Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

On DATE the applicant married PERSON , a NORP national . The couple had CARDINAL children , PERSON and GPE , who were born in DATE and DATE respectively .

In a judgment of DATE the Bar - le - Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce , whereby parental responsibility was given to the father and the applicant was granted access and staying access .

During DATE ORG moved to GPE with his daughters .

On DATE the applicant lodged a complaint against him for failure to hand over the children to her . She asserted that at DATE had breached her right of access as , without informing her , he had kept them in GPE beyond the midway point of DATE .

On DATE the applicant brought urgent proceedings against ORG in the GPE tribunal de grande instance , applying for parental responsibility and a residence order in her favour , together with an order prohibiting ORG from removing the children from GPE without her consent .

NORP The matrimonial causes judge of the GPE tribunal de grande instance dismissed her application in an interim order dated DATE .

The applicant appealed against that order to ORG , which set it aside in a judgment of CARDINAL DATE . ORG gave parental responsibility to both parents , ordered that the children should live with their mother and granted ORG access and staying access .

D.Z. did not comply with the judgment and did not hand the children over to their mother .

On an application by ORG , who had been living in GPE for DATE , ORG of ORG set aside the judgment of ORG in a judgment of DATE and awarded custody of the children to the father . The applicant , who was neither present nor represented before that court , was granted only access . After consulting a psychologist , who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother , the court held that the children were happy and well integrated in GPE , where they were receiving special protection and attention from the authorities .

In DATE ORG moved to GPE with his CARDINAL children .

In a decision of CARDINAL DATE the investigating judge of the GPE tribunal de grande instance committed PERSON for trial on a charge of failure to hand over a child to the person entitled to its custody , an offence under LAW . The applicant joined the proceedings as a civil party .

On DATE the GPE tribunal de grande instance , having tried ORG in absentia , convicted him and sentenced him to a DATE 's imprisonment for failure to hand over the children and issued a warrant for his arrest .

The warrant could not be executed as ORG was not on NORP territory .

On an unknown date ORG lodged an appeal on points of law with ORG against ORG judgment of CARDINAL DATE .

In a judgment of CARDINAL DATE ORG pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive , dismissed ORG 's appeal and sentenced him to pay a civil fine of MONEY .

NORP The applicant , who had started proceedings in GPE for the recognition and execution of the judgment of CARDINAL DATE , obtained CARDINAL judgments DATE from GPE courts ordering GPE to return the children to her . Thus on DATE , for instance , ORG granted authority to execute the judgment of ORG and ordered PERSON to return the children to their mother .

In a report of CARDINAL DATE an expert in family psychology registered with the GPE courts , PERSON , stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife . While PERSON did not seem to have any particular feelings towards her mother , PERSON told PERSON that her mother was “ ugly and nasty ” and did not love them but only wanted to show them off to others and buy them toys .

In a judgment of CARDINAL DATE ORG held that ORG in GPE had no jurisdiction to set aside ORG judgment of CARDINAL DATE . In a judgment of CARDINAL DATE ORG of the State of GPE once again affirmed the judgment of ORG , holding that the children should reside with the applicant and that their removal from GPE without the court 's express permission would be illegal .

D.Z. did not comply with the GPE judgments . In DATE he left GPE and went to GPE with his children .

In DATE , relying on LAW of DATE on ORG ( “ LAW ) , the applicant applied to ORG – GPE 's ORG for the purposes of that instrument – for the return of her daughters .

In DATE GPE ORG requested ORG ( GPE 's ORG ) to return the children pursuant to ORG and CARDINAL of LAW .

NORP In DATE GPE 's ORG requested GPE 's ORG to return the children pursuant to ORG and CARDINAL of LAW .

Relying on LAW , the applicant made an urgent application to ORG for an order requiring ORG to comply with the court decisions in which a residence order had been made in her favour and the children 's return ordered .

The court delivered its judgment on DATE . It noted , firstly , that ORG , in its judgment of CARDINAL DATE , had ordered that the children should live with their mother and that the GPE courts had ordered the return of the children . It went on to note that ORG had abducted the children in breach of those judgments and that he had been sentenced to a DATE 's imprisonment for failure to hand over a child . It held that the applicant 's application satisfied the requirement of urgency , as her right might be irreparably affected in the event of delay . Moreover , the measure sought was a precautionary one , which did not prejudge the merits of the case but was designed to protect the applicant 's right , which any delay would have jeopardised . Lastly , a prima facie case , which was a requirement for urgent proceedings to be admissible , had clearly been made out . As to the merits , the court held that the provisions of LAW were applicable to the case , as that convention had been incorporated into NORP law by PERSON no . DATE providing for GPE 's accession to that instrument , and in particular , LAW , which enabled the court to rely on foreign court judgments directly without any need for a registration procedure . In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant .

That judgment could not be executed as ORG had hidden the children .

On an unknown date in DATE ORG removed the children from school and took them to an unknown location .

D.Z. appealed against the judgment of DATE . On DATE ORG adjourned the case to DATE and ordered that the children be heard .

On DATE , in the absence of the representative of ORG , which was intervening , and of that of ORG second district of GPE , which was responsible for monitoring and ensuring compliance with the obligations of divorced parents , the court adjourned the case . It also granted an application by ORG for a stay of execution of the judgment pending the outcome of the appeal . No reasons were given for the latter decision .

On DATE ORG asked ORG to carry out a social inquiry at ORG home .

On an unspecified date the mayor of GPE informed ORG that a social inquiry had been carried out by ORG second district of GPE in DATE . The mayor of that district submitted the findings of the inquiry , signed by him , the town clerk and an inspector . They read as follows :

“ The children PERSON and GPE ... live with their father and his wife in an CARDINAL - room house , and each girl has a room of her own .

Their father looks after them very well , as regards both their physical and their mental welfare , providing the best conditions for their upbringing .

It is evident from conversations with the girls in LANGUAGE – they have a command of the language – that they are intelligent , sociable and at ease and that they lead a normal life , read , write and work hard at school .

There is an atmosphere of harmony and friendship and plenty of affection between the girls , their father and his wife .

The girls do not want to go and live with their mother in GPE , whom they remember as a cold and indifferent person . They say that they have always found their father understanding , warm and affectionate .

They are very impressed by GPE and the NORP , among whom they have made many friends . During DATE they went to the countryside and they felt wonderfully well there .

When asked to say whether or not they wanted to see their mother or go and live with her , they replied categorically ' no ' and insisted that any decision concerning them should take their wishes into account .

In conclusion , we consider that in GPE the children PERSON and GPE have the best conditions for their upbringing . ”

In a decision of CARDINAL DATE ORG dismissed ORG appeal against the judgment of DATE .

D.Z. appealed to ORG , which in a final judgment of DATE dismissed the appeal for lack of grounds .

On an unknown date ORG lodged an objection to the execution ( contestaţie la executare ) of the judgment of DATE . After having taken evidence from the children , who reiterated their wish to stay with their father , ORG Instance dismissed the objection on DATE .

On an appeal by ORG against that decision , ORG affirmed it on DATE .

On DATE ORG lodged an application with ORG to be given exclusive parental responsibility . He argued that since DATE he had been living in GPE in a spacious CARDINAL - room house which afforded the children exceptional conditions . They did not want to go to live with their mother , who belonged to a sect .

The court , informed by ORG that the applicant 's address for service was the address of PERSON , caused the date of the hearing to be served only on him . It is clear from documents available to the ORG that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before ORG .

On DATE , at the request of ORG , ORG second district of GPE carried out a social inquiry . Following that inquiry , the mayor of GPE informed the court that the QUANTITY girls were well developed , both physically and psychologically , that they led normal lives , had friends at school and in the neighbourhood and were very attached to their father and his wife , who both looked after them very well and with whom they wished to live .

After holding CARDINAL hearings in the absence of the applicant on CARDINAL and DATE and interviewing the children in private on DATE , the court delivered its judgment on DATE , likewise in the applicant 's absence . Emphasising that the children 's interests were paramount and basing its judgment on documents drawn up by the children 's teachers attesting to their good performance at school , on a letter from ORG to the effect that the sect to which the applicant belonged was not recognised in GPE , and on the social inquiry carried out by ORG , the court allowed ORG 's application , holding that he was providing the best living conditions and upbringing for the children , whom he had , moreover , brought up on his own since the divorce .

On DATE ORG set aside that judgment on appeal because of an irregularity in the service of notice on the applicant , and remitted the case to ORG . It noted that the applicant lived in GPE , that she had given PERSON special authority to represent her in another set of legal proceedings and that consequently , in the absence of special authority in the case before the court , the summons should have been served at her permanent address in GPE .

D.Z. challenged that decision on the ground that the applicant had given PERSON general authority to act for her and that consequently the service of the court documents at his address was valid .

In a judgment of DATE , delivered in the absence of either the applicant or any representative of hers , ORG allowed the appeal on the ground that the applicant had given PERSON general authority to act on her behalf . It set aside the decision of DATE and remitted the case to ORG for reconsideration of the appeal .

The case was set down for hearing in ORG on DATE . According to the record of the hearing made on DATE , the hearing was attended by ORG , his lawyer and the assistant of ORG , the lawyer who , according to the court , was supposed to be acting on behalf of the applicant . The ORG can not determine from the documents submitted to it which of ORG and PERSON was regarded by ORG as having been appointed by the applicant .

The assistant pointed out that PERSON was absent and sought an adjournment of the hearing . That application was refused after the court had heard the submissions of counsel for ORG It gave its decision on DATE , in the absence of the applicant or a representative . Without mentioning the issue of the applicant 's representation , the court dismissed the appeal and thus upheld the judgment of CARDINAL DATE , noting that the children wished to stay with their father , who was affording them the best living conditions .

It appears that an appeal against the decision of CARDINAL DATE was lodged on behalf of the applicant . It can not be determined from the documents submitted to the ORG whether the applicant herself entered the appeal . However that may have been , ORG dismissed the appeal for lack of grounds on CARDINAL DATE . As was apparent from that decision , which the ORG did not file with ORG until DATE , only ORG attended the hearing on CARDINAL DATE .

In an application dated DATE PERSON applied to the family judge of the PERSON tribunal de grande instance for an order transferring the children 's residence to his address and granting him exclusive exercise of parental responsibility .

After many adjournments the tribunal de grande instance delivered a judgment on DATE . It held firstly that it was unnecessary to take account of the judgment of ORG of DATE because that court had no jurisdiction to deal with the merits of the custody of the children , since the NORP courts could only deal with an application for the return of the children under LAW . The tribunal de grande instance then declined to take evidence from the children . It found that since DATE ORG had prevented them from seeing their mother and that he had brought them up to feel hatred for her . In letters of CARDINAL and CARDINAL DATE , in which they spoke of their mother , the girls had used terms such as “ idiot ” and “ my ex - mother ” and had hoped that “ her house or her flat [ would catch ] fire and that she [ would be ] in it when it happen[ed ] ” , terms which the tribunal de grande instance found particularly shocking coming from children of CARDINAL and CARDINAL . The tribunal de grande instance concluded that the intolerance , intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment .

The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms :

“ The Family Judge must rule in the interests of the children when determining their place of residence .

ORG held in a judgment of CARDINAL DATE that it was in the children 's interests to live with their mother , in GPE , in their native PERSON , both their parents having opted for NORP nationality .

Since that date the mother has had no further contact with her children because of the father 's actions .

PERSON filed with the ORG the various records of proceedings drawn up in GPE when attempts were made to obtain execution of the decision to return the children , letters from ORG to ORG , from which it appears that PERSON is hiding the children , has acquired a dog which he has trained to attack anyone who approaches the children , and removed the children from school in DATE to avoid their whereabouts being discovered .

He maintained that his behaviour was justified because PERSON Ignaccolo belonged to a sect and had not looked after the children when they cohabited . However , he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in GPE or GPE who did not personally know the children 's mother .

The educative abilities of a father who totally denies the image of the mother , who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated , in order to evade enforcement of court decisions , to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt .

The children 's interests in such a situation are intangible and indefinable , regard being had , firstly , to the pressure and conditioning they undergo with their father and , secondly , to the fact that for DATE they have been away from their mother , whom they no longer know .

The children 's wish to stay and live with their father , as expressed both in their letters and when they were interviewed by the NORP court , can not on its own determine their interests since , if it did , that would amount to laying upon children of CARDINAL and CARDINAL the responsibility of deciding where they should live .

PERSON can not secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time . That being so , his application must quite simply be dismissed ... ”

Since DATE the applicant has gone to GPE CARDINAL times in the hope of meeting her children .

Several attempts were made to execute the decision of DATE but without success .

On DATE a bailiff went to ORG 's home , accompanied by the applicant , her lawyer , a locksmith and CARDINAL policemen . Only PERSON 's wife ORG and a guard dog were at the house . ORG , a NORP national , indicated that she would only allow the bailiff to inspect the house if a representative from the NORP embassy was present . The applicant and her lawyer therefore went to the NORP embassy , where the NORP consul , T. , and an interpreter agreed to accompany them to ORG home .

During the applicant 's absence , but while the policemen and the bailiff were still on the spot , ORG and an uncle of his , PERSON , entered the house . When the applicant returned , accompanied by ORG and the interpreter , ORG allowed those present , with the exception of the applicant , to search the LOC . As the dog was very fierce , the search was carried out hastily and the girls were not found . PERSON remained out of sight during the search .

On DATE the applicant wrote to the NORP Minister of Justice to complain of the course of events on DATE . She requested the Minister to lodge a criminal complaint against ORG for failure to comply with a court decision . Asserting that she had no news of her daughters , she also asked him to institute criminal proceedings against GPE , ORG and PERSON for ill - treatment of minors , false imprisonment and , if applicable , homicide .

On DATE a bailiff , the applicant , her lawyer and CARDINAL police officers again went to ORG 's home . Finding no one there , they spoke to a neighbour , who told them that ORG had left with the children on DATE . The group then went to the home of G.A. , an uncle of ORG , with whom ORG and the children sometimes lived . There they found PERSON and the same guard dog . PERSON told them that he had not seen either ORG or the children since DATE . As to the dog , he told the bailiff that ORG had bought it to protect his daughters .

In a letter of CARDINAL DATE ORG informed the applicant that ORG had lodged a criminal complaint against ORG with the appropriate public prosecutor 's office .

In a letter dated CARDINAL DATE ORG informed ORG that numerous approaches had been made to the police to locate the children , but to no avail , as ORG had withdrawn the children from school . The letter also stated that the NORP authorities had lodged a criminal complaint against ORG ill - treatment of minors . Lastly , ORG acknowledged that PERSON 's bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours .

On DATE a group composed of the applicant , her lawyer , a representative from ORG , CARDINAL bailiffs , QUANTITY police officers and an official from the NORP embassy in GPE went to ORG 's home . The group was able to inspect the house but did not find the children there . During the TIME discussion which followed , ORG stated that the girls were in GPE , but he refused to say more . He nevertheless promised to produce them to ORG on CARDINAL DATE .

A report drawn up by the NORP embassy in GPE on the visit of CARDINAL DATE states :

“ Contrary to what had been announced by PERSON [ of ORG ] before this search , PERSON was not arrested by the police for failure to return the children . In the course of the intervention the public prosecutor 's office , with which Mrs. PERSON was in touch by telephone , reconsidered its position and refused to have ORG brought before it . This change of mind was probably due to an intervention by Mr. PERSON , a very influential lawyer , after he had been alerted by his client GPE ... ”

Neither PERSON nor the children kept the appointment on CARDINAL DATE .

As a consequence , ORG received an official request to report to ORG with his children on CARDINAL DATE , with a view to interviewing the children in the presence of their mother . On CARDINAL DATE only PERSON , PERSON 's lawyer , went to ORG and reiterated his client 's refusal to produce the children .

On DATE a fresh attempt to execute the judgment was made . The applicant , her lawyer and a bailiff went to ORG 's home . Only the bailiff and the applicant 's lawyer were allowed in by the CARDINAL policemen from the sixth district who were already on the spot , the applicant being requested to stay outside . According to ORG and the policemen , the children were not in the house . The bailiff , however , was not allowed to check those assertions for himself . Shortly afterwards a police inspector whom neither the CARDINAL police officers nor the bailiff knew arrived and asked GPE to produce the children to him on DATE . PERSON finally accepted a proposal from the applicant 's lawyer that he should produce the children at TIME DATE at the bailiffs ' office at ORG .

On DATE the bailiff , the applicant and her lawyer waited for ORG in vain . A report was drawn up on that occasion .

DATE . In a letter of CARDINAL DATE the NORP Minister of Justice informed his NORP counterpart of the applicant 's fears that the NORP police were turning a blind eye to PERSON 's conduct . He therefore asked him to intervene with the NORP police to ensure that they did everything possible to secure the children 's return to their mother .

On DATE the applicant met her daughters for the first time for DATE . The meeting lasted TIME and took place in GPE in the staffroom of the children 's school , where GPE was himself a teacher .

The meeting was attended by a bailiff , CARDINAL senior officials from ORG , the NORP Consul - General in GPE , CARDINAL officers from police headquarters , the headmaster and deputy headmaster of the school and the girls ' CARDINAL form teachers . According to the report drawn up by the bailiff on that occasion , the purpose of the meeting was to convince those present of the girls ' refusal to return to their mother .

When she saw the applicant , PERSON tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother . There followed , without the applicant being present , a discussion in which PERSON stated that her mother had lied to them and done a great deal of harm . She reiterated her wish to stay with her father and never to see her mother again .

As to PERSON , she began to cry and shouted to the applicant to go away , saying that she never wanted to see her again . Her form teacher took the initiative of terminating the interview so as not to traumatise the girl . Once the girls had been removed by the form teachers , the applicant said she no longer insisted on execution of the order of DATE and asked the headmaster to keep her regularly informed of her daughters ' performance at school .

In a letter of DATE ORG , GPE 's ORG , informed ORG , GPE 's ORG , of its decision to order that the children should not be returned . The reason for that decision was the children 's obstinate refusal to see their mother again , which had been apparent at the meeting of CARDINAL DATE .

In a letter of CARDINAL DATE ORG sent the applicant the girls ' average marks for DATE .

In a letter of DATE to ORG the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters ' school results and expressed her disappointment at the paucity of the information supplied on DATE . She said she could not accept such a “ farce ” .

DATE . The relevant provisions of the DATE LAW provide :

“ Treaties lawfully ratified by ORG shall form an integral part of the domestic legal order . ”

“ ( CARDINAL ) The constitutional provisions on citizens ' rights and liberties shall be interpreted and applied in accordance with LAW and with the covenants and other treaties to which GPE is a party .

( CARDINAL ) In the event of conflict between the covenants and treaties on fundamental human rights to which GPE is a party and domestic laws , the international instruments shall prevail . ”

The relevant provisions of LAW read as follows :

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) To discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) To secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) To exchange , where desirable , information relating to the social background of the child ;

( e ) To provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

( g ) Where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) To keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

Article CARDINAL of the Family Code provides :

“ The supervisory authority [ autoritatea tutelară ] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child .

The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them , about their health and physical development , their education ... ; if need be , they shall give the necessary instructions . ”

Article CARDINAL of the Criminal Code provides :

“ It shall be an offence punishable by DATE imprisonment or a fine for CARDINAL of the parents of an under - age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child .

The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents CARDINAL of the parents from having personal relations with an under - age child on the terms agreed by the parties or laid down by the appropriate body .

Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim .

No criminal liability shall be incurred where there has been a reconciliation between the parties . ”

The relevant provisions of LAW read as follows :

“ As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand , proceedings may only be instituted after a complaint by the victim .

The complaint shall be lodged :

( b ) with the body in charge of criminal investigations or with the public prosecutor , in respect of offences other than those referred to in sub - paragraph ( a ) .

“ Where the law requires a criminal complaint to be lodged beforehand , that complaint must be lodged within DATE from the date on which the victim discovered the identity of the person who committed the offence ... ”

“ Where a preliminary criminal complaint is improperly lodged with the public prosecutor 's office or the court , it shall be forwarded to the appropriate body . In that event , it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law . ”

“ The parties may exercise their procedural rights in person or through a representative .

A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so .

If the person who has given the authority to act has no permanent or temporary home in GPE ... , he shall be presumed to have also given authority to represent him in the courts . ”

Unless otherwise provided in a treaty , international convention or special law , persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail ...

In all cases in which those who are abroad have a known representative in GPE , the latter shall be summoned ... ”

“ Whenever the presiding judge finds that an absent party has not been lawfully summoned , he must adjourn the case , failing which the proceedings will be null and void . ”

The relevant provisions of Law no . CARDINAL of DATE amending ORG ( Law no . CARDINAL/CARDINAL ) read as follows :

“ The interests of the ORG shall be represented by ORG organised in departments at each court , under the authority of the Minister of ORG .

The work of ORG Counsel shall be organised in accordance with the principles of the rule of law , impartiality and hierarchical supervision .

“ ORG Office shall have the following duties :

– defending the rights and interests of minors and persons deprived of legal capacity . ”

“ The Minister of ORG shall supervise all ORG through ORG inspectors attached to ORG and the courts of appeal or through other , delegated ORG .

Where he considers it necessary , the Minister of ORG , either of his own motion or at the instance of ORG , effects his supervision through inspectors - general or ORG on secondment ...

The Minister of ORG may ask ORG at ORG for information about the work of ORG offices and may give advice on measures to be taken to combat crime .

The Minister of ORG is empowered to give ORG written instructions , either direct or through ORG , to institute , in accordance with the law , criminal proceedings for offences that have come to his knowledge ; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest . ... ”

In decision no . CARDINAL delivered in DATE ORG again confirmed its settled case - law on summoning persons resident abroad , which requires service to be effected at the foreign home but also at the NORP home of any representative .

Legal writers , for their part , highlight the compulsory requirement of serving a summons on the person concerned at his foreign home , even where he has a representative in GPE ( PERSON , PERSON ( “ Theoretical and PERSON on Civil Procedure ” ) , vol . II , p. CARDINAL , GPE , DATE ) .

The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process . If these provisions are not complied with , the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact ( ORG , ORG , decision no . CARDINAL , ORG a LOC ( “ Reports of Criminal Cases in the NORP County Court ” ) , no . CARDINAL , p. CARDINAL , GPE , DATE ; ORG , ORG , decision no . CARDINAL of DATE , PERSON Supreme de Justiţie ( “ ORG of Justice Case - Law Bulletin ” ) for DATE , p. CARDINAL , GPE , DATE ) .


Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE .

On DATE the investigating judge at ORG ( Landgericht ) , having heard the applicant , ordered that he be taken into pre - trial detention on suspicion of , inter alia , embezzlement and continuous aggravated fraud ( file no . CARDINAL Vr CARDINAL/CARDINAL ) . He found that there was a reasonable suspicion that the applicant had enticed a number of persons to entrust him with the investment of their capital , which he had then fraudulently diverted using a network of partly foreign companies . Giving detailed reasons , the investigating judge found that there was a danger of absconding , a danger that the applicant might influence witnesses , and also a danger of repetition of the offences . Finally , having regard to the seriousness of the offence , the applicant ’s detention was proportionate to the sentence he risked incurring .

On DATE ORG ) held a hearing on the applicant ’s request for release ( GPE ) . The applicant was not represented by counsel at this hearing . Following the hearing , the court ordered that the applicant ’s detention be continued . It confirmed the reasons advanced by ORG .

On DATE the Vaduz ORG dismissed the applicant ’s request of CARDINAL DATE to have a legal - aid counsel appointed for him . Regarding the applicant ’s submissions concerning his income and assets , and the fact that he was represented by CARDINAL counsel of his own choosing in a second set of proceedings ( file no . CARDINAL/CARDINAL ) , it found that he had sufficient means to pay for counsel .

On DATE ORG ordered the applicant ’s representation by legal aid counsel . It noted that the investigations and , in particular , an expert opinion , which had meanwhile been submitted , had shown that the applicant had been living exclusively on money obtained from the investors in his various companies and had therefore no means to pay for defence counsel . In TIME of DATE ORG appointed PERSON

On DATE ORG held a hearing on the applicant ’s renewed request for release .

At the beginning of the hearing , the applicant ’s counsel pointed out that he had only been appointed at TIME on DATE before and had therefore been limited to TIME of consultation with the applicant without having had a possibility to study the voluminous file . The ORG noted that it had not been informed of the late appointment of counsel for the applicant and drew his attention to the fact that he remained free to request that the hearing be adjourned as the statutory CARDINAL days’ time - limit for its preparation had not been complied with . However , counsel did not request an adjournment .

At the close of the hearing , the court ordered the continuation of the applicant ’s detention . It confirmed the reasons given in the decisions of CARDINAL DATE and DATE .

On DATE ORG appointed PERSON as legal - aid counsel for the applicant .

On DATE ORG , sitting in camera as a panel of CARDINAL judges , dismissed the applicant ’s appeal against the decision of CARDINAL DATE . As to the applicant ’s complaint that he did not have sufficient time to prepare for the hearing of DATE concerning his detention , the court noted that his counsel had waived the right to request an adjournment . There were no reasons to doubt the validity of the waiver .

On DATE ORG requested that the applicant ’s pre - trial detention be extended to up to DATE on account of the complexity of the case . The investigating judge supported this request on DATE . The applicant was given no opportunity to comment .

On DATE ORG , sitting in camera as a panel of CARDINAL judges , ordered that the applicant ’s detention would be allowed to last DATE , i.e. until DATE at the latest . With regard to the suspicion against the applicant and the danger of absconding and of a repetition of the offences , the court referred to its decision of DATE . Invoking Article CARDINAL of LAW ( Strafprozessordnung ) , according to which detention on remand must not exceed DATE unless the investigations are particularly complex , it found that the present proceedings concerned an exceedingly complex case of white - collar crimes . The offences to be investigated had been committed by a number of co - accused over DATE , numerous companies with links to foreign countries were involved and a great number of witnesses had to be heard , many of them under letters rogatory . A period of detention of DATE appeared proportionate , all the more so because , given the maximum sentence of CARDINAL years’ imprisonment , even a further prolongation of the detention to DATE would be admissible under LAW .

On DATE ORG ( Oberster Gerichtshof ) declared inadmissible the applicant ’s appeal against the decision of DATE .

On DATE ORG , sitting in camera , dismissed the applicant ’s appeal against the decision of CARDINAL DATE . As to the applicant ’s complaint that he had not been heard on the requests for prolongation of his detention prior to ORG decision , ORG , referring in detail to ORG ( PERSON ) case - law , found that the right to be heard could also be complied with where the person concerned had a possibility to appeal against the decision . However , it was advisable in the future to hear detainees on requests for prolongation of the detention .

On DATE ORG dismissed the applicant ’s complaint against ORG decision of DATE . As to the applicant ’s complaint that he had not been heard prior to the decision of CARDINAL DATE , ORG noted that LAW did not require that a detainee be heard prior to a decision to prolong the detention . In these circumstances , the lack of an opportunity to comment was remedied by the possibility to appeal against the decision itself . Nevertheless - as ORG had rightly pointed out - it would be desirable to hear a detainee before deciding on a request for prolongation of the detention . ORG also found that ORG as well as ORG had given sufficient reasons for their decisions .

Also on DATE , ORG dismissed the applicant ’s complaint against ORG decision of CARDINAL DATE . It found that ORG had rightly noted that the applicant ’s first request for legal aid had , on the basis of his own submissions , been dismissed on the ground that he was not indigent . It added that , even conceding that the applicant lost his income on account of his detention , he had considerable assets and had admitted it . The assumption that he was not indigent was confirmed by the fact that at the time he was represented by CARDINAL counsel of his own choosing in a second set of criminal proceedings . Moreover , the applicant ’s financial situation had become transparent only after the expert opinion had been filed in DATE . Shortly afterwards a legal - aid counsel was appointed for him . As to the complaint that the legal aid counsel appointed on DATE did not have sufficient time to prepare for the hearing of DATE , ORG confirmed the finding that counsel had validly waived his right to request an adjournment of that hearing .

Both ORG decisions were served on DATE .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)

The applicant is a NORP citizen and was born in DATE . He is the deputy head of personnel of the W. company .

On DATE , following a complaint lodged by PERSON , an employee of the PERSON company , with GPE investigating judge no . CARDINAL against a person or persons unknown in respect of insulting and threatening telephone calls and letters she had received , a criminal investigation ( diligencias previas ) was started . On DATE PERSON fiancé , PERSON NORP , lodged a complaint against a person or persons unknown for the same offence .

On DATE and DATE , the investigating judge made orders under LAW of LAW for PERSON ’s and PERSON telephone lines to be tapped for DATE , as they had requested when making their statement . Several suspect calls made from the W. company and from telephone boxes were intercepted .

On DATE and DATE respectively the monitoring ceased .

On DATE PERSON gave the investigating judge the names of the CARDINAL people , including the applicant , who had access to the telephone at the W. company from which some of the suspect calls had been made .

That DATE CARDINAL other people were summonsed to appear . The PERSON company was asked to provide information about the offices in which the telephones concerned were located and the people having access to them .

On DATE the investigating judge made a further order for PERSON and PERSON telephone lines to be tapped , on this occasion from DATE . He also ordered an analysis of the typeface of the anonymous letters containing threats against PERSON ( in order to determine the make of typewriter used ) and of photographs enclosed with some of the letters . In addition , he had the saliva residue and the fingerprints on the envelopes examined .

On DATE the cassette recording of the calls made on the monitored lines , some of which showed that PERSON had been subjected to threats and insults , was delivered to the investigating judge .

On DATE the investigating judge made an order under LAW of LAW ( see paragraph CARDINAL below ) and LAW of LAW “ on the entry into and searches of closed LOC , the opening of books and written documents and the interception and opening of written and telegraphic correspondence ” ( see paragraph CARDINAL below ) , for the monitoring of the private telephone lines of S. and of Mr GPE , the head and deputy head of personnel of the company where the applicant worked , for a period of DATE on DATE . The applicant was considered to be the prime suspect , firstly , because most of the calls were being made from the PERSON company , where he worked and where , as deputy head of personnel , he had access to the company ’s staff files and , secondly , because he had previously had a relationship with PERSON The investigating judge ’s order read as follows :

“ An application has been made for an order for the monitoring of telephone lines nos . CARDINAL and CARDINAL , of PERSON and PERSON [ S. ] respectively , who reside in this town , PERSON at Avda . del Oeste no . CARDINAL de Alorcón and Mr [ S. ] in H. Street , in connection with a police investigation currently under way into certain offences .

It is implicit in what has been said by the police that reliable evidence exists to suggest that information concerning the commission of an offence may be obtained by monitoring telephone lines nos . CARDINAL and QUANTITY CARDINAL belonging to PERSON PERSON and Mr [ S. ] respectively ; it is appropriate to grant the requested application authorising the monitoring , in accordance with LAW as in force . It will be carried out by agents of ORG referred to above .

Having considered , in addition to the LAW cited above , Chapter VIII of Volume [ II ] of LAW and other provisions of general application ,

[ The judge ] orders that the telephone lines nos . CARDINAL and QUANTITY CARDINAL of PERSON and PERSON [ S. ] respectively shall be monitored by staff of ORG GPE for DATE starting from DATE ; at DATE they shall report their findings .

On DATE police headquarters at ORG informed GPE investigating judge no . CARDINAL that the monitoring of Mr [ S. ] ’s line had not revealed anything suspect , no suspicious call or conversation having been recorded . Conversely , the monitoring of Mr GPE ’s line had shown that a number of calls had been made from his telephone to PERSON , her fiancé and their close relatives . However , the caller had hung up as soon as the telephone was answered .

On DATE , after further insulting letters had been sent to PERSON , police headquarters applied for a warrant from the judge to carry out a search of Mr Valenzuela ’s home .

Owing to a breakdown in the system , the applicant ’s telephone line ceased to be tapped on DATE . The original cassettes containing the recordings were delivered to the investigating judge and included in the court file that was available for inspection and comment by the parties .

On DATE the applicant himself applied to GPE investigating judge no . CARDINAL , complaining that he had received threatening telephone calls . On DATE the applicant requested the judge to order the monitoring of the applicant ’s own telephone line ; that measure proved fruitless . On DATE the judge made a provisional discharge order ( sobreseimiento provisional ) .

On DATE and CARDINAL DATE police headquarters confirmed before the investigating judge that CARDINAL calls had been made from the applicant ’s telephone while it was being tapped , CARDINAL to PERSON home , CARDINAL to PERSON home , CARDINAL to PERSON aunt and DATE to his superior .

On DATE the public prosecutor applied for criminal proceedings ( sumario ) to be brought against Mr GPE and , if appropriate , PERSON , for offences of proffering grave insults and making threats .

On DATE Madrid investigating judge no . CARDINAL ordered that the applicant ’s home and the head office of the W. company be searched .

On DATE he decided to institute criminal proceedings against Mr GPE . In an order ( auto de procesamiento ) of CARDINAL DATE he charged the applicant with proffering grave insults and making threats under ORG CARDINAL , CARDINAL § § CARDINAL , CARDINAL and DATE , CARDINAL , CARDINAL and CARDINAL § CARDINAL of LAW .

On DATE GPE investigating judge no . CARDINAL , to whom the case had been assigned on DATE , closed the investigation and committed the applicant for trial before the Madrid Audiencia provincial .

On DATE and DATE the public prosecutor , and PERSON and PERSON as private prosecutors ( acusadores particulares ) , filed provisional submissions .

On DATE the applicant argued that the monitoring of his telephone line and searches of his house constituted breaches of Articles CARDINAL and CARDINAL of the LAW ( see paragraph CARDINAL below ) .

On CARDINAL DATE the GPE Audiencia provincial convicted the applicant of making threats by letter and on the telephone against PERSON and PERSON , her fiancé , and their respective families , both at their homes and at work . It sentenced him to CARDINAL months’ imprisonment , imposed a number of fines and ordered him to pay PERSON compensation .

The LOC provincial found that neither the searches nor the monitoring had been decisive in establishing the applicant ’s guilt . The monitoring had revealed that some of the calls from his home telephone had been made to PERSON telephone number and that most of the calls complained of had been made from the company where both PERSON and the applicant worked . Nevertheless , it had not proved possible to determine the identity of the person making the calls because he had hung up as soon as the telephone was answered .

The applicant lodged an appeal on points of law , which ORG dismissed on DATE . It held with regard to the telephone tapping that , even if the court order allowing the applicant ’s telephone line to be monitored had been couched in general terms , the evidence thereby obtained had not been the only evidence on which the trial court had relied in convicting him and , in any event , the threats had also been made in writing .

The applicant then filed an amparo appeal with ORG in which he relied on the principle of the presumption of innocence , on the right to respect for his private and family life and on the confidentiality of telephone communications ( Articles CARDINAL and CARDINAL of the LAW see paragraph CARDINAL below ) . That appeal was dismissed on DATE on the following grounds :

“ ... Contrary to what is said by the applicant , there has been no breach of his right to make telephone communications in confidence in the present case , since the monitoring of his telephone line had previously been authorised in a reasoned court order made under LAW of LAW . It must nevertheless be noted that the monitoring failed to produce any decisive results enabling the conclusion to be reached that Mr GPE had been guilty of making the threats of which he was suspected , inasmuch as the only finding was that frequent calls in which the caller had remained silent had been made from his home to the home of the person receiving the threats , as the caller had hung up as soon as [ the victim ] answered . The decisive factor in this respect [ the finding that the applicant was guilty ] was the evidence as a whole including the amparo appellant ’s recent relationship with [ PERSON , the fact that he was the deputy head of personnel in the company where she worked , the fact that it had been shown that some of the calls had been made from that company ’s LOC , the fact that the photographs enclosed with some of the anonymous letters were from the company ’s archives to which only members of the personnel department had access , [ Mr GPE ’s ] reactions during the oral hearing , etc . That evidence , which was properly reviewed by the [ Audiencia provincial ] in a clearly reasoned judgment that was not illogical , may be considered to have been sufficient to rebut the presumption that the appellant was innocent ... ”

The relevant provisions of the LAW read as follows :

“ The rules relating to the fundamental rights and the freedoms recognised under LAW shall be construed in accordance with LAW and the international treaties and agreements concerning the same subject matter that have been ratified by GPE . ”

“ Communications , particularly postal , telegraphic and telephone communications , shall be confidential unless the court decides otherwise . ”

“ Properly concluded international treaties shall form part of the domestic legal order once they have been published in GPE ... ”

The relevant provisions of LAW of LAW “ on the entry into and searches of closed LOC , the opening of books and written documents and the interception and opening of written and telegraphic correspondence ” were as follows :

“ A court may authorise the seizure , opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified . ”

“ The officer who seizes the correspondence shall immediately hand it to the investigating judge . ”

“ The decision , which shall be reasoned , authorising the seizure and inspection of correspondence ... shall specify which correspondence is to be seized or inspected ... ”

“ The procedure shall take place by the judge himself opening the correspondence ... ”

“ The fact that the correspondence has been opened shall be noted in a record ...

The record thereof shall be signed by the investigating judge , the registrar and any other persons present . ”

Implementing Law no . DATE amended CARDINAL Articles of LAW ( see paragraph CARDINAL above ) , namely Articles CARDINAL and CARDINAL . Of these , only LAW is relevant in the present case and it now provides :

“ CARDINAL . A court may authorise the seizure , opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified .

A court may also authorise , in a reasoned decision , the monitoring of the telephone calls of a person charged if there is evidence to show that facts or circumstances material to the case may thereby be uncovered or verified .

Likewise , a court may , in a reasoned decision , authorise for a maximum renewable period of DATE the monitoring of the postal , telegraphic and telephonic communications of persons reasonably believed to have committed an offence and of communications made for criminal ends .

In its judgment no . CARDINAL of CARDINAL DATE ORG held that the concept of “ confidentiality ” did not cover just the content of communications , but also other aspects of them such as the subjective identity of the people communicating .

In its judgment of CARDINAL DATE ORG noted that the legislative amendment made by LAW no . DATE of CARDINAL DATE , bringing in the new wording of LAW , was not perfect . The court said that cassette recordings of telephone conversations should be put at the disposal of the judge with an accurate transcript , which was to be checked by the registrar for use at the trial if appropriate . It added that “ if the conditions laid down by LAW are satisfied , if the judge has reviewed the content of the evidence so obtained and has given leave for it to be used at the trial ” , evidence obtained from telephone tapping may be considered admissible .

In a decision ( auto ) of CARDINAL DATE ORG construed the NORP legislation on the admissibility of evidence obtained by telephone tapping as it stood after Implementing PERSON no . CARDINAL/CARDINAL of CARDINAL DATE had come into force ( see paragraphs CARDINAL and DATE above ) . It stated that “ the legislature [ had ] not specified any limitations according to the nature of the possible offence or the sentence it carried ” and emphasised that the deficiencies , inadequacies and vagueness of that legislation needed to be rectified by the case - law of the domestic courts and of ORG .

In the light of the latter ORG ’s case - law , ORG reached the following conclusions in its decision :

“ In summary , the violations that render evidence obtained from telephone tapping inadmissible and determine its effects are as follows :

( CARDINAL ) Lack of evidence . Lack of sufficient reasoning

Lack ... of evidence capable , in the judge ’s view , of justifying a measure restricting fundamental rights to the extent telephone tapping does ; mere suspicion on the part of the police , which in principle serves as the basis for the court ’s decision , can not suffice .

( CARDINAL ) Lack of supervision

There was an almost total lack of any form of judicial supervision of the actual monitoring of the telephone concerned , which must necessarily be effected in compliance with the proportionality principle , which indeed can only be established through the reasoning , by , for example , listening to conversations recorded over reasonable periods in order for progress in the investigation ( in this case a police investigation ) to be checked and a decision taken as to whether or not expressly to extend the measure / surveillance – which , moreover , should not be for more than a reasonable period – in accordance with the principles laid down by LAW .

( CARDINAL ) Periodic review . Effects

Once the conversations have been recorded on the tapes , the judge must periodically , in the manner he deems appropriate in the light of all the circumstances , examine them in the presence of the court registrar and , after hearing the recorded voices , decide on the proper course of action and , if appropriate , order that the monitoring continue , in which case he determines the appropriate guidelines to be followed by those responsible for implementing the measure .

If he orders that the measure should cease , the person or persons affected by that measure must be informed of the operation that has ended ... so that they may henceforth take such action as they deem appropriate ...

Only in exceptional cases can the measure remain secret until the end of the investigation so as not to frustrate the legitimate interest in pursuing it ... but it must cease to remain secret once the investigation has ended ...

( CARDINAL ) Divergence between the monitoring and the investigation

... There is a violation of the right to private life or , even more simply , the confidentiality of communications in general and of telephone communications in particular where ... , during the course of the originally authorised monitoring , it appears possible that one or more new offences may have been committed . At that point ... the police must , without delay , immediately inform the investigating judge who authorised / ordered the monitoring so that he may consider the question of his jurisdiction and the requirement of proportionality ... A blanket authorisation may not be given ; nor , without a fresh , express authority from the judge , can the measure / surveillance continue if the new presumed offence revealed on the telephone is found to be independent of the offence covered by the original authorisation . Such situations , if uncontrollable and not directly supervised by the judge , cause or are apt to cause a total failure to comply with the proportionality principle . It will never be known whether or not that principle was complied with in the present case ...

( CARDINAL ) Production of copies rather than originals

There will also be a violation where the measure fails to comply with the LAW and all the legislation ( LAW ) . The fact that the tape recordings produced to the court were copies , not originals , and moreover represented a selection made by the police without any judicial supervision , is a serious violation of the system . ... as the judge , in the registrar ’s presence , must select , in the manner he deems appropriate , what is relevant to the investigation ordered by him while the remaining recordings must be kept in the registrar ’s custody , thereby precluding any undesired or undesirable knowledge of conversations beyond the scope of the decision to monitor . The judge must order the immediate cessation of the measure when it is no longer relevant to the legitimate aim of establishing the commission of a serious offence , whose gravity must always be proportionate to what is , in principle , an intolerable interference with private life ...

( CARDINAL ) Finding of proportionality

On that basis , it is necessary to consider whether or not the preventive measures used were proportionate to the aim pursued ... The judge , who is the essential guarantor of fundamental rights and public freedoms , must consider each offence in the light of all the circumstances and decide whether the legitimate interests in investigation , prosecution and , where appropriate , conviction warrant in a given case the sacrifice of legal interests as important as the dignity , privacy and freedom of the individual ...

( CARDINAL ) Determination of the measure and its limits

… The judicial authority must state what form the measure is to take and ensure that it is implemented with the least possible harm to the person affected by it ... ”


Violation of Art. 5-1 with regard to the intitial period;No violation of Art. 5-1 with regard to the subsequent period;No violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant , the commercial director of a private company ( “ the company ” ) , was suspected of fraud . On DATE a criminal case was instituted against him .

The applicant was arrested on DATE . His detention on remand was authorised by a prosecutor on DATE .

On DATE the applicant was charged with suppressing documents . On DATE the applicant was charged with unlawfully obtaining the property of another .

On DATE , by the authorisation of the Deputy Prosecutor General , the term of the applicant ’s detention on remand was extended to CARDINAL DATE .

ORG extended the term of the applicant ’s detention on remand twice : on DATE to CARDINAL DATE and on DATE to DATE . On DATE ORG extended the term of the applicant ’s detention on remand to DATE .

The pre - trial investigation in the case was concluded on DATE . The applicant had access to the case - file from DATE , while the other CARDINAL co - accused were given access from DATE to DATE .

In a communication of DATE , the prosecution informed the prison administration that the pre - trial investigation had been concluded and access to the case - file had commenced .

On DATE the applicant applied to the prosecution for bail , contesting the lawfulness of his detention after DATE . On DATE a prosecutor informed the applicant that there were no reasons to vary the remand . The prosecutor stated inter alia , “ the access by the accused and their counsel to the case - file was completed on DATE . On DATE the criminal case was transmitted for the confirmation of the bill of indictment . The validity of the term of the applicant ’s detention was not breached ” . No remand decision was taken .

On DATE a prosecutor informed the prison administration that access to the case - file had been completed on DATE , and that the case had been transmitted to the ORG Chief Regional Prosecutor to confirm the bill of indictment . On DATE a prosecutor informed the prison administration that the bill of indictment had been confirmed , and that the case had been transmitted to ORG . No remand decision was taken .

On DATE ORG forwarded the case to ORG . No formal decision on the applicant ’s detention was taken . On DATE the applicant applied to the Minister of Justice , claiming that his detention had been unlawful since DATE .

On DATE the applicant applied to ORG for bail . On DATE a judge of ORG committed the applicant to trial . In his decision the judge also decided that the applicant ’s “ remand shall remain unchanged ” . The decision did not refer to other aspects regarding the lawfulness of the applicant ’s detention . The judge also set DATE as the date of the first trial hearing .

The hearing took place on DATE . On the same date the applicant again applied for bail .

On DATE the judge of ORG , in the presence of the applicant ’s counsel , ordered further investigations in the case . The judge noted inter alia that the prosecution had alleged that financial damage to the company and its shareholders had been caused by the applicant and the co - accused . However , no victims had been established and questioned . In addition , the company ’s audit had not been properly carried out . The judge held that the trial could not continue until these procedural requirements were met .

By the same decision the judge also dismissed the applicant ’s request for bail and extended the term of his detention on remand for DATE . The dangers of the applicant absconding and “ obstructing the establishment of the truth ” in the case were mentioned as reasons for this decision . The judge did not mention the applicant ’s allegations about the unlawfulness of his detention since DATE .

On DATE the applicant appealed to ORG , claiming that he had been unlawfully kept in detention after DATE . On DATE the applicant lodged with ORG a further appeal against the decisions of ORG of DATE and DATE . He stated inter alia that LAW had been breached to his detriment .

On DATE the applicant submitted a complaint to the ORG , alleging that the term of his detention had expired on DATE , and that thereafter the prison administration had kept him in custody unlawfully .

On DATE ORG held an appeal hearing in the presence of the applicant ’s counsel . ORG dismissed the appeal insofar as it concerned “ the substance of the decision of ORG of DATE ” , pursuant to LAW as then in force . No aspects concerning the alleged unlawfulness of the applicant ’s detention were mentioned in the appellate decision . ORG nonetheless ordered the applicant ’s release on bail , without giving reasons . He was immediately released from prison .

On DATE the ORG drew the attention of the Minister of ORG and the prison authorities to the fact that from DATE to CARDINAL DATE the applicant had been remanded in custody in breach of LAW ( c ) of the LAW .

On DATE the additional investigation was concluded . On DATE the case was again transmitted to ORG . On DATE a judge of ORG committed the applicant to trial .

On DATE the judge again decided to order further investigations . He noted that the investigating authorities had breached domestic criminal procedure in its conduct of the pre - trial investigation and the collection of additional evidence . The judge held inter alia that the company ’s audit had been defective and that the prosecution had not established or questioned victims in connection with the damage suffered by the company .

Upon the prosecution ’s appeal against the above decision , on DATE ORG quashed the decision of DATE . ORG held that no breaches of domestic criminal procedure had been specified by ORG , which might warrant the collection of additional evidence . The appellate court stated inter alia that ORG could itself establish and summon victims in connection with the company ’s losses , without returning the case back to the prosecution for further investigations .

On DATE a judge of ORG joined the case against the applicant and the CARDINAL co - accused with a case against another defendant . The judge withdrew from the case on the ground inter alia that he had taken decisions on the applicant ’s detention on DATE and DATE .

On an unspecified date , jurisdiction was transferred from ORG to ORG . On DATE a judge of ORG committed the applicant to trial . On DATE the judge adjourned the case until DATE and ordered further investigations , particularly on the ground that the company ’s audit had been defective . In this respect , the court requested ORG to carry out a fresh audit .

On an unspecified date , the applicant ’s trial was resumed . To date no first instance judgment has been pronounced .

< Translations are given >

Relevant provisions of LAW ( PERSON ) :

LAW :

“ A person arrested when committing an offence must , within TIME , be brought to court for the purpose of determining , in the presence of the detainee , whether detention is appropriate . If the court does not order the detention of the arrested person , he shall be released immediately . ”

LAW :

“ A person whose constitutional rights or freedoms are violated shall have the right to apply to court . ”

Relevant provisions of the previous Code of Criminal Procedure ( ORG proceso kodeksas ) :

Article CARDINAL ( in force until DATE ) :

“ No one shall be arrested save by virtue of a decision of a court , or an order of a judge or the authorisation of a prosecutor … . ”

Since DATE arrest may only be ordered by a court or judge .

Article ORG ( under the law No . I-CARDINAL of DATE , in force until DATE ) :

“ Detention as a remand measure shall be used only where based on the decision of a court , order of a judge , or the authorisation of a prosecutor in cases where a statutory penalty of DATE of imprisonment is envisaged … .

In cases pertaining to offences provided in Articles … CARDINAL [ murder in aggravating circumstances ] … of LAW , detention as a remand measure may be used on the ground of the gravity of the offence alone . … .

In deciding whether to authorise the detention , a prosecutor … shall personally hear the suspect or defendant when necessary ... . ”

Article CARDINAL - CARDINAL ( in force from DATE to DATE ) :

“ ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . …

After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ”

The amended LAW in force since DATE ) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person , unless the judge decides otherwise . The amended provision also permits the court to extend the detention on remand before its expiry .

Article CARDINAL § CARDINAL ( in force from DATE to DATE ) :

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trial investigation ] a judge must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called . ”

The LAW in force since DATE makes obligatory the attendance of the detainee at the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A further appeal shall be determined when examining the extension of the term of the detention on remand . ”

The present LAW in force since DATE ) now provides for an appeal to a higher court and a hearing in the presence of the detainee and his counsel , or only his counsel .

Article CARDINAL § CARDINAL ( in force until DATE ) :

“ The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . ”

Since DATE this period is no longer relevant for remand decisions .

“ Decisions of courts … ordering , varying or revoking a remand measure … can not be the subject of appeal … . ”

Other relevant provisions of the present Code of Criminal Procedure :

Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to “ submit requests ” and to “ appeal against acts and decisions of an interrogator , investigator , prosecutor and court . ”

Article CARDINAL § CARDINAL :

“ A judge individually or a court in a directions hearing , in deciding whether to commit the accused for trial , shall determine ...

CARDINAL ) whether the remand measure has been selected appropriately . ”