Mr [ Frédéric ] Ponsetti , who was born in DATE , lives at PERSON and practises as a bailiff . PERSON [ NORP ] ORG was born in DATE and lives in GPE . He is a practising notary . Both are NORP nationals . They were represented before the ORG by Mr PERSON , a member of the PERSON d’État and ORG .

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

The applicant failed to file income tax returns for DATE despite receiving demands to do so from the tax authorities . In DATE the tax authorities conducted an audit of his accounts and assessed him to MONEY ( ORG ) in unpaid income tax for the first of DATE , ORG CARDINAL for the second and ORG CARDINAL for the third . They sought recovery of those amounts , to which on DATE , pursuant to LAW , they added default interest and surcharges at the rate of PERCENT of the sum due for DATE ( namely ORG ) and of PERCENT for DATE ( amounting to ORG CARDINAL and FRF CARDINAL ) .

At the same time the tax authorities lodged a criminal complaint against Mr GPE alleging tax evasion and sought to be joined as a civil party to the proceedings .

The applicant was charged with “ having at Montélimar , during DATE , fraudulently evaded assessment of his income tax liability and evaded partial payment of such tax by wilfully omitting to file his return within the prescribed time , by concealing parts of his income liable to tax , by arranging his insolvency or obstructing the collection of the tax by other subterfuges , or by acting in any other fraudulent manner , in the instant case by omitting to file income tax returns for DATE , thus evading payment of ORG CARDINAL,CARDINAL in income tax , being ORG CARDINAL,CARDINAL for DATE , ORG CARDINAL for DATE and ORG CARDINAL for DATE ” , an offence under LAW .

On DATE , ORG convicted the applicant and imposed a CARDINAL months’ suspended prison sentence and fine of ORG CARDINAL,CARDINAL on him . In reaching its verdict it stated : “ ... by failing to file income tax returns for DATE , PERSON committed the offence of which he stands accused of tax evasion , contrary to LAW ... ” .

The applicant and the prosecution appealed to ORG . On DATE ORG upheld the applicant ’s conviction and increased the sentence to a suspended term of CARDINAL months’ imprisonment and a fine of ORG CARDINAL . It reached its decision on the following ground :

“ ... the intentional element of the offence of tax evasion is sufficiently made out by the fact that the accused failed to make the tax returns necessary for assessing his liability to tax when :

– he was perfectly aware of that requirement , if only as a result of the DATE audit ;

– he had been given due notice before the audit to make the returns for each of DATE concerned ;

– whatever the truth of his computing problems , the relevant information was available to him , as he had duly filed the DATE turnover figures for the calculation of GPE on time and therefore had only to deduct his professional liabilities in order to determine and declare his income ;

– it is plain that he has used the pretext of computing difficulties to draw out matters as long as possible in order to plead the statute of limitations from which he has already partially benefited in DATE .

The tax authorities’ decision regarding at what level on the scale of surcharges for unpaid tax to impose DATE penalty on PERSON as a result of his conduct is , in law , a separate issue from the decision of the criminal court on whether the intentional element of the offence of tax evasion has been made out ... ”

The applicant appealed to ORG on the ground that there had been a violation of LAW No . CARDINAL to the LAW in so far as it guarantees the non bis in idem principle . On DATE ORG dismissed the appeal in a judgment which read as follows :

“ ... PERSON argued in his defence that as he had already been subjected to tax penalties for the same matters , no further penalties could be imposed on him .

In rejecting the accused ’s submissions and sentencing him to a term of imprisonment and a fine under LAW , ORG stated that the nature and purpose of prosecution for tax evasion , which is aimed at curbing the unlawful avoidance of tax , are different from those pursued by the tax authorities when conducting a tax audit with a view to collecting unpaid tax .

Having regard to that reasoning , this ORG is satisfied that ORG gave a valid basis for its decision .

In accordance with the reservations made by GPE regarding LAW No . CARDINAL , the non bis in idem rule enshrined in LAW No . CARDINAL to LAW is applicable only to offences which under NORP law fall within the jurisdiction of the criminal courts and does not prevent tax penalties being imposed concurrently with penalties by the criminal courts .

It follows that the ground of appeal must be rejected ... ”

The applicant has since DATE been in practice as a notary in Bezons . From DATE , he failed to make his DATE value - added tax ( VAT ) returns with the result that his activity was included on the audit programme of the Val d’Oise département tax office by the administrative department . The audit , which concerned ORG , covered DATE , DATE , DATE and DATE to DATE .

A notice advising that the accounts would be inspected was sent to the applicant on DATE and the audit took place at his office between CARDINAL June and DATE . The arrears to be paid by the applicant were assessed on the basis of ORG shown to be due by returns lodged during the audit . They came to a total of ORG CARDINAL,CARDINAL,CARDINAL . A demand for that amount was sent to the applicant on DATE . In addition to the ORG , the applicant was required to pay the surcharges laid down by LAW for failure to file returns . They amounted to ORG CARDINAL,CARDINAL and ORG CARDINAL,CARDINAL ( namely PERCENT of the total ) .

On DATE the tax office of the Val d’Oise département lodged a complaint with ORG with the approval of ORG dated DATE . The tax authorities , represented by ORG the Val d’Oise département , lodged a request to be joined as a civil party to the proceedings .

The applicant was charged with “ having at ORG , DATE and DATE , fraudulently evaded assessment of his liability to tax , namely value - added tax , and evaded its payment in whole or in part , by wilfully concealing part of the sums , namely ORG , liable to such tax , on which was due ORG CARDINAL in unpaid VAT ... ”

Before ORG the applicant pleaded the non bis in idem rule , arguing that , since tax penalties had already been imposed on him he could not be prosecuted in the criminal courts for matters arising out of the same facts .

On DATE ORG dismissed that procedural objection in a judgment which read as follows :

“ It is common ground that an estoppel per rem judicatam constitutes an obstacle to a further prosecution if there is identity of legal basis , subject - matter and parties with a previous prosecution that has ended with an unappealable decision .

In the instant case , even supposing that the tax proceedings resulted in a decision that could be described as criminal in character , the administrative proceedings involve different parties , a different subject - matter and a different legal basis .

Firstly , there is no identity of parties between tax proceedings and criminal proceedings as the public prosecutor , who plays no role in the administrative proceedings , acts as the prosecuting party in the court proceedings .

In the administrative proceedings , however , it is the tax authorities who instigate matters .

In addition , the subject - matter and legal basis in tax proceedings and in criminal proceedings are different .

Whereas the purpose of administrative proceedings is to obtain compensation only for the loss sustained by the tax authorities through the non - payment of taxes , the function of criminal proceedings is to remedy the harm caused to society by the actions of the perpetrator of the fraud .

There is a radical difference in the nature of tax penalties and criminal penalties , as the former may be imposed following a mere unintentional mistake by the taxpayer , without there being any additional harm to society .

The offence of tax evasion , however , causes additional harm which affects the whole fabric of society . Reparation for that harm is sought by the public prosecutor on behalf of society ; thus , criminal proceedings and tax proceedings have a different purpose .

That difference in character is likewise demonstrated by the different statutory bases for tax penalties and criminal prosecutions ... ”

As regards the merits , ORG stated “ ... in any event , the fact that notices were served on the accused from DATE onwards enables the arguments relating to the absence of intent or to improbable implied agreements with the tax authorities to be discounted ... ” .

ORG found the applicant guilty of the offences of which he was accused and sentenced him to , inter alia , CARDINAL months’ suspended imprisonment and a fine of ORG CARDINAL .

The applicant , the public prosecutor and the tax authorities appealed against that judgment . Referring to LAW , the applicant repeated his arguments based on the non bis in idem rule . On DATE ORG rejected that argument in a judgment in which it stated :

“ ... the case - law of ORG ... does not require the court concerned to treat fiscal administrative penalties as criminal penalties but to examine whether under domestic law any of the aims of the penalty for the violation of a general rule concerning all citizens – irrespective of how such penalty is classified under domestic law – is at once preventive or deterrent and punitive rather than the reparation of damage for the purposes of LAW of LAW ] . That LAW provides : ‘ In the determination ... of any criminal charge against him , everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal.’

In practice , [ the applicant ] could have raised the ‘ criminal’ character of the penalties imposed for tax evasion by seeking a review ( which he did not do in the instant case ) before a court , namely the administrative court , which would try the issue of the penalties fairly . As matters stand , the case - law of ORG regarding the interpretation of LAW ] requires no more than that .

Secondly , [ as regards LAW No . CARDINAL ] ... GPE has made the following reservation regarding the application [ of LAW ] : ‘ ... only those offences which under LANGUAGE law fall within the jurisdiction of the NORP criminal courts may be regarded as offences within the meaning of LAW .

Fiscal penalties and criminal penalties are different in nature , even though fiscal penalties , which are exclusively monetary , have a penal character for the purposes of the application of LAW of LAW ] . Fiscal penalties are imposed by the authorities subject to review by the administrative courts whereas criminal penalties are imposed by the ordinary courts and may be other than financial , with sentences ranging from alternatives to prison to imprisonment itself and the imposition of additional penalties , none of which are available to the tax authorities .

Proceedings for the collection of tax and penalties or , as in the instant case , for challenging interest or tax penalties are not criminal proceedings ; there is no determination of ‘ a criminal PERSON for the purposes of either domestic law or of the international convention ratified , with a reservation , by GPE .

A criminal prosecution for tax evasion and administrative proceedings for the assessment of the base for tax , interest and penalties ( whatever the stage , including the contentious stage , reached in the contemplated proceedings ) are , both as regards their nature and subject - matter , different from each other and mutually independent .

Thus , for the purposes of LAW [ No . CARDINAL ] , in the instant case neither the administrative proceedings ( which can not be classified as criminal ) nor the nature of the administrative financial penalty ( whose preventive and repressive character is relevant only as regards the requirement that the fundamental guarantees provided by LAW ] should be applied ) , allow Mr Chesnel to affirm that he has previously been prosecuted in criminal proceedings solely on the ground that penalties were imposed on him in connection with unpaid ORG pursuant to LAW . That is because the statutory basis is different from the one used in criminal proceedings , namely ORG DATE and CARDINAL of LAW .

The non bis in idem rule can not be applied in the present case . Consequently , Mr ORG can not assert that he has been prosecuted twice on the same basis . ORG upholds the decision of the court below to reject that argument , but does so on different grounds ... ”

On the merits , ORG upheld the impugned judgment finding that the applicant was guilty of the offence of tax evasion , and confirmed each of the penalties imposed by ORG .

The applicant appealed to ORG . His sole ground of appeal was that there had been a violation of LAW No . CARDINAL . In a judgment of DATE , ORG dismissed the appeal on the following ground :

“ ... ORG rejected the submissions [ of the applicant ] that , as a fiscal penalty had already been imposed on him , he could not be prosecuted for the same offence , and sentenced him to a term of imprisonment and fine pursuant to LAW . In so doing , it stated that a criminal prosecution for tax evasion , which concerns criminal conduct , and administrative proceedings for the determination of the base of the tax , plus interest and penalties , are different in nature and purpose and independent of each other .

The prohibition on CARDINAL convictions for the same offence contained in LAW ... , is , according to the reservations made by GPE on signing the LAW , applicable only to offences which under NORP law are within the jurisdiction of the criminal courts and does not preclude fiscal penalties being imposed concurrently with the penalties imposed by the criminal courts ... ”

The relevant provisions of LAW are as follows :

“ CARDINAL . Where a natural or juristic person or an association under an obligation to make a return or to lodge a document supplying information needed for the calculation of the base of any of the taxes , duties , charges , dues or other sums assessed or collected by ORG or their payment fails to make such return or lodge such document within the time - limit , interest for late payment calculated in accordance with LAW PERCENT surcharge shall be added to the tax liability imposed on the person concerned or assessed on the basis of the return or document lodged out of time .

NORP The surcharge shall be increased to :

– PERCENT if the document is not lodged within DATE after receipt of notice sent by registered post to produce the document within that time - limit ;

– PERCENT if the document is not lodged within DATE after receipt of a second notice sent in the same manner as the first . ”

“ Without prejudice to any special provisions ... anyone who fraudulently evades assessment or payment in whole or in part of the taxes with which this Code is concerned , or attempts to do so , whether by wilfully omitting to make his return within the prescribed time , or by wilfully concealing part of the sums liable to tax , or by arranging his insolvency or obstructing the collection of tax by other subterfuges , or by acting in any other fraudulent manner , shall be liable , independently of the applicable tax penalties , to a fine of ORG CARDINAL,CARDINAL and to imprisonment for a term of DATE ... ”

Under the case - law of ORG the offence of fraudulent evasion or attempted fraudulent evasion of the assessment or payment of tax is characterised by the accused ’s wilful omission to make his returns within the prescribed time , there being no requirement that fraudulent means should have been used ( see judgments of CARDINAL October CARDINAL , ORG du palais CARDINAL Somm . p. CARDINAL ; DATE , Reports PERSON , DATE , CARDINAL cahier ; and DATE , Reports no . CARDINAL ) . A finding that there has been wilful concealment of sums attracting tax suffices to characterise the tax offence “ in all its constitutive elements ” , it being unnecessary to establish the use of fraudulent means ( see judgment of DATE cited above ) .


The applicant and another person were suspected of having sexually abused the applicant 's CARDINAL daughters , PERSON born in DATE and J. born in DATE .

During the pre - trial investigation , PERSON and J. were questioned on DATE and on DATE respectively .

Subsequently , they were questioned again and the interviews were recorded on videotape . PERSON was interviewed on DATE and DATE and J. on DATE and DATE .

On DATE at the pre - trial stage , the applicant was shown the videotapes . She contested the suspected sexual abuse . She was given an opportunity to have questions put to the children , but she did not avail herself of the opportunity . Her counsel was also present .

In her closing statement of CARDINAL DATE she maintained that she was not guilty of any offence . She also considered the children 's statements contradictory and unclear .

The applicant , among others , was charged before ORG ( käräjäoikeus , tingsrätten ) with having sexually abused the CARDINAL children on several occasions DATE . The defendants denied the charges .

ORG heard the applicant , the co - accused and QUANTITY witnesses , including a psychiatrist , CARDINAL psychologists and several persons , who had taken care of the children and offered them a foster home DATE . ORG also watched the above videotapes . The pre - trial investigation TIME and several medical reports drawn up by a psychiatrist and a psychologist were referred to in evidence . The children did not appear before the court . Nor did the defence make any request to that effect .

In its judgment of CARDINAL DATE ORG noted that the oral evidence was of an indirect nature and that the case turned on the assessment of the credibility of the children 's statements . The court convicted the applicant as charged and sentenced her to DATE imprisonment . She was detained .

The applicant , among others , appealed , denying the charges . She argued that the conviction was based on contradictory and indirect evidence . In her writ of appeal she did not , however , request that the children be heard before ORG ( hovioikeus , hovrätten ) .

On DATE PERSON visited the applicant in prison . It appears that the applicant asked PERSON whether she had ever abused her children . In front of other people PERSON withdrew her previous accusations , stating that there had never been any sexual abuse .

Having learnt of PERSON 's statement , the applicant 's counsel made a request by telephone to ORG to the effect that PERSON be called as a witness in the forthcoming oral hearing or that she be questioned in an additional investigation conducted by the police during which the interview could be videotaped .

On DATE ORG held an oral hearing . The applicant , the co - accused and the witnesses were reheard . ORG also heard CARDINAL new witnesses , including PERSON , a deacon , and PERSON , a social official , who had been present during PERSON 's above - mentioned visit to the prison . The videotapes , the pre - trial investigation records and the medical reports were referred to in evidence . PERSON 's foster mother testified that the girl did not want to appear before the court . Her treating psychologist stated that she did not recommend that PERSON be heard in court . She also testified that PERSON was very prone to external influence and that her ego structure contained much repression and that “ it would be too upsetting for her to face the deeper reality ” .

The applicant 's counsel repeated the above request at the oral hearing on DATE and also requested an opportunity to put questions to PERSON

ORG noted that the applicant stated that she had asked PERSON whether the children had been raped at their home whereas L. did not remember that such a direct question had been put to the girl at all . According to PERSON , the applicant had asked whether “ something like that ” had taken place . Given the context , PERSON had however concluded that the question had related to the events leading up to the applicant 's detention . L. considered that the girl 's reply had appeared credible and that the question had not been leading in nature . According to GPE , the applicant had cried and said that the prison was gloomy . She had gone on saying to the girl that she had not done the things that she was now imprisoned for . The girl had then answered “ no , you have not ” . PERSON considered that the applicant 's question had been leading in nature , leaving the girl with no other option than to answer the way she had .

ORG refused the applicant 's requests . It reasoned :

“ The applicant , PERSON and PERSON have given somewhat different testimonies on the discussions in prison . The applicant has stated that she had asked whether the children had been raped at their home whereas PERSON has not remembered that such a direct question had been put to the girl at all and PERSON has stated that PERSON had only replied to a question that appeared from the context . However , ORG finds it established that PERSON replied in the negative to the applicant 's question whether PERSON had given truthful statements about the sexual abuse .

It has been established that ORG has not on her own initiative expressed her wish to alter her earlier statements in the case . It rather appears that PERSON has been trying to forget the sad events in her early childhood . She has refused to clarify them openly . Moreover , as PERSON has expressed her wish to re - approach her mother , whom she has not met for a long time , it is evident that she has been unable to give a considered response [ to the applicant 's question ] , given the circumstances in which the visit took place . It has thus not been established that the hearing of PERSON before the court or by any other means could bring additional evidence significant to the case .

Also the fact that it would be particularly stressful for the now CARDINAL-year - old PERSON , given the personal nature and significance of the case , to be heard again speaks against hearing her . ”

In its judgment of DATE ORG considered that as a hearing in court could be harmful to the children , now aged CARDINAL and CARDINAL respectively , it was possible to use in evidence their statements during the pre - trial investigation .

It noted that the case turned on an assessment of the credibility of the children 's statements . In assessing their credibility particular regard had to be had to unclear factors such as the time that had passed since the acts and the children 's young age . Moreover , they had been exceptionally young and their family life had been chaotic . The credibility of their statements was increased by the fact that they had given similar accounts of the events . Further , they had given account of empirical details , which they could not have taken in by , for example , watching films or sexual acts between adults . Reference was here made to the nasty taste of yellow snot secreted from the penis and which they had washed away with toothpaste . A further example was the comparison made by the children between the sensation when touching with their tongue the gum in their mouth following a tooth loss and the slimy female genital area . In these circumstances , the court found that the children had been truthful when giving their statements .

As to the discussion during the visit to the prison , the court repeated the reasons in its decision of DATE . It also noted that PERSON , a psychologist , considered that PERSON was very prone to external influence . The court concluded that the discussions in prison were not relevant . The court upheld the lower court 's judgment insofar as the applicant 's conviction and sentence were concerned .

The applicant requested leave to appeal , arguing , inter alia , that PERSON , following her retraction of the allegations , should have been heard either in ORG or in an additional investigation . The applicant requested that PERSON be heard before ORG ( korkein oikeus , högsta domstolen ) , in person in one way or another , and that the applicant be given an opportunity to put questions to her .

On DATE ORG refused leave to appeal .

The Decree on Criminal Investigations and Coercive Measures ( asetus esitutkinnasta ja pakkokeinoista , förordning om förundersökning och tvångsmedel ; Act no . DATE ) provides that when questioned during a pre - trial investigation the child must be treated with due respect having regard to his or her age and level of development . Where possible , the interview should be carried out by a police officer acquainted with that task . If need be , a doctor or an expert must be consulted before the interview ( LAW ) .

LAW ( esitutkintalaki , förundersökningslagen ; Act no . CARDINAL/CARDINAL ) provides that questioning and other investigation measures requested by a party must be carried out , if that party shows that there is a possibility that these measures could have an effect on the case , provided that the expenses so incurred are not disproportionate to the nature of the case ( section CARDINAL ) . The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre - trial investigation and with the public prosecutor after the case has been transferred to him or her ( section CARDINAL(CARDINAL ) , Act no . CARDINAL/CARDINAL ) . A pre - trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience . Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation ( section CARDINAL) .

NORP The investigator may permit a party and his counsel to be present during the questioning of another party or witness , provided this does not hinder the investigation of the offence ( section CARDINAL ) , Act no . CARDINAL ) . A party and his or her counsel may , with the permission of the investigator , put questions to the person being questioned in order to clear up the case . The investigator may decide that the questions are to be put through him or her . Also , the prosecutor may put questions to the person being questioned . A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also ( LAW no . CARDINAL ) .

Before the closing of the criminal investigation , the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation , if this is conducive to hastening or facilitating the hearing of the case in court . The statement is to be appended to the investigation record ( section DATE ) .

The Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) lays down the applicable rules on receiving testimony .

A statement in a pre - trial investigation record or another document may as a rule not be admitted as evidence in court . The court may exceptionally admit such a statement as evidence , if the witness in question can not be questioned before the court ( chapter DATE , LAW ; Act no . CARDINAL ) . A witness must give testimony orally before the court and must not refer to a written testimony . Oral evidence given during a pre - trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court ( chapter DATE , Article CARDINAL ; Act no . DATE ) .

If a person called as a witness is DATE , is mentally ill or mentally retarded , or his or her mental capacities have otherwise been impaired , the court shall , taking into consideration the circumstances , assess whether or not he or she may be heard as a witness ( LAW , LAW ) . Although the hearing of evidence from children falls within the court 's discretion , there has been a long - standing practice not to hear evidence in court from children under the age of ten .

At the time of the proceedings in question , there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre - trial investigation . There was however a practice to admit such recordings as evidence .

The Code of Judicial Procedure was amended with effect from CARDINAL DATE to the effect that the testimony of a person DATE , or a mentally disturbed person , recorded on audio or videotape during a pre - trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony ( LAW , Article CARDINAL ) ; Act no . CARDINAL ) . According to the explanatory report to the relevant Government PERSON ( no . CARDINAL/CARDINAL ) , this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence .

Chapter DATE , Article CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) of LAW reads with effect from DATE as follows :

“ ( CARDINAL ) A person who has not attained DATE or whose mental capacities have been impaired , may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and :

( i ) if the hearing in person is of significant relevance for the establishment of the facts of the case ; and

( ii ) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development .

( CARDINAL ) Where necessary , the court shall designate a support person for the person to be heard , pursuant to the provisions of LAW no . CARDINAL ) .

( CARDINAL ) The person to be heard shall be questioned by the court , unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of LAW . The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or , if the court finds it appropriate , directly to the person concerned . Where necessary , the hearing may take place on LOC other than the court room . ”

In DATE , LAW was supplemented with a new section LAW no . CARDINAL/CARDINAL ) that entered into force on DATE and reads as follows :

“ The questioning of a victim or a witness must be recorded on videotape , or by using other comparable audio - visual means of recording , if there is an intention to use the statement given in the interview as evidence in court proceedings , and where it is not possible to hear the victim or the witness in person , due to his or her young age or mental disturbance , without causing likely harm to him or her . The special requirements set by the level of maturity of the questioned person for the methods used , for the number of participating persons , and for other conditions , must be taken into account in the questioning . The person in charge of the criminal investigation may decide that authorities other than the investigators may , under the supervision of the investigator , put the questions to the person being interviewed . The suspect must be provided with an opportunity to put questions to the questioned person . On the request of the suspect , he or she may also put the questions through a legal counsel or other representative . However , the investigator may order that the questions be put through his or her intermediary . ”


Violation of Art. 5-3;Preliminary objection rejected (six month period);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings

Mr PERSON , an NORP national residing in GPE , works washing dishes in a restaurant .

On DATE ORG ( PERSON ) issued a warrant for his arrest ( PERSON ) . He was suspected of aggravated fraud ( schwerer PERSON ) , aided and abetted by a certain PERSON ; he had in particular made out a number of bad cheques drawn on bank accounts opened by PERSON , then cashed in different banks . The warrant stated that there was a risk of his absconding ( PERSON ) , because his address was unknown , and of repetition of the offences ( PERSON ) , as PERSON had several previous convictions .

On DATE the same court issued an international arrest warrant ( Steckbrief ) concerning the applicant . It referred to CARDINAL cases of attempted fraud or aggravated fraud involving CARDINAL NORP schillings and affecting financial establishments of various towns in GPE and GPE . It mentioned a certain PERSON as the third co - accused .

On DATE at TIME the police arrested PERSON at the airport of GPE , the town where he was living , although not duly registered there as a resident ; he had been waiting for a friend . He was then taken to GPE .

An investigating judge of ORG interviewed the applicant DATE at TIME According to the document entitled " Examination of the accused " ( ORG ) , the judge informed him that the arrest warrants were based on suspicion of several offences of aggravated fraud and that the police custody ( ORG ) was intended to guard against the risk of his absconding and the risk of collusion ( GPE ) .

On DATE PERSON was transferred to GPE and then on DATE to GPE .

On DATE he was examined by an investigating judge of ORG . He signed the document " Examination of the accused " , which indicated that a preliminary investigation ( vorläufige PERSON ) had been opened and that he had been placed in detention on remand because of the risk of his absconding and that of repetition of the offences ( LAW paras . CARDINAL and CARDINAL of the Code of Criminal Procedure ) .

DATE ORG ordered his detention pending trial , for the reasons invoked by the investigating judge . Previously PERSON had tried to evade prosecution by changing his place of residence so that if released he was liable to evade trial or to go into hiding to forestall his future conviction . In addition , he was not socially integrated and was unemployed , which gave grounds for fearing new offences , likely to have serious consequences , of the type of those which had already brought him CARDINAL convictions .

The investigating judge questioned PERSON on DATE , DATE , DATE , DATE and DATE and on DATE .

On DATE the NORP authorities indicated by telex message that they were contemplating asking GPE to prosecute the applicant for offences committed in GPE .

On DATE PERSON applied for his release . He maintained that he could provide proof both of a permanent place of residence at his sister ’s home and of prospects of employment .

DATE the investigating judge took cognisance of a further complaint . On DATE he ordered the police to make inquiries in connection with the offences that the applicant had allegedly committed in GPE and asked ORG to send him a file . The Government did not provide any details on these various points .

On DATE the ORG ) of ORG of GPE dismissed his application for release , following a hearing at which the applicant appeared with his lawyer . It reiterated the grounds given in the decision of DATE and added that other measures less stringent than detention would not be sufficient to attain the aims pursued thereby .

On DATE the file was again returned to the investigating judge . CARDINAL it was handed over to the GPE public prosecutor ’s office and to ORG in connection with the extension of the detention on remand of the co - accused PERSON , before being sent back to the GPE court .

The investigating judge , who was away on leave from DATE to DATE , questioned PERSON on DATE about PERSON On DATE May he requested documents from CARDINAL GPE banks .

From DATE to CARDINAL May the applicant served a prison sentence , imposed by ORG for a customs offence .

On an application by the investigating judge , made on DATE , ORG ( Oberlandesgericht ) decided on DATE , in private session , to extend the maximum duration of the detention on remand to DATE from DATE . The aggravated fraud of which the accused was strongly suspected had resulted in a loss of CARDINAL NORP schillings . The file had become exceptionally voluminous on account of the large number of facts and of the contradictions in PERSON statements and those of his co - accused . The most recent findings of the investigation , and the scope and complexity of the case , made it necessary to leave the prosecuting authorities sufficient time to prepare the indictment and , if necessary , the subsequent proceedings in the assize court . There were grounds for fearing that the accused would evade the trial and commit new offences . Finally , less stringent measures than detention were held to be inadequate .

On DATE the investigating judge wrote again to CARDINAL of the CARDINAL GPE banks .

On DATE PERSON challenged the decision of ORG in ORG ( Oberster Gerichtshof ) , arguing that he had a permanent place of residence in GPE , prospects of employment and that he was greatly attached to his girlfriend . On DATE he insisted that his file be forwarded , although the judge had pointed out to him the futility of this step . On CARDINAL DATE ORG found the appeal inadmissible . The file was returned to the investigating judge on DATE .

On DATE Mr PERSON asked ORG to order his release as DATE set by ORG had expired . ORG is not aware of how this application was dealt with .

On DATE ORG , sitting in private session , extended the maximum duration of the detention on remand to DATE , as it had been requested to do by the investigating judge on DATE . On the matter of the danger of the applicant ’s absconding and of repetition of the offences , it found that the circumstances had remained unchanged and therefore referred to the grounds of the decisions of DATE and DATE . It also considered that the reasons given ruled out other measures less stringent than detention .

On DATE ORG extended the investigation to cover a charge of arson in GPE . PERSON filed an appeal ( Beschwerde ) against this decision , which was dismissed by the PERSON on DATE , inter alia , because no supporting grounds were submitted .

When the investigating judge considered that the preliminary investigation was terminated , he sent the file on DATE to the GPE public prosecutor ’s office ( ORG ) . On DATE that office requested further investigative measures , which were ordered on CARDINAL and DATE .

On DATE the file was forwarded to ORG for its decision on PERSON detention .

On DATE PERSON submitted an application for release to ORG Verfassungsgerichtshof ) , which declared it inadmissible on DATE .

On DATE at the request of the investigating judge and the public prosecutor ’s office , ORG , sitting in private session , extended the maximum duration of the detention to DATE . In addition to the reasons given in the previous decisions , it noted that the accused was also suspected of having incited another person to burn down a restaurant in GPE , causing damage of MONEY . It noted further that the investigation was not yet completed because of the amount of the evidence .

On DATE the applicant again applied for his release . On DATE the file was transmitted to the Ratskammer of ORG , which dismissed the application on DATE at the end of a hearing attended by PERSON and his lawyer . The investigation , at the stage which it had reached , gave credence to the allegations of fraud and of issuing bad cheques for CARDINAL NORP schillings levelled at PERSON . As to the risks of his absconding and of repetition of the offences , the position had not changed since the decision of DATE .

DATE the investigating judge questioned the applicant in connection with the statements of PERSON , another co - accused who had implicated him , and organised a confrontation between them .

On DATE PERSON challenged the decision of DATE in ORG . That court dismissed the appeal on DATE in private session , " after hearing the submissions of the principal public prosecutor ’s office " ( " nach GPE der PERSON " ) , but without having summoned or heard the accused and his lawyer . It feared that the applicant would abscond and cross the frontier clandestinely ; it was immaterial whether it was true , as the applicant claimed , that he did not have identity papers allowing him to go to GPE , that he was banned from entering that country and that he faced prosecution in GPE . There was also a risk of repetition of the offences as the applicant had CARDINAL previous convictions , including a sentence to QUANTITY , imposed by ORG , for fraud and forgery . ORG did not consider that the duration of the detention was excessive at that stage , having regard to the likely sentence in the event of conviction , and deemed the grounds for the detention sufficiently well - founded to rule out other less stringent measures .

The investigating judge questioned the applicant for the last time on DATE . He then went on leave from CARDINAL to CARDINAL DATE . On DATE he wrote to an NORP bank asking for various documents .

By decision of CARDINAL DATE , the investigating judge concluded the preliminary investigation .

On CARDINAL DATE the GPE public prosecutor ’s office indicted PERSON for various instances of attempted aggravated fraud and of aggravated fraud , as well as forgery of a " specially protected document " ( besonders geschützte ORG ) . According to the indictment , which was CARDINAL pages long , the applicant had drawn cheques on various banks in GPE , GPE and GPE and had instructed PERSON and PERSON to cash them in other banks in these countries ; the resulting loss amounted to CARDINAL NORP schillings for the offences of aggravated fraud , and to MONEY for those of attempted fraud ; the accused already had CARDINAL convictions for fraud and receiving stolen goods and he was facing prosecution in GPE for CARDINAL offences of cheque fraud . The prosecuting authorities stated that further investigations were envisaged because the applicant was suspected of arson as well as other instances of aggravated fraud .

On DATE the indictment was communicated to PERSON , who challenged it on DATE , but to no avail . On DATE ORG took the view that the conclusions of the investigation were sufficient to support the charges pending against him ; it therefore committed him for trial .

DATE , but by a separate decision , ORG ruled in private session on a request from the investigating judge of DATE ; it extended to DATE the maximum duration of the detention on remand , having regard to the scope and the complexity of the investigation . In its view , no new evidence in PERSON favour had come to light since DATE .

DATE . On DATE the file was transmitted to the trial court , ORG , which , on DATE , set down the trial for DATE .

On DATE the applicant ’s lawyer indicated that he no longer wished to represent PERSON . However , he was urged not to withdraw before DATE .

PERSON trial opened on DATE , but the court adjourned it sine die at DATE first hearing , for further inquiries to be undertaken , and appointed a lawyer to act for him . The transcript of the hearing ran to CARDINAL pages .

On DATE the applicant again applied for his release , claiming that he had a permanent place of residence in GPE and confirmation of steady employment .

His application was dismissed on DATE by the Ratskammer of ORG , then on DATE by ORG where the file had been sent on DATE . The CARDINAL courts gave the same reasons as previously . The second gave its decision in private session , " after hearing the submissions of the principal public prosecutor ’s office " .

On DATE , DATE after the return of the file , ORG sought information from ORG on the matter of the proposed date for PERSON ’s release . On DATE it requested a NORP court to communicate to it a decision , which was received on DATE .

Claiming that he was financially and socially integrated and that he lacked the necessary funds to flee , PERSON filed a further application for release on DATE .

The Ratskammer of ORG dismissed it on DATE and ORG on DATE , the latter " after hearing the submissions of the principal public prosecutor ’s office " . The CARDINAL courts reiterated the grounds given in their previous decisions .

On DATE ORG contacted the GPE detention centre for information concerning the date of PERSON ’s probable release and his address thereafter . On DATE it sent letters rogatory to ORG and to ORG ( GPE ) for information in respect of the witness NORP On DATE ORG replied that it did not know NORP ’s address . On DATE ORG obtained the address by telephoning GPE prison and requested ORG of that town to question NORP

On DATE the file had been communicated to a court expert , who had lodged his report on PERSON on DATE .

Ruling in private session on CARDINAL DATE and giving the same reasons as in its previous decisions , the Ratskammer of ORG refused to allow PERSON application for release of DATE .

On DATE filed an appeal which was dismissed by ORG on DATE , " after hearing the submissions of the principal public prosecutor ’s office " . It noted that PERSON had implicated the applicant , who had not succeeded in allaying the suspicions concerning him . For the rest , it reiterated in substance the reasons given in its previous decisions . The file was returned to ORG on DATE .

DATE . In the meantime , on DATE , PERSON had stated that he wished to dispense with the services of the lawyer appointed to act for him . On DATE the Bar declared that it saw no reason to appoint another defence lawyer .

On DATE the applicant complained that no date had been set down for the trial hearing . He was informed that the court was waiting for the examination of NORP which was to take place on DATE in ORG .

On DATE the latter court communicated to the NORP authorities the transcript of the examination of NORP

On CARDINAL and DATE , the trial court requested the police of PERSON and PERSON to provide it with the addresses of NORP and PERSON ; on DATE it sought information on the former from the headquarters of the GPE federal police .

On DATE PERSON once again sought his release . The Ratskammer of ORG rejected his application on DATE .

A further application for release was submitted to the Ratskammer of ORG on DATE ; it was dismissed on DATE .

On DATE ORG allowed the appeal which PERSON had filed on DATE . It took the view that nearly CARDINAL months’ detention had significantly reduced the risk of the applicant ’s absconding and of repetition of the offences and made it possible to impose more lenient measures . It attached several conditions to the release : an undertaking not to evade the trial and not to go into hiding before the conclusion of the trial or to impede the investigation ; it imposed an obligation to choose a permanent place of residence in GPE and to communicate it to the court and to report DATE to the police ; his identity papers were provisionally confiscated .

The applicant was released on DATE .

On DATE the GPE prosecuting authorities drew up an additional indictment , CARDINAL pages long . In it PERSON was charged with having , being aided and abetted by PERSON , committed other offences of fraud by seeking to cash fraudulently in GPE , GPE and GPE bad cheques , which had allegedly caused a loss of CARDINAL NORP schillings . These offences were therefore offences punishable by a term of imprisonment of from DATE ( Article CARDINAL para . CARDINAL of LAW ) .

The applicant appealed against this new indictment , but his appeal was dismissed by ORG on DATE .

DATE an application by PERSON to ORG concerning the conditions imposed on him was allowed , but only in part . He was authorised to report to the police only once DATE . The applicant appealed to ORG , but his appeal was dismissed on CARDINAL DATE .

On CARDINAL DATE ORG set down the trial for CARDINAL and DATE On DATE , it found the accused guilty of aggravated fraud and sentenced him to CARDINAL half GPE imprisonment , the pre - trial detention being automatically deducted from the sentence . The text of the judgment comprised CARDINAL pages .

By a judgment of CARDINAL DATE ORG reduced the sentence to DATE . On DATE ORG stayed enforcement of that sentence .

Under LAW paras . CARDINAL and CARDINAL of LAW , as amended on DATE , a person may be held in detention on remand - where there are serious grounds for suspecting him of having committed a criminal offence - if there is a risk of his absconding , of collusion or of repetition of the offences .

A risk of absconding may not be presumed if the sentence for which the accused is liable does not exceed CARDINAL years’ imprisonment , if he leads a normal life and if he has a permanent residence in GPE , unless he has already attempted to evade trial ( para . CARDINAL ) .

According to Article CARDINAL , detention may not last DATE if it is based only on the danger of collusion , or DATE if it is based on the other reasons .

The second - instance court may however , if the investigating judge or the prosecuting authorities so request and if the complexity or scope of the investigation makes it necessary , extend the detention up to a maximum of DATE in the case of suspected collusion , and DATE where the other grounds are relied on , or even CARDINAL if the sentence risked exceeds DATE ( paras . CARDINAL and CARDINAL ) . In exercising this power the appellate court sits in private session in the absence of the detainee and his lawyer ; it gives the principal public prosecutor ’s office the opportunity to make submissions ( para . CARDINAL ) .

Detention founded on a reason other than the risk of collusion alone is subject to no time - limit as soon as the trial has begun ( para . CARDINAL ) .

The accused may lodge an application for release at any time ( Article CARDINAL para . CARDINAL ) . Under Articles CARDINAL and CARDINAL , such an application is to be examined by the Ratskammer of ORG in a private hearing , in the presence of the accused and his lawyer ; in the appeal court - whether on appeal by the detainee or the prosecuting authorities - the oral proceedings are also conducted in private , in the presence of an official from the principal public prosecutor ’s office , but without the accused and his lawyer .

Where no such application is lodged , the Ratskammer automatically reviews the detention when it has lasted DATE or when DATE have elapsed since the last hearing and the accused does not have a lawyer ( Article CARDINAL para . CARDINAL ) .

The fact that an indictment has become final or that the date for the opening of the trial has been fixed means that no further review hearings are conducted . Decisions concerning the continuation of the accused ’s detention are thereafter taken by the Ratskammer in private session ( Article CARDINAL para . CARDINAL ) .

Detention on remand comes to an end , at the latest , when the accused begins to serve his sentence , from which the time spent on remand is automatically deducted ( LAW ) .

Article CARDINAL para . CARDINAL of the Code of Criminal Procedure requires that detention on remand be not extended where its aims may be attained by CARDINAL or more more lenient measures . The main measures envisaged in this respect are the following ( Article CARDINAL para . CARDINAL ) : undertaking not to abscond , to hide or to leave the place of residence without the authorisation of the investigating judge ; promise not to impede the inquiry ; obligation to reside in a specific place or to refrain from frequenting a given locality or from consuming alcoholic beverages ; duty to inform the police of changes of address ; temporary withdrawal of passport or driving licence ; lodging of security ; provisional appointment of a probation officer .

Article CARDINAL makes provision for the possibility of release on bail when the offence in question is punishable by a term of imprisonment of not DATE and where detention on remand has been ordered to counter the danger of the accused ’s absconding .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE in GPE .

From DATE to DATE the applicant was employed in the military commander ’s office in GPE . On the commander ’s orders , he took part in counter - terrorist operations . For his participation he was paid an additional compensation of MONEY ( RUB ) for a period of DATE .

The applicant applied to a court , claiming that the additional compensation should be paid for the entire duration of his employment in the military commander ’s office . He submitted original employment contracts and orders signed by the military commander .

The military commander ’s office did not send a representative to take part in the proceedings and asked the court to hear the case in his absence .

On DATE ORG of the PERSON - on - PERSON accepted the applicant ’s claim and awarded him RUB PERSON against the military commander of GPE .

No appeal having been lodged against the judgment , it became enforceable DATE .

On DATE the applicant obtained a writ of execution and submitted it to ORG .

NORP On DATE a representative of the military commander ’s office asked ORG of the PERSON - on - PERSON to quash the judgment of CARDINAL DATE on account of newly discovered circumstances . He claimed that it had been founded on “ unreliable evidence ” ( недостоверные доказательства ) .

By decision of DATE , a judge of ORG of the PERSON - on - PERSON set aside the judgment of CARDINAL DATE on account of newly discovered circumstances . The parties did not make available a copy of that decision to ORG . According to the applicant , it did not specify why the evidence in the original judgment was considered “ unreliable ” . The Government indicated that it was unreliable because “ the applicant ’s calculations of the indebtedness [ had ] had no legal effect ” .

In the re - opened proceedings the applicant ’s claims were rejected in full . Copies of these judgments were not made available to the ORG .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE . He was employed in ORG .

On DATE he was arrested and detained on suspicion of organising a criminal group and corruption .

On DATE an investigating judge of ORG ( “ the ORG ” ) reviewed and extended the applicant ’s detention and that of CARDINAL other co - accused . The reasons given for detention were as follows :

“ After having examined the prosecutor ’s request [ for the extension of detention ] , the investigating judge finds the request well - founded and orders the extension of the accused PERSON detention ... in accordance with LAW ( CARDINAL ) of LAW . The accused PERSON ... [ is ] employed by ORG [ and ] has through his work undoubtedly made contact with other customs officers and has also made numerous international contacts which could enable [ the group ] to cross the State border without the necessary documents . That and the fact that they have gained significant profit through illegal activities which they could use in order to avoid criminal prosecution , justifies the fear that if released they would abscond .

As regards the accused PERSON ... his detention is also ordered in accordance with LAW ( CARDINAL ) of LAW . Given that the accused PERSON ... is a team leader in ORG , he is the superior of other customs officers who are to be heard as witnesses ... [ this ] indicates that , if released , he would obstruct the course of justice by influencing the witnesses ...

Taking into account that the accused PERSON ... committed several criminal acts within a short period of time ... the investigating judge considers that these facts represent special circumstances which justify the fear that , if released , he would reoffend , so his detention is also ordered under LAW ( CARDINAL ) of LAW .

Taking into account that the accused PERSON ... has been charged with serious criminal offences which are punishable by imprisonment for DATE , and in view of the manner in which the offences were committed , in particular , that he is employed in ORG , which was established precisely with a view to preventing the very same offences which he enabled [ others ] to commit ... his detention is also ordered under LAW ( CARDINAL ) of LAW [ on the basis of the nature of the offences alleged and the severity of the penalty that could be imposed ] .

On DATE the applicant was suspended from work with effect from DATE , the date on which he was arrested .

On DATE and CARDINAL DATE the applicant ’s detention was further extended on the same grounds as given in the above order by a chamber of CARDINAL judges of ORG and by ORG ( “ the ORG ” ) , respectively .

On DATE the public prosecutor issued an indictment – which was CARDINAL pages long – against the applicant and CARDINAL other individuals and delivered it to ORG on DATE . The applicant was charged with organising a criminal group and CARDINAL counts of large - scale corruption . ORG extended his detention on DATE for the same reasons as before . In particular , as regards influencing the witnesses , the court concluded that it was still justified to extend the applicant ’s detention on that ground because , in view of the complexity of the case and the number of the accused , there were CARDINAL witnesses to be examined . The applicant was served with a copy of that order on CARDINAL DATE and subsequently appealed against it .

In parallel to the appeal , on CARDINAL DATE the applicant ’s representative submitted an application for his release to ORG , on the grounds that he had not been served with the indictment within DATE time - limit prescribed by LAW ( see paragraph CARDINAL below ) and that therefore the DATE time - limit set by LAW had not been respected ( see paragraph CARDINAL below ) . On DATE ORG rejected the application . That decision was not subject to an appeal .

On DATE the applicant was served with a copy of the indictment .

On DATE ORG upheld the order extending the applicant ’s detention of CARDINAL DATE ( see paragraph CARDINAL above ) . It held that , pursuant to LAW , the date on which an indictment is delivered to the court DATE and not the date on which it is served on the accused – is the date to be taken in determining whether an indictment has been issued within the DATE maximum pre - trial detention period .

On DATE the president of ORG informed the applicant ’s representative that the indictment had not been served on the applicant in time due to the complexity of the case and the heavy workload of the judge sitting in the case .

On DATE the public prosecutor decided not to lodge an application for judicial review on behalf of the applicant in connection with the orders of CARDINAL DATE and DATE ( paragraphs CARDINAL and CARDINAL above ) .

The applicant ’s detention was regularly examined and extended DATE by ORG and ORG , and , following a reform of the domestic judicial system , by ORG ( “ the High Court ” ) and ORG ( “ the ORG ” ) .

The applicant repeatedly challenged his detention . He argued , in particular , that there was no reason to extend his detention on the basis of a risk of him influencing the witnesses , because the court had failed to specify the witnesses who remained to be examined and in which circumstances , and that , therefore , it was not possible to establish which witnesses he could potentially influence . ORG , as regards the risk of him absconding , he claimed that he had not been working as the team leader in ORG at the time of the alleged criminal activity , but rather that he had been occupying a different post in ORG . The applicant also argued that there was no risk of him reoffending , because he had been suspended from his position at ORG . Finally , he argued that there was no legal basis for the extension of his detention based on the severity of the sentence that could be imposed and the special aggravating circumstances of the criminal offences imputed to him .

Until DATE his detention was based on the same grounds as before . In particular , as regards the risk of him influencing the witnesses , the courts reiterated their previous argument that CARDINAL witnesses were yet to be examined at trial , because it had not been possible to examine them during the investigation due to the complexity of the case .

On DATE , although it rejected the applicant ’s appeal , ORG accepted the argument concerning the fourth ground for detention ( severity of the sentence that could be imposed , the manner in which the criminal offence had been committed or other aggravating circumstances ) and decided that it did not exist . The court held in particular :

“ ... for this legal ground [ for detention to be satisfied ] the cumulative existence of CARDINAL conditions is necessary : that the criminal offence in question is punishable by a sentence of DATE imprisonment and [ that there are ] particularly aggravating circumstances . In the present case , CARDINAL condition has been fulfilled , because there is a reasonable suspicion that the accused committed criminal offences for which a sentence of PERCENT imprisonment can be imposed , but the reasons given in the contested order do not justify the existence of the second condition ... [ Neither ] the fact that the accused were employed at ORG , [ nor ] the specific characteristics of their positions , nor the fact that they gained a large illegal profit could be considered as particularly aggravating circumstances , because these facts are contained in the factual description of the criminal acts in question and represent the [ constituent ] elements of those criminal acts .

Therefore , ORG holds that the reasons given in the contested order do not justify the extension of detention under LAW ( CARDINAL ) of LAW ... ”

Further reasoning for the applicant ’s detention based on the risk of him reoffending was also provided :

“ ... there is a reasonable suspicion that the accused , PERSON ... as [ a member of ] an organised criminal group committed a series of criminal offences over a long period of time ... [ the group ’s ] criminal activity had been planned for an indefinite period of time and with a view to gaining a vast illegal profit ... [ T]hese circumstances justify the fear that , if released , he would reoffend ... ”

NORP In issuing subsequent orders extending the applicant ’s detention , the courts held , in particular , as regards the risk of the applicant influencing the witnesses , that he could influence CARDINAL other accused , ORG and FAC , who were at large ; and that there was a risk that he would influence witness GPE , who was expected to testify about the customs clearance of a motor vehicle which the applicant had received as a gift from ORG

From DATE the applicant ’s detention was extended only on the grounds that he might abscond and reoffend . The courts held that the third ground , the risk of him influencing the witnesses , had ceased to exist , as there was no reasonable suspicion to believe that at that stage of the proceedings the applicant could contact or influence FAC , who had been at large for DATE .

From DATE the applicant ’s detention was based only on the risk of him absconding . The court held that the risk of him reoffending had ceased to exist in view of : the time that had passed since the alleged criminal activity ; the fact that the applicant had been suspended from his post ; the fact that he had no previous criminal record ; the time he had spent in detention ; and the fact that the criminal group had been disbanded . The court further held that the reasons which had previously justified his detention on this ground could not exist throughout the proceedings , and therefore their existence automatically had to be assessed by the court upon each review .

NORP Throughout his detention , the applicant made applications for release on bail . Until DATE they were rejected as inadmissible ( see paragraph CARDINAL below ) . From DATE , when the applicant ’s detention was based solely on the risk of him absconding , CARDINAL applications for bail were rejected because the value of the proposed bail ( a mortgage over the applicant ’s family ’s immovable property ) was considered insufficient to guarantee his appearance at trial . The courts also noted that no evidence concerning the financial situation of the applicant and his family had been submitted in support of the application , and that an exact value of the immovable property had not been obtained .

On DATE the High Court accepted bail in the value of CARDINAL,CARDINAL.CARDINAL euros ( ORG ) . On DATE ORG quashed that decision and ordered that the application for bail be reconsidered . The court noted that the applicant ’s assets had been the subject of a financial investigation and that it was necessary to establish whether those assets were included in the bail that had been offered .

On DATE ORG again accepted bail in the value of ORG CARDINAL,CARDINAL.CARDINAL . On DATE ORG upheld that decision .

The applicant was released on DATE .

Article CARDINAL of the Code of Criminal Procedure DATE , in so far as relevant , provides that a defendant should be released from detention if an indictment has not been issued within DATE of his or her arrest . In accordance with domestic jurisprudence , an indictment is considered to be issued when the indictment is delivered to the competent court ( see decision of ORG no . Už-CARDINAL/CARDINAL of DATE confirming the long - standing jurisprudence ) .

Article CARDINAL § CARDINAL provides that an indictment should be delivered to a defendant who is in detention within TIME of the delivery of the indictment to the court .

Article CARDINAL § CARDINAL provides that the court should decide whether to extend the individual ’s detention within DATE of the delivery of the indictment .

Reasons for detention are outlined in LAW Detention will be ordered if there is a reasonable suspicion that the accused has committed the criminal offence in question and if , inter alia , there is a possibility that the accused would abscond ( LAW ( CARDINAL ) ) , obstruct the course of justice ( destroy the evidence or influence the witnesses or obstruct the course of justice in some other way ) ( LAW ( CARDINAL ) ) , reoffend ( LAW ( CARDINAL ) ) , or if the criminal offence in question is punishable by a sentence of PERCENT imprisonment and the manner in which the offence was committed , or other special aggravating circumstances , justify the accused ’s detention ( LAW ( CARDINAL ) ) .

Bail can be accepted only in respect of an accused who is detained on the grounds of the risk of him or her absconding ( LAW ) . The monetary amount set is always determined with regard to the gravity of the offence(s ) , the personal and family circumstances of the accused and the financial situation of the person offering to post bail ( LAW ) .


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

On an unspecified date in DATE , the authorities conducted a land registry survey in ORG , during which the land allegedly belonging to the applicants ' ancestors was registered in the land registry in the name of other individuals and the ORG .

Following this , PERSON , the father and uncle to several of the applicants , brought actions to intervene in the proceedings before ORG , claiming that the land in fact belonged to his mother . The information in the relevant files can be summarised as follows .

On DATE , PERSON brought an action against ORG and the ORG , contesting the result of the cadastral survey and claiming that the plot of land no . CARDINAL belonged to him .

On DATE ORG dismissed the claims of PERSON and ordered that the contested land be registered in the name of ORG

PERSON did not appeal against this judgment . However , the ORG appealed . ORG quashed the judgment and remitted the case to ORG . The latter delivered its second judgment on DATE , confirming the first .

The applicants were not party to these proceedings .

On DATE the ORG rendered a judgment , which became final DATE . PERSON was not a party to these proceedings .

On DATE , PERSON brought another action before ORG , contesting the cadastral record of a plot of land , no . CARDINAL , along with other plaintiffs .

He failed to attend the hearings held after DATE , or to submit his witness list , despite the court 's request .

None of the applicants pursued the case as the heirs of PERSON .

On DATE the court delivered its judgment and dismissed PERSON claims . On DATE , PERSON grandson , PERSON ( not an applicant in the present case ) , was notified of this judgment .


Violation of Art. 8;Non-pecuniary damage - financial award

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

CARDINAL letters from the Secretariat of ORG , posted on DATE and on DATE , were intercepted , opened and read by the administration of the PERSON - Służewiec prison , where the applicant was detained on remand . They were subsequently forwarded to ORG , before which criminal proceedings against the applicant were pending at that time , and were read by the court .

On DATE the applicant requested the President of ORG to explain what was the legal basis on which his correspondence with ORG had been opened and read .

He reiterated his complaint on DATE in a letter to the President of ORG . In reply , on DATE the President of ORG informed him that LAW did not prohibit censorship of correspondence of persons detained on remand . It was also permitted under LAW § CARDINAL of LAW . The correspondence sent to ORG fell within the scope of this provision . It was further stated that the text of the Convention did not contain provisions relating to the inviolability of the correspondence to and from ORG .

NORP The situation of persons detained on remand was at the relevant time governed by LAW of DATE . Under LAW , all correspondence of a detainee was to be opened , read and , if need be , subject to censorship , unless a prosecutor and a court decided otherwise . No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee ’s correspondence .

The rights of persons detained on remand as regards their correspondence were further set out in LAW of the Rules on Detention on Remand . They provided that the correspondence of persons detained on remand was subject to screening by prison authorities and by authority conducting the criminal proceedings , i.e. either a public prosecutor or a court , depending on the stage reached in the proceedings .

On DATE a new Code of Enforcement of Criminal Sentences was enacted by parliament . Article CARDINAL of this Code , which entered into force on DATE , provides that the convicted persons are entitled to uncensored correspondence with the ORG authorities and with the ORG . LAW further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights , ratified by GPE . ORG correspondence in such cases shall be dispatched with no delay and is not subject to censorship .

Pursuant to LAW , the rights of persons detained on remand shall , in principle , be the same as those of persons convicted by a final judgment .