review . If there is such a review at the investigation stage ( LAW and CARDINAL ) , there is no reason why there should not be one at the stage of the court proceedings ... ”

Also , at the time , the code set out CARDINAL different legal avenues whereby a detainee could challenge the lawfulness of his detention : an appeal to a court against a detention order made by a prosecutor ; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor ; and proceedings relating to a detainee ’s application for release .

On DATE LAW replaced the DATE Code .

Article CARDINAL of the DATE Code , insofar as relevant , provides :

“ § CARDINAL . During investigation the court which decides about detention on remand shall impose it for a period not longer than DATE .

§ CARDINAL . If the special circumstances of a case make it impossible to conclude the investigation within the time - limit provided in § CARDINAL , detention on remand may be prolonged , at the request of the prosecutor and when it is necessary , by :

the trial court DATE for DATE ,

the appeal court DATE for a further fixed period necessary to conclude the investigation but not longer than DATE .

§ CARDINAL . The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed DATE .

§ CARDINAL . Detention on remand may be prolonged for a fixed period exceeding the periods provided in § § CARDINAL and QUANTITY only by ORG at the request of the court dealing with a case ( ... ) – if it is necessary because of the suspension of criminal proceedings , the prolonged psychiatric observation of an accused , the prolonged preparation of an expert opinion , the collection of evidence in a particularly complicated case or abroad , a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome . ”