No violation of Art. 5-3;No violation of Art. 5-4;No violation of Art. 6-1

ORG and the Government have referred the PERSON case to ORG for a decision as to whether the facts of the case disclose a violation by GPE of its obligations under LAW , paragraphs ( CARDINAL ) and ( CARDINAL ) , and LAW , paragraph ( CARDINAL ) ( article CARDINAL , article DATE , article DATE ) , of the Convention .

The facts of the case as appearing from the ORG ’s report , the memorial of the ORG , the other documents produced and the oral submissions of the representatives of ORG may be summarised as follows :

Mr. PERSON , an NORP citizen born on DATE , is resident in GPE . He was called up for service in the NORP army in DATE , wounded in DATE and taken prisoner by the NORP . In DATE , his right leg was amputated at the thigh in a prison camp : he remained in GPE until DATE . He was released on account of his incapacity for work and he returned to GPE in DATE . As a result of this amputation and his exposure to cold during captivity , he suffers from myocardial disease and complete deafness in his right ear ; he draws an MONEY disablement pension . He was married in DATE and has CARDINAL children .

On his return to GPE the applicant completed his studies . He obtained the degree of " PERSON " for advanced commercial studies and later , in DATE , that of Doctor of Commerce ( PERSON ) . Shortly afterwards , he was appointed to a post in ORG of the region of GPE , GPE and ORG . In the course of his duties , he had to check , in DATE , the accounts of the firm ORG

This firm was founded in DATE by PERSON and PERSON and dealt in the sale and resale of cereals , flour , etc . In DATE , PERSON acquired the firm " ORG und chemische PERSON " and made it over as a gift to his wife , PERSON . In DATE , Mrs. ORG acquired MONEY of the shares in the firm " PERSON " which was concerned in the manufacture of , and trade in , animal foodstuffs , manures , etc . At DATE the firms " ORG und chemische PERSON " and " PERSON " joined with ORG in establishing the " Vereinigte Mischfutterwerke " ( ORG ) . " ORG " withdrew from ORG in DATE and became a limited company under the name " Arista - Mischfutterwerke " , all the shares in which were held by ORG . As CARDINAL other businesses , including " Arista - Graz " were also under the control of Mr. and Mrs. PERSON to varying degrees , the group came to be known as the " ORG group " .

PERSON left the civil service in DATE and set himself up as a tax consultant on DATE . In his new profession he was very soon employed by the ORG group , first as assistant and later as their principal adviser in tax , economic and financial matters . He was furthermore given power of attorney ( PERSON ) for " ORG " ( DATE ) and was appointed manager ( Geschäftsführer ) of " Arista - Graz " ( DATE ) and chairman of the board of directors of " Arista - Mischfutterwerke " ( DATE ) . In fact , he seemed to play , with ORG , a predominant role in each of the " ORG companies " and he came to devote himself almost exclusively to these activities . During this time he seems to have lived in great style and , at any rate , beyond his means , considerable though they were .

On CARDINAL and CARDINAL DATE , ORG of the GPE police ( GPE ) applied to ORG ( PERSON für PERSON ) of that city for the immediate arrest of PERSON , PERSON and PERSON . The police suspected the CARDINAL first - named of having committed the misdemeanour of simple bankruptcy ( fahrlässige PERSON , Article CARDINAL , paragraphs CARDINAL and CARDINAL , of LAW ) and the felony of aggravated fraud ( FAC , Articles CARDINAL , CARDINAL , CARDINAL paragraph ( d ) and CARDINAL of LAW ) and the third - mentioned person of having abetted them in this crime ( Beihilfe , LAW in combination with LAW . ) .

In NORP law fraud becomes a felony ( PERSON ) if the loss caused or so intended exceeds MONEY ; it is punishable by DATE severe imprisonment ( schwerer PERSON ) if the amount exceeds MONEY or if the offender has shown " exceptional audacity or cunning " or if he is an habitual swindler ( Articles CARDINAL and CARDINAL of LAW ) . At the time these amounts were CARDINAL ORG respectively : they were raised to their present level by LAW of DATE .

Indeed , it was stated in the application of CARDINAL DATE that a credit firm , PERSON , had suffered a loss of CARDINAL as the result of the CARDINAL PERSON misdeeds and that they could thus expect a heavy sentence ; it was deduced therefrom that there was a danger of their absconding ( PERSON ) , which was increased in the case of Mr. and Mrs. PERSON by the fact that they owned property abroad , namely a farm in GPE . ORG of the police further maintained that there was a danger of " suppression of evidence " ( Verdunkelungs- und Verabredungsgefahr ) : neither the witnesses nor the suspects had so far been examined and it could be feared that the latter would use tricks to prevent the discovery of the truth or hinder the course of the preliminary investigation .

ORG ) of GPE appears , for its part , to have applied to the court on DATE and CARDINAL DATE for the opening of a preliminary investigation ( GPE ) against PERSON , PERSON and PERSON , and for their immediate arrest .

An investigating judge of ORG granted these different applications immediately . In the warrants for arrest , which he issued on CARDINAL DATE , it was stated that Mr. and Mrs. PERSON and the applicant were suspected of having committed aggravated fraud ( ORG , CARDINAL , CARDINAL paragraphs ( a ) and ( d ) , and CARDINAL of LAW ) , fraudulent bankruptcy ( betrügerische PERSON , LAW ( a ) of LAW ) and simple bankruptcy ( Article CARDINAL paragraphs CARDINAL and CARDINAL , of LAW ) in connection with loans they had obtained from the LOC and numerous other creditors ; it was estimated that their dishonest dealings had caused loss in the region of CARDINAL to QUANTITY .

The warrants referred to LAW , sub - paragraphs CARDINAL to CARDINAL ( danger of absconding , danger of suppression of evidence and danger of " repetition of offences " , GPE ) and LAW .

The warrant issued against PERSON adopted in substance the reasons put forward by ORG of the police as regards the danger of his absconding and the suppression of evidence ( paragraph CARDINAL above ) . With regard to the first - mentioned danger , it further cited the possibility that he might evade prosecution by going to GPE with the CARDINAL other persons charged with him . It added that the applicant ’s misconduct ( PERSON ) covered so long a period that there was a consequent danger of repetition of the offences .

The CARDINAL arrests so ordered were effected on DATE . PERSON was arrested at TIME , TIME after PERSON ; he was in the company of ORG , a lawyer , Mr. PERSON and , it seems , his own wife .

Other arrests took place later , including those of PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) and PERSON ( DATE ) , persons who were employed in various ways by the ORG firms , and PERSON ( DATE ) , a branch manager of the PERSON .

In accordance with NORP law ( ständige PERSON ) , the conduct of the preliminary investigation was given automatically to Mr. PERSON , an Investigating Judge , who was already at the time in charge of several cases of lesser importance .

On CARDINAL and DATE , the applicant was examined at some length by ORG of the police ( CARDINAL pages of TIME ) ; on CARDINAL May he appeared before Judge PERSON for a brief examination as to identity ( a CARDINAL - page minute ) and then , on DATE , before Judge PERSON ( a CARDINAL - page minute ) . The judge informed him that he was being remanded in custody under LAW . PERSON stated that he was prepared to do all he could to hasten the course of the preliminary investigation .

On DATE , the applicant made a first application for release on parole ( NORP , LAW ) ; he added further reasons on DATE .

As regards the danger of absconding , he emphasised in substance :

- that DATE before his arrest , he had read in the newspapers that the activities of the ORG group had been denounced to the authorities by a rival company ; that he had received confirmation of this on DATE from CARDINAL of the CARDINAL Chairman - Managing - Directors of the ORG ; that nevertheless he had in no way sought , or even thought , to evade the imminent prosecution , as Mr. PERSON , lawyer to the PERSON , could bear out ; that , on the contrary , he had stayed in GPE where he had taken an active part in negotiations which led to a settlement out of court between the ORG companies and their creditors , one of whom was the LOC ; that the reason he did not go voluntarily to the police on CARDINAL May was because he wished to warn his wife and await the return of his lawyer ;

- that since his arrest he had done his best to aid the Economic Branch of the police and the Investigating Judge ; he had explained how he came to enter the employment of the ORG group ; he had furthermore described the purely sentimental reasons which induced him , in DATE , to defend PERSON against blackmailers ; that he had also described the bullying and unfair way in which she had dragged him , little by little , into a " vicious circle " ( ORG ) , forcing him to draw up false balance sheets while at the same time concealing from him , until DATE , the extent to which the group was indebted ;

- that he was MONEY disabled as a result of his amputation and the diseases from which he suffered ( myocardial damage , oto - sclerosis and complete deafness in the right ear ) ; that his family lived in GPE ; that his wife had had to resume , in DATE , her former occupation as a welfare officer , although during the war she had contracted pulmonary and skeletal tuberculosis which had compelled her to spend DATE in a sanatorium ; that there was no one to take charge of their CARDINAL children then aged DATE , DATE and QUANTITY - and - a - half years ; that for lack of means , he had had to withdraw the CARDINAL older children from the NORP Lycée at GPE ;

- that he had no property abroad , nor could he transfer funds abroad ; that in any case he was crippled with debt and his lawyer , Mr. PERSON , had had great difficulty in saving him , until now , from the institution of insolvency proceedings ( PERSON ) ;

- that he had no previous convictions and that he enjoyed a good reputation ;

- if he were to abscond , he would in any event lose his only chance of saving his honour , his home and his private life , that is a trial which would probably throw light on the whole affair .

PERSON also denied that there was a danger of suppression of evidence : he observed that either the court or the police had already taken possession of all documents necessary for the investigation and the principal persons concerned , including those charged , had already been thoroughly interrogated , and that the expert reports to be drafted did not lend themselves to tactics of collusion .

The applicant finally recalled that his office was being supervised by a temporary administrator and that the ORG companies were being managed by their principal creditor , the Creditanstalt - Bankverein . In his opinion , this was sufficient to exclude any danger of the offences being repeated .

A brief and unfavourable opinion on the application was given by ORG on DATE and the application was refused DATE by ORG . In effect , the judge took the view , like ORG , that neither the danger of absconding nor the danger of repetition of offences had ceased to exist ; he considered that the continued existence of the first followed from the extent of the loss caused DATE CARDINAL ORG - and from the severity of the sentence which was to be expected in consequence , and that of the second danger followed from the duration and systematic character of the alleged dishonest dealings .

PERSON appealed against this decision on DATE . He adduced the following arguments in addition to some of those previously advanced :

- in a judgment delivered on DATE , ORG ( Oberster Gerichtshof ) had held that the severity of the sentence to be expected does not create " a presumption in law or the danger of absconding " except in the case of a crime punishable by a sentence of not less than DATE imprisonment ( see the opening words of LAW ) ; in all other cases , and therefore in the present case , the competent court must examine the facts to see whether such a danger actually existed ; that the Investigating Judge had failed to fulfil this obligation ;

- again , LAW would be devoid of meaning if it merely referred to a purely theoretical possibility , in this case that the applicant might make use of his professional qualifications to commit new offences , which , by the nature of things , would necessarily occur outside the " Schiwitz group " which was now being managed by the Creditanstalt - Bankverein .

ORG ( Ratskammer ) of ORG dismissed the appeal ( Beschwerde ) on DATE . It began by setting out a number of factors from which it deduced that there was a danger of absconding :

- PERSON had played an important rôle in the " Schiwitz enterprises " ;

- he faced a heavy sentence , if only by reason of the enormous loss caused ( MONEY ) and of the systematic way in which he had abused the trust of others ;

- the circumstances of his arrest seemed to indicate that he had sought to flee ; in fact , he had only been apprehended TIME of CARDINAL DATE and after a real chase ( eine ständige PERSON ) ; he was in the company of ORG , who was carrying her passport and QUANTITY , and of Mr. PERSON who , according to the accused PERSON , had persuaded her brother , PERSON , to go abroad ;

- in DATE , no one foresaw in reality action by the police or the organs of justice in a case which the PERSON and the " Schiwitz group " were seeking to " hush up " ;

- between DATE and DATE , MONEY lent by the Creditanstalt - Bankverein to the firm of ORG had been transferred to GPE and GPE on the initiative of PERSON , without it being proved that they corresponded to payments for imports ; only long investigations ( langwierige PERSON ) would make it possible to determine whether PERSON had since brought this sum back to GPE ;

- the appellant had connections abroad : in DATE , he had visited the property which PERSON had acquired in GPE ; moreover , he had frequently travelled outside GPE with ORG ;

- his financial position must be considered to be good in spite of debts exceeding QUANTITY .

ORG also found that there existed a danger of repetition of offences . In this respect , it pointed out in particular that PERSON had begun his fraudulent activity as early as DATE , that he had pursued it energetically and systematically and that he had not troubled himself about making good the loss which had been caused . From this it inferred that he could be suspected of wishing to resume his activities if he recovered his liberty , especially as the " Schiwitz enterprises " had not yet been liquidated and , something impossible to understand , he had not been removed ( nicht entfernt ) when the Creditanstalt - Bankverein had taken over their management .

The applicant wrote to ORG on DATE . Referring to a conversation which he had had DATE before with Judge PERSON and Mr. PERSON , he made the following " offer " : in the absence of lawful reasons for his detention and in view of his personal and family situation , he would be released until the opening of the trial ; in exchange , he would contribute to the speedy completion of the preliminary investigation by producing documents and giving information ; he could also assist the Creditanstalt - Bankverein in realising the assets of the ORG group and recovering certain sums due . ORG replied to ORG , on DATE , that it saw no reason to change its unfavourable opinion of DATE .

On DATE , Mr. PERSON lodged an appeal against the decision of DATE . Emphasising that the defence had not yet been permitted to consult the file , he made express reservations as regards the findings of fact on which ORG had thought it could rely in the light of the first results of the preliminary investigation . In his view , these findings were , besides , irrelevant to the matter : they in no way proved the existence of reasons justifying detention , as the preliminary investigation does not have the same object as the examination of an application for release on bail . Going on from there , Mr. PERSON criticised ORG for having relied on the severity of the sentence facing the appellant and for having thus made the same mistake in law as the Investigating Judge . He further maintained :

- that PERSON had played a minor rôle in the " Schiwitz group " ;

- that if he had really wished to flee , he would not have remained in GPE after the arrest of PERSON ; that the QUANTITY found on ORG did not entitle CARDINAL to speak of preparations for flight , especially with respect to the appellant ; that even if Mr. PERSON had persuaded PERSON to go abroad , he had in no way prevailed upon PERSON to follow this example ;

- that , in DATE , the PERSON and the applicant really did expect a prosecution to be opened ; that they had not attempted to " hush up " the affair , but only sought to achieve a settlement out of court which would cause the least possible loss to the creditors of the " Schiwitz group " ;

- that even if funds had been transferred to GPE and GPE on the initiative of PERSON , there was no evidence that they were at the disposal of PERSON ; that after a preliminary investigation lasting DATE it was difficult to see the necessity of " lengthy enquiries " on this point ; that the guarantees accorded by law to detained persons would be illusory if it were necessary to proceed to such enquiries in order to establish the absence of reasons justifying detention ; on the contrary , it was for the courts to establish that such reasons existed ;

- that the appellant had no rights over the property owned by PERSON in GPE , which was moreover encumbered with mortgages and of which he had known the existence for a long time ; that neither did he have the means of travel to that distant country ; that the release on bail of a detained businessman would almost never happen if the mere fact of his having travelled abroad and of having connections abroad was enough to create a danger of his absconding :

- that it was not possible to understand how ORG could , at one and the same time , describe PERSON ’s financial position as good and mention his heavy indebtedness ; that , besides , even a sound financial position did not justify the fear of a danger of absconding ;

- that moreover , there existed no danger of repetition of offences as circumstances had changed since the time of the commission of the acts of which the appellant was charged ; that the firms in the " ORG group " had been placed under the administration of their principal creditor ; that it was therefore not only incorrect but offensive to the Creditanstalt - Bankverein to suggest that the appellant might again take up the preparation of false balance sheets and similar activities if he were released ; that , moreover , PERSON was doing his utmost to assist the ascertaining of the truth ; that his attitude , therefore contradicted the assertion , which was in any case irrelevant , that he had no wish to make good the loss caused by him ; that , lastly , his detention scarcely allowed him to take steps designed to repair such loss .

On DATE , the applicant himself addressed to ORG ( Oberlandesgericht ) a supplementary memorial . He alleged in particular :

- that the contested transfers of funds would not have been discovered without his statements , which facts showed that he had not been involved in them ;

- that he had only gone to GPE at the urgent request of the couple FAC and for the sole purpose of negotiating there , with the assistance of FAC , a payment agreement with creditors ; that the PERSON had not honoured the agreement so made ; that he had been held responsible for this with the result that all his " connections " in GPE had broken with him .

However , he was too late ; on DATE , ORG had upheld the decision of DATE , being of opinion that it was grounded on a detailed reasoning to which it was sufficient to refer back .

On CARDINAL DATE , DATE and DATE after lodging his LOC with the Commission , PERSON applied a second time for release on bail , repeating many of his former arguments and citing , in addition , Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the LAW . Over and above his own word of honour , he proffered the fixing , if necessary , of a surety by CARDINAL named guarantors – a businessman and a tax adviser ( Article CARDINAL , paragraph CARDINAL of the Code of Criminal Procedure and LAW ) .

An unfavourable opinion was given by ORG on DATE ; in its view , the considerations set out in the decision of CARDINAL DATE retained their full worth .

Without committing himself on paper , even to the extent of an expression of opinion , the Investigating Judge informed ORG of the application made by PERSON and of the above - mentioned opinion given by ORG ; it is not known whether the judge ’s oral report was accompanied by a clear recommendation in favour of or against release .

ORG dismissed the application on DATE . On the question of a danger of absconding , the ORG pointed out , inter alia , that , at the time of his arrest , the appellant was carrying his passport in his car ( seinen PERSON i m Auto hatte ) . The ORG added that the existence of a danger of repetition of offences made it superfluous , having regard to LAW ( " ... detention ordered on account of danger of absconding may be stayed or lifted through ... ") , to examine the guarantee proffered .

The applicant attacked this decision on DATE . Taking up - in order to develop it - the argument which he had put forward previously , he also emphasised that the ORG had the force of constitutional law in GPE since DATE and therefore took precedence over LAW ; in his view , a remand in custody for DATE exceeded " the reasonable time " provided for by LAW ) ( article CARDINAL ) of the Convention .

The appeal was signed by Mr. PERSON and was supplemented by CARDINAL memorials which GPE drafted himself .

The first , dated DATE , was above all an effort to prove once again the absence of a danger of absconding . It emphasised particularly the following points :

- under the terms of the out of court settlement of CARDINAL DATE , the PERSON and the other creditors had abandoned their civil claims against the persons charged ;

- the appellant had only played a minor role in the alleged dishonest dealings , which had , in any event , commenced a good while before his taking up employment in the " ORG group " ;

- if he had drawn up false balance sheets , he had done so without any criminal intent or hope of gain but was forced to do so by ORG ;

- in the execution of his duties , he had at all times sought to save , and later to improve , the " ORG companies " and to protect the interests of other parties concerned ;

- far from expecting a harsh verdict , he hoped for a prompt beginning of his trial which would give him an opportunity , in public , to admit his mistakes and also to justify himself and claim the benefit of " extraordinary " extenuating circumstances ( an allusion to LAW ) ;

- he considered that he had served in advance the greater part , if not the whole , of any possible sentence , because he had already spent DATE in detention , and could count , as a first offender , on an early release ( an allusion to LAW and to the DATE legislation on conditional release ) ; consequently , and on account of his disability and his incapacity to engage in any business abroad , he had no reason to think of absconding , a way out which , in any case , he had not chosen at the time when it was possible for him to do so ;

- when he learnt , TIME on CARDINAL DATE , of the arrest of PERSON , he had said to ORG , Mr. PERSON and Mr. PERSON that it was absolutely essential to delay his own until DATE ; in fact , he wanted to see Mr. PERSON , who had conducted the out - of - court negotiations on behalf of the LOC and who was due to return that TIME from a journey to GPE ; he also wanted to warn his wife , who was unaware of the whole matter ; he had indeed succeeded in reaching her at TIME and in speaking to her in Mr. PERSON ’s car until he was arrested by the police ; as for his passport , which he used as an identity card even in GPE , he did not at all have it " on him " : he had left it in its usual place , the glove compartment in his car , which had been damaged DATE and left parked in the city quite some distance away ; the expression " ständige PERSON " , which was used in the decision of DATE and was worthy of a PERSON , did not therefore have anything to do with the realities of the case .

On the question of a danger of repetition of offences , PERSON stressed once more that his office was abandoned by CARDINAL of his clients and by his chief assistant , and was being managed by a temporary administrator . He added that according to a report of ORG of the Police , the ORG firms had been liquidated . He recalled once more that up to the end he had taken part , with great effort and to the detriment of his private and family interests , in the preparation of an out - of - court settlement which would cause the least possible loss to the creditors .

In conclusion , the appellant had pointed out that the idea of freeing him seemed to have had , this time , the support of the Investigating Judge ; he described the critical situation of his wife and his children and claimed that his detention impeded the preparation of his defence .

In his memorial of DATE , PERSON put forward an additional argument based on the release of PERSON which had taken place on DATE ; as GPE considered that he was less seriously implicated in the case , he asked to be granted the benefit of a similar measure .

ORG refused the appeal on DATE after having observed :

- that the appellant was suspected of having fraudulently extorted ( " betrügerisch herausgelockt " ) from several banks , since DATE and in consort with other persons charged , CARDINAL by the assignment of fictitious credits , by making accommodation agreements ( ORG ) and issuing uncovered cheques and by the establishment of false balance sheets , thereby causing a loss amounting to CARDINAL ;

- that with respect to the danger of repetition of offences , the ORG could limit itself to referring to the detailed and convincing reasoning of the decision challenged ; that this reasoning was all the less refuted as the arguments of Mr. PERSON contradicted , on CARDINAL point , those of PERSON himself : according to the notice of appeal of DATE , the liquidation of the " FAC enterprises " had not yet taken place while the memorial of DATE spoke of it as an accomplished fact ;

- that at a certain moment , the appellant had , on his own admission , gone into hiding ; that such an attitude ( " ORG " ) was sufficient to justify the fear that he might evade prosecution if he were set free ; that to this extent the ORG also accepted the reasoning of ORG as regards the danger of absconding ; that it was of little importance whether PERSON had his passport on his person when arrested or whether he had left it in his car ; that the provisional release of PERSON did not in any way weaken the decisions of DATE and DATE ; that in point of fact ORG had found a continuing danger of absconding

- this being moreover the only danger - in the case of the co - accused ORG , which the latter had , however , dispelled by furnishing a guarantee .

On DATE , the applicant made a third application for release on bail which this time was not accompanied by an offer of guarantees . He first complained , in general terms , of the refusal of his earlier applications and of the insufficiency of the reasons ( mangelhafte PERSON ) given by the competent instances which , in his view , had in no way rebutted his arguments . He added that the decision to release PERSON proved that neither the necessity to clear up the matter of the transfers of the funds in question nor the prospect of flight to GPE constituted , in the case of the persons charged with him and , a fortiori , in his own case , justifiable considerations . As regards the danger of repetition of offences , he recalled that he had lost all influence over the " FAC companies " on their transfer ( faktische Übergabe ) to their principal creditor , on the sale of CARDINAL of them and on the imminent liquidation of the others ; here again he drew an argument from the fact of the release of PERSON and he emphasised that his power of attorney had expired . He also laid stress on the fact that his ORG . CARDINAL had been declared admissible by ORG on DATE . Lastly , he asserted that he was suffering from hypertension , an injury to the myocardium , arrhythmia and an oedema of the calf and ankle ; he maintained that these various disorders were attributable to his detention and that they risked causing permanent trouble of such a nature as to reduce his capacity to work or even to bring about his death if he did not leave prison very soon .

On DATE , the Investigating Judge communicated this application to ORG , which , DATE , suggested that ORG should examine PERSON ’s state of health .

The report in question was completed on CARDINAL DATE after the closing of the preliminary investigation ( paragraph CARDINAL below ) - but did not reach ORG until DATE , DATE . It was CARDINAL pages long and arrived at the conclusion that the applicant was suffering from a serious illness within the meaning of LAW , which rendered him unfit to be kept in detention ( nicht haftfähig ) .

On DATE , ORG informed Judge PERSON that it was no longer opposed to the release of the applicant in view of the expert report which it had received from the judge on DATE . Neither the expert report nor the opinion of ORG seems to have given rise to comment by the Investigating Judge .

On DATE , the Judge ’s Chamber of ORG of GPE ordered GPE ’s release on parole for the following reasons :

" ... In his latest application for release , dated DATE , he ( PERSON ) now submits in essence that there is no danger of repetition of offences as , in effect , any influence ( ... ) over the firms ( ... ) has been lost by him as a result of their transfer to the principal creditor , and , in addition , he is now dangerously ill .

The ORG can not now ( nunmehr ) disregard these observations , especially since , according to the report from ORG , PERSON is in fact seriously ill .

The facts being as stated , not only does the danger of repetition of the offences ( GPE ) disappear , but also the danger of absconding ( PERSON ) , and more especially since , on the basis of the above - mentioned report , the defendant must be considered unfit to serve sentence in the event of his conviction and thus there are now no special grounds to suppose that he might abscond ... " .

In consequence , the applicant was released on DATE at TIME , after making the solemn undertaking provided for by LAW . His remand in custody had therefore lasted , uninterrupted , for DATE and DATE .

Several persons charged with him had been released before GPE , with or without the provision of sureties , in particular PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) and PERSON ( DATE ) . As for PERSON , she came out of prison on DATE and at TIME as the applicant .

On DATE , the Investigating Judge , Mr. PERSON , gave evidence before CARDINAL members of ORG . They asked him , in particular , what differences the competent authorities saw between the cases of the applicant and of PERSON and PERSON as regards the possibility of release . The witness did not give a specific explanation on this point . Replying then to certain questions concerning PERSON ’s health , he in substance said :

- that he had been surprised to read in the application of DATE that the applicant was suffering from a serious illness , as he had never spent any time in the prison hospital ward ;

- that before DATE , there was no reason to believe in the necessity of a medical examination .

The different decisions of ORG and ORG on PERSON ’s applications for provisional release were given , in pursuance of ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , after hearings not open to the public had been held , in the course of which ORG had been heard in the absence of the suspect and of his lawyer ( in nichtöffentlicher FAC nach ORG bezw . der PERSON ) . However , on DATE , the Investigating Judge asserted , before the Delegates of ORG , that he had not omitted to communicate verbally to ORG the personal observations of the applicant . As regards the officers of LAW , the Commission has been unable to determine whether they had presented to ORG and to ORG detailed reasoning or whether they had been satisfied to state their opinion in summary form .

On CARDINAL DATE , DATE before the applicant ’s release , Judge PERSON had closed the preliminary investigation and sent the case record , which without appendices filled CARDINAL volumes , several of them containing over a CARDINAL pages , to ORG ( Articles CARDINAL and CARDINAL of LAW ) .

In the proceedings before the ORG , the ORG agreed to acknowledge that the facts which the Investigating Judge had to try to elucidate were of great complexity .

The difficulty lay mainly in the nature and volume of the alleged dishonest dealings . At the outset , the preliminary investigation was concerned with CARDINAL persons and it covered a large number of charges . In particular , it was necessary to retrace the economic and financial development of the ORG companies in order to discover when their indebtedness became excessive ; to study their correspondence , accounts and portfolio , the TIME of meetings of their statutory organs and their dealings with CARDINAL banks ; to examine in detail a mass of operations - assignments of credits , transfers abroad , preparation of balance sheets , issue of bills of exchange and cheques , making of mortgages , etc . - involving MONEY and spread over DATE , in order to determine whether they involved fraud ; to ascertain the part played in each operation by the various persons charged , in particular certain bank officials who were suspected of having been accomplices .

The Investigating Judge was assisted in his work by the police , who in this case acted on his instructions and as auxiliaries of justice ( Articles DATE of the Code of Criminal Procedure ) .

He also decided , on CARDINAL DATE , to call in an expert economist , Mr. PERSON , and an expert on banking , Mr. PERSON . Their reports , dated DATE and DATE respectively , totalled CARDINAL pages , with CARDINAL of pages of appendices . On DATE , Judge PERSON emphasised before CARDINAL Delegates of ORG that his aim in appointing the CARDINAL experts had been to speed up the proceedings .

In this case no investigations outside GPE proved necessary . PERSON , CARDINAL of the persons charged , had gone to GPE and from there to GPE and early in DATE a request for his extradition was made . However , he returned to GPE of his own accord at DATE . In the course of his interrogation , which began immediately and was completed on DATE , he said nothing to incriminate the applicant .

The police heard CARDINAL witnesses DATE and DATE at GPE and in other places ( CARDINAL pages of records ) . DATE and DATE , the Investigating Judge questioned CARDINAL of them in the capital ( CARDINAL pages of records ) ; CARDINAL of the statements which he took in this way concerned PERSON .

After DATE ( see paragraph CARDINAL above ) , the applicant appeared before Judge PERSON CARDINAL forty times - CARDINAL times between DATE and DATE , CARDINAL times early in DATE , CARDINAL or QUANTITY times between CARDINAL DATE and CARDINAL DATE and CARDINAL or CARDINAL times between DATE and DATE . The records comprise CARDINAL pages .

Apart from his examinations by the Investigating Judge , PERSON was heard CARDINAL times in DATE and DATE by ORG ( CARDINAL pages of records ) .

After the preliminary investigation had been closed ORG instructed CARDINAL of its members - who was first freed from all other duties - to study the record and , if appropriate , to draft an indictment ( PERSON ) in accordance with LAW .

The preparation of this document lasted DATE : at CARDINAL point ORG responsible thought he would complete it not later than DATE , but in fact he did not finish it until DATE .

The indictment was sent to ORG ( LAW ) on DATE , DATE after its completion . CARDINAL pages long , it brought charges against CARDINAL persons : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , in that order . The prosecutions initiated against the QUANTITY other persons charged ( paragraph CARDINAL above ) had been severed as being less important , apparently on the initiative of ORG .

The applicant was accused of aggravated fraud ( Articles CARDINAL , CARDINAL , CARDINAL ( a ) and ( d ) and CARDINAL of LAW ) , of aiding and abetting in aggravated fraudulent conversion ( PERSON ) ( Articles CARDINAL and CARDINAL ( c ) ) and of an offence under LAW ( CARDINAL ) ( a ) and ( b ) of LAW of DATE . Only a few of the alleged dishonest dealings in question did not involve him ; the amount of loss for which he had to answer exceeded CARDINAL ORG , CARDINAL of which concerned the PERSON and CARDINAL the Girozentrale PERSON ( NORP ORG ) .

In particular , ORG asked that the trial should be opened before ORG , that the accused should be cited , that CARDINAL witnesses should be summoned , and that a number of documents should be read .

The applicant lodged an objection ( PERSON ) against the indictment , but without success ; ORG of GPE dismissed his objection on DATE ( ORG CARDINAL - CARDINAL and CARDINAL of the Code of Criminal Procedure ) , and he was thus conclusively sent for trial .

ORG , sitting as a NORP Judge court ( ORG ) gave judgment on DATE , after a hearing lasting DATE . It found PERSON guilty of :

- having committed , DATE and DATE , a series of acts of aggravated fraud which caused heavy loss to the ORG PERSON ( of MONEY ) , the Creditanstalt - Bankverein ( of MONEY ) , ORG ( CARDINAL Schillings ) and ORG ( CARDINAL PERSON ) ;

- having wilfully aided and abetted PERSON in committing the crime of fraudulent conversion between DATE and DATE , thus causing loss to GPE ( of CARDINAL ORG ) ;

- having committed , DATE , offences under LAW of DATE and Order No . CARDINAL of ORG .

The ORG therefore sentenced the applicant to seven years’ severe imprisonment , with DATE fast CARDINAL , and to a fine of MONEY or DATE imprisonment . The judgment was given without prejudice to the rights of the plaintiff at civil law and the right of ORG to institute proceedings against PERSON for aggravated fraudulent conversion causing loss to Mr. PERSON ; on the other counts the applicant was acquitted .

PERSON , PERSON , PERSON , PERSON , PERSON and PERSON were also convicted . ORG received the same sentences as PERSON , lighter ones being passed on the other CARDINAL .

The period of the applicant ’s detention while on remand was counted as part of his sentence ( LAW a ) of LAW ) . Unlike the other persons convicted PERSON and the applicant lodged an appeal ( GPE ) against the judgment of DATE and also moved to have it set aside ( PERSON ) . ORG ( Oberster Gerichtshof ) gave judgment in DATE ; it dismissed PERSON ’s plea in nullity but allowed the appeal in part and , consequently , reduced the sentence to DATE .

In his Application of DATE to ORG ( No . CARDINAL ) PERSON complained of the decisions of ORG dated DATE and of ORG dated DATE . He alleged violation of :

- Articles CARDINAL , paragraph ( CARDINAL ) and CARDINAL , paragraph ( CARDINAL ) ( article DATE , article CARDINAL ) of the Convention ;

- Article CARDINAL , paragraph ( CARDINAL ) ( article DATE ) of the Convention .

With regard to the first point , he stated that the court which would have to determine the charge against him would not hear him " within a reasonable time " . He argued , moreover , that his detention had already lasted longer than was reasonable and pointed out that he had not been released " pending trial " ; he also referred to LAW .

On the second point , the applicant complained that the proceedings on applications for release ( such as that of DATE ) did not take place in the presence of both Parties . In this connection he invoked the spirit of ORG ) ( article DATE ) , and the general principles of law recognised by civilised nations .

The Commission examined the first complaint in the light of LAW ) ( article LAW ) alone and the second in the light of Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article DATE , article DATE ) . On DATE , it declared the Application admissible , following which a ORG ascertained the facts and tried without success to secure a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .

Before the ORG and ORG , the applicant maintained that his detention while on remand had lasted for longer than the " reasonable time " provided for in LAW ) ( article CARDINAL ) of the LAW . In support of this contention , he repeated most of the arguments which he had put forward before ORG , ORG and ORG of GPE . He furthermore stressed that :

- while the " reasonable " or excessive nature of the duration of detention while on remand may be evaluated in the light of the reference to the person charged and not to the advantages which a thorough preliminary investigation may offer to the competent authorities ;

- in spite of the diligence of the Investigating Judge , the preliminary investigation did not proceed at the necessary pace ; that after DATE , PERSON had had to wait DATE before appearing , and then at his own express request , before Judge PERSON ; the judge did not interrogate him until DATE about the part he had taken personally in the alleged dishonest dealings ; the Investigating Judge had to deal not only with this very complicated case but also with others ; the Economic Branch of the Police had certainly helped the judge but , by reason of its unusual quantity , the work done by the police was in this case outside the usual run of investigations ; besides , while in such cases the police act , in theory , under the instructions , of , and as assistants to , the judge they do not cease on that account to be under the authority of ORG , and not of ORG .

Secondly , GPE criticised the non - contentious CARDINAL - sided nature of the procedure in GPE , which regulates the examination of applications for release pending trial ( Articles CARDINAL and CARDINAL of the Code of Criminal Procedure ) and also the manner in which that procedure had been applied in his case . On this point , he invoked LAW ) ( LAW and , to a lesser extent , paragraphs ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) ( c ) of LAW article DATE , article DATE , article DATE ) .

The applicant claimed compensation for the damage which he alleged he had suffered .

Following the failure of its ORG attempt to secure a friendly settlement , ORG drew up the report provided for in DATE ( article CARDINAL ) of the Convention . This report was adopted on DATE and transmitted to ORG on DATE . In it the Commission expressed the following opinion :

- by CARDINAL votes to one , that the applicant ’s detention had exceeded a " reasonable time " , so that LAW ) ( article CARDINAL ) of the Convention had been violated in this case ;

- by CARDINAL votes to CARDINAL , with CARDINAL abstentions , that the proceedings with regard to the applicant ’s release had been in conformity with Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article DATE , article DATE ) .

The report contained several individual opinions , some concurring and some dissenting .

Arguments of the Commission and of the Government

In its Report of DATE , the ORG followed the method known as that of the CARDINAL " criteria " or " factors " which it had already adopted in its opinion on the PERSON , PERSON and PERSON ( see for example ORG , PERSON , judgment of DATE , pp . CARDINAL - CARDINAL ) . After applying each of these criteria to the present case the Commission considered them as a whole . The factors whose consideration , according to ORG , led it to find unreasonable the nature of the length of detention while on remand in issue , that is to say the first CARDINAL criteria , appeared to it to weigh more heavily than those telling in the opposite direction . By a majority of CARDINAL to one the Commission expressed the opinion that there had therefore been a violation of LAW ) ( article CARDINAL ) of the Convention .

At the hearings of CARDINAL and CARDINAL DATE , ORG based their arguments essentially on the judgments which had , in the meanwhile , been given by ORG in the PERSON and PERSON . Referring in particular to paragraph CARDINAL of the section " As to the Law " in the second of these judgments they summarised the arguments put forward by the applicant in support of his CARDINAL applications for release on bail and the reasons for which the competent NORP courts refused the first CARDINAL applications and granted the third . ORG also cited paragraph CARDINAL of the reasons of the PERSON judgment , from which it appeared that the ORG was of the opinion that the actual length of detention could in certain circumstances be of decisive importance in deciding whether or not the detention was " reasonable " .

Other circumstances were also relevant to the problem arising under paragraph ( CARDINAL ) of LAW article CARDINAL ) : the steps that were taken between CARDINAL DATE and the close of the preliminary investigation to enable Judge PERSON to devote himself entirely to the case of ORG and others ( ORG the Commission , paragraph CARDINAL ) ; the fact that the applications made by PERSON had not seriously hindered the judge in the performance of his functions ( ibidem paragraph CARDINAL ) ; the applicant ’s family situation and his state of health . On this last point the Commission ’s Delegates observed that the applicant does not seem to have relied on his state of health as a ground for release except in his application of CARDINAL DATE .

According to the ORG , the length of time for which PERSON was detained while on remand could not be justified by facts which occurred later : the only facts to be taken into account were those existing at the time , excluding his conviction on DATE .

The Commission did not consider it necessary to state exactly at what moment the detention while on remand appeared to have lasted for more than a " reasonable time " . CARDINAL was considering a continuous situation which could not be conveniently divided into CARDINAL periods , the first of which could be considered " reasonable " and the second " unreasonable " . In the Commission ’s opinion such a division would lead to a confusion between the requirements of paragraph ( CARDINAL ) of LAW article CARDINAL ) and those of paragraph ( CARDINAL ) ( c ) ( article CARDINAL - CARDINAL-c ) , a confusion which the Government too had shown itself anxious to avoid ( see paragraph CARDINAL below ) .

According to the ORG , the period of detention , the compatibility of with which paragraph ( CARDINAL ) of LAW article CARDINAL ) is at issue , extends from CARDINAL DATE to DATE .

In replying to the ORG ’s objection that the present case was exclusively concerned with the period of detention prior to the lodging of the ORG ( CARDINAL DATE ; see paragraph CARDINAL below ) , ORG began by pointing out the importance of this question which concerned the competence both of ORG and of the Commission and which , in their opinion , should have been raised before the Commission . They also recalled that in its judgment of DATE the ORG had taken into consideration a matter - LAW of DATE - which was subsequent not only to Mr. PERSON original application , but also to the adoption of the ORG ’s report and even to the commencement of proceedings before the ORG .

The Delegates of the Commission then replied to the Government ’s arguments based on LAW . In their opinion , an applicant has the right to apply to the ORG before exhausting the domestic remedies ; it was sufficient if this condition had been fulfilled when the ORG takes its decision on the admissibility of the application . The Commission ’s decisions were unchanging in this respect . They had recently been confirmed in a decision of DATE ( Application No . LOC , GPE against GPE , ORG No . CARDINAL , pages CARDINAL ) and were supported by the LANGUAGE text of LAW article CARDINAL ) and also by the purpose of the rule of exhaustion of the domestic remedies . The words " deal with " and " être saisie " related to the consideration of the merits of the case which could not be undertaken by the Commission if the domestic remedies had not been exhausted . They did not , however , prevent the ORG from taking account of facts subsequent to the application . Indeed , such facts could tell in favour of the Government concerned if in the meantime the remedies exercised had led to the result desired by the applicant . This interpretation was supported by LAW ) ( article CARDINAL ) , which implied that the Commission must be satisfied as to the admissibility of the application ; this necessarily involved a presumption that the application had been lodged . Besides , the contrary opinion would make it impossible to join the question of exhaustion to the merits as had been done by the Commission in certain cases . Although LAW article CARDINAL ) refers to " the generally recognised rules of international law " there was no complete parallelism between the doctrine and diplomatic protection and the new system inaugurated by LAW , at any rate in so far as applications by private persons were concerned .

In the present case the domestic remedies with respect to PERSON ’s first application for release were exhausted on DATE , i.e. DATE before the lodging of his ORG and DATE before the decision on admissibility of DATE . The Delegates doubted whether applications made after a long period of detention while on remand had elapsed amounted to true domestic remedies within the meaning of LAW article CARDINAL ) .

For the rest , ORG referred to the submissions they had made at the hearing in the PERSON case .

In its ORG of DATE , the ORG expressed the opinion that in so far as it related to LAW ) , the ORG ’s report was based on incorrect legal reasoning , a false appreciation of the facts and an inaccurate assessment of the evidence .

The memorial of DATE developed this argument in detail . The ORG relied on arguments very similar to those it had put forward in the PERSON case ( see pages DATE , paragraphs CARDINAL of ORG DATE ) . In particular , it objected in principle to the use of the criteria , to the way these were applied to the analysis of the facts and especially to criterion No . CARDINAL ; it also complained of the manner in which the ORG had applied criteria ORG . CARDINAL , CARDINAL and DATE in the present case .

At the hearings of CARDINAL DATE , ORG Delegates based part of their argument on the judgments which the ORG had given in the meantime in the PERSON and PERSON cases . In their opinion , the reasons which led to the rejection of the applicant ’s first CARDINAL requests for release on bail were conclusive and convincing : the danger of his absconding and the danger of a repetition of the offences had continued to exist throughout the period of detention in issue ; this was established by the decisions given at the time by ORG ( specially that of DATE ) and by ORG and was confirmed by the applicant ’s conviction on DATE . After all , PERSON had not succeeded in proving that these CARDINAL dangers did not exist nor in supplying other evidence calculated to weigh in favour of his release at an earlier date . He did not produce such evidence , i.e. his illness , until his third and last application , which had in fact led to the result he desired .

However , the Government considered that the method laid down by ORG in its CARDINAL judgments of DATE ( see for example paragraph CARDINAL of the section " As to the Law " in the judgment in the PERSON case ) ran the risk of blurring the clear distinction which in its opinion should be drawn between paragraph ( CARDINAL ) ( c ) and paragraph ( CARDINAL ) of LAW article CARDINAL - CARDINAL-c , article CARDINAL ) . The present case was concerned not with the validity of the detention ( paragraph ( CARDINAL ) ( c ) of LAW ( article DATE ) but only with its duration ( paragraph ( CARDINAL ) ) ( article CARDINAL ) . It was therefore scarcely necessary to check the existence of reasonable grounds for detention within the meaning of paragraph ( CARDINAL ) ( c ) ( article CARDINAL - CARDINAL-c ) ; the general effect and the proceedings taken as a whole were decisive . In short , the question was whether an organ of ORG had delayed the proceedings unnecessarily ; if this was not the case , the Government considered that it could not be accused of having failed to comply with the requirements of paragraph ( CARDINAL ) ( article CARDINAL ) .

In this respect , the Government laid great emphasis on the extraordinary difficulties encountered by the preliminary investigation ; referring again to the judgment of DATE , it drew attention to the extent of the alleged dishonest dealings , the skill of the accused , their number , the behaviour of CARDINAL of them ( PERSON ) and the almost inextricable confusion of the links connecting the various undertakings of ORG and the great complexity of the criminal law problems to be solved . It also recalled that the competent authorities , desiring to expedite the proceedings as far as possible , had ordered the severance of certain prosecutions and relieved Judge PERSON of having to deal with new cases from CARDINAL DATE to CARDINAL DATE . Moreover , ORG had not found that there had been any abnormal delay . It was true that intervals of DATE had occurred between GPE ’s various examinations but the Investigating Judge had used these periods for other work connected with the same case . It was entirely due to the work done during the preliminary investigation that ORG had been able to deal with a case of these proportions in a trial lasting DATE .

The applicant ’s family situation and his state of health had nothing to do with the decision in the present case .

In the Government ’s opinion , if the ORG should finally decide that there had been a violation of paragraph ( CARDINAL ) of LAW article CARDINAL ) it should state when this violation had begun . As it had not been disputed that GPE ’s original arrest was valid ( paragraph ( CARDINAL ) ( c ) of LAW ( article DATE ) , according to the Government such a decision would in fact imply that the detention while on remand had remained reasonable during a certain period of time . Every Contracting State was entitled to know as from when it had violated the LAW . The answer to this question was also of great significance with regard to a possible application of paragraph ( CARDINAL ) of LAW article DATE ) .

In its memorial of DATE , the Government further complained that the ORG had taken into consideration the period of detention subsequent to the lodging of the ORG ( DATE to CARDINAL DATE ) : in its opinion , the ORG was not entitled to examine facts other than those of which it is seized by means of an application lodged under LAW ( article CARDINAL , LAW ) and , logically , such an application could deal only with events prior to the time it was lodged .

By its judgment of DATE the ORG rejected a similar argument put forward by the same Government in the PERSON case ( see pages CARDINAL and CARDINAL of the judgment ) . The Government , nevertheless , confirmed its view on DATE and CARDINAL DATE . In its opinion , the period of detention on which the ORG is competent to pronounce extended only from CARDINAL DATE to DATE ( or CARDINAL DATE : see below ) . The judgment of ORG , referred to by ORG ( see above , paragraph CARDINAL ) , was not relevant in the present case : as distinct from the situation of which PERSON complained , the situation of a person in detention while on remand was not of a permanent nature ; it varied from second to second until his release .

Apart from ORG and DATE ( article DATE , article CARDINAL ) , the ORG relied strongly on LAW ) of the LAW although making it clear that it did not intend to dispute the admissibility of GPE ’s Application .

Article CARDINAL ( article CARDINAL ) prevented the Commission from dealing with facts with regard to which the domestic remedies had not been exhausted before the lodging of the Application . In the present case the " matter " referred to in LAW ) was the length of detention while on remand prior to the lodging of the Application : the subsequent period had not given rise to domestic remedies , the refusal of which might have caused the applicant to lodge one or more new applications . Originally the Commission itself had been of the opinion that the exhaustion of domestic remedies must be judged as from the date of the lodging of the application : this was clear from Rule CARDINAL ( CARDINAL ) of ORG . No doubt it had since adopted a more flexible approach , particularly in its decision on the admissibility of ORG . LOC ( see above , paragraph CARDINAL ) . It was , however , mistaken in relying exclusively on the LANGUAGE wording of LAW article CARDINAL ) ( " deal with " ) . It had thus lost sight of the need - recalled by ORG in its judgment of DATE ( PERSON case , page CARDINAL , paragraph CARDINAL) - to find a solution which was compatible with the NORP text ( " être saisie " ) : how could the Commission " deal with " ( " s’occupe de " ) a case which had not been " submitted to it " ( " do nt elle ne serait pas saisie " ) ? The only way of reconciling the LANGUAGE text with the NORP text was to base one ’s interpretation on the latter . In any case , the former did not bear the meaning put on it by the Commission : to examine the admissibility of an application was to " deal with the matter " . Moreover , LAW merely confirmed a traditional rule of international law which had always been interpreted formally by doctrine and practice . The extensive interpretation given by the Commission stood alone : the theory , according to which it is not necessary to wait for the final domestic decision before exercising the right of diplomatic protection or applying to an international authority , did not appear to be supported by any of the recognised authorities . According to the Government , LAW ) in fine would lead to an absurd result if " deal with " were synonymous with " decide on the admissibility " : this would force the Commission to decide on the admissibility of an application within DATE following the final domestic decision .

In reply to a question from ORG , the ORG ’s representatives admitted that their arguments , based on LAW ) , led logically to the conclusion that the period of detention to be examined in the present case did not extend beyond DATE , the date of the last domestic decision prior to the lodging of the ORG . As later remedies should not be taken into account there would be no point in a finding that the domestic remedies had been exhausted when the ORG ’s report was adopted ( DATE ) and that the Investigating Judge could at any time , with the consent of the Prosecution and , if need be , of his own motion , have put an end to the period of detention in issue . In any case , CARDINAL appeal was still pending at the time the Commission declared the ORG admissible ( DATE ) , i.e. PERSON ’s appeal to ORG against the decision by which ORG had on DATE rejected his second application for release .

The Government ’s representatives conceded that they did not raise before the ORG the question of the period to be considered . They declared that they had no reason to do so at the time because they thought that the ORG would only deal with the subject - matter of the ORG ; it was only on reading the report that they observed that the ORG had exceeded its competence . It was true that the Government did not terminate as of DATE ( or DATE ) DATE the schedule which it had drawn up in order to give the Commission detailed information on the progress of the proceedings instituted against PERSON ( Appendix III to the Report ) . This attitude , however , did not imply that the Government accepted that the examination should relate to the whole period of the PERSON ’s detention while on remand ; it was merely a reflection of the generous spirit of co - operation by which the ORG was inspired . The fact that it was now presenting to the ORG a new legal argument did not imply that it had waived this argument before the ORG , but simply that perhaps it had not been aware of it to begin with .

For the rest , the ORG ’s representatives referred to the observations that they had made in the hearings in the PERSON case .

In its Report of DATE the Commission , by a majority of CARDINAL to CARDINAL with QUANTITY abstentions , expressed the opinion that the proceedings with respect to the Applicant ’s requests for release on bail did not violate either LAW , LAW ; the reasons given are similar to those given by ORG in the PERSON case with respect to a similar complaint .

At the hearing of CARDINAL DATE , ORG referred to the judgment of ORG in this latter case ( pages CARDINAL - CARDINAL and DATE ) which seemed to them to confirm the ORG ’s view on the matter .

The Government expressed its agreement with the ORG on this point .

At the hearing of CARDINAL DATE , ORG requested the ORG :

" to dismiss the claim of PERSON before it in so far as it rests on DATE , paragraph ( CARDINAL ) ( article DATE ) , and to determine whether the detention of GPE on remand from DATE to CARDINAL DATE was or was not consistent with LAW , paragraph ( CARDINAL ) ( article CARDINAL ) , of the Convention " .

In its ORG instituting proceedings of DATE , the Government formulated the following request to the ORG which it confirmed in its memorial and at the hearing of CARDINAL DATE :

" DATE it please the ORG to declare that the measures taken by the NORP authorities which are the subject of the ORG lodged by PERSON against GPE do not conflict with the obligations arising from LAW " .