Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in Split .

On DATE an investigating judge of ORG ( PERSON ) opened a criminal investigation in respect of the applicant and CARDINAL other persons for conspiracy to supply heroin and cocaine in GPE and GPE in the period DATE and DATE .

At a hearing held on DATE before the investigating judge , the applicant stated that he had decided to remain silent . The investigating judge heard evidence from another suspect .

On DATE the investigating judge heard evidence from CARDINAL other suspects . On DATE he asked for the applicant ’s criminal record , which was submitted on DATE with a note that he had not been previously convicted of any criminal offence .

On DATE the investigating judge commissioned a psychiatric report on CARDINAL defendants , including the applicant , in order to assess their mental state at the time the criminal offence was committed and whether they were drug addicts .

On DATE a psychiatric report commissioned for the purposes of the investigation was submitted by a psychiatrist of ORG . As regards the applicant , the report stated that he was a long - term drug addict who had received treatment on CARDINAL occasions but with no lasting results . He had resumed taking drugs DATE . Since being detained he had been on GPE therapy which helped him to overcome his withdrawal symptoms . It was recommended that he continued with that therapy .

On DATE the investigating judge heard evidence from CARDINAL witnesses , police officers who conducted the police inquiry prior to the institution of the criminal proceedings .

On DATE the investigating judge heard evidence from another suspect and on CARDINAL and DATE from CARDINAL further police officers . On DATE he heard evidence from another CARDINAL suspects .

On DATE the State Attorney ’s Office for ORG preferred charges of conspiracy to supply heroin and cocaine in GPE and GPE in the period DATE and DATE against the applicant and CARDINAL other defendants in ORG .

On DATE the applicant lodged an appeal against the bill of indictment ( prigovor protiv optužnice ) . By DATE all the other defendants had also lodged their objections .

On DATE ORG returned the bill of indictment to the State Attorney ’s ORG asking it to submit , within DATE , a request to take further investigative steps .

On DATE the ORG Attorney ’s ORG asked the investigating judge to take further steps .

On DATE the investigating judge ordered a transcript of all telephone conversations between the defendants , previously tapped by the police .

On DATE an expert in telecommunications submitted his report with a transcript of those telephone conversations . The transcript comprises CARDINAL pages .

On DATE the State Attorney ’s ORG submitted the same indictment to ORG .

On DATE the applicant reiterated his objection to the indictment . He also requested that the evidence obtained by the police tapping of his telephone be excluded from the case file . The other defendants also lodged their objections .

On DATE ORG dismissed the objections to the indictment and refused the applicant ’s request to exclude from the case file all evidence obtained by the police tapping of his telephone .

The first hearing scheduled for DATE in ORG was adjourned because CARDINAL defendants did not appear . CARDINAL of them had been sent to ORG for treatment and the other was in another medical institution . On DATE the presiding judge ordered psychiatric report in respect of CARDINAL defendants . The report was submitted on CARDINAL DATE .

A hearing before ORG was held on DATE and all the defendants stated that they would give their defence at end of the trial .

At hearings held on CARDINAL , DATE and DATE CARDINAL witnesses and the expert in psychiatry gave their evidence .

At hearings held on DATE and DATE CARDINAL witnesses gave their evidence .

At a hearing held on DATE ORG refused the request by the defence to exclude from the case file recordings of the defendants’ conversations .

At a hearing held on DATE the majority of the defendants , including the applicant , pleaded guilty and CARDINAL further witnesses gave their evidence .

Further hearings were held on DATE and DATE and at the latter hearing a judgment was adopted , finding the applicant guilty and sentencing him to CARDINAL years’ imprisonment . His detention was lifted .

Some of the defendants lodged appeals against the first - instance judgment and the proceedings are currently pending before ORG .

On DATE an investigating judge of ORG ordered all the suspects to be detained on the grounds under LAW § CARDINAL ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW , namely the danger of the suspects absconding , the danger of the suspects reoffending and the gravity of the charges . The relevant part of the decision , referring to the grounds for detention , reads :

“ In view of the manner in which the criminal offence was committed , the type and quantity of the illegal substances in which the suspects were trafficking , the large number of illegal transactions and the persistence and determination involved in committing the criminal offences , as well as the fact that the suspects are mostly unemployed with no means of support and that the suspects ... and PERSON have previously been convicted of the same criminal offence or of similar criminal offences , there exists a justified fear that if released they might repeat a criminal offence of the same kind ... ”

A report drawn up on DATE by ORG expressly notes that the applicant had voluntarily come to that GPE DATE and that he had then been taken to ORG .

In his appeal of CARDINAL DATE the applicant argued that the written charges against him alleged that he had had contact with CARDINAL of the other suspects , which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and they were not even known to him . He supported these assertions with the argument that no illegal substances , money or equipment necessary for trafficking in the said substances on a large scale , such as packaging or scales , had been found on him , and that this showed that he personally had not been involved in such trafficking .

He also claimed that he had never been convicted by a final judgment of trafficking in illegal substances , but only of the criminal offence of using illegal substances and that he was not a drug addict . Lastly , he argued that the possibility of ordering an alternative measure to detention had not been considered .

On DATE the investigating judge asked for a copy of the applicant ’s criminal record . The report of CARDINAL DATE submitted by ORG indicated that the applicant had not been convicted of any criminal offence .

On DATE a CARDINAL - judge panel of ORG examined the appeals lodged by the defendants . It accepted that the ground under LAW ) of LAW no longer persisted . In other respects it dismissed the applicant ’s appeal on the grounds that : the documents in the case file showed that the applicant had previously been convicted of similar criminal offences ( without any further explanations in that respect ) , and that the persistent criminal activity over a long period with which the suspects were charged taken together with their economic situation justified the fear that they might repeat the same offences . The relevant part of the decision reads :

“ In view of the level of criminal activity with which the defendants are charged , namely , that they have been engaged in trafficking in illegal drugs over DATE of time , and in view of the resolve and persistence shown in committing the offence , the fact that the defendants ... FAC ... have already been convicted of criminal offences , and almost all defendants have no means of subsistence , all these things indicate that there is a danger of the defendants reoffending ...

The manner in which the criminal offences were committed , with the defendants organising themselves into a group , and the quantity of the illegal substances whose sale might put at risk the health of a large number of persons , amount to grave circumstances ... ”

On DATE the investigating judge extended the applicant ’s detention for a further month on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW ( the danger of reoffending and the gravity of the charges ) . The relevant part of the decision reads :

“ In view of the level of criminal activity with which the defendants have been charged , namely , that they have been engaged in trafficking in illegal drugs over DATE of time , and in view of the resolve to commit criminal offences and the fact that the defendants have previously been convicted of similar criminal offences , there is a danger of the defendants reoffending ...

The offence was committed under grave circumstances as shown by the manner in which it was committed , the fact that the defendants organised a group and the quantity of the illegal substances in circulation , which , through the sale on the illegal market , could put at risk the health of a number of persons . ”

In his appeal of DATE the applicant argued that he had not previously been convicted of the same offence and that the ordering of his detention under LAW ( CARDINAL ) of LAW ( danger of reoffending ) violated the principle of the presumption of innocence . He also reiterated that the written charges against him alleged that he had had contact with CARDINAL of the other suspects , which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and did not even know who they were . He argued , in support of those assertions , that no illegal substances , money or materials necessary for trafficking in the said substances on a large scale , such as packaging or scales , had been found on him and that this showed that he had not personally been involved in such trafficking .

On DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s appeal . The relevant part of the decision reads :

“ ... the defendants have been charged with the criminal offence of trafficking in illegal drugs DATE ... The documents in the case file show that the defendant ... PERSON has already been convicted of similar criminal offences ; the defendant FAC ... is unemployed , and all CARDINAL defendants have no assets .

In view of the high level of criminal activity with which they have been charged , namely that they engaged in trafficking in illegal drugs during the above - mentioned period and showed resolve and persistence in committing the offence , as well as their economic situation – all these circumstances taken together indicate a danger of the defendants reoffending ...

Furthermore , the offence was committed under grave circumstances as shown by the manner in which it was committed , the fact that the defendants organised a group and the quantity of the illegal substances , which through their sale on the illegal market could put at risk the health of a number of persons ... ”

On DATE the investigating judge lifted the applicant ’s detention on the ground that the psychiatric report indicated that he had been a drug user and that he had been buying drugs for his own use and not in order to sell it to others . His immediate release was ordered as well . The ORG Attorney lodged an appeal on DATE .

On DATE a CARDINAL - judge panel of ORG allowed the appeal and extended the applicant ’s detention again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . The reasoning was the same as that in the decision of DATE . It was stated , inter alia , that the documents in the case file showed that the applicant had previously been convicted of similar criminal offences ( without any further explanations in that respect ) . The applicant was re - detained on DATE .

On DATE the investigating judge extended the detention in respect of all the defendants for a further month again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . This decision was quashed by a CARDINAL - judge panel of ORG on DATE on the ground that the period of further detention had to be specified for each defendant .

On DATE , in another set of criminal proceedings , ORG convicted the applicant of trafficking in heroin and sentenced him to CARDINAL years’ imprisonment .

On DATE the investigating judge extended the applicant ’s detention until DATE , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity . On DATE the applicant lodged an appeal . He argued that no drugs , money or tools typical for the sale of drugs had been found on him and that he had never been convicted of any drug - related crimes . He again argued that the possibility of ordering an alternative measure to detention had not been considered .

On DATE the investigating judge issued a fresh decision extending the applicant ’s detention until DATE , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . He relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity , on the gravity of the charges and the fact that the defendants had no means of support , without giving further details in this respect .

On DATE a CARDINAL - judge panel of ORG declared the applicant ’s appeal of DATE inadmissible because a fresh decision on detention had been adopted in the meantime .

On DATE the applicant lodged an appeal against the investigating judge ’s decision of DATE . He reiterated the arguments from his previous appeal of DATE and added that before his arrest he had been employed at a hotel in GPE .

On DATE a CARDINAL - judge panel of ORG dismissed the appeal and reiterated the reasoning from its decision of DATE . It also stressed that the applicant had been convicted before and that he had no assets .

On DATE the applicant lodged a constitutional complaint against the above decision , arguing that the following rights had been violated : his right to personal liberty ; right to a fair trial ; his right to equality before the law because the grounds for detention had been interpreted in an unusual fashion ; and his right to an effective remedy because the examination of his appeal had been inadequate .

On DATE the ORG extended the applicant ’s detention , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . In addition to the reasoning in the previous decisions , it added that the applicant was a drug addict and stated , inter alia , that he had already been convicted of similar criminal offences , without any further explanations in that respect .

DATE . On DATE the applicant lodged an appeal . In addition to the arguments put forward in his appeal of CARDINAL and DATE he added that his parents had a regular income and that therefore it could not be said that he had no means of subsistence .

On DATE ORG dismissed the appeal of CARDINAL DATE , holding that the alleged manner in which the criminal offence had been committed amounted to particularly grave circumstances which justified detention on the ground under LAW ( CARDINAL ) of LAW . As regards the ground under LAW § CARDINAL ( CARDINAL ) – danger of reoffending – it was deemed justified since the applicant was a drug addict and CARDINAL other sets of criminal proceedings concerning drug - related offences were pending against him , CARDINAL before FAC and the other before ORG .

On DATE ORG declared the applicant ’s constitutional complaint of CARDINAL DATE against the decision of DATE inadmissible on the ground that a fresh decision on detention had been adopted in the meantime .

On DATE the ORG extended the applicant ’s detention , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW and with the same reasoning as before , stating , inter alia , that the applicant had already been convicted of similar offences , without any further explanations in that respect .

On DATE ORG quashed the decision of CARDINAL DATE on the ground that the CARDINAL - judge panel which adopted it had no such power and that it was the investigating judge who should have decided whether to extend the detention .

On CARDINAL DATE the investigating judge extended the applicant ’s detention , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW . The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity and had no other income . In his appeal lodged DATE the applicant reiterated the arguments from his appeal of DATE . As regards his previous conviction , he argued that ORG judgment of DATE had not yet become final .

On DATE ORG dismissed the appeal , endorsing the reasons put forward by the investigating judge .

On DATE the investigating judge again extended the applicant ’s detention , again on the grounds under LAW ( CARDINAL ) and ( CARDINAL ) of LAW and with the same reasoning as in the decision of CARDINAL DATE .

On DATE the applicant lodged an appeal . He reiterated his previous arguments .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention , again on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , reiterating the same reasoning as in the previous decisions concerning the applicant ’s detention . It stated , inter alia , that the documents in the case file showed that the applicant had already been convicted of similar offences , without any further explanations in that respect .

On DATE the applicant lodged an appeal reiterating his previous arguments .

On DATE a CARDINAL - judge panel of ORG declared the applicant ’s appeal of DATE inadmissible because a fresh decision on his detention had been adopted in the meantime .

On DATE ORG dismissed the applicant ’s appeal of DATE . As to the applicant ’s previous convictions , it stated :

“ All appellants , save for ... Perica Oreb ... had already been convicted of similar criminal offences ...

... criminal proceedings are currently pending against the accused Perica Oreb before ORG in which he has been convicted , by a judgment that has not yet become final , of a criminal offence under LAW of LAW and sentenced to DATE imprisonment . Therefore , the fact that the accused had not been finally convicted could not alter conclusion that there is a danger of him reoffending since other criminal proceedings are pending against the accused , which is also relevant in assessing the conformity of their lifestyles with the laws .

On DATE a CARDINAL - judge panel of ORG again extended the applicant ’s detention on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , reiterating the same reasoning as in the previous decisions concerning the applicant ’s detention and stating , inter alia , that the documents in the case file showed that the applicant had already been convicted of similar offences , without any further explanations in that respect .

On DATE ORG dismissed the appeal . As to the applicant ’s previous convictions , it stated :

The above circumstances taken together justify the fear that they would continue committing the same or similar offences and that therefore [ the decision to extend ] their detention on the ground under LAW CARDINAL ( CARDINAL ) of LAW is correct .

The applicant lodged a constitutional complaint , challenging the grounds for and the duration of his detention .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention , again on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , reiterating the same reasoning as in the previous decisions concerning the applicant ’s detention and stating that the applicant ’s criminal record showed that he had already been convicted of similar offences .

DATE . On DATE ORG declared the applicant ’s constitutional complaint against the decision of DATE inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant ’s detention had meanwhile been adopted .

Even though there is no previous conviction in the criminal record of FAC , the documents in the case file show that ... criminal proceedings are currently pending against him before ORG in which he has been convicted , by a judgment that has not yet become final , of a criminal offence under LAW of LAW and sentenced to DATE imprisonment . These circumstances , contrary to the submissions of all the appellants , are relevant in assessing the conformity of their lifestyles with the laws .

The above circumstances together with the fact that all of the appellants , save for ORG , are heroin addicts and the accused ... PERSON is unemployed ... justify the fear that , if at large , they would continue to commit the same or similar criminal offences and therefore [ the decision to extend ] their detention on the ground under LAW CARDINAL ( CARDINAL ) of LAW is correct .

The applicant lodged a constitutional complaint , again challenging the grounds for and the duration of his detention .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention , again on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW . The reasoning relied on the indictment , which charged the accused with conspiracy to supply a large quantity of heroin for a longer period of time , the danger of such criminal activity , the fact that they were heroin addicts and had no other income .

On DATE ORG dismissed the appeal , endorsing the reasoning of the impugned decision . As regards the applicant , it specifically stated that :

“ The accused Perica Oreb is , according to his own statement , unemployed , with no assets and the psychiatric report shows that he is a heroin addict . Furthermore , he has been convicted of the offence under LAW of LAW by a judgment of ORG which has not yet become final ”

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention , again on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , reiterating the same reasoning as in its decision of CARDINAL DATE .

DATE . On DATE the applicant lodged an appeal reiterating his previous arguments .

On DATE ORG dismissed the appeal , endorsing the reasoning of the impugned decision . As regards the applicant , it specifically gave the same reasons as in its decision of DATE .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention , again on the grounds under LAW § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , reiterating the same reasoning as in the decision of CARDINAL DATE .

On DATE the applicant lodged an appeal reiterating his previous arguments . As indicated above ( paragraph CARDINAL ) the applicant was convicted by ORG and released on DATE .

The relevant provisions of LAW ( Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide :

“ ( CARDINAL ) Where the conditions for ordering detention under LAW have been fulfilled , and where the same purpose may be achieved by other preventive measures under LAW , the court shall order that CARDINAL or more preventive measures are to be applied ...

( CARDINAL ) Preventive measures are :

CARDINAL ) prohibition on leaving one ’s place of residence ;

CARDINAL ) prohibition on being in a certain place or area ;

CARDINAL ) obligation on the defendant to report periodically to a certain person or a ORG body ;

CARDINAL ) prohibition on access to a certain person or on establishing or maintaining contact with a certain person ;

CARDINAL ) prohibition on undertaking a certain business activity ;

CARDINAL ) temporary seizure of a passport or other document necessary for crossing the State border ;

CARDINAL ) temporary seizure of a driving licence .

( CARDINAL ) ORG may be imposed only if the same purpose can not be achieved by another [ preventive ] measure .

( CARDINAL ) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist .

( CARDINAL ) When deciding on detention , in particular its duration , the court shall take into consideration the proportionality between the gravity of the offence , the sentence which ... may be expected to be imposed , and the need to order and determine the duration of detention .

( CARDINAL ) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist , in which case the detention measure shall immediately be lifted .

( CARDINAL ) Where a reasonable suspicion exists that a person has committed an offence , that person may be placed in detention :

special circumstances justify the suspicion that the person concerned might reoffend ...

if the charges involved relate to murder , robbery , rape , terrorism , kidnapping , drug abuse , extortion or any other offence carrying a sentence of CARDINAL years’ imprisonment , when detention is justified by the modus operandi or other especially grave circumstances of the offence .

The relevant provisions of ORG o izvršavanju kazne zatvora , ORG nos . ORG ) read as follows :

“ ( CARDINAL ) This LAW regulates the execution of prison sentences .

“ The terms used in this LAW have the following meaning :

A detainee is any person held in detention pursuant to a pre - trial detention order .

An inmate is any person sentenced to a prison sentence for a criminal offence , serving the prison sentence in a prison or in a jail .

“ ( CARDINAL ) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him , or limiting him in , any of the rights guaranteed by LAW .

( CARDINAL ) NORP for judicial protection shall be decided by the judge responsible for the execution of sentences . ”

( CARDINAL ) If a convict ’s pre - trial detention has been ordered or extended in another set of criminal proceedings , the judge responsible for the execution of the prison sentence shall send him to serve the prison sentence which will start after the pre - trial detention has been lifted .

In its decision of CARDINAL DATE , nos . GPE and U - III/CARDINAL/CARDINAL , in the case of PERSON , concerning , inter alia , the conditions of his pre - trial detention in FAC , ORG found a violation of PERSON ’s right to human treatment and to respect for his dignity and also ordered the Government to adjust the facilities at FAC to the needs of detainees within a reasonable time , not exceeding DATE . It further held that a complaint about prison conditions to a judge responsible for the execution of sentences under PERSON was also to be used by persons in pre - trial detention . The relevant part of this decision reads :

“ CARDINAL . ... ORG established the following obligatory legal opinion :

- the courts are obliged to apply the same procedures concerning requests for protection of the rights of convicted prisoners to the judges responsible for the execution of sentences with respect to such requests lodged by persons placed in pre - trial detention ...

For the reasons set out in points ... CARDINAL [ of this decision ] the Constitutional Court finds that the general conditions of the applicant ’s detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under LAW and CARDINAL § CARDINAL of the LAW as well as his rights under LAW .

ORG has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the NORP legal system there exists another , effective legal remedy in that respect ( see ORG decision no . U - III-CARDINAL/CARDINAL of DATE . ”

In decision no . U - III-CARDINAL/CARDINAL of DATE ORG found that the conditions of detention of a prisoner , TIME , in FAC amounted to inhuman treatment . It also addressed the question of TIME ’s claim for just satisfaction . The relevant parts of the decision read :

“ In particular , the Constitutional Court finds unacceptable the [ lower ] courts’ opinion that in this case a claim for non - pecuniary damage can not be awarded under LAW on the ground that such a compensation claim is unfounded in law .

Section CARDINAL of LAW defines non - pecuniary damage as infringement of the right to respect for one ’s personal integrity . In other words , every infringement of one ’s right to personal integrity amounts to non - pecuniary damage .

Section CARDINAL(CARDINAL ) of LAW defines the right to personal integrity for the purposes of that LAW as : the right to life , physical and mental health , reputation , honour , respect for one ’s dignity and name , privacy of personal and family life , freedom and other aspects .

... it is to be concluded that in this case there has been a violation of human , constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by LAW and also with the legal standards under LAW . For that reason the courts are obliged to award compensation for the infringement of the applicant ’s dignity .


Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in PERSON . He is represented before the ORG by PERSON , a lawyer practising in PERSON .

ORG ( “ the Government ” ) are represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant worked for the ORG company as head of the customs duties department from DATE .

In DATE and DATE ORG ) carried out inspections at CARDINAL subsidiary companies owned by ORG because it suspected irregularities in connection with the payment of customs duties .

By letters dated DATE and DATE , ORG notified the applicant that criminal proceedings for financial offences had been instituted against him on suspicion of negligent evasion of customs and import duties . As the applicant was responsible for the customs declarations of the ORG company and its subsidiaries , the proceedings were directed against him . The applicant was asked to submit written statements within DATE .

The applicant gave information in an oral statement and had his lawyer submit CARDINAL written statements , that included the applications to discontinue the proceedings , on DATE and DATE . ORG did not respond to these statements .

By a letter dated DATE the applicant was summoned to a hearing before the PERSON and ORG as the criminal authority of first instance in financial matters ( PERSON als PERSON ) . The subject matter concerned the alleged financial criminal offences notified to the applicant on DATE and CARDINAL DATE .

The hearing was held on CARDINAL DATE before the panel dealing with the case ( GPE beim PERSON als Organ des Zollamtes PERSON als PERSON ) . Certain of the customs duties the applicant was charged with having negligently evaded were found to be time - barred . As regards the remainder of the charges , the panel decided to discontinue the proceedings having found that the applicant had neither acted negligently nor against the law . The decision was served on the applicant ’s counsel on DATE .

Under LAW ( Bundes - verfassungsgesetz ) , ORG rules on , inter alia , applications ( Beschwerden ) in which it is alleged that the administrative authorities have breached their duty to decide .

Article CARDINAL of LAW , in its relevant part , reads as follows :

“ An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty . An action for breach of the duty to decide is inadmissible in administrative criminal proceedings , except private prosecutions and prosecutions in respect of tax offences . ”

Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities’ duty to decide . Its relevant part reads as follows :

“ ( CARDINAL ) ORG to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .

( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party ’s written request ... ”

In proceedings under LAW an application for transfer of jurisdiction to the superior authority is not possible .

Section CARDINAL of LAW ( PERSON ) , relating to applications against the administration ’s failure to decide reads as follows :

“ An application under LAW for breach of the duty to decide ( application against the administration ’s failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE ... ”

According to a judgment of ORG DATE ( published in the official collection of that court ’s decisions , PERSON ) , ORG may also receive applications against the administration ’s failure to decide under LAW of LAW , taken in conjunction with section CARDINAL of LAW , where an authority of first instance has failed to give a decision within the statutory DATE time - limit , provided that no other remedy ( such as a request for a transfer of jurisdiction ) lies against the failure to decide ( see PERSON v. GPE , no . CARDINAL , § DATE , ECHR CARDINAL-I ) .

The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated by LAW ( Finanzstrafgesetz ) .

Section CARDINAL of LAW , as in force at the relevant time , stated that proceedings regarding tax offences had to be conducted by the authorities proprio motu and that evidence on behalf of the defendant had to be taken into consideration as much as evidence against the defendant . It further stated that defendants not represented by counsel had to be properly advised and supported by the tax authority conducting the proceedings .

On DATE an amended section CARDINAL of LAW entered into force that added a new paragraph CARDINAL stating that proceedings regarding tax offences had to be conducted speedily and without any unnecessary delays and had to be terminated within a reasonable time . It further introduced a remedy against delays of the first - instance authority in deciding : the defendant could lodge an application with the chairman / chairwoman of the competent appeal panel of ORG ( PERSON ) for the setting of a reasonable time - limit for the first instance tax authority to proceed .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant is a NORP national who lives in GPE , PERSON . She was represented before the court by PERSON of ORG , a firm of solicitors based in GPE . The respondent Government were represented by PERSON , ORG .

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

NORP The applicant was born in DATE . Her mother had been in local authority care . As a child , the applicant suffered physical violence and emotional neglect and in DATE both she and her older sister D were taken into care and placed , separately , in a number of different foster homes . In DATE the applicant left foster care . She was provided with independent living accommodation by the local authority . However , she found it hard to live on her own , gave up the flat and moved between friends and relatives . She continued to be supervised through the local authority ’s after - care programme .

In DATE , aged DATE , she became pregnant following a single sexual liaison with the partner ( P ) of her sister ( D ) . A first scan was completed on DATE and showed that the applicant was DATE pregnant . On DATE she was referred by her after - care worker for a pre - birth assessment because of concerns about the applicant ’s ability to live in a settled environment and provide the baby with the care he or she would need . The assessment noted that the applicant had moved into a new house and had an understanding of basic childcare . It concluded that she should continue to be monitored by an outreach worker to support her with parenting skills . The applicant asked for it to be recorded in the report that she felt her ability to be a good mother had been pre - judged because she had grown up in care .

The applicant ’s daughter , M , was born on DATE and discharged with the applicant to stay with the applicant ’s mother . On DATE the applicant was readmitted to hospital complaining of bleeding . Hospital staff were concerned that her mother might have given her drugs . She was discharged again on DATE . The following day the health visitor who visited the applicant at home became concerned that the applicant was tearful and was not properly bonding with her daughter . The applicant went to stay with her aunt for DATE . She was diagnosed by her general practitioner as suffering from post - natal depression and was prescribed anti - depressant medication , which she continued to take until DATE . On DATE the applicant moved in with her sister and her partner ( D and P ) . The arrangement broke down after DATE . D reported to the local authority that she was concerned about the applicant ’s poor hygiene and lack of interaction with and occasional rough handling of her daughter . The applicant denied these accusations and claimed that her sister was acting out of malice .

A further assessment by a local authority social worker at this stage found that the care given to M during DATE of her life had been inconsistent and that the applicant required continuous input from family members and professionals to prompt her to meet the baby ’s basic needs . On DATE the applicant received a letter warning her that the local authority were considering bringing care proceedings . The applicant agreed to undertake a placement and assessment within a mother and baby unit .

On DATE the applicant moved to the Abbeyfield Residential Family Centre for a DATE assessment and intensive support package . The applicant had her own flat within the centre but was given intensive support and regularly monitored throughout DATE and TIME .

The midway assessment noted that the applicant had to be prompted to feed M , left her waiting for food for as long as possible and had expressed concerns that M would become fat ( whereas in fact M was failing to gain weight properly ) . It also noted that she appeared reluctant to spend time playing and interacting with QUANTITY Nonetheless , the report concluded that the applicant had demonstrated an understanding of the child ’s basic care needs and a willingness to accept support and instruction from staff . On DATE a LAW was held and M was made subject to a ORG under the category of neglect .

The final report from LOC found that the applicant had profoundly low self esteem as a result of her childhood experiences . She was deeply needy , found caring for the child stressful and was unable to establish secure attachments with her daughter , putting the child at risk of emotional harm . The assessment concluded that the applicant was unable to safeguard the child or provide for her welfare . Despite repeated advice , the applicant did not feed the child at regular intervals , causing her to become dehydrated and to lose weight . She was also found to be unable to recognise and respond to cues in the baby ’s behaviour . Overall , the report concluded that , despite intensive input , the applicant was unable to demonstrate that she would consistently be able to meet her daughter ’s needs . M would be exposed to significant harm if she were returned to the applicant ’s care for a further period of assessment in the community .

In the light of this assessment , on CARDINAL DATE the applicant was informed that the local authority intended to apply for an interim care order . The local authority intended to place M with foster carers from ORG in GPE . ORG operated a system of concurrent planning , whereby during the assessment period of an interim care order , children were placed with foster parents who had been approved as potential adopters . The local authority considered that this would be beneficial to M , since if it proved necessary to place her for adoption she would not have to move to another family . An interim care order was granted on DATE and on DATE , when M was DATE , she was placed with foster carers .

The applicant had CARDINAL TIME contact sessions a week with her daughter , at ORG , during which her parenting skills were assessed . The applicant attended every session . In ORG first report , dated DATE , the applicant ’s commitment to her daughter was described as impressive . She was found to have recognised the need for change and to be more accepting of help and advice from professionals . Within the confines of the contact sessions she had demonstrated that she could physically care for M and the bond between them appeared to be strengthening . It was recommended that the contact should become less supervised in order to assess whether the applicant could sustain her progress with less support .

During this period , various members of the applicant ’s family were assessed by ORG as possible carers for M , but CARDINAL suitable was found .

NORP In subsequent contact sessions , staff remained outside the room and listened to the contact via a baby monitor . In total , the ORG team supervised TIME of contact between the applicant and her daughter . The Team ’s final report , dated DATE , concluded that the applicant had been unable to sustain the initial promise . She still had difficulty in recognising and responding to M ’s cues for food or sleep . M appeared distressed after extended contact sessions . The applicant did not eat regularly herself and there was concern that she would not feed M appropriately . She was reluctant to recognise or address the impact of her childhood experiences on her capacity to care for PERSON Despite an intensive level of professional input , the applicant had been unable to demonstrate that she could consistently meet her daughter ’s needs and M would be exposed to significant risk of harm if returned to her mother ’s care . There being no viable placement for M within the applicant ’s family , it was recommended that she be placed for adoption with her ORG carers .

On DATE a ORG ad litem was appointed to represent the child and to advise on her best interests . The ORG attended some of the applicant ’s contact sessions with M , to a total of TIME , and also visited the applicant at her home on several occasions .

The local authority applied for a final care order and an order placing M for adoption with her foster carers . Upon the making of these orders , the applicant ’s contact with M would be reduced , with the ultimate aim of stopping direct contact and establishing indirect contact via a letterbox scheme .

In a report dated DATE a forensic clinical psychologist , who was fully independent and acted on behalf of all the parties , including the applicant , found inter alia :

“ It is clear that [ PERSON ] loves [ M ] a great deal . In my view she has fairly profound psychological difficulties which are both subtle and central to her functioning . In my view such problems are masked by [ K.S ] ’s obvious intelligence . That is , she appears to function at a higher level because she is bright and , in many ways , a resourceful survivor .

If [ ORG ] is to care for [ M ] on a full time basis , she will require a great deal of support , assistance and guidance . She has the intellectual capacity to make use of services and to understand what it is to be a good parent . However , [ PERSON ] is a very vulnerable young woman who is at risk of episodes of depression , an unstable lifestyle and possibly abusive intimate relationships .

... [ If M ] is returned to [ ORG care , I am of the view that such an approach would have significant risks attached . [ PERSON ] may regress and her functioning may deteriorate as she becomes more in touch with the damage that has been caused to her . ”

On DATE the applicant applied for an adjournment of the care proceedings to allow for an independent social worker to be instructed . The applicant did not have legal representation at that hearing , so PERSON adjourned the matter until DATE to allow her to find a representative . At the hearing on DATE , the applicant , who was represented by a solicitor , submitted that she recognised that she needed help and had applied for counselling . She had an extensive support network of family members , friends and professionals . All the professional assessments so far had reported that she was making progress in her ability to care for PERSON The applicant accepted that M could not be returned directly to her care but considered that , long - term , M would be better off with her birth mother , and that it was justifiable to allow time for an independent assessment before placing the child for adoption . The judge , however , decided that he could not rule on this application until he had heard all the evidence in the case at the full hearing , which would take place on DATE .

Initially , the applicant had the support of the ORG ad litem . In an initial position statement made in DATE the ORG found , inter alia , that “ [ ORG ] is consistently able to demonstrate that she is able to meet [ M ] ’s emotional needs for love , comfort , acceptance , reassurance and affection ” . Although she did not consider that M should immediately be returned to her mother , she considered that an independent report might be justified .

The final hearing took place DATE . The applicant had legal aid and was represented by experienced counsel . After hearing evidence from the applicant and professionals DATE , the ORG changed her position . She informed the court that she considered that the work that had been undertaken established that the applicant was able to offer , at best , only an inconsistent standard of care for PERSON She believed that it would be in M ’s best interests for the court to approve the plan for adoption and she no longer thought that an adjournment for any further assessment would serve a useful purpose .

NORP In his judgment , dated DATE , Judge PERSON rejected the applicant ’s request for an adjournment to allow for further attachment work and assessment . He considered that it was necessary to balance the likelihood that further work or assessment would achieve “ the wonderful prize of rehabilitation of mother and daughter ” against the child ’s need for stability and a final decision . Having heard evidence from the applicant and the various professionals involved in the case , he concluded that rehabilitation was not a viable option . For DATE , professionals had worked sympathetically and intensively with the applicant to help her improve the bond with her daughter . The applicant had not been able to develop a consistent level of care and to show that she would be able to cope with the inevitable stresses and difficulties involved in raising a child . Unless the applicant ’s underlying problems were properly addressed , any further attachment work would be “ putting a sticking plaster on a huge wound ” and would achieve nothing of real substance . The judge accepted that it was a draconian step to remove the child from her mother , who was entitled to respect for her right to family life . However , the child was also entitled to a family life in which all her needs would be met and the applicant would not be able to meet those needs within the child ’s timescale . The judge therefore accepted the local authority ’s analysis of the welfare checklist . The child ’s interests were overwhelmingly in favour of adoption . He made a care order and dispensed with the applicant ’s consent to a placement order , on the ground that the welfare of the child so required . He declined to make any order regarding post - adoption contact , because he considered that the applicant ’s reaction to his judgment and ability to work with the adoptive parents and professionals would be important factors to be taken into account .

On DATE ORG dismissed the applicant ’s appeal . The applicant did not apply for legal aid for the hearing and was represented by a “ PERSON friend ” , who was not legally qualified . She had lodged the appeal following the refusal of Judge PERSON on DATE to decide on her application for an adjournment . ORG , in ORG , decided instead to consider the refusal of an adjournment in judgment of Judge PERSON of DATE . He held that Judge PERSON had not made any error of law . In the light of the evidence , which he had analysed carefully in his long judgment , Judge PERSON had been entitled to make the care and placement orders .

A second appeal , this time formally against the DATE judgment , was heard and dismissed without a hearing on CARDINAL DATE . ORG considered that the matter had already been dealt with by ORG on DATE , and said “ it would for practical purposes not be open to this court to reverse that decision ” , but added , “ for the record ” , that independently of ORG he had reached the same conclusion that , in accordance with the unanimous opinion of the professionals involved in the case , an order for further assessment and delay in making the final order would run counter to M ’s interests . He also made an order that , since the appeal was totally without merit , it could not be renewed at an oral hearing . The refusal of the appeal was , therefore , final .

On DATE Judge PERSON made an adoption order in favour of the couple who had been caring for M since DATE . The applicant did not attend the hearing . She had been sent notice of it on DATE , and had sent a number of emails asking for it to be adjourned . The court clerks had telephoned the solicitors who had previously acted for the applicant , but had been informed that they were no longer instructed and that the applicant had issued a claim in negligence against them following the making of the placement order . The judge decided to go ahead in the applicant ’s absence because she had not explained why she could not be present . Moreover , she had no valid appeals or applications outstanding in other courts and , given the recent judgments in her case , there was no possible basis for her to challenge the making of an adoption order . The evidence showed that M was thriving and happy and that it would be detrimental to her to upset the placement . The applicant ’s behaviour since the making of the placement order showed that she had not accepted it and the judge therefore considered that it would be unsettling and contrary to the child ’s interests to allow her direct contact . However , all the professionals in the case recommended that the applicant maintain indirect contact with her daughter , through letters which would be passed on through the local authority .

On DATE , the applicant ’s legal aid certificate in respect of the care and placement proceedings was discharged . On CARDINAL DATE the applicant appeared before Judge PERSON and unsuccessfully applied to set aside the adoption order and for Judge PERSON to recuse himself . On CARDINAL DATE Judge PERSON refused the applicant ’s request for leave to appeal against the adoption order , as totally without merit . He held that even if the applicant had attended the hearing on DATE , it would not have been possible to oppose or delay the adoption . On DATE Judge PERSON refused CARDINAL further applications by the applicant : for him to recuse himself and for her to have direct contact with her daughter pending the resolution of her application to this ORG .

A summary of the relevant domestic law and practice can be found in GPE v. GPE , no . CARDINAL , § § CARDINAL , CARDINAL DATE ( not yet final ) .


CASE OF YURUKOVA AND SAMUNDZHI v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

NORP In DATE the first applicant purchased from the GPE municipality a CARDINAL - room apartment of QUANTITY .

The property had become ORG owned by virtue of the nationalisations carried out by the communist regime in GPE in DATE and DATE .

Originally , the nationalised apartment had been bigger . Not DATE it had been divided into CARDINAL apartments . CARDINAL of them had been sold to an individual , Mr. PERSON , in DATE and the second one to the first applicant in DATE .

In DATE , shortly after the enactment of LAW , the former pre - nationalisation owners brought proceedings under LAW against the first applicant .

The proceedings ended by final judgment of ORG DATE .

The courts examined the evidence and rejected , in reasoned decisions , the first applicant ’s argument that the claim under section CARDINAL had been brought after DATE the date of expiry of the relevant statutory time - limit .

Dealing with the case on the merits , the courts declared the DATE contract null and void and restored the plaintiffs’ ownership of the apartment on the basis of CARDINAL arguments : CARDINAL ) the procedure for dividing an apartment into CARDINAL apartments had not been observed by PERSON and the municipality in DATE or earlier , and CARDINAL ) a relevant document concerning the DATE sale , a tenancy order , had not been signed by the mayor personally , as required by law , but by another official at the municipality .

NORP Until DATE , within DATE of the final judgment in the case under LAW , it was possible for the first applicant to obtain compensation from the ORG , in the form of bonds which could be used in privatisation tenders or sold to brokers . The first applicant did not avail herself of this opportunity .

As the first applicant did not vacate the apartment voluntarily , in DATE the owners brought rei vindicatio proceedings against her and her son , the second applicant , who apparently also lived in the flat . These proceedings ended by final judgment of ORG DATE ordering the applicants to vacate the flat . In DATE , the first applicant informed the ORG that she had not vacated the property and that the second applicant did not live there .

In DATE the first applicant petitioned the regional governor with requests to provide her with a ORG - owned flat or , alternatively , with compensation bonds . In DATE the first applicant informed the ORG that she had not received a reply .

The relevant background facts and domestic law and practice have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE .

In a judgment of DATE ( decision no . CARDINAL in administrative case no . CARDINAL/CARDINAL ) , ORG held that persons who had not applied for compensation bonds within the relevant time - limit , in force since DATE , could not seek such bonds after the enactment in DATE of paragraphs CARDINAL and CARDINAL of section CARDINAL of the ORG law ( see paragraphs CARDINAL and CARDINAL of the ORG ’s judgment in ORG and Others , cited above ) as these provisions did not give rise to additional entitlement to compensation bonds and therefore did not affect the relevant time - limit .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant , Mr PERSON , is a NORP national who was born in DATE . His last known place of residence in GPE was in PERSON . He was represented before the Court by Mr M .- O. Nordhorn , a lawyer practising in GPE .

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

On an unspecified date , the GPE prosecution authorities started an investigation against the applicant and several co - suspects on suspicion of drug trafficking .

On DATE ORG ordered that the applicant ’s GPE apartment be searched . The ORG found that on the basis of information obtained by means of surveillance as well as telephone tapping in the course of preliminary proceedings ( ORG ) instituted against the applicant , there were grounds for suspecting that drugs , implements used for drug trafficking and consumption , as well as cash proceeds from drug deals were being stored in the applicant ’s GPE flat . The search warrant stated that in the course of the investigations a suspicion had arisen that co - suspect ( Mitbeschuldigter ) PERSON was storing and trafficking drugs for the applicant ’s benefit . According to the information provided in the search warrant , on DATE , PERSON had received a telephone call from the NORP town of GPE by an unidentified male person who had informed him in NORP that on DATE at TIME a “ friend ” would arrive at PERSON ’s domicile . On the occasion of a telephone conversation on DATE at TIME , PERSON informed the applicant that nobody had yet come by . Later that day the applicant informed PERSON over the phone that the said friend would arrive that TIME . At TIME received a further telephone call by an unidentified person informing him that due to an accident the latter was unable to drop by . TIME the applicant phoned PERSON to inquire about his “ uncle ’s ” arrival and the “ entrusted items ” and said he would return DATE . During a further telephone conversation on DATE , the applicant informed PERSON that a search had been carried out at the “ friends’ ” place and that their arrival was not to be expected until DATE . The search warrant indicated that on the basis of the aforementioned telephone ORG content the court found that there were grounds for suspecting that the delivery of drugs and the applicant ’s return were imminent . Furthermore , through surveillance of the applicant it had been established that he had frequently stayed for extended periods in his GPE apartment and that on DATE he had travelled with his father by car to the NORP town of GPE , presumably with a view to initiating a drug deal .

On DATE ORG issued an arrest warrant ordering the applicant ’s detention on remand on suspicion of having imported drugs , an offence punishable under LAW ( Betäubungsmittelgesetz ) . In the detention order , running to CARDINAL pages , ORG found that there was a strong suspicion that the applicant - acting jointly with co - suspects PERSON , NORP , and PERSON - had coordinated the importation and delivery of QUANTITY of marijuana by NORP and NORP to PERSON ’s home address by means of several telephone conversations with PERSON The strong suspicion of the applicant having committed the offence resulted from the seizure of the drugs on the occasion of the search of his GPE apartment , the witness statements of CARDINAL police officers who had been involved in the search as well as from the information obtained in the course of police surveillance and the preliminary proceedings . The court further found that there was a risk of the applicant ’s absconding in view of an expected prison sentence of DATE . Since considerable amounts of money had been seized from the co - suspects , it had to be assumed that the criminal gang disposed of sufficient financial means to enable the applicant to abscond . Furthermore , the latter maintained good connections abroad , in particular in GPE , where he was presumably staying at present .

By written submissions dated DATE the applicant ’s counsel informed ORG office that he had been mandated by the applicant and requested to be granted access to the file in the preliminary proceedings instituted against the applicant . He reiterated his request by letter of DATE .

On DATE ORG informed counsel that for the time being his request to inspect the files had to be refused pursuant to LAW domestic law ” below ) on the ground that the preliminary investigations were ongoing and disclosure of the files might jeopardise the purpose of the investigations .

By written submissions dated DATE the applicant ’s counsel applied for a court decision pursuant to section CARDINAL of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz , ORG ) as to whether access to the files should be granted . He claimed that for the time being he had only obtained knowledge of the search warrant ’s content but that his inquiry with ORG as to whether a detention order had been issued against the applicant had been to no avail . He contended that where an arrest warrant was issued , the suspect would at least have to be granted the right to examine the part of the file providing information as to the reasons for his detention in order to be able to mount an effective defence .

The application was dismissed by ORG as inadmissible by a decision of CARDINAL DATE . ORG held that according to LAW , pending the termination of the preliminary investigation , it was for ORG to decide whether to grant access to the files or not and that therefore a disciplinary complaint ( Dienstaufsichtsbeschwerde ) against ORG would be the only appropriate remedy in the case at hand . Relying in particular on a statement obtained from ORG ( PERSON ) on DATE , ORG further found that the charges brought against the applicant were clearly set out in the search warrant dated DATE and the applicant himself had confirmed that he was aware of the search warrant ’s content . There existed thus no particular circumstances that would require an exceptional quashing of the ORG ’s decision to refuse access to the file .

By a letter dated DATE ORG informed the applicant that access to the file was still restricted in accordance with LAW and that such restriction would remain valid as long as the applicant was on the run .

A further request by counsel to inspect the files dated DATE was rejected by ORG on DATE with similar reasoning .

On DATE the applicant lodged a disciplinary complaint with ORG stating that the only information he had received so far with respect to the investigations was a copy of the search warrant of DATE as well as the detention order of CARDINAL DATE . While reiterating the grounds for his request set out in his written submissions to ORG of DATE , he argued in addition that there was no longer an indication that the purpose of the investigations would be jeopardised . This was in particular true in view of the fact that since ORG decision of CARDINAL DATE had passed , the proceedings against the applicant ’s cosuspects had meanwhile been terminated and that the applicant had been abroad for a considerable time , which excluded any danger of collusion ( PERSON ) on his part .

The complaint was dismissed by ORG ( Generalstaatsanwaltschaft ) by a decision of DATE holding in particular that according to counsel ’s own submissions he had at his disposal a copy of ORG detention order of DATE and that the files revealed that he had discussed with the competent ORG on several occasions what impact a possible pleading to the charge ( ORG . There were thus still grounds to believe that giving him access to the file might put the preliminary investigations , which had not yet been terminated , at risk .

On DATE ORG declined to consider the applicant ’s constitutional complaint of DATE against the aforementioned decisions of ORG , ORG and ORG on the ground that it was inadmissible and lacked any prospect of success . ORG held in particular that due to DATE that had elapsed since the last decision of ORG on DATE rejecting the applicant ’s request , as confirmed by ORG decision of DATE , the conditions underlying the impugned decisions might meanwhile have significantly changed in the course of the preliminary proceedings , which had now lasted for DATE . Under these circumstances the applicant was advised to pursue his objective by having recourse to the most effective and rapid remedy available , which in the case at hand would be a renewed request with the competent ORG to inspect the file . For this reason he lacked a legitimate interest ( Rechtsschutzbedürfnis ) in having his constitutional complaint examined . In the event of a further refusal by ORG and following an unsuccessful disciplinary complaint , a renewed constitutional complaint could be considered .

On DATE defence counsel lodged a further application with ORG for permission to inspect the file in the preliminary proceedings . By a letter dated DATE his request was again refused pursuant to LAW grounds that the investigations were ongoing and that the reasoning provided by ORG in his decision of DATE was still valid . By a decision of CARDINAL DATE ORG , referring to the reasoning in the decision of DATE and confirming that the preliminary proceedings had not yet been terminated , rejected the applicant ’s related disciplinary complaint as unfounded . The decision was served on the applicant on DATE .

By a decision of DATE the ORG declined to consider the applicant ’s constitutional complaint lodged on DATE without providing reasons . The decision was served on the applicant on CARDINAL DATE .

It appears that the applicant is still at large .

LAW provides that defence counsel is entitled to consult the files and to inspect the exhibits which have been presented to the trial court or which would have to be presented to the trial court in the event of indictment . LAW of this provision provides that access to part or all of the file or to the exhibits may be refused until the preliminary investigation has ended if it might otherwise be put at risk . However , in the event that the accused is remanded in custody or , in the case of provisional arrest , pre - trial custody has been requested , information of relevance for the assessment of the lawfulness of that deprivation of liberty shall be made available to defence counsel in suitable form and , as a rule , access to the files shall be granted .

Pending the termination of the preliminary investigations , it is for ORG to decide whether to grant access to the files or not ; thereafter the decision rests with the president of the trial court ( LAW ) . The Public Prosecutor shall revoke an order refusing to allow inspection of the files upon conclusion of the investigation at the latest . Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files .

Pursuant to section CARDINAL of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz , ORG ) the ordinary courts shall decide , upon request , on the lawfulness of directives , orders or other measures taken by the judicial authorities with a view to regulating individual issues in the sphere of , inter alia , criminal law . The same applies to directives , orders or other measures taken by the law enforcement authorities regarding the imposition of detention on remand .

Articles CARDINAL et seq . of the Code of Criminal Procedure ( Strafprozessordnung ) concern detention on remand . Pursuant to Article CARDINAL § CARDINAL of the Code , a defendant may be detained on remand 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 there is a risk of his absconding ( LAW no . CARDINAL ) or of collusion ( LAW no . CARDINAL ) .

LAW CARDINAL and CARDINAL of the Code of Criminal Procedure provides that detention on remand must be ordered by a judge in a written detention order . The detention order must identify the accused , and specify the offence of which he is strongly suspected , including the time and place of its commission , and the grounds for the arrest ( nos . CARDINAL of LAW ) . Moreover , the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered ( LAW no . CARDINAL ) .

Pursuant to LAW an appeal may be lodged with the competent court by the defendant or defence counsel against a detention order that has not yet been executed with a view to having it quashed ( Haftbeschwerde ) .

Pursuant to LAW , NORP law , in principle , does not allow for an in - absentia trial . A limited number of exceptions to this rule are notably laid down in sections CARDINAL et seq . A hearing may , in particular , be held in the defendant ’s absence in cases in which he has been summoned correctly and only a fine of CARDINAL “ DATE rates ” ( PERSON , a unit based on the average DATE net income of the offender ) is to be expected ( section CARDINAL of the Code of Criminal Procedure ) .