Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Preparation of defence;Article 6-3-c - Defence through legal assistance);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and is serving a prison term in prison no . CARDINAL in LOC .

On DATE the applicant was arrested on suspicion of murder . The investigating authority authorised a search in his house ; it was carried out on the same date . After having rejected his request to retain PERSON as counsel , on the same evening the investigator appointed PERSON PERSON . , a legal - aid lawyer , to represent the applicant and then proceeded to interview him .

On DATE the applicant contacted PERSON and she was appointed as his ( legal - aid ) counsel . Allegedly , the applicant also obtained advice from PERSON , who subsequently became counsel to his co - accused , PERSON NORP Mr NORP testified against the applicant .

On DATE ORG confirmed the lawfulness of the applicant ’s arrest and authorised his continued detention . On an unspecified date that detention order was upheld on appeal . The applicant ’s detention was extended on DATE , DATE and DATE .

After the investigation had been completed , the applicant studied the case file , including the expert reports commissioned by the investigator . Allegedly , for unspecified reasons the applicant was not assisted by counsel at that time ( see also paragraph CARDINAL below ) .

The case was sent for trial before ORG . The applicant sought to be tried by a jury . On DATE ORG held a preliminary hearing on that matter and appointed PERSON . , on whose advice the applicant withdrew his request for trial by a jury . After this hearing the applicant was assisted by PERSON

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . The court relied , inter alia , on written statements made by PERSON and other witnesses , and on several expert reports .

NORP The applicant appealed to ORG of GPE and requested the appointment of legal - aid counsel . It appears that both ORG and ORG refused his requests .

Ms Y. submitted a statement of appeal on the applicant ’s behalf .

On DATE the applicant informed ORG that he had not been given copies of the statements of appeal lodged by his co - defendants and the public prosecutor .

On DATE the applicant asked ORG to appoint legal - aid counsel for the appeal proceedings . An adjournment was ordered on CARDINAL occasion to enable the applicant ’s father to retain counsel ( see also paragraph CARDINAL below ) . In the same proceedings , Y. , who had assisted the applicant at first instance , informed ORG that she had not been retained for the appeal proceedings and would no longer represent the applicant .

On DATE ORG held an appeal hearing . It appears that the applicant participated in it by a video link from a remand centre in GPE . The appeal court examined the appeals and reduced the applicant ’s prison term to DATE and DATE . The appeal court found as follows :

“ Advocate PERSON did not represent [ the applicant ] and did not participate in any investigative measures ... The search in [ the applicant ’s ] house was authorised by an investigator and a prosecutor . Since at that time [ the applicant ] was not formally taken into custody legal assistance was not required . He was interviewed as a suspect after his arrest ; lawyer PERSON . was present at the interview ; [ the applicant ] did not object to the appointment of PERSON . as counsel ... [The applicant ] studied the case file with a lawyer ... He did not object to be assisted by lawyer PERSON . at the preliminary hearing and was served with copies of the statements of appeal submitted by his co - defendants ... ”

The appeal court also noted that the applicant had been present at the appeal hearing and had made submissions to the court ; that “ the applicable legislation [ did ] not require a court of appeal to appoint counsel ” .

The judgment became final on DATE . On DATE the applicant was transferred to prison no . CARDINAL in the town of ORG to serve his prison term .

In DATE the deputy Prosecutor General of GPE lodged a request for supervisory review of the judgment of DATE . The request reads as follows :

“ As can be seen from the case file , [ the applicant ] had asked that the appeal court designate a legal - aid lawyer and admit his mother and brother as lay defence representatives . An adjournment had been ordered to enable [ the applicant ’s ] father to retain counsel .

At the same time , the appeal court stated that the applicable legislation did not require a court of appeal to appoint counsel . In the same proceedings , DATE , who had assisted [ the applicant ] at first instance , informed the court of appeal that she had not been retained for the appeal proceedings and would no longer represent [ the applicant ] .

Despite this , the appeal court did not take any measures to provide [ the applicant ] with counsel and held an appeal hearing without [ the applicant being represented by ] counsel ... This omission was capable of affecting the conclusions made by the appeal court . ”

On DATE a judge of ORG of GPE examined this request and held that the case should be submitted to ORG . On an unspecified date , the applicant was brought from ORG prison ( in LOC ) to a remand centre in GPE on the instructions of ORG . In DATE the applicant was authorised to receive visits from his father , who had been admitted as a lay defence representative in the supervisory review proceedings . PERSON , who had been appointed by ORG as the applicant ’s counsel , also visited him in the remand centre .

The Presidium of ORG of GPE heard lawyer PERSON , the applicant and his father . By a ruling of DATE , the ORG court set aside the judgment of DATE and ordered a fresh appeal hearing . The court held as follows :

“ As can be seen from the case file , [ the applicant ] had asked that the appeal court designate a legal - aid lawyer and admit his mother and brother as lay defence representatives . An adjournment was ordered to enable [ the applicant ’s ] father to retain counsel .

By a separate ruling the applicant was required to pay legal fees of MONEY ( RUB ) for ORG ’s services rendered in the supervisory review proceedings .

On DATE the case file was submitted to the appeal section of ORG ; a hearing was scheduled for DATE . The applicant asked that ORG be appointed as his counsel in the appeal proceedings and that ORG be assisted by his parents and a former cellmate , still in prison , as lay defence representatives . Lastly , the applicant unsuccessfully sought that he be afforded time to study the case file again and that counsel ’s fees be borne by the ORG .

On DATE ORG dispatched telegrams to the applicant ’s parents and to lawyer PERSON , who had lodged the statement of appeal on behalf of the applicant in DATE or DATE ( see paragraph CARDINAL above ) . They were thereby informed of the date and time of the appeal hearing listed for DATE . On CARDINAL or DATE the applicant was also informed . According to the applicant , Y. was not informed of the appeal hearing listed for DATE . The applicant states that he did not have contact with her after DATE .

On an unspecified date , ORG , a lawyer , was appointed by ORG to provide legal assistance to the applicant in the appeal proceedings . According to the applicant , he was not aware of this appointment , and A. did not visit him in the GPE detention facility or discuss the defence position with him . He first met her at the court hearing on DATE .

NORP The applicant participated in the hearing on DATE by way of a video and audio link from the GPE detention facility . The applicant ’s father ( admitted as a lay defence representative ) , A. and the prosecutor were present in the courtroom . According to the applicant , PERSON ’s participation in the appeal hearing was limited to making a supporting statement in relation to Y. ’s statement of appeal .

The appeal court rejected the applicant ’s father ’s request for an adjournment in order to ensure ORG ’s presence in the courtroom ( see also paragraph CARDINAL above ) . The court also dismissed requests concerning the admission of the applicant ’s mother and former cellmate as lay defence representatives . The court held as follows :

“ LAW authorises a defendant to choose and retain a lawyer as paid counsel or counsel is appointed by a court of appeal under LAW ... Since [ the applicant ] has not retained any counsel , the court appointed lawyer PERSON , who studied the case file for DATE before the hearing ... It is also noted that , as explained by the lay representative , [ the applicant ’s mother ] is absent for health reasons and that [ the applicant ’s cellmate ] is serving a sentence of imprisonment ... ”

According to the respondent Government , in DATE the case file comprised CARDINAL volumes , compared to CARDINAL volumes during the proceedings in DATE and DATE . The Government submitted that in the first round of proceedings , the applicant had been afforded adequate opportunity to study the material ( see paragraph CARDINAL above ) , had been provided with a copy of the indictment and a copy of the trial judgment , and had been given an opportunity to study the transcript of the trial and other materials . Volumes CARDINAL to CARDINAL of the case file contained , inter alia , the following documents : the transcript of the trial ; statements of appeal lodged by the defendants and their lawyers in DATE and DATE ; the prosecutor ’s observations in reply ; and the applicant ’s motions and applications to the courts made after the appeal hearing in DATE and in relation to the DATE reopening .

According to the applicant , in DATE he was not afforded an opportunity to have knowledge of additional statements of appeal lodged by his co - defendants and their counsel or certain submissions made by the public prosecutor .

By judgment of DATE , ORG amended the trial judgment of DATE by applying more favourable legislation which had entered into force after DATE . In particular , the appeal court reduced the applicant ’s prison term to DATE and removed an additional order for confiscation of property .

Lawyer A. applied for payment of her fees covering DATE , including time spent studying the case file and providing legal assistance at the appeal hearing . By a decision of DATE ORG awarded her RUB CARDINAL against the ORG ; the applicant was required to repay this sum to the ORG . The appeal court held as follows :

“ Advocate A. studied the case file for DATE and then participated in the appeal hearing before ORG . According to [ the applicable legislation ] DATE of service in proceedings before ORG should be paid MONEY . Thus , the sum to be paid for DATE amounts to MONEY . ”

On an unspecified date , the applicant lodged an application for supervisory review of the judgments of DATE and DATE . He complained that during the appeal proceedings in DATE he had not been afforded an opportunity to have access to the materials in the case file ; the appeal court had not appointed O. as counsel and had not adjourned the hearing . On CARDINAL DATE ORG rejected the applicant ’s complaints as follows :

“ The defence ’s requests were properly examined and rejected in the appeal proceedings . There were no fundamental defects in the appeal proceedings , which could justify annulment or amendment of the court decisions . ”

DATE the applicant was detained in a temporary detention centre in GPE . The applicant states that he had been kept in an overcrowded cell , which had afforded QUANTITY of personal space per detainee . He had not been provided with a bed , bedding or items of personal hygiene ; no arrangement for washing clothes had been made . The toilet had not been separated from the living area . The cell windows had been covered with metal shutters limiting access to air and natural light . The cell had been excessively cold and damp . The applicant had been fed twice a day and the food had been poor quality . He had not been allowed to have any stationery or paper in the cell .

The Government submitted that the applicant had been kept , together with CARDINAL other detainees , in a cell measuring QUANTITY . Although there had been no proper beds , the applicant had been given a mattress and could sleep on a wooden deck . No bedding had been provided . The remaining conditions of detention had been acceptable and in compliance with the applicable national standards and regulations .

The applicant was subsequently detained in ORG remand centre , apparently in acceptable conditions .

From DATE to late CARDINAL the applicant was kept in prison no . CARDINAL in the town of ORG . In DATE he spent DATE in a GPE detention facility . He was then brought back to the prison . In DATE the applicant was transferred to prison no . CARDINAL in LOC .

According to the applicant , he was afforded QUANTITY of the floor space ; he was placed in the same cell or dormitory as smokers , despite his asthma . It appears that the applicant has chronic obstructive pulmonary disease , a progressive narrowing of the airways resulting in limitation of the flow of air to and from the lungs and causing shortness of breath . Apparently , the applicant also suffers from other diseases such as syphilis , hypotrophy and encephalopathy . After CARDINAL stays in hospital , the medical staff classified his condition as “ satisfactory ” and stable , in that it was not worsening ( “ unstable remission ” ) . However , the disability commission refused to afford the applicant any disability benefits . As can be seen from the medical file , the applicant was provided with medical treatment and nutrition .

The toilet facilities were located in an open courtyard QUANTITY away from the dormitory , and were dirty and unheated in DATE ; he was not provided with sufficient nutrition or adequate medical assistance . Allegedly , on several occasions in DATE and DATE the applicant had not been allowed to receive visits from his family .

On several occasions the applicant had been detained in appalling conditions in punishment cells and special cells ( ORG ) . The applicant had been afforded around QUANTITY of cell space in ordinary cells in the prison for several relatively short periods of time in DATE and DATE . These cells had had no functioning ventilation . The applicant had been afforded TIME of outdoor exercise per day during the periods of his detention in these cells .

The Government submitted that under the LAW concerning ORG a convicted detainee is to be afforded no less than QUANTITY of floor space . Since DATE the applicant had been kept in large dormitories measuring CARDINAL together with CARDINAL to CARDINAL other inmates . Thus , he had been afforded an average of QUANTITY of floor space in the living areas of the dormitories . The windows had not been covered with any metal shutters or wooden plates . Each dormitory had had CARDINAL windows affording sufficient access to natural light . Each dormitory had had a system of light , heating , ventilation and water supply . The toilets had been situated in separate buildings and had been constructed in a way as to secure sufficient privacy . The applicant had been provided with individual bed and bedding in all dormitories . The applicant had been properly fed , in compliance with statutory standards . The Government submitted a number of official statements , logbooks and other documents in support of their above submissions .

As can be seen from the available documents , DATE and DATE the applicant had spent varying periods of time ( DATE , on average ) in punishment cells . At times , when he had been detained with several other prisoners in such cells , he had been afforded QUANTITY of cell space .

NORP The applicant complained to the trial and appeal courts in his criminal case of the allegedly appalling conditions of his detention . It appears that those complaints met with no response .

In DATE the applicant sought to obtain from the head of the temporary detention centre an official statement concerning the conditions of his detention in DATE . In a letter of DATE , the official stated that the applicant had been held in a cell measuring QUANTITY together with CARDINAL other inmates .

The applicant also complained to the local prosecutor ’s office but received no reply . In DATE he brought court proceedings under LAW ( “ the CCrP ” ) . On DATE ORG terminated the proceedings , indicating that the applicant should have used a different procedure for his complaint . The applicant appealed . On DATE ORG invited the applicant to lodge a statement of appeal in conformity with the requirements of the ORG within DATE of having received the court ’s decision . It appears that the applicant received the ORG decision on DATE .

In separate proceedings , the applicant complained of an alleged refusal to allow a visit from his mother . His claim was not examined on procedural grounds .

On DATE the applicant submitted a letter addressed to the ORG to the prison correspondence unit . On DATE the letter was registered under no . CARDINAL - CARDINAL - CARDINAL . In reply to a request made by the applicant in DATE , ORG informed the applicant that the letter had not been received .

It appears that in DATE the applicant gave a copy of his letter to his mother and asked her to send it to the ORG . According to the applicant , she was subjected to a search before leaving the prison and the letter was seized . On DATE the letter was returned to the applicant .

On an unspecified date the applicant was placed in a punishment cell , allegedly as a result of a violation of the internal rules concerning the dispatch of correspondence .

On DATE the applicant lodged a complaint with ORG of LOC . It appears that it was forwarded to another prosecutor ’s office and rejected as unfounded .

On DATE the applicant submitted another letter addressed to the ORG to the prison correspondence unit . On DATE the letter was registered under no . CARDINAL - CARDINAL - CARDINAL .

According to the Government , the correspondence logbooks of prison no . CARDINAL showed that since DATE the applicant had submitted over CARDINAL letters with or without annexes for dispatch , of which CARDINAL letters had been addressed to ORG in DATE and CARDINAL letters in DATE . In DATE he had submitted CARDINAL letters to the ORG for dispatch . All of the letters had been dispatched .

According to the applicant , from DATE he had not been able to maintain contact with PERSON GPE , his representative before the ORG , either through correspondence or by having a meeting with him in GPE remand centre or another detention facility , including prison no . CARDINAL in LOC .

Article CARDINAL of the Code of Criminal Procedure ( “ the CCrP ” ) establishes that counsel shall be appointed by an investigator , prosecutor or a court if , inter alia , the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty . Counsel shall be appointed if the accused has not retained a lawyer .

In a decision dated DATE ( no . CARDINAL - CARDINAL ) , ORG held that nothing in the wording of Article CARDINAL suggested that it was inapplicable to appeal proceedings . That position was subsequently confirmed and developed in decisions ( nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL-О-П , CARDINAL , CARDINAL-O-П ) delivered by ORG on DATE . It found that free legal assistance in appellate proceedings should be provided on the same grounds as during earlier stages of proceedings , on the defendant ’s request or if mandatory ( as in the situations listed in LAW . No limitation of the right to legal assistance was allowed unless the person concerned waived this right .

Article CARDINAL of the ORG provided that litigation costs were to be borne by the parties to the proceedings or by the ORG . Such costs included sums due to a lawyer for legal assistance if that lawyer had been appointed by the ORG . Article CARDINAL provided that litigation costs had to be paid by a convict or by the ORG . A court was empowered to order a convict to pay costs , except for sums paid to a lawyer if the court had previously rejected the defendant ’s waiver of counsel and the lawyer had been appointed by the ORG . The ORG was liable for costs if the person concerned was indigent . The court could also absolve the person concerned from the liability for costs or reduce their amount .

ORG decree no . CARDINAL of DATE , as amended in DATE and DATE , provides that a lawyer providing free legal assistance in criminal proceedings should be paid between RUB CARDINAL and RUB CARDINAL per day of service by the ORG , depending on the complexity of the case , the degree of jurisdiction , the gravity of the charges and the volume of the case file . Services remunerated include work at court hearings and in remand centres ( following ORG decision no . ORG of DATE ) and related transport expenses ( following ORG decision no . CARDINAL of DATE ) .

Pursuant to the Code of Advocates’ Professional Ethics DATE , an advocate should withdraw from any agreement to provide legal advice , if , after having agreed to provide advice to a client ( except during a preliminary investigation or trial proceedings ) it becomes clear that he can not provide advice to that client . The advocate should notify his client thereof in advance , if at all possible ( section CARDINAL ) . An appointed or privately - retained advocate in criminal proceedings can not withdraw from his agreement to provide advice to a client and must continue to represent the client until the stage of drafting and lodging any statement of appeal against the trial judgment ( section CARDINAL § CARDINAL ) . The advocate should appeal against a trial judgment upon the client ’s request , or if ( i ) there are legal grounds mitigating the sentence , ( ii ) the client is a juvenile or has a mental handicap , and ( iii ) the trial court disagreed with counsel and imposed a heavier sentence or convicted his client of a more serious offence ( section CARDINAL § CARDINAL ) . The advocate should , as a rule , appeal against a trial judgment on grounds ( ii)-(iii ) above or if the advocate considers that there are legal grounds mitigating the sentence ( section CARDINAL § CARDINAL in fine ) . The above provisions were amended in DATE and DATE to read as follows :

“ CARDINAL . An appointed or privately - retained advocate in criminal proceedings can not withdraw from his agreement to provide legal advice to a client , except in cases indicated by the law , and shall defend the client , including , if necessary , by drafting and lodging a cassation appeal against the trial judgment ....

An advocate shall appeal against the trial judgment ( i ) if so requested by his client , ( ii ) if there are grounds for setting that judgment aside or for amending it in favour of his client , ( iii ) as a rule , if the court disagreed with the advocate and imposed a heavier sentence on or convicted the juvenile of a more serious offence ... ”

By decision no . CARDINAL of DATE , ORG held that LAW ORG should be interpreted as allowing the defence to have knowledge of the written observations or comments submitted by the prosecution in reply to the defendant ’s statement of appeal . By decision no . CARDINAL-О-О of DATE , ORG held that LAW ORG should be interpreted as allowing a convicted person to seek , in person or through counsel , access to the criminal case file , even after the closure of the trial .

Under LAW , a statement of claim should inter alia indicate the nature of the violation of the claimant ’s right or interest , plea for relief , the relevant circumstances and evidence confirming those circumstances ( Article CARDINAL ) . A statement of claim should be accompanied by a document proving payment of a court fee ( Article CARDINAL ) . Article CARDINAL of LAW contains a list of court actions and claimants who are entitled to a waiver of a court fee requirement . None of the grounds cited therein is related to a claimant ’s indigence . By rulings of DATE ( no . CARDINAL ) and DATE ( no . MONEY ) , ORG declared that provision unconstitutional in so far as a court could not grant a request for a fee waiver on account of indigence .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the ORG issued a warrant of arrest against the applicant , as he was suspected of having obtained with CARDINAL co - suspected MONEY ( ORG ) from QUANTITY investors . Referring to the evidence obtained during the investigations , ORG found that the applicant was strongly suspected of CARDINAL counts of fraud and of CARDINAL counts of breach of trust . Furthermore , it found that the applicant had fled to or was hiding in GPE within the meaning of section CARDINAL § CARDINAL no . CARDINAL of the Code of Civil Procedure ( see “ Relevant domestic law ” below ) .

On the basis of that warrant , the applicant was arrested in his habitual residence in GPE on DATE .

On DATE he was extradited to GPE and remanded in custody .

On DATE the NORP authorities presented the arrest warrant of CARDINAL DATE to the applicant .

On DATE ORG issued a new arrest warrant adapted to the recent results of the investigations charging the applicant with , inter alia , CARDINAL counts of fraud . That arrest warrant was not executed . It was issued with a view to gaining the approval of ORG for the applicant ’s extradition in respect of further charges against him which had not been the object of the initial warrant of CARDINAL DATE .

Accordingly , on DATE ORG requested ORG to approve the applicant ’s extradition also concerning the further charges specified in the arrest warrant of CARDINAL DATE .

On DATE the applicant ’s case files were sent to ORG with a view to seeking a decision on an extension of the applicant ’s detention .

On DATE ORG upheld the arrest warrant of DATE . Based on the investigations and in particular on documentary evidence and on evidence given by the co - suspected and several witnesses , the court held that the applicant was under strong suspicion of having committed fraud in numerous cases . It found that there was now a risk of the applicant ’s absconding within the meaning of section CARDINAL § CARDINAL no . CARDINAL of the Code of Civil Procedure ( see “ Relevant domestic law ” below ) . In particular , he was charged with serious offences and risked not only incurring a lengthy prison sentence but also losing his licence to practise as a lawyer . Furthermore there was a strong incentive to abscond as he had good connections with GPE and NORP states and an excellent command of LANGUAGE .

The court also pointed out that the detention had been proportionate , as the instant proceedings , which concerned large - scale fraud , were extraordinarily complex . Given the constant new findings of the investigation authorities it was necessary to investigate a further CARDINAL cases of possible fraud . Thus , the investigations required , amongst other elements , the hearing of numerous witnesses , who were in fact heard without any delays . It was also necessary to evaluate the computers , CD - ROMs , discs and numerous other documents seized in GPE , GPE and the LOC . Furthermore , the investigation authorities had requested the authorities of several states for legal assistance to obtain further documents . CARDINAL of those very time - consuming procedures was still pending .

On DATE the ORG remanded the applicant in custody for a further period , holding that the strong suspicion and a risk that he would abscond persisted . His very good command of LANGUAGE and his close connections with the GPE and the LOC provided him with the realistic opportunity to move to one of these countries with his family and to evade the proceedings . Furthermore the possible consequences for the exercise of his profession gave a strong incitement to abscond which could not be countered by any alternative measures such as conditions or guarantees .

It also pointed out that the proceedings had been conducted with the required diligence , given that since DATE numerous witnesses had had to be identified and heard ( also abroad ) , that ORG had been asked for legal assistance on DATE , that on DATE the investigating authorities had received a report concerning data seized on the NORP island of GPE and that the co - suspected had had to be reheard several times .

On DATE the applicant lodged a constitutional complaint against ORG decision with ORG .

On DATE ORG rejected the applicant ’s constitutional complaint as being unfounded . It confirmed ORG findings that the applicant ’s bonds with non - NORP countries and the legal consequences of his conviction had been sufficient to justify the risk of his absconding . Furthermore the Court of Appeal did not violate the applicant ’s right to expeditious proceedings as guaranteed by LAW CARDINAL § QUANTITY of the LAW of ORG ( see “ Relevant domestic law ” below ) . ORG had convincingly held that the investigations had been extraordinarily complex given the existence of LAW files with CARDINAL pages and CARDINAL files of related files and the necessity to ask several states for legal assistance .

On DATE ORG ( PERSON ) submitted its final report as to the investigations .

On DATE ORG upheld the arrest warrant . Referring to the reasons stated in its previous decisions and taking account of the new evidence obtained , it held that the applicant was still strongly suspected of numerous counts of fraud . In view of his personal contacts to the GPE and the LOC and given that it was very likely that he had further funds of MONEY , the danger of his absconding persisted .

It also found that the exceptional circumstances in the instant case warranted a further extension of the applicant ’s detention given in particular the extraordinary complexity of the investigations , the high number of aggrieved parties and the extensive evidence seized .

It further observed that since DATE the investigating authorities had received substantial documentary evidence in LANGUAGE , translations of which had been prepared DATE . Furthermore the authorities commissioned a further expert report on data received in DATE , heard numerous further witnesses and reheard both co - suspects . The evidence obtained gave constantly new leads for enquiries . Therefore it was impossible to speed up the taking of evidence . For the same reasons the employment of further staff could not have contributed to a faster termination of the investigations . In these circumstances the authorities had complied with the obligation to conduct the proceedings speedily .

Finally , it pointed out that following the submission of the final report of ORG , the prosecution would now proceed with the elaboration of the indictment concerning the charges covered by the first extradition request as there had still been no reaction from ORG concerning the request for legal assistance .

On DATE the applicant lodged a constitutional complaint with ORG complaining that the continuation of his detention was disproportionate , that the arrest warrant of CARDINAL DATE was based on wrong information and that he had been discriminated against on grounds of his domicile in GPE when compared to the co - defendants .

On DATE ORG severed the investigations in so far as they were not covered by the arrest warrant of CARDINAL DATE . In so far as they were covered by the warrant , the prosecution filed a bill of indictment with ORG . The applicant was charged with CARDINAL counts of fraud . The reasons for the applicant ’s indictment were set out on CARDINAL pages .

On DATE ORG rejected the applicant ’s constitutional complaint . As to the alleged discrimination , it declared the complaint inadmissible as the applicant had failed to substantiate his allegation . As to the lawfulness of the applicant ’s detention , the court found that ORG had convincingly held already , on DATE , that the applicant had been strongly suspected of numerous counts of fraud . Furthermore , the latter court comprehensively argued that the special conditions for continued detention as required by section CARDINAL § CARDINAL of the Code of Criminal Procedure ( see “ Relevant domestic law ” below ) had been fulfilled . In this connection , it was unobjectionable that ORG had referred to the extraordinary complexity of the case , the high number of victims involved and the amount of documents to be examined . Furthermore , after DATE a substantial number of new evidence had to be taken . Finally , ORG was bound by the findings of ORG that it had been impossible to time the taking of evidence in a more concentrated way and that the investigations could not have been finished earlier if more staff members had dealt with the applicant ’s case .

On DATE ORG , without stating further reasons , refused to admit the applicant ’s constitutional complaint about the length of his detention .

On DATE the ORG replaced the arrest warrant of DATE with a new warrant , which took into account the recent results of investigations . Referring to the evidence obtained during the investigation it found that the applicant was strongly suspected of CARDINAL counts of fraud . Under the given circumstances and with regard to the heavy sentence which might be imposed , there was a persistent risk that he would abscond . Furthermore , it decided to open the trial against the applicant and other persons .

On DATE ORG again ordered the applicant ’s continued detention .

On DATE the applicant lodged a request for review of his detention order ( Haftprüfung ) ( see “ Relevant domestic law ” below ) , with ORG .

On DATE ORG upheld the arrest warrant , arguing that the strong suspicion and the risk of the applicant ’s absconding would persist .

On DATE ORG dismissed the applicant ’s appeal , and on DATE it rejected his objection ( Gegenvorstellung ) .

DATE and DATE ORG held CARDINAL hearings , during which the applicant , represented by CARDINAL counsel , lodged numerous requests to obtain further evidence . With CARDINAL decisions altogether ORG rejected these requests as being irrelevant or unnecessary .

On DATE the ORG convicted the applicant of CARDINAL offences of fraud and sentenced him to DATE and QUANTITY months’ imprisonment . ORG set out the reasons for the applicant ’s conviction on CARDINAL pages . In establishing the relevant facts , ORG had regard to documentary evidence , to the confessions of the CARDINAL co - accused , the statements of numerous other witnesses and the applicant ’s own statements . The court considered the length of the applicant ’s pre - trial detention a mitigating factor .

On DATE ORG dismissed an appeal by the applicant on points of law .

On DATE the applicant lodged a constitutional complaint with ORG in which he complained about the refusal of his numerous requests to obtain further evidence .

On DATE ORG refused to admit his constitutional complaint without giving any further reasons .

LAW of LAW ) and LAW provide as follows :

“ Every person shall have the right to life and physical integrity . Freedom of the person shall be inviolable . These rights may be interfered with only pursuant to a law . ”

According to the NORP ORG well - established case - law , pre - trial detention is only permissible under exceptional circumstances , having special regard to the presumption of innocence . The domestic authorities constantly have to weigh the public interest in criminal prosecution against the individual ’s right to liberty . The length of the detention has to be proportionate to the likely penalty , if the individual is convicted . Furthermore , the prosecution authorities and criminal courts are required to expedite proceedings by taking all feasible steps swiftly to terminate the investigations and to reach a judicial decision . In case of an avoidable delay in the criminal proceedings , continued pre - trial detention can generally not be justified ( see , most recently , the decision of ORG dated DATE , no . CARDINAL BvR CARDINAL/CARDINAL , with further references ) .

LAW of LAW ( and LAW ) in conjunction with the principle of the rule of law guarantees the right to expeditious proceedings . According to the settled case - law of ORG PERSON ( see , decision of DATE , no . CARDINAL StR CARDINAL , decision of CARDINAL DATE , no . CARDINAL StR DATE ) and of ORG ( see , among others , decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , and decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ) , the consequence of the excessive length of criminal proceedings must be either a reduction of the sentence or even the discontinuation of the proceedings . Pursuant to recent decisions of ORG , that principle applies to the criminal courts as well as to ORG ( see decision of DATE , no . DATE , ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . ; decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . ; and decision of DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , DATE and DATE ) .

Sections CARDINAL et seq . of the Code of Criminal Procedure ( Strafprozessordnung ) concern detention during judicial proceedings . Pursuant to section CARDINAL § CARDINAL of the Code , a defendant may be detained during judicial proceedings if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him . Grounds for arrest will exist where certain facts warrant the conclusion that the suspect has fled or is hiding ( section CARDINAL § CARDINAL no . CARDINAL ) or that there is a risk of his absconding ( section CARDINAL § CARDINAL no . CARDINAL ) .

Section CARDINAL § CARDINAL of the LAW provides that as long as a judgment imposing a prison sentence has not been given , detention pending trial for the same offence shall only be executed for DATE if the particular difficulty or the unusual extent of the investigations or a different important reason do not yet permit pronouncement of the judgment and justify continued detention .

Under section CARDINAL § CARDINAL of the Code , remand prisoners may ask at any time for judicial review ( Haftprüfung ) of the decision to issue an arrest warrant or for the warrant to be suspended .

The calculation of the DATE period does not include any period of detention served abroad with a view to the detainee ’s extradition . According to section CARDINAL § CARDINAL of the Code the running of the DATE period is suspended as soon as the files are lodged with ORG .

According to section CARDINAL of the Code , the trial court may , by order , provisionally terminate the proceedings if the absence of the indicted accused or other personal impediment would prevent the holding of the main hearing for a considerable time . That provision must be seen in connection with section CARDINAL § CARDINAL of the Code according to which no trial shall be held in respect of an absent person .


Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved

Mr PERSON has dual NORP and NORP nationality and has his home at GPE ( Greater GPE ) in the GPE . He is a company director and in DATE was also honorary consul of the GPE in GPE , having just resigned as NORP foreign - trade counsellor in GPE .

PERSON and PERSON , both of NORP nationality , are respectively the mother and the wife of the first applicant . They are housewives .

On CARDINAL and DATE officers from the GPE customs , accompanied by a senior police officer ( officier de police judiciaire ) , made CARDINAL searches of LOC in GPE which housed the head offices of the companies managed by PERSON and which served as the GPE consulate . The applicants - who in GPE lived at FAC ( Labarde , Gironde ) - used to receive there all private mail that was not sent direct to GPE . The searches took place from TIME to TIME on DATE and from TIME to TIME on DATE , the applicant and his secretary being present on both occasions .

The officers seized CARDINAL documents . They placed them unsorted in CARDINAL cardboard boxes which they sealed and took away to the ORG regional head office .

Work on removing the seals and classifying the documents began on DATE , in the presence of a senior police officer and PERSON . The latter asked for and obtained a photocopy of documents that he said he needed urgently for his work .

After being suspended at the applicant ’s request , the work resumed on DATE in the presence of CARDINAL senior police officers ; PERSON lawyer had indicated by telephone that his client refused to attend .

In all , the customs registered CARDINAL documents . They considered the remainder to be of no relevance to their inquiries and returned them in CARDINAL sealed boxes .

The searches and seizures in issue were based on ORG CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL below ) and were part of an investigation to determine whether the applicants were to be regarded as being resident in GPE and whether they had contravened the legislation on financial dealings with foreign countries .

On a complaint lodged by the director of customs investigations on DATE , the GPE public prosecutor ’s office began a judicial investigation in respect of the CARDINAL applicants on DATE .

A local investigating judge charged them on DATE with offences against the legislation and regulations governing financial dealings with foreign countries .

In a final application of DATE the GPE public prosecutor requested the investigating judge to commit PERSON and PERSON for trial at ORG and to discharge PERSON . On DATE the judge made orders to this effect .

The trial was due to begin on DATE but was postponed to CARDINAL DATE at PERSON and PERSON request . In a judgment of DATE ORG ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of PERSON and PERSON were barred as a result of changes in the criminal law . It also ordered the return of the seized documents .

On DATE the CARDINAL applicants had instituted proceedings against ORG in ORG ( CARDINALst district ) , which they asked to

" Hold that under domestic law customs officers may make house searches as provided in Articles CARDINAL and CARDINAL of LAW only in order to look for goods .

Hold that seizure of documents by customs officers can not be regarded as being in accordance with the provisions of LAW .

Hold that seizure of letters from lawyers to their clients amounts to an interference with the rights of the defence .

And consequently ,

Declare the seizures of CARDINAL and DATE null and void . "

On DATE the court declined jurisdiction in favour of the GPE tribunal de grande instance .

The PERSON applied to the GPE tribunal de grande instance , which likewise held that it had no jurisdiction . In its judgment of CARDINAL DATE it gave the following reasons :

" That being so , as was held in the aforementioned judgment of DATE , the ordinary courts have no jurisdiction to assess the lawfulness of the actions in issue unless there has been a flagrantly unlawful act ( voie de fait ) .

The customs officers made the seizures under LAW .

That Article , which empowers authorised officers to establish offences against the regulations governing financial dealings with foreign countries as provided in LAW , lays down a rule that applies not only to searches for goods held unlawfully but also to those for documents likely to constitute the subject - matter or evidence of these offences .

The seizures that are alleged to be null and void were therefore carried out by the authorities within the framework laid down by law for establishing offences against the regulations governing financial dealings with foreign countries , whose constitutionality is not for the ORG to review .

Although LAW provides in DATE ( article CARDINAL) that ‘ everyone has the right to respect for his private and family life , his home and his correspondence’ , interference by a public authority with the exercise of this right is provided for in the same LAW where such interference ‘ is in accordance with the law and is necessary ... in the interests of ... the economic well - being of the country , [ and ] for the prevention of ... crime ... ’ . The customs’ action was taken in that context .

The provisions of LAW on house searches relate to operations referred to in that code and do not apply to searches made under LAW , which continue to be governed by the special legislation on the matter . LAW of DATE , which requires the intervention of the judicial authorities in respect of house searches during the investigation and establishment of offences against tax and business regulations , moreover provides in LAW that ‘ house searches made pursuant to the LAW shall continue to be governed by existing legislation’ .

ORG decision on which the plaintiffs relied is likewise irrelevant to that legislation .

The ordinary courts consequently have no jurisdiction to review the lawfulness of the seizures made at the home of PERSON and PERSON . The ORG must decline jurisdiction . "

The PERSON appealed , seeking a declaration that the seizures on CARDINAL and DATE were null and void and an order for return of the documents held by the customs .

On DATE ORG upheld the judgment of CARDINAL DATE in the following terms :

" The seizures in issue were not challenged on the ground of any formal defect .

The courts below correctly held that the powers conferred on customs officers by Articles CARDINAL and CARDINAL of the Customs Code , special provisions which are not overridden by the more general ones of LAW of DATE , cover the seizure of documents likely to constitute the subject - matter or evidence of offences against the regulations governing financial dealings with foreign countries .

To this extent the principles relating to the protection of private life , the home and correspondence can not be an obstacle to applying these provisions .

However , although coming within the ambit of the aforementioned ORG CARDINAL and CARDINAL , the unlawful seizure or retention of purely private documents that were manifestly irrelevant to the financial or business transactions which prompted the authorities’ intervention could amount to a flagrantly unlawful act , since such an infringement of civil liberties would then be wholly severable from the authorities’ powers .

In the instant case it appears from the search and seizure reports which have been put in evidence that on CARDINAL and DATE the authors of them placed a very large number of documents under seal in the offices of PERSON and in his presence , and that he , while protesting against the principle of the seizure , made no objection based on the nature of any given document . On DATE the seals were removed and all the documents were classified , and PERSON and his secretary availed themselves of the opportunity they were afforded to take a photocopy of those documents ‘ which they needed for their work in the coming days’ . Once again , PERSON made no reference to the presence of purely private papers or letters among his business papers .

On DATE the same customs officers proceeded to go through the documents in detail and seized them . PERSON had been summoned to attend but made it known that he refused to do so . Notwithstanding his absence , numerous documents were exempted from seizure ‘ as being of no relevance to their ORG and were placed in CARDINAL sealed cardboard boxes and returned to Mr GPE DATE .

In these circumstances it appears that the officials took the most meticulous precautions in order not to exceed their powers under the law and that if it is subsequently shown that they have inadvertently kept purely private papers unconnected with their investigation - papers of which the CARDINAL appellants have never given any particulars - , Mr PERSON must be held largely responsible , and at all events it could only have occurred as a result of an involuntary mistake and not of a manifest , deliberate violation of a personal freedom . "

An appeal on points of law by the applicants was dismissed by ORG of ORG on DATE . Its judgment read as follows :

" As to the first ground :

ORG is criticised for having ruled as it did , in that , according to the applicants , in confining itself to noting that the seizure in dispute was made as part of an investigation into the status as a NORP resident of PERSON , the GPE consul in GPE , without even determining whether the purpose of the operation was to seize documents likely to constitute the subject - matter or evidence of an offence against the regulations governing financial dealings with foreign countries , ORG infringed Articles CARDINAL and CARDINAL of the Customs Code .

It appears from ORG own reasons and those it adopted , however , that the disputed seizures were made during an investigation to ascertain whether PERSON had , as a NORP resident , committed offences against the legislation governing financial dealings with foreign countries . The ground has not been made out .

As to the second ground :

ORG is further criticised for having ruled as it did , in that , according to the applicants , it could not , without infringing LAW , omit to answer the submission in which Mr and PERSON argued that , independently of the existence of any flagrantly unlawful act which might have been committed against them , LAW entrusted the judiciary with the protection of every aspect of the liberty of the individual , and in particular the inviolability of the home .

In its judgment , however , ORG held that , although coming within the ambit of the aforementioned ORG CARDINAL and CARDINAL , the unlawful seizure or retention of purely private papers that were manifestly irrelevant to the transactions which had prompted the authorities’ intervention could amount to a flagrantly unlawful act , since such an infringement of civil liberties would then be severable from the authorities’ powers . ORG also noted that the customs officials took the most meticulous precautions in order not to exceed their powers and that there was no manifest , deliberate violation of a personal freedom . In so holding , ORG answered the submissions made , and it follows that the ground is not made out .

As to the third ground :

Lastly , ORG is criticised for having ruled as it did , in that , according to the applicants , by raising of its own motion the points of pure fact that the customs officers classified the CARDINAL documents seized and then went through them , which allegedly led to some of them being returned to PERSON on account of their irrelevance to the investigation , ORG exceeded its powers and violated Articles CARDINAL , CARDINAL , DATE and DATE simultaneously of LAW .

ORG , however , held that the facts it noted appeared from the search and seizure reports put in evidence , which have been produced . Its judgment is therefore not susceptible to the criticism made in this ground . "

The criminal provisions of customs law in GPE are treated as a special body of criminal law .

CARDINAL provisions of LAW are relevant as regards these officials :

" The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries :

customs officers ;

other officials of ORG with the rank of at least inspector ;

senior police officers ( officiers de police judiciaire ) .

The reports made by senior police officers shall be forwarded to the Minister for ORG and Finance , who shall refer cases to the prosecuting authorities if he thinks fit . "

" The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in LAW code . "

When the house searches were made ( CARDINAL and DATE ) , LAW was worded as follows :

" CARDINAL . When searching for goods held unlawfully within the customs territory , except for built - up areas with a population of CARDINAL , and when searching in any place for goods subject to the provisions of LAW hereinafter , customs officers may make house searches if accompanied by a local municipal officer or a senior police officer ( officier de police judiciaire ) .

In no case may such searches be made during TIME .

ORG officers may act without the assistance of a local municipal officer or a senior police officer

( a ) in order to make searches , livestock counts , and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

( b ) in order to look for goods which , having been followed and kept under uninterrupted surveillance as provided in LAW hereinafter , have been taken into a house or other building , even if situated outside the customs zone .

If entry is refused , customs officials may force an entry in the presence of a local municipal officer or a senior police officer . "

ORG DATE ( section CARDINAL and II ) and DATE ( section CARDINAL-III , CARDINAL ) amended LAW , which now provides :

" CARDINAL . In order to investigate and establish the customs offences referred to in ORG CARDINAL - CARDINAL and CARDINAL of this code , customs officers authorised for the purpose by the Director- General of ORG and Excise may make searches of all LOC , even private ones , where goods and documents relating to such offences are likely to be held and may seize them . They shall be accompanied by a senior police officer ( officier de police judiciaire ) .

( a ) Other than in the case of a flagrant offence ( flagrant délit ) , every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated , or a judge delegated by him .

Against such an order there shall lie only an appeal on points of law as provided in LAW ; such an appeal shall not have a suspensive effect . The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order .

The order shall contain :

( i ) where applicable , a mention of the delegation by the President of the tribunal de grande instance ;

( ii ) the address of the premises to be searched ;

( iii ) the name and position of the authorised official who has sought and obtained leave to make the searches .

The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought .

If , during the search , the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the LOC searched and in which documents , goods or other items relating to the activities referred to in paragraph CARDINAL above are likely to be found , they may , with leave given by any means by the judge who made the original order , immediately search the strongbox . Such leave shall be mentioned in the report provided for in paragraph CARDINAL(b ) below .

The judge shall take practical steps to check that each application for leave made to him is well - founded ; each application shall contain all information in the possession of the customs authorities that may justify the search .

He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress .

The search shall be carried out under the supervision of the judge who has authorised it . Where it takes place outside the territorial jurisdiction of his tribunal de grande instance , he shall issue a rogatory letter , for the purposes of such supervision , to the President of the tribunal de grande instance in the jurisdiction of which the search is being made .

The judge may go to the scene during the operation .

He may decide at any time to suspend or halt the search .

The judicial order shall be notified orally to the occupier of the LOC or his representative on the spot at the time of the search , who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph CARDINAL(b ) below . If the occupier of the LOC or his representative is absent , the judicial order shall be notified after the search by means of a registered letter with recorded delivery . Notification shall be deemed to have been made on the date of receipt entered in the record of delivery .

Failing receipt , the order shall be served as provided in Articles CARDINAL et seq . of LAW .

The time - limits and procedures for appeal shall be indicated on notification and service documents .

( b ) Searches may not be commenced before TIME or after TIME They shall be made in the presence of the occupier of the LOC or his representative ; if this is impossible , the senior police officer shall requisition CARDINAL witnesses chosen from persons not under his authority or that of the customs .

Only the customs officers mentioned in paragraph CARDINAL above , the occupier of the LOC or his representative and the senior police officer may inspect documents before they are seized .

The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of LAW ; LAW of that code shall apply .

The report , to which shall be appended an inventory of the goods and documents seized , shall be signed by the customs officers , the senior police officer and the persons mentioned in the first sub - paragraph of this section ( b ) ; in the event of a refusal to sign , mention of that fact shall be made in the report .

Where an on - the - spot inventory presents difficulties , the documents seized shall be placed under seal . The occupier of the LOC or his representative shall be informed that he may be present at the removal of the seals , which shall take place in the presence of the senior police officer ; the inventory shall then be made .

A copy of the report and of the inventory shall be given to the occupier of the LOC or his representative .

A copy of the report and the inventory shall be sent to the judge who made the order within DATE of its being drawn up .

ORG officers may act without the assistance of a senior police officer

( a ) in order to make searches , livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

If entry is refused , customs officers may force an entry in the presence of a senior police officer . "

Article CARDINAL of the ORG Code provides :

" Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for ORG and ORG or CARDINAL of his representatives authorised for the purpose . "


AZIM DENIZCILIK TICARET VE SANAYI LIMITED SIRKETI v. UKRAINE

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP company with its office in FAC , GPE . It was represented before the ORG by Mr Y. Efe , a lawyer practising in PERSON . The respondent Government were represented by PERSON Y. GPE , their Agent . ORG had exercised its right to intervene ( LAW CARDINAL § CARDINAL ( b ) of ORG ) .

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

At the material time the applicant company owned a ship , M / V Sevgin . On DATE it was hired to carry goods of ORG V. from ORG , a NORP port , to PERSON , a NORP port . For this purpose on DATE the applicant 's ship arrived at ORG port . According to the applicant , the ship was damaged when mooring . After the cargo had been loaded on the ship , the independent inspectors revealed that the cargo had been damaged because of water leaking through a hole in the ship .

On DATE the ORG company instituted proceedings in ORG ( the “ Town Court ” ) against the applicant , seeking compensation for the damaged cargo . On DATE , at ORG 's request , the court impounded the applicant 's ship to secure the claim .

In DATE ORG adjourned the hearings on CARDINAL occasions due to the parties ' failure to appear before it .

On DATE ORG allowed ORG 's claim and awarded it CARDINAL NORP hryvnyas ( ORG ) in damages and ORG CARDINAL in costs and expenses . On DATE ORG adopted a decision specifying that the judgment of DATE could be enforced by way of selling the impounded ship . According to the applicant company , it was only notified about the proceedings at this stage .

On DATE ORG instituted enforcement proceedings and on DATE attached the applicant company 's ship .

On DATE the ORG , ruling on the applicant company 's appeal , upheld the judgment of DATE but quashed the decision of CARDINAL DATE , which had been adopted in the absence of the parties . The matter was remitted back to ORG but it is not clear from the available documents whether any decision has been taken on it .

On DATE , at the end of the DATE time - limit for lodging of appeals against the court decisions mentioned in the preceding paragraph , the applicant company appealed in cassation .

On DATE ORG of Odessa quashed the bailiffs ' decisions of DATE , finding that the enforcement proceedings in the applicant company 's case should have been carried out by the NORP authorities in accordance with the relevant treaty between GPE and GPE . It further ordered that the applicant company should not be prevented by anybody from using its ship . However , on DATE , when the crew attempted to board the ship , the bailiffs ' officers barred them access .

On DATE , at the applicant company 's request , the ORG of GPE prohibited the public sale of the applicant 's ship . On DATE the ORG dismissed an appeal by the bailiffs against this decision .

On DATE ORG , for the purposes of partial enforcement of the judgment of DATE , acknowledged ORG 's property right over the disputed ship . On DATE this decision was enforced .

On DATE ORG informed the applicant that criminal proceedings had been instituted against the bailiffs ' officials for abuse of powers .

On DATE ORG allowed in part the applicant company 's appeal in cassation and quashed the judgments of DATE and DATE as unfounded remitting the case to ORG for a fresh examination .

On DATE ORG took over the case .

DATE and CARDINAL DATE QUANTITY hearings were adjourned because of , inter alia , the applicant company 's relevant requests .

On the last - mentioned date the applicant company counterclaimed , seeking damages from ORG for the loss of its ship . It also requested to adjourn the hearing . For this reason , on CARDINAL DATE ORG , having allowed the request , adjourned the hearing till DATE .

On DATE the hearing was adjourned till DATE due to the applicant company 's failure to attend it as its representative was ill .

On DATE ORG awarded PERSON damages in the amount of ORG ORG and rejected the applicant company 's counterclaim as unsubstantiated .

On DATE the applicant company appealed .

On DATE the ORG upheld the judgment .

On DATE , at the end of the DATE time - limit for lodging of appeals against the above court decisions , the applicant company appealed in cassation . It did not mention in its cassation appeal that it had not had sufficient time to prepare for the hearings of the case .

On DATE ORG , acting as a court of cassation , dismissed the appeal and upheld the lower courts ' decisions .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE , ORG region .

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

On DATE the applicant 's son , PERSON , was found dead in his house , in which he lived alone .

On DATE the police questioned relatives , neighbours and friends of Mr Y. M. They were informed that the late Mr Y. M. lived alone and was not known to have been on bad terms with anyone . According to the applicant no on - site inspection was conducted .

On DATE an autopsy was conducted . The forensic expert concluded that Mr PERSON died of cerebral trauma caused by being hit on the head with a hard object and that the trauma could have been the result of a fall from his own height . No other bodily injuries were identified . The expert further noted that at the time of death Mr PERSON was sober .

On DATE investigator PERSON refused to institute criminal proceedings into the death of the applicant 's son on the basis of the above autopsy report .

On DATE , however , criminal proceedings were instituted following information received by the police from the applicant , her other son and several other individuals , that on the eve of Mr PERSON death he had had a drinking party in his house with several of his acquaintances and that CARDINAL of them , PERSON and PERSON , had severely beaten him .

Mr Z. and PERSON were arrested . Police questioned the persons who had provided this information or were eyewitnesses to the fight . The investigator also requested additional forensic examination as to the time and cause of death of PERSON

On DATE the forensic medical examination confirmed the conclusions of the first autopsy report . It also noted that the head trauma did not have any traces which could identify the object which had caused this trauma .

During additional questioning of the witnesses to the events of DATE they retracted their statements .

Following this , Mr PERSON and PERSON were released and the criminal proceedings were terminated on DATE for lack of proof of crime , given that there were no signs of a fight on the body of Mr PERSON and that participants in the party had denied that any conflict took place during the party .

By a letter of DATE ORG informed the applicant that the investigation had been conducted by officer PERSON , who had failed to establish comprehensively , fully and objectively all the circumstances of the crime and to identify all those involved .

By a letter of DATE ORG informed the applicant that they had established that the investigation was incomplete and that disciplinary proceedings had been instituted against investigator S.

By a letter of CARDINAL DATE the deputy head of ORG informed the applicant , among other things , that they had established that there had been delays in the investigation , which had not been completed , and that for these reasons investigator PERSON had been disciplined .

On DATE the forensic expert examination repeated the same conclusions and stated that with this trauma Mr M. would still have been able to move for up to TIME .

On DATE the investigator terminated the proceedings again . He established that the forensic examination did not confirm any signs of a fight or self - defence on the body of Mr Y. M. Furthermore , Mr V. M. retracted his statement about the beating , maintaining that he had made it in fear of the police . This version was also confirmed by the fact that people who had visited Mr PERSON house had not seen any signs of a fight there .

On DATE the decision to terminate the criminal proceedings was quashed following the applicant 's complaint that the police officers who had arrived first at Mr PERSON house had not been questioned concerning the site . The investigator was also instructed to conduct an on - site reconstruction of events with PERSON , who was the last to see PERSON Y. M. alive .

On DATE an additional forensic examination concluded that the trauma could not have been caused by a fall from his own height .

By a letter of DATE the applicant was informed by ORG about the results of the latest forensic examination and informed again that investigator PERSON had been found liable for the delays in the investigation .

On CARDINAL DATE the investigator suspended the criminal proceedings on the ground that the identity of the person or persons responsible for the death of the applicant 's son had not been established .

On DATE another forensic examination noted that the trauma could have been caused by several blows with a smooth hard object .

On DATE the further forensic examination concluded that the trauma could have been caused by a singular blow or several blows to the head by a hard object and not by a fall from his own height or blows with fists .

By a letter of CARDINAL DATE the head of ORG of ORG informed the applicant that investigators S. and NORP , who had dealt with the case had been disciplined for premature decisions to terminate and suspend criminal proceedings and for delays in the conduct of all necessary investigative actions .

On DATE the investigator appointed an additional investigation . The proceedings are still pending .

The relevant provisions of the LAW provide :

“ The human being , his or her life and health , honour and dignity , inviolability and security are recognised in GPE as having the highest social value . ... ”

“ Every person has the inalienable right to life .

No one shall be arbitrarily deprived of life . The duty of the ORG is to protect human life . ... ”

The relevant provisions of LAW read as follows :

“ The court , prosecutor or investigator must , to the extent that it is within their power to do so , institute criminal proceedings in every case where evidence of a crime has been discovered , take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them . ”

“ Criminal proceedings shall be instituted on the following grounds :

( CARDINAL ) applications or communications from ... individuals ;

( CARDINAL ) direct detection of signs of a crime by a body of inquiry or investigation , a prosecutor or a court .

A case may be instituted only when there is sufficient evidence that a crime has been committed . ”


Government's request to strike out refused;Violation of Art. 14+8;Costs and expenses partial award

The applicant was born in DATE and lived in GPE .

From DATE the applicant lived with Mr PERSON , with whom he had a homosexual relationship , in a flat in GPE , which the latter had rented DATE . They shared the expenses on the flat .

NORP In DATE Mr W. discovered that he was infected with the Aids virus . His relationship with the applicant continued . In DATE , when Mr PERSON developed Aids , the applicant nursed him . In DATE Mr PERSON died after designating the applicant as his heir .

NORP In DATE the landlord of the flat brought proceedings against the applicant for termination of the tenancy . On DATE the ORG ( Bezirksgericht ) dismissed the action . It considered that section CARDINAL(CARDINAL ) of GPE ( ORG ) , which provided that family members had a right to succeed to a tenancy , was also applicable to a homosexual relationship .

On DATE ORG ( PERSON für PERSON ) dismissed the landlord 's appeal . It found that section CARDINAL(CARDINAL ) of LAW was intended to protect persons who had lived together for a long time without being married against sudden homelessness . It applied to homosexuals as well as to persons of opposite sex .

On DATE ORG ( Oberster Gerichtshof ) granted the landlord 's appeal , quashed the lower court 's decision and terminated the lease . It found that the notion of “ life companion ” ( ORG ) in section CARDINAL(CARDINAL ) of LAW was to be interpreted as at the time it was enacted , and the legislature 's intention in DATE was not to include persons of the same sex .

On DATE the applicant died .

On DATE the applicant 's lawyer informed ORG applicant 's death and that his mother had waived her right to succeed to the estate . He asked the ORG not to strike the application out of its list before the public notary handling the applicant 's estate had traced other heirs .

On DATE the applicant 's lawyer informed the ORG that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate .

Section CARDINAL of LAW ( Mietrechtsgesetz ) reads as follows :

“ Right to a tenancy in the event of death

( CARDINAL ) The death of the landlord or a tenant shall not terminate a tenancy .

( CARDINAL ) On the death of the main tenant of a flat , the persons designated in subsection ( CARDINAL ) as being entitled to succeed to the tenancy shall do so , to the exclusion of other persons entitled to succeed to the estate , unless they have notified the landlord within DATE of the main tenant 's death that they do not wish to continue the tenancy . On succeeding to the tenancy , the new tenants shall assume liability for the rent and any obligations that arose during the tenancy of the deceased main tenant . If CARDINAL person is entitled to succeed , they shall succeed jointly to the tenancy and become jointly and severally liable .

( CARDINAL ) The following shall be entitled to succeed to the tenancy for the purposes of subsection ( CARDINAL ) : a spouse , a life companion , relatives in the direct line including adopted children , and siblings of the former tenant , in so far as such persons have a pressing need for accommodation and have already lived in the accommodation with the tenant as members of the same household . For the purposes of this provision , ' life companion ' shall mean a person who has lived in the flat with the former tenant until the latter 's death for DATE , sharing a household on an economic footing like that of a marriage ; a life companion shall be deemed to have lived in the flat for DATE if he or she moved into the flat together with the former tenant at the outset . ”


The applicant was born in DATE and lives in GPE .

He is the grandson of PERSON , who was CARDINAL of the joint owners of a CARDINAL m² plot of land in GPE . The applicant 's share corresponds to CARDINAL m² of the land in question . The applicant 's right of succession is established by CARDINAL different court decisions dated DATE , CARDINAL DATE , CARDINAL DATE and CARDINAL DATE . However , the title of the land in question was registered , among others , in the name of PERSON .

On DATE ORG informed GPE that the land in question was going to be expropriated . It communicated to GPE the names of the owners who were mentioned on the title deed and requested the relevant tax declarations , in order to determine their addresses . However , only the original owners ' first names and the first names of their fathers appeared on the title deed .

NORP In its letter of CARDINAL DATE the GPE was only able to submit the tax declarations in respect of some of the owners . They informed the ORG that since they had not been communicated sufficient information on the identity of some of the owners , they were unable to find their tax declarations .

NORP The village headman , the title registry office , the birth registration office , the gendarmerie and the police department in GPE also informed the ORG that they had been unable to ascertain the addresses of the owners , as their last names and their birth registrations were not communicated to them .

On DATE it was announced in a local newspaper that the property in question had been expropriated . It was also noted that a committee of experts would be assessing its value on CARDINAL DATE . On the said date the committee of experts assessed the value of the land at MONEY ( GPE ) .

On DATE and CARDINAL DATE the GPE announced the expropriation of the land over loudspeakers , throughout the town . On DATE it was announced , in another local paper , that the compensation for expropriation was deposited in a bank account , in the name of the owners , including that of the applicant 's grandmother . In DATE , the same notification was published also in a national newspaper . In all these publications only the original owners ' first names and the first names of their fathers were mentioned .

On DATE the property in question was registered in the name of the ORG .

On DATE the applicant and some of the heirs , who were the joint owners of the land in question , became aware of the expropriation of their property .

On DATE the applicant , together with CARDINAL other heirs , filed an action for additional compensation before ORG , against ORG .

The Ministry requested the court to dismiss the case for failure to comply with the statutory time - limit . The plaintiffs argued that the authorities failed to notify them of the expropriation of their property . They contended that the notifications were deprived of any legal effect as they were made in the name of their deceased ancestors .

NORP In DATE a group of experts , appointed by the court , inspected the land and concluded that the total amount of additional compensation that had to be paid to the plaintiffs was GPE CARDINAL . The applicant 's share amounted to ORG .

On DATE the court maintained that the ORG breached the rules of notification as provided in LAW . It noted that the authorities merely notified the expropriation by publishing it in a newspaper , without making an extensive enquiry , as required in LAW . It also noted that the authorities could have also issued a notification through the notary . ORG therefore dismissed the ORG 's preliminary objection and upheld the plaintiffs ' request by increasing the expropriation fee together with an interest rate which would run from DATE , the supposed date on which several of the owners renounced their property right over the land in question . Relying on the expert report of DATE , it awarded the applicant GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL .

On DATE ORG upheld the decision of the first instance court by modifying the date from which the interest rate would run . It held that the interest should begin to run from DATE the date on which the property was transferred to ORG .

Following the ORG 's request , on DATE , ORG of ORG rectified the decision of CARDINAL DATE . It held that although the authorities had followed the procedure prescribed in LAW they were unable to ascertain the addresses of the owners . The court maintained that the fact that there were no tax declarations for these properties was also confirmed in GPE letter dated DATE . ORG consequently rectified its decision of CARDINAL DATE and quashed the decision of the first instance court .

On DATE ORG followed the reasoning of ORG . It held that ORG had to notify the owners through publication , since it had been unable to determine the addresses , even after carrying out all necessary inquiry . It therefore dismissed the applicant 's case for failure to comply with the statutory time - limit .

On DATE ORG upheld the decision of DATE .

On DATE the applicant and the other heirs requested the reopening of the proceedings .

On DATE ORG asked GPE and ORG whether the owners and their heirs paid any tax for the land in question . All the names communicated in this letter were mentioned in full .

ORG advised ORG to refer to the Municipality , as all property tax declarations as of DATE were handed over to the municipalities . Whereas , tax declarations which dated before DATE were submitted for paper recycling .

Later on DATE , GPE informed the court that they were in possession of tax declarations in respect of the land in question , for DATE , which contained some of the addresses . It also attached to its letter copies of CARDINAL property tax declarations for DATE . According to these declarations , PERSON , who was the son of PERSON and the uncle of the applicant , together with his co - owners paid a total of GPE CARDINAL in total , for their property of QUANTITY .

On DATE ORG Instance dismissed the plaintiff 's request for rectification .

On DATE ORG upheld the decision of the first instance court . It observed that the authorities tried to find the owners by relying on the information found in the title registry . It noted that it was evident that the original owners were deceased and that the heirs paid their tax duties concerning these lands . It concluded however , that the fact that the tax department did not inform the authorities about the names and addresses of the owners did not render the notification , which had been carried out by ORG in accordance with LAW , void of effect .

On DATE , in accordance with the Law no . CARDINAL , all NORP citizens , who were , until then , referred to by their first name and the first name of their father , were requested to adopt a family name .

DATE ( Law no . ORG ) provides that the expropriating authority is required to establish ownership and ascertain the addresses by making an enquiry at the title registry , tax department , and birth registry . Moreover they are further expected to make everything that is necessary to contact the owners . LAW provides that if the addresses of the owners are not found , then the expropriation should be notified by publication .

Following the decision to expropriate a property , a committee of experts is requested to assess the value of the land . This amount is deposited in a bank account , in the name of the owners . Subsequently , all related documents are brought to the attention of the owners either by issuing a notification through a public notary or , when that is not possible , by way of publication ( LAW ) . If the owners do not request the annulment of the decision to expropriate , even if they file an action for additional compensation , all property rights over the land in question are transferred to the administration within DATE from notification ( LAW ) .


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

The applicant was born in DATE and lives in GPE .

The applicant was declared bankrupt on DATE by ORG ( kihlakunnanoikeus , häradsrätten ) of GPE . J. , a lawyer practising in GPE , was appointed by a court order to act as the official receiver to his estate .

By a written notice , dated DATE , PERSON requested the postal service to send all the mail addressed to the applicant to the law office of J. The day before , on DATE , a meeting was held between the debtor , i.e. the applicant , and the official receiver in the law office of J. According to the Government , it was agreed that the applicant ’s mail be transferred to the office and handled so that the official mail was opened , whereas the private mail was put aside to be further transmitted to the applicant . According to the applicant , no such agreement was reached .

The applicant contacted a lawyer at the postal service who informed him that the personal mail of a person declared bankrupt should not be transferred to the official receiver . The applicant received his mail from DATE .

While the mail was being transferred to the law office ( DATE ) , PERSON received and opened a letter sent by an insurance company and addressed to the applicant . The letter was sent to the applicant in an official envelope of the company and signed by the representative of the company ’s legal department . Apparently the letter concerned a valuation of an apartment owned by the applicant ’s ex - wife .

On DATE , the applicant requested the police to investigate the matter . During the police investigation J. said that the applicant had sent him a message after the meeting of DATE , withdrawing his consent to the transfer of mail and that on CARDINAL or DATE the applicant requested the postal service to transfer the mail back to his own address as he considered that the transfer of mail to the law office had been unlawful .

On DATE , finding that the requested prosecution of the alleged offence had become time - barred , a prosecutor issued a decision not to prosecute .

The applicant then instituted civil proceedings against ORG , requesting that J. be ordered to return all missing letters to the applicant and , failing which , he be ordered to pay MONEY ( FIM ) ( MONEY ( ORG ) ) in compensation for non - pecuniary damage as well as the applicant ’s legal fees and expenses . The proceedings were based on the fact that J. had opened the letter sent by the insurance company .

A legal counsel of the postal service who was heard before ORG of Espoo ( käräjäoikeus , tingsrätt ) stated that the postal service applied the principles that were included in the repealed Postal Service Decree ( postiliikenneasetus , posttrafikförordning ; CARDINAL ) concerning the sorting of mail belonging to estates in respect of which an official receiver had been appointed by the court . According to him , it was a duty of the postal service to sort the debtor ’s mail and put aside official mail belonging to the estate . In cases where the official nature of the mail was not clear , post offices decided on a case by case basis where to send the mail .

On DATE ORG rejected all the claims submitted by the applicant , finding that both PERSON and the postal service had acted in accordance with LAW ( konkurssisääntö , konkursstadga ; CARDINAL/CARDINAL as in force at the relevant time ) , and the established practice and internal instructions of the postal service concerning the sorting of mail . The applicant was ordered to pay ORG CARDINAL ( approximately ORG MONEY ) in compensation for J. ’s legal expenses . ORG reasoned its decision , inter alia , as follows :

“ ORG agrees with the view of [ J. ] in that the official receiver has , in accordance with LAW , subsection CARDINAL , of LAW , a right to request that the debtor ’s mail be received by the official receiver , excluding the debtor ’s personal mail .

[ J. ] denied that the estate was in the possession of any other mail addressed to [ the applicant ] , excluding a letter from the insurance company [ P. ] . That letter was related to the clarification of the assets and debts of [ the applicant ] and , thus , was included in the documents belonging to the estate . The estate was not obliged to return any of the material which belonged to it .

In the light of the evidence , [ J. ] has acted in accordance with the provisions of LAW .

The [ applicant ’s ] claims are rejected as a whole . ”

The applicant appealed to ORG ( hovioikeus , hovrätten ) of GPE which , on DATE , upheld ORG decision . The applicant was ordered to pay ORG costs of ORG ( approximately ORG CARDINAL ) . On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .

Section CARDINAL of ORG , which was issued in DATE and repealed in its entirety in DATE ( CARDINAL/CARDINAL ) , but was nonetheless applied as an internal instruction within the postal service , read as follows :

“ Declaration of bankruptcy of a mail recipient does not affect his right to receive mail and postal orders . Where a person who proves that he has the right to represent the bankruptcy estate requires that mail and postal orders addressed to the person declared bankrupt be transferred to him , the amounts indicated on the postal order shall be paid to the bankruptcy estate .

A mail delivery addressed to a recipient declared bankrupt , the receipt of which needs to be acknowledged , shall be returned to the sender unless the sender has otherwise ordered before the return of the mail .

Notwithstanding the provisions in subsections CARDINAL and CARDINAL above , a natural person declared bankrupt shall nevertheless have the right to mail deliveries which clearly indicate that they do not belong to the bankruptcy estate . ”

According to LAW , LAW of the former LAW of Finland ( hallitusmuoto , regeringsformen ; CARDINAL ) as in force at the relevant time , the right to the secrecy of correspondence , telegraph messages and telephone conversations is inviolable , subject to exceptions provided for in the law .

The relevant sections of LAW ( konkurssisääntö , konkursstadga ) provided at the relevant time as follows :

“ LAW belonging to the bankrupt ’s estate ( CARDINAL/CARDINAL )

Section CARDINAL

( CARDINAL ) The property belonging to a bankrupt ’s estate shall consist of any property which was in the debtor ’s possession at the time of lodging a request for the transfer of property with a court of law , or at the time of issue of a court decision on the transfer of property upon a creditor ’s request , or which the debtor was to get in his possession before the termination of the bankruptcy proceedings , and which may be lawfully seized , as well as of any property which may be recovered for the estate by virtue of the LAW on the Recovery of Property for ORG . ( CARDINAL/CARDINAL ) .

LAW of a bankrupt ’s estate

Section CARDINAL

... ( a ) temporary estate trustee shall receive the documents and property belonging to the bankruptcy estate , list the assets and debts of the estate , and take any other measures necessary for the performance of his or her duties .

Section CARDINAL ( Reception of the estate )

Upon a court order , the executors of the estate ( toimitsijamiehet , sysslomännen ) shall without delay request the bankruptcy trustees ( uskotut miehet , gode männen ) to account for the assets and debts of the estate and of its administration , shall take the property of the estate in their possession and take the necessary actions for the benefit and relief of creditors . If the trustees refuse to account for the assets and debts , the court shall place them under an obligation to do so . Should a person who is appointed executor have previously acted as trustee , he or she shall also give such account to the creditors . ”

As LAW was rather old , a well - established interpretation of its provisions developed . According to literature concerning bankruptcy in GPE ( PERSON , LAW , CARDINALrd revised edition , GPE DATE ; in NORP ) , the normal duties of temporary bankruptcy trustees during the temporary administration of the bankrupt ’s estate included the following : ( A ) taking over the possession of the property , including ( a ) collecting information on property , ( b ) taking into possession , and ( c ) preservation of property by means of protective measures , and ( B ) listing of assets and liabilities with the cooperation of the debtor . The taking into possession of the property made the assessment of the property ’s value , its preservation and administration possible . Cash reserves , arriving mail and accounts were included .

In DATE ORG gave the following recommendations concerning the matter :

“ Recommendations CARDINAL/CARDINAL : Rights and Obligations of the Debtor in Bankruptcy Proceedings

Personal documents and possessions of the debtor

The private life of individual persons is protected by the LAW and international conventions . This shall be paid attention to in the administration of the bankrupt ’s estate .

Secrecy of correspondence is one of the rights protected by the LAW , and there shall be no interference with the exercise of this right except such as is in accordance with a specific provision of the law . The bankruptcy trustee shall collect information on the debtor ’s business correspondence . He shall try and follow practices that ensure access to such information on the business correspondence as is necessary for the management and settlement of the estate , without violating the secrecy of the debtor ’s correspondence .

The estate trustee shall not have the right to take over the possession of or examine the debtor ’s private correspondence or other personal documents . Any personal documents of the debtor , which are of no relevance to the administration of the estate , shall be delivered to the debtor . ”

New legislation concerning bankruptcy will enter into force on DATE , repealing the previous bankruptcy legislation ( see paragraph CARDINAL above . According to LAW , section CARDINAL(CARDINAL ) of LAW ( konkurssilaki , konkurslag : CARDINAL ) the bankruptcy trustee shall have the right , without the debtor ’s consent , to receive and open mail and other messages , as well as parcels , addressed to the debtor which pertain to his or her economic activities .


The applicant is an NORP national , born in DATE and living in GPE .

A.

On DATE the applicant was arrested on the suspicion of having performed activities inspired by ORG ideas ( PERSON i m nationalsozialistischen Sinn ) . Upon solemn promise ( gegen NORP ) to refrain from such activities he was released on CARDINAL DATE . ORG ) preferred the indictment ( PERSON ) on DATE , charging the applicant with offences under section CARDINAL ( CARDINAL ) of LAW ( LAW ) . From the beginning the proceedings received extensive press coverage .

On DATE the applicant was questioned as a witness in criminal proceedings brought against GPE , who was also charged with offences under LAW ( CARDINAL ) of LAW . Following his testimony , the presiding judge ordered the applicant ’s arrest on the suspicion of having given false evidence .

On DATE the trial against the applicant started before ORG ) at ORG ( PERSON für PERSON ) . The presiding judge was the same that had conducted the proceedings against GPE and had ordered the applicant ’s arrest during the hearing on DATE .

Trial hearings were held on DATE . As of DATE , evidence was taken by hearing witnesses , reading out documents and showing video tapes . On DATE the applicant ’s defence counsel , who was at that stage given the opportunity to make an extensive comment on the evidence taken so far , expressly appreciated the fair and objective conduct of the proceedings . When on the eighth hearing day personal letters of the applicant and his father were read out neither the applicant nor his defence counsel opposed this manner of taking evidence .

On DATE ORG convicted the applicant under LAW ( CARDINAL ) of LAW ( GPE ) and sentenced him to CARDINAL years’ imprisonment .

The jury found that the applicant had as leader of an association ( ORG ) amongst other activities recruited new members , organised special events where the members of the association were familiarised with a historical view glorifying the dictators of ORG , its army , the ORG and the ORG , denying at the same time the systematic killing by use of toxic gas under the ORG regime and transmitting ORG ideology to the members and that he had organised the distribution of pamphlets with similar contents . Further , the jury found that the applicant had organised as of DATE paramilitary training camps ( Wehrsportübung ) by mobilising members in uniform of different associations organised in the extreme right - wing “ ORG ” ( ORG ) with a view to strengthen the feeling of solidarity among the participants , their tactical preparation for violent conflicts and the setting - up of a military cadre which could impose if necessary by the use of force the aims of the ORG , namely the seizure of power in GPE and the simultaneous incorporation of GPE into an GPE ( Grossdeutschland ) .

In imposing the sentence , ORG considered the applicant ’s confession as a mitigating circumstance while his leading position in the above organisations , the multitude of his activities and the indoctrination of a great number of young people with ORG ideas were taken into account as aggravating circumstances .

On DATE the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde und Berufung ) . In his plea of nullity he complained in particular that the questions put to the jury were not duly formulated and that the legal instructions given to the jury were incorrect .

On DATE ORG ( Oberster Gerichtshof ) confirmed the conviction while reducing the sentence to DATE imprisonment .

ORG found that ORG had not duly weighed mitigating and aggravating circumstances . In particular , it had not attached sufficient weight to the applicant ’s confession and had failed to take into account that the applicant had renounced the incriminated activities in DATE . Moreover , he had clearly placed himself at a distance from his former activities during the trial . Having regard to the recent conviction under section CARDINALa ( CARDINAL ) of LAW of GPE who had been the founder and leader of ORG and was sentenced to CARDINAL years’ imprisonment , a sentence of DATE imprisonment for the applicant appeared disproportionate . Finally , ORG , referring to section CARDINAL § CARDINAL of LAW ) found that the conditions for an extraordinary mitigation of sentence ( ausserordentliche GPE ) were met , i.e. a sentence below of the statupplicant ’s guilt .

B. Relevant domestic law

Section CARDINALa ( CARDINAL ) of LAW , as amended in DATE by ORG ( ORG ) no . CARDINAL/CARDINAL , reads as follows :

“ The following persons shall be guilty of a criminal offence and shall be liable to CARDINAL twenty years’ imprisonment or , in the event that the perpetrator or the activity is deemed to be particularly dangerous , life imprisonment :