Remainder inadmissible;Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in the town of ORG in LOC .

On DATE the applicant was arrested on suspicion of having committed franchise fraud , that is , having organised a financial pyramid scheme in which CARDINAL persons had been enrolled and which had caused fraudulent losses of MONEY . DATE a prosecutor authorised the applicant ’s placement in custody on the ground that she was charged with a serious criminal offence and was liable to abscond and pervert the course of justice .

On DATE and DATE ORG extended the applicant ’s detention until DATE and DATE respectively , having regard to the gravity of the charges .

On DATE and CARDINAL DATE a deputy Prosecutor General of GPE , invoking the same grounds as in the previous detention orders , authorised the extension of the applicant ’s detention until DATE and CARDINAL DATE respectively .

On DATE and DATE the acting Prosecutor General of ORG authorised further extensions of the applicant ’s detention until DATE and DATE respectively . The reasons for both extensions were the same : the gravity of the charges and the applicant ’s liability to abscond and pervert the course of justice .

On DATE ORG asked ORG to extend the applicant ’s detention for DATE because the applicant needed additional time to read the case file . The prosecutor also noted that the applicant and her co - defendants had participated in an organised criminal offence , had been charged with serious criminal offences , and had influenced other defendants , witnesses and victims . They were liable to abscond and pervert the course of justice .

NORP On DATE the President of ORG wrote in the corner on the first page of the prosecutor ’s application that he authorised the extension of the applicant ’s and her co - defendants’ detention until DATE .

On an unspecified date the applicant and her co - defendants appealed against the order of CARDINAL August CARDINAL . They claimed that the maximum DATE period of their detention would expire on DATE . An extension of the detention beyond DATE was possible only if the defendant needed more time to read the case file . The applicant insisted that she had finished studying the file and that there were therefore no grounds for a further extension .

On DATE ORG of GPE examined the applicant ’s and her co - defendants’ appeals against the order of DATE , quashed it and remitted the matter to ORG for fresh examination . The relevant part of ORG decision reads as follows :

“ By virtue of ORG CARDINAL - CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure the judge has to examine the lawfulness and well - foundedness of the request for extension of the detention of PERSON ... and has to issue a reasoned decision as required by paragraph CARDINAL of LAW .

Moreover , paragraph CARDINAL of LAW of LAW requires that [ a court ] should prepare TIME of a court hearing in which the issue of extension of detention is examined ... [ the minutes ] should indicate who participated in the hearing and should reflect the progress of the examination of the materials .

The minutes of the court hearing and the reasoned decision of the judge were not included in the materials presented to ORG of GPE , which constitutes a gross violation of the requirements of LAW .

Accordingly , the decision [ of the President of ORG ] should be quashed and the case file should be sent for re - examination .

ORG can not accept counsel ’s requests for PERSON release ... because [ ORG ] is unable to conclude from the presented decision whether [ she ] is detained lawfully or unlawfully , and counsel ’s arguments are based on this circumstance .

In the course of the fresh consideration of the file , the [ Regional ] ORG has to examine thoroughly all the arguments set out in the application by ORG and to give a reasoned decision .

On the basis of the foregoing , and in accordance with ORG CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure , the ORG decides :

To quash the decision of DATE of the President of ORG by which an extension of PERSON ... detention was authorised and to refer the case back for fresh consideration ...

The preventive measure applied to PERSON ... should remain unchanged , namely detention on remand . ”

On DATE ORG extended the applicant ’s detention until DATE , noting the gravity of the charges against her . ORG held that the gravity of the charges could serve as the sole ground for the detention , but it also pointed to the applicant ’s failure to finish studying the file .

On DATE ORG upheld the decision of DATE , stating that the applicant had been charged with especially serious criminal offences and her detention had been authorised and extended a number of times in accordance with the requirements of LAW . The request for extension of the applicant ’s detention until DATE had also been lodged in compliance with NORP law . The applicant did not have a permanent place of residence in LOC , where the investigation was being conducted , and she was liable to abscond . The extension of the applicant ’s detention had been necessary as she had continued reading the case file .

On DATE the bill of indictment was served on the applicant . She was charged with aggravated fraud , forgery of documents , money laundering and organisation of a criminal enterprise . DATE the case was referred for trial .

On DATE ORG scheduled the first trial hearing . It also examined requests by the applicant and her co - defendants for release and dismissed them on the ground of the gravity of the charges .

In DATE the applicant appealed against the order , arguing that ORG had failed to issue a reasoned decision concerning the extension of her detention . CARDINAL of the applicant ’s co - defendants also appealed and sought leave to appear at the appeal hearing . The applicant did not file such a request .

On DATE ORG of GPE upheld the decision of DATE , noting that ORG had acted within its competence . ORG further held as follows :

“ By virtue of LAW ... in force at the time ORG issued its decision [ of DATE ] , detention could be authorised as a preventive measure in respect of persons suspected or accused of having committed a criminal offence punishable by DATE imprisonment .

As appears from the presented materials , PERSON ... was charged with criminal offences punishable by DATE imprisonment . Having regard to this circumstance , the investigating authorities correctly applied the preventive measure .

By virtue of LAW , when a judge schedules a court hearing , he should , among other issues , determine matters concerning the adjustment or annulment of preventive measures .

When there is a necessity to annul a preventive measure or to change it to a stricter or a more lenient one , a judge determines the matter and gives a decision accordingly .

As appears from the materials submitted , the [ ORG ] did not determine an issue concerning the change or annulment of the preventive measure and , accordingly , there was no need to issue a decision on the matter . ”

On DATE the new Code of Criminal Procedure became effective .

On DATE ORG , by the same decision , extended the applicant ’s and her co - defendants’ detention until DATE , holding that they were charged with especially serious criminal offences , had no place of residence in LOC and were liable to abscond . It appears that at the hearing the applicant unsuccessfully challenged the composition of the bench .

The applicant and her co - defendants lodged appeals against the decision . CARDINAL of the co - defendants , but not the applicant , sought leave to appear at the appeal hearing .

On DATE ORG of GPE upheld the decision of DATE , confirming that the gravity of the charges could serve as the sole ground for the applicant ’s and her co - defendants’ continuing detention . The applicant ’s lawyer , who had been duly notified of the hearing , did not attend .

On DATE ORG authorised a further extension of the applicant ’s and her co - defendants’ detention until DATE . It relied on the gravity of the charges against them as the ground for the extension .

The applicant appealed , arguing that the gravity of the charges could no longer serve as the reason for her continuing detention and that her detention was excessively long .

On DATE ORG of GPE upheld the decision of DATE , holding that the applicant and her co - defendants were charged with serious criminal offences and that that ground was sufficient to authorise their detention for DATE .

On DATE ORG , once again relying on the gravity of the charges , extended the applicant ’s and her co - defendants’ detention for DATE , until DATE .

The applicant appealed . She did not seek leave to appear . In the meantime , on DATE ORG authorised a further extension of the detention for DATE , until DATE , on the ground of the gravity of the charges .

On DATE ORG of GPE quashed the decision of DATE and authorised the applicant ’s release on a written undertaking not to leave the town . The relevant part of the decision reads as follows :

“ By virtue of LAW , a court which has jurisdiction to examine a case has the right to extend the detention of a defendant after the expiry of the DATE period following the committal of the case for trial .

A court decision concerning a preventive measure , the type of measure taken , an extension of detention or a change of a preventive measure should be reasoned .

When indicating the grounds for its decision concerning the extension of the detention , the court has to take into account not only the seriousness of a criminal offence with which a defendant was charged , but also other grounds and circumstances , as indicated in ORG and CARDINAL of the Code of Criminal Procedure .

This requirement of the law was not complied with when the [ Regional ] Court determined the matter of the extension of the GPE detention .

As follows from the materials submitted , when extending the detention of Ms GPE ... and identifying the grounds for the extension of the detention , the court referred only to the fact that the defendants were charged with serious and particularly serious criminal offences .

Furthermore , the court decision did not indicate what had served as the grounds for the extension of the detention or whether the court could have concluded that the defendants would abscond , continue criminal activities , threaten witnesses and other parties to the proceedings , and so on .

When the gravity of the charges is taken into account , [ the court ] should also have regard to all the legal characteristics of the criminal offence and of the person who committed it .

In particular , it is necessary to consider the character and degree of a threat to society posed by the criminal offence in question , the state of health of the defendant , his family status , including the right of detainees to trial within a reasonable time or to release pending trial as provided for by LAW .

As is rightfully pointed out in the grounds of appeal , the court did not take into account those circumstances and did not examine the [ defendants’ ] arguments .

Having regard to the fact that the court breached the requirements of the law while determining the issue of detention and that the case is currently at the final stage of court proceedings ... , the [ ORG ] considers that the defendants can not influence other parties to the proceedings , that they have permanent places of residence , and that they were detained for a long time [ over DATE ] , which had a negative influence on the state of their health , ... and the preventive measure should be changed to written undertakings not to leave the town . ”

According to the Government , on DATE a copy of the decision of ORG was sent by special courier to GPE , where the applicant was being detained , and arrived there on DATE . The applicant was released on DATE .

On DATE ORG , composed of Mr PERSON , the presiding judge , PERSON and PERSON , lay assessors , found the applicant guilty of aggravated fraud and sentenced her to DATE imprisonment .

The applicant and her co - defendants appealed . They claimed that ORG had been composed in breach of provisions of LAW in that the lay assessors should not have participated in the trial after DATE .

On DATE ORG of GPE upheld the applicant ’s conviction . As regards the complaint related to the lay assessors , ORG held as follows :

“ The allegations of the defendants ... concerning the unlawful composition of the [ trial ] court ... that due to the entrance into force of LAW such category of cases should have been decided by a single judge , are unfounded .

The case was scheduled for consideration by a judge and CARDINAL lay assessors .

The consideration of the case on the merits began at the first hearing of DATE by the court composed of the presiding judge and CARDINAL lay assessors , chosen by way of casting lots , i.e. in accordance with the provisions of the law on criminal procedure in force at the material time .

Thus , ORG does not see any violation of the law in that the examination of the case had been finished by the same court which had started its examination because according to § CARDINAL of Article CARDINAL of the Code of Criminal Procedure a case should be examined by the same court and because the law on criminal procedure does not have retroactive effect . ”

From DATE of the arrest until her release on DATE the applicant was detained in facility no . IZ-CARDINAL/CARDINAL in GPE .

According to certificates issued on CARDINAL DATE by the director of the facility and produced by the ORG , DATE and DATE the applicant was detained in CARDINAL different cells measuring from QUANTITY . She was usually kept together with CARDINAL inmates . The design capacity of the cells had not been exceeded . The Government submitted that at all times the applicant had had QUANTITY of personal space . They supported their assertion with the facility director ’s certificate issued on CARDINAL DATE which showed the number of detainees on CARDINAL and DATE and CARDINAL and DATE , DATE and DATE , and CARDINAL and DATE , DATE and CARDINAL DATE . In another certificate issued on DATE the director of facility no . IZ-CARDINAL/CARDINAL stated that “ while detained in those [ CARDINAL ] cells [ the applicant ] had had an individual bunk and bedding ” . The Government did not provide any information on the number of detainees in cells where the applicant had been detained after DATE .

The applicant did not dispute the cell measurements . She alleged , however , that she had been afforded QUANTITY of floor surface as the cells had been severely overcrowded . Given the lack of beds , inmates had slept in shifts .

The Government , relying on the information provided by the director of the facility , submitted that all cells were equipped with a lavatory pan , a tap , a sink and a ventilation shaft . The lavatory pan was separated from the living area by a CARDINAL - and - a - half - metre - high partition . The smaller cells had CARDINAL window and the larger cells had CARDINAL windows which measured CARDINAL by QUANTITY in width . The windows had a casement . Inmates could request warders to open the casement to let fresh air in . However , until an unspecified date in DATE the windows had been covered with metal shutters blocking access to natural light and air . The cells were equipped with lamps which functioned DATE and TIME . Inmates were allowed to take a shower once a week for TIME . The cells were disinfected once DATE . A central - heating system was installed in the building . The Government further stated that the applicant was given food CARDINAL times a day “ in accordance with the established norms ” . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs . The applicant had a TIME walk DATE .

According to the Government , detainees , including the applicant , were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . On her admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy . On DATE a prison doctor diagnosed the applicant with acute respiratory disease and prescribed treatment . On DATE the applicant was diagnosed with bronchopneumonia . She was transferred to the facility hospital , where she was treated until DATE . On CARDINAL other occasions , from DATE to DATE and from DATE to DATE , the applicant was admitted to the prison hospital with the diagnosis of bronchopneumonia . The Government gave a detailed description of the treatment administered to the applicant , including the type of medicine , dose and frequency . They also furnished a copy of the applicant ’s medical record and medical certificates .

NORP The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infested with insects but the administration did not provide any insecticide . The windows were covered with metal blinds which blocked access to natural light and air . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . Inmates were also allowed to smoke in the cells . The lavatory pan was separated from the living area by a partition affording no privacy to inmates . The food was of poor quality and in scarce supply . The applicant further argued that she had not been adequately treated in the prison hospital . She insisted that she had contracted a serious respiratory disease and had stayed in the prison hospital for a long time because the conditions of her detention had been unsatisfactory and because it had been extremely cold in DATE in the cells . The applicant complained to various domestic officials , including the trial judge , about the conditions of her detention . No response followed .

For a summary of relevant domestic law concerning detention on remand see Shukhardin v. GPE ( no . CARDINAL , § § DATE , DATE ) .

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


No violation of Art. 6-1 with regard to lack of a public hearing;No violation of Art. 6-1 with regard to lack of public judgment;Not necessary to examine Art. 10

On DATE the applicant and his cohabitant , X , had a son . X and the child ceased living with the applicant in DATE .

In DATE the applicant made an application to the county court for a residence order under section CARDINAL(CARDINAL ) of LAW DATE . In DATE the court made a residence order in favour of X with a specific contact order in favour of the applicant .

NORP In DATE X married Y and commenced divorce proceedings against him early in DATE . The applicant claims that in DATE or DATE his parents received an anonymous letter to which was attached a lengthy affidavit sworn by X setting out in detail her complaints against Y , including drunkenness and violence .

On DATE the applicant made a further application to the county court seeking a variation of the residence order of DATE . The judge to whom the case was assigned had already made CARDINAL orders in respect of the applicant ’s son .

On DATE the applicant , referring , inter alia , to Articles CARDINAL and CARDINAL of the Convention , applied to have the residence application heard in open court with a public pronouncement of the judgment . His application for public proceedings was dismissed at the directions hearing before a judge in chambers on DATE . According to the transcript of the hearing , the judge dealt with the publicity application as follows :

“ Judge : ORG your application DATE is for a direction that the [ residence ] application be heard in open court , public pronouncement of the judgment thereon . Well I can deal with that straightaway . Children ’s cases are not held in open court . It is not anything to do with the parents , it is for the protection of the child .

Applicant : Yes , I understand that , I would wish for this case to be heard in open court , with public pronouncement of the judgment .

Judge : I have got no power , I do n’t think , to order it to be held in open court in any event . This ORG has dictated that it must be held in private , do you see ? ”

The judge then proceeded to make various directions in respect of the residence application . At the end of the hearing he remarked :

“ For the avoidance of doubt I shall direct DATE that DATE ’s hearing is in chambers and , as you know , nobody – including the party to the action – is entitled to disclose outside court anything that has happened in chambers ... . [ If ] there is any disclosure that will be contempt of court , for which you can be sent to prison , do you understand ? ... I shall also order for the avoidance of doubt that the next hearing will also be in chambers . I do not think it is in [ the child ’s ] interest for it to be any other way . ... ”

The applicant appealed against this decision to ORG , which refused leave to appeal on DATE . In giving judgment , PERSON Justice PERSON observed :

“ Rule CARDINAL.CARDINAL(CARDINAL ) [ of LAW DATE ] states as follows :

‘ Unless the ORG otherwise directs a hearing of , or directions appointment in , proceedings to which this Part applies shall be in chambers.’

... [ T]his particular rule governs proceedings under LAW DATE and provides that hearings are to be held in chambers unless otherwise directed . The ORG therefore has a discretion to sit in open court .

The basis of the applicant ’s application for a hearing in open court was not that there was a point of law and/or that there was any public interest , but in his statement he relies on the following :

( CARDINAL ) ORG and ORG had withheld information .

( CARDINAL ) ORG and ORG were biased .

( CARDINAL ) The mother was unstable and the child was at risk with his mother .

... ORG , in a different constitution , has given judgment on precisely this point [ in the second applicant ’s case : see paragraph CARDINAL below ] . That decision is binding on this court . ... Rule CARDINAL.CARDINAL(CARDINAL ) provides that child cases shall be heard in private unless there is a special direction to the contrary which would have to be justified by unusual features . The rules plainly indicate a policy of cases being heard in chambers .

In the current case there is nothing to distinguish the proceedings as out of the usual or raising any issues which would justify a public hearing . The judge exercised his discretion properly and judicially ... ”

The county court heard the applicant ’s residence application in chambers on DATE . The judge observed that he did not consider that it would be in the child ’s interests that the matter should be public . He dismissed the application to vary the residence order and ordered , under section CARDINAL(CARDINAL ) of LAW DATE , that no further application for a residence or contact order could be made by the applicant without leave of the court . The judgment was pronounced in chambers . The parties were provided with a copy in writing .

The applicant applied to ORG for leave to appeal . Leave was refused to appeal against the residence order but was granted to appeal against the order under section CARDINAL(CARDINAL ) . On DATE ORG dismissed the applicant ’s appeal and made an order prohibiting the identification of the child . The judgment was pronounced publicly .

On DATE ORG dismissed an application by the applicant to have the anonymity order set aside . This judgment was also pronounced publicly .

On DATE , in the course of proceedings for separation from his wife , the applicant made an application to the county court for a residence order under section CARDINAL(CARDINAL ) of LAW DATE in respect of his son ( “ the residence application ” ) . The applicant represented himself in the proceedings and his wife was represented by counsel .

On DATE the applicant , referring , inter alia , to Articles CARDINAL and CARDINAL of the Convention , made a further application asking for the residence application to be heard in open court with a public pronouncement of the judgment .

This application ( “ the publicity application ” ) was heard on DATE in public . The county court ’s judgment in the publicity application was pronounced on DATE , in public , although the judge underlined that no reference to the child ’s identity should be made in any publication concerning the case . It was accepted that there was nothing out of the ordinary about the residence application ; the gist of the applicant ’s argument was that all cases concerning children should be heard in public . He contended , inter alia , that the public had the right to see how decisions were made about children ’s lives , and that publicity would serve the interests of justice by encouraging judges , barristers and other professionals involved in such cases to take greater care in their work . In rejecting the applicant ’s submissions the judge observed :

“ It is all very well for the father ... to say that the hearing of cases in chambers brings about sloppy or lax practice . I personally have no evidence of that . ... It seems to me that , if such practices ... occur ... then they can be placed before ORG and if ORG so finds that that particular judge can be criticised and if guidance thereafter can be given to the judiciary in general , so much the better .

... Even assuming that ... it would be possible ... to draw my attention to any number of cases which ... have been wrongly decided by the tribunal at first instance and which for CARDINAL reason or another have not found their way to ORG , I am very dubious whether or not the solution to that particular problem is to have those cases heard in public . When CARDINAL is arguing for principle , one should stick to principle , and I think it a draconian measure to bring about the hearing of these cases in public ... in order to chastise judges or expose lax and inadequate preparation by barristers . I would not wish children to be subjected to any form of embarrassment in order , as I say , to chastise the legal profession .

... But finally I dispose of this case , I am afraid , in a very simplistic manner . The rules of court DATE the Family Proceedings Rules – ... came into force on DATE , which coincided with the coming into force of virtually the whole of the substantial provisions of LAW . I think I must approach this case in this manner . LAW itself – the preamble – says that it is an LAW to reform the law relating to children . ... It was a consolidating LAW , trying to bring together the various legislative Acts which had gone before , but it was a reforming LAW in many senses . It took a great deal of time going through ORG . I have no doubt at all that various interested parties and pressure groups gave evidence to various committees . I have no doubt at all that judges of family experience at the very highest level were consulted . During the course of its going through ORG it would have been debated not only in ORG but in ORG , where all their Lordships of ORG would doubtless have voiced an opinion on it . ... Not only was the LAW a long time coming to the statute book , it was DATE before the bulk of it came into effect . During the course of that gestation period , rules of court were argued about endlessly , and the rules of court appeared virtually at TIME . They were not made until DATE . There is a long history to that , which is not relevant to this judgment . I can only assume , sitting here , that the question of whether or not children ’s cases should be heard in open court or in camera was and must have been anxiously considered at all levels during the course of the progress of this LAW and the rules under LAW through ORG . I can only read , and I do so read and interpret CARDINAL.CARDINAL(CARDINAL ) , which is the rule to which reference has been made , as being a direction – a rule of court DATE that hearings of family cases shall be heard and shall continue to be heard in chambers . ... I would want chapter and verse as to what should be put before the judge before he otherwise directs a hearing of a case in open court . I am not prepared in the course of this judgment to give myself any guidelines as to the sort of case that that might be .

It therefore follows that , irrespective of the arguments that have been placed before me ... , I have come to the clear conclusion that all of this must have been contemplated by the legislature , and ... if any change is to be made it should be made by the legislature . I assume that the legislature knew what it was doing and wished , despite all arguments to the contrary , to continue to have LAW cases heard in chambers . I do not feel that I have any power , even if I wished to do , DATE which I do not – to hear this particular case in open court . I think I would be breaking the law , in the sense that I would be interpreting in a perverse manner the rules of court laid down under LAW . Therefore ... I feel I have no alternative but to direct that the hearing of this case shall be in camera ... ”

The applicant appealed on DATE on the ground , first , that the county court judge had fettered his discretion by indicating that he had no option but to hear the case in private and , secondly , that the exercise by the judge of his discretion was flawed since , if he had exercised it correctly , the only conclusion to which he could have come would have been to hear the entire case in open court .

ORG dismissed the applicant ’s appeal on DATE ( reported as Re P - B ( a minor ) [ DATE ] CARDINAL All England Law Reports CARDINAL ) . In giving judgment , Lord Justice Butler - Sloss said :

“ When LAW DATE came into force in DATE there were new rules of procedure for ORG and ORG contained in LAW DATE . Rule CARDINAL governs hearings and Rule CARDINAL ) states :

ORG ‘ Unless the court otherwise directs , a hearing of , or directions appointment in , proceedings to which this Part applies shall be in chambers.’

... Despite the arguments advanced by [ the applicant ] , it is abundantly clear that the courts are bound by sub - rule ( CARDINAL ) to hear child cases generally in private . That was obviously the intention of ORG and it follows the long - established practice in the hearing of child cases . Sub - rule ( CARDINAL ) allows for all or part of the case to be heard in public . In the light of the long established practice it is unlikely that judges will , other than rarely , hear the evidence relating to the welfare of a child in public . The judgment is in a somewhat different position and it may be that the practice of giving judgment in private is partly due to the parties not asking for it to be heard in public and partly because in the county court , where the vast majority of children ’s cases are heard , it is less likely that there will be issues of public interest . Where issues of public interest do arise it would seem entirely appropriate to give judgment in open court providing , where desirable in the interests of the child , appropriate directions are given to avoid identification . If the case raises issues of principle or of law , the judgments are increasingly provided to the law reporters and are published in a large number of law reports which report family cases . But the majority of cases are of no interest to anyone beyond the parties and their families .

In answer , therefore , to the appellant ’s first criticism of the judge that he fettered his discretion , the judge undoubtedly used language which might by reading the judgment in a narrow way be said to restrict him to hearing the case in camera . The judge was , however , recognising that the existing practice of hearing the case in private was restated in sub - rule ( CARDINAL ) unless there were unusual features to the case . This was a run of the mill case and the general practice would seem appropriate to this case . In my judgment , the judge ought not to be criticised for a cautious view of the exercise of his discretion .

In answer to the appellant ’s second point that the exercise of discretion should always be in favour of hearings in open court , it would seem to me that he is directing his arguments to the wrong forum . The wording of sub - rule ( CARDINAL ) is clear . The exercise of discretion remains in the hands of the trial judge and it is a matter for the judge in each case to exercise that discretion if called upon to do so . In the absence of an application to hear the case in open court and unusual circumstances , the normal position would remain , as recognised by the wording of the sub - rule , that the evidence would be heard in private . ”

On DATE , DATE , ORG ordered that no one should publish or reveal any information likely to lead to the identification of the applicant ’s child . Breach of this order would be a contempt of court punishable with up to CARDINAL years’ imprisonment .

The county court heard the applicant ’s residence application in chambers in DATE . According to the applicant , before the end of the hearing the judge again considered whether he should give judgment publicly . Given ORG decision of DATE , the judge concluded that he was bound not to , there being no special feature or interest to justify open judgment .

On DATE the county court ordered that the mother should have custody of the child and granted the applicant access rights . The judgment was pronounced in chambers . The parties were provided with a copy in writing .

The applicant did not appeal against the residence order .

On DATE ORG refused the applicant leave to appeal against the decision of ORG of DATE concerning his application of DATE .

The Family Proceedings Rules DATE provide in Rule CARDINAL ) that :

“ Notwithstanding any rule of court to the contrary , no document , other than a record of an order , held by the court and relating to proceedings to which this Part applies shall be disclosed , other than to a party , the legal representative of a party , the guardian ad litem , ORG , or a welfare officer , without leave of the judge or district judge . ”

Persons with a legitimate interest in a child case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular child - care case and a party may apply for leave to disclose any document to a third party ( see Re EC ( Disclosure of Material ) [ DATE ] CARDINAL Family Law Reports CARDINAL and A County Council v. W and ORG ) [ DATE ] Family Law Reports CARDINAL ) .

Section CARDINAL(CARDINAL ) of ORG DATE provides as follows :

“ The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases , that is to say :

( a ) where the proceedings

( i ) relate to the exercise of the inherent jurisdiction of ORG with respect to minors ;

( ii ) are brought under LAW DATE ; or

( iii ) otherwise relate wholly or mainly to the maintenance or upbringing of a minor . ”

According to section DATE ) of the LAW , the above does not apply to the publication of the text or summary of the whole or part of the relevant court order .


Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

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

In DATE the applicant entered into an agreement with a private company , Skorpion , under which the latter was obliged to construct an apartment in a block house . Following insolvency proceedings instituted against this company , the applicant entered into a debt transfer agreement ( “ the agreement ” ) with a private company , ORG , ( “ the company ” ) , under which the latter accepted responsibility for the obligations of the ORG company .

On DATE the applicant instituted proceedings against the company in the Ivano - Frankivsk Court . She requested the court to declare a part of the agreement null and void and sought a ruling to oblige the company to fulfil the remainder of the agreement .

On DATE the GPE - Frankivsk City Court ( “ the ORG ” ) allowed the applicant ’s claim .

On DATE the GPE - Frankivsk ORG quashed this decision and remitted the case for fresh consideration .

On DATE the company lodged a counterclaim seeking termination of the agreement on the ground that the applicant had failed to comply with the agreement .

On DATE ORG rejected the applicant ’s claim and allowed the counterclaim .

On DATE the GPE - Frankivsk Regional Court of Appeal ( “ the ORG ” ) upheld this judgment .

On DATE ORG , following a cassation appeal by the applicant , quashed the decisions of the lower courts and remitted the case to the first - instance court for fresh consideration .

In the course of the proceedings , the applicant modified her claims on several occasions . Finally she amended her claims on CARDINAL DATE . She claimed property rights over the apartment in the house constructed by the company which was occupied by PERSON and PERSON and sought their removal . She also challenged the title documents on this apartment which had been issued to PERSON and PERSON

On DATE ORG , following a request by the applicant , attached Mr and PERSON apartment . On DATE ORG upheld this ruling .

On DATE the company withdrew its counterclaim .

On DATE ORG found against the applicant .

On DATE ORG upheld this judgment .

On DATE ORG dismissed the applicant ’s cassation appeal as unsubstantiated .

The applicant tried to appeal against the decisions given in her case under extraordinary proceedings . However her efforts were to no avail .

According to the records provided by the Government , in the course of the proceedings , of CARDINAL listed hearings , QUANTITY hearings were adjourned due to the company ’s representative ’s failure to appear and CARDINAL due to his requests for adjournment . The domestic courts took no steps to ensure his presence in court . CARDINAL hearings were adjourned because the judge sitting in the case was involved in other proceedings . CARDINAL hearings were adjourned at the applicant ’s request and CARDINAL because the applicant ’s representative or lawyer failed to appear or at their request .


No violation of Art. 6-1;No violation of Art. 34;Remainder inadmissible

Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant was born in DATE . He is a practising lawyer and lives in GPE , GPE .

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

On DATE ORG in GPE appointed the applicant to represent ORG , a suspect in a preliminary criminal investigation , during his questioning by the police . The applicant provided no legal assistance to the suspect beyond this hearing .

On DATE the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG .

Having received no response , on DATE the applicant lodged a civil claim with ORG in GPE , requesting that his fees be covered ( MONEY , “ ORG ” , PERCENT , “ ORG ” , at the time , according to the exchange rate of ORG ) .

On DATE , ORG rendered a judgment in default ( presuda zbog izostanka ) in favour of the applicant . It thereby ordered ORG to pay him a total of ORG CARDINAL ( approximately EUR CARDINAL at the time ) , on account of his fees and litigation costs , plus statutory interest .

On DATE ORG in GPE quashed this judgment on appeal .

NORP On DATE ORG declared itself as lacking jurisdiction ratione materiae to consider the applicant ’s claim on its merit ( oglasio se stvarno nenadležnim za postupanje ) and ordered the applicant to pay ORG CARDINAL for litigation costs ( TIME at the time ) .

On DATE ORG confirmed this decision on appeal and it thus became final .

Both ORG and ORG reasoned , inter alia , that the fees in question were related to a preliminary criminal investigation , which was a specific kind of administrative proceedings , not a formal criminal procedure , and concluded that his claim was therefore not for the civil courts to determine . The police themselves , however , had had an obligation to decide upon the applicant ’s request .

On DATE the applicant paid the litigation costs imposed against him .

On DATE , on the grounds that he had misdirected his payment of CARDINAL DATE , the applicant was ordered once again to pay the litigation costs at issue plus statutory interest . By DATE the applicant therefore paid another ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL at the time ) .

On DATE ORG in GPE appointed the applicant to represent G.I. , GPE , GPE , GPE and GPE , all suspects in a preliminary criminal investigation , during their questioning by the police .

On DATE the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG ( in total ORG CARDINAL , approximately FAC at the time ) .

On DATE , DATE , CARDINAL DATE and DATE ORG in GPE appointed the applicant to represent FAC , GPE , GPE , and PERSON , all suspects in a preliminary criminal investigation , during their questioning by the police .

On DATE , CARDINAL DATE , CARDINAL DATE respectively the applicant filed a request with the police , seeking payment of his fees in accordance with the LAW issued by ORG ( in total ORG CARDINAL , approximately EUR CARDINAL at the time ) .

Article CARDINAL § CARDINAL provides , inter alia , that “ criminal procedure costs ” ( troškovi krivičnog postupka ) shall include all expenses incurred in connection with criminal proceedings , “ from their commencement until their conclusion ” .

Article CARDINAL § CARDINAL provides that the costs incurred in the course of a preliminary criminal investigation ( pretkrivični postupak ) , which concern fees to be paid to a police - appointed lawyer , shall be covered by the police themselves .

Article CARDINAL provides , inter alia , that a defendant who has been convicted shall bear the costs of the criminal proceedings .

Article CARDINAL § CARDINAL provides , inter alia , that should criminal proceedings ( krivični postupak ) against a defendant be discontinued , the indictment be rejected , or the defendant be acquitted , the defence lawyer ’s fees shall be covered from the court ’s budget .

Article CARDINAL § CARDINAL provides , inter alia , that should the criminal court reject a claim for costs made under LAW , or fail to rule thereupon within DATE , the defendant and his or her lawyer shall have the right to file a separate claim before the civil courts .

Article CARDINAL , inter alia , sets out the general duties of the police during a preliminary criminal investigation .

Article CARDINAL § § DATE , inter alia , regulates the questioning by the police of persons suspected of having committed a crime , whose statements may , under certain conditions , be used as evidence in the subsequent criminal proceedings .

Article CARDINAL provides , inter alia , that a formal judicial investigation shall commence upon the adoption of a specific judicial decision to this effect .

Costs covered by the police in connection with LAW can not be considered as criminal procedure costs within the meaning of Article CARDINAL thereof ( see PERSON o krivičnom postupku , Prof . PERSON and Prof . dr PERSON , ORG , GPE , DATE , p. CARDINAL , paragraph CARDINAL ) .

General duties of the police during a preliminary criminal investigation are not formally regulated by LAW , the exception to this rule being those activities referred to in LAW DATE ( ibid . , p. CARDINAL , paragraph CARDINAL) .

The investigating judge held , inter alia , that the defendant against whom the charges had been dropped was not entitled to the full recovery of his lawyer ’s fees from the budget of ORG in GPE . Specifically , he noted that since a part of these fees concerned legal services rendered during a preliminary criminal investigation it was up to the police themselves to cover any such costs ( the defendant ’s lawyer in the domestic proceedings being the applicant in the present case before ORG ) .

Article CARDINAL provides , inter alia , that LAW shall be applied to all property - related / pecuniary matters ( imovinskopravni sporovi ) , except those where the law specifically provides for another procedure .

Article CARDINAL provides , inter alia , that should a court establish its lack of jurisdiction ratione materiae it shall , ex officio , reject the claim in question regardless of the stage of the proceedings .

Article CARDINAL § CARDINAL ( a ) provides that ORG shall have jurisdiction to rule in respect of all property - related / pecuniary claims ( imovinskopravnim zahtevima ) unless they fall within the competence of ORG .

Article CARDINAL § CARDINAL ( z ) provides that ORG shall be competent to assess the lawfulness of all final administrative decisions adopted by the ORG , unless specifically provided otherwise by law .

Article CARDINAL § CARDINAL ( v ) provides that the ORG shall resolve any conflicts of jurisdiction ( rešava sukobe nadležnosti ) between the lower courts .

DATE provides that a court of law can not refuse to consider a claim in respect of which its jurisdiction has been established by law or LAW .

Article CARDINAL § CARDINAL provides , inter alia , that in simple matters an administrative body shall be obliged to issue a decision within DATE as of when the claimant had lodged his or her request . In all other cases , the administrative body shall render a decision within DATE thereof .

Article CARDINAL § CARDINAL enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied . Where an appeal is not allowed , the claimant shall have the right to directly initiate an administrative dispute before the competent court of law .

Article CARDINAL provides that an administrative dispute may only be instituted against an “ administrative act ” , which is , inter alia , an act / decision adopted by a ORG body in the determination of one ’s rights and obligations concerning “ an administrative matter ” .

Article CARDINAL § CARDINAL ( CARDINAL ) provides that an administrative dispute may not be instituted against an “ act”/decision rendered in matters where judicial redress has been secured outside of the administrative disputes procedure .

Articles CARDINAL and CARDINAL provide , inter alia , that a claimant who lodged a request with an administrative body shall have the right to institute an administrative dispute before a court in the following situations :

( i ) Should an appellate body fail to issue a decision upon his or her appeal within DATE the claimant may repeat the request , and if the appellate body declines to rule within DATE the claimant may institute an administrative dispute .

( ii ) In accordance with the conditions set out under ( i ) above , should a first instance administrative body fail to issue a decision and there is no right to an appeal , the claimant may directly institute an administrative dispute .

( iii ) Should a first instance administrative body fail to issue a decision upon the claimant ’s request within DATE , in matters where an appeal has not been excluded , the claimant shall have the right to lodge the said request with the appellate administrative body . Should that body render a decision , the claimant shall have the right to institute an administrative dispute against it , and should it fail to rule the claimant shall be entitled to institute an administrative dispute in accordance with the conditions set out under ( i ) above .

Article CARDINAL § CARDINAL provides that where an administrative dispute has been brought under LAW court shall , should it rule in favour of the claimant , order the administrative body in question to decide upon the claimant ’s original request .

Articles DATE provides , inter alia , that should the said administrative body fail to comply with this instruction within DATE , the claimant shall be entitled to request the enforcement of the court ’s decision . Should the administrative body fail to respond to this request within DATE , the claimant may petition the court to decide his case on the merits , i.e. to adopt the necessary decision in the administrative body ’s stead . The court shall then request information from the administrative body as to the reasons for its failure to comply with the court ’s order . Should the administrative body fail to respond within DATE or should its explanation fail to satisfy the court , the court itself shall decide on the claimant ’s original request .

Articles CARDINAL § § DATE , CARDINAL and DATE provide details as regards other situations in which a claimant ’s request may be decided on its merits .

There is no deadline for the institution of an administrative dispute in accordance with LAW ( see PERSON o opštem upravnom postupku i PERSON o upravnim sporovima , PERSON , PERSON biro , GPE , DATE , p. CARDINAL ) .

In CARDINAL judgments rendered DATE and DATE ORG and ORG , respectively , ruled on the merits of administrative disputes concerning pension entitlements , the right to stand for elections , property - related municipal decisions , disability benefits and the proposed change in the registration of persons authorised to represent political parties ( see Up . br . PERSON , PERSON . DATE , Už . CARDINAL , U.br . CARDINAL , ORG . CARDINAL and ORG . CARDINAL ) .


Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE . DATE he was the Director of ORG ( PERSON informačná služba ) , the NORP intelligence service . In DATE he was elected as a member of ORG ( the ORG ) for a DATE term .

The applicant was summoned to give an explanation to a police investigator on DATE . On DATE the investigator arrested the applicant and issued a decision in which he accused him of incitement to commit murder , abuse of authority and the mishandling of information classified as a ORG secret . The decision stated that the applicant was suspected of having prevented the proper investigation of the offence of abduction of the son of the then President of GPE abroad ( for further details concerning that case see also PERSON v. GPE , no . GPE , § § DATE , DATE ) .

NORP In particular , the decision referred to an extensive investigation including several statements of experts , documentary evidence obtained from ORG , the examination of CARDINAL witnesses including CARDINAL witnesses whose identity was not disclosed and other evidence . The information thus obtained sufficiently justified the conclusion that the applicant , in his capacity as Director of ORG , had taken the action described below with a view to ( i ) preventing the offence of abduction of the President ’s son in DATE from being elucidated , ( ii ) threatening PERSON , a former member of ORG , who had confirmed the involvement of the secret service in that offence and who had later been forced to hide abroad and ( iii ) preventing witness NORP from maintaining contact with PERSON and killing the former . The applicant was accused of offering MONEY ( SKK ) to S. to kill NORP In that context , the applicant was suspected of having arranged for the monitoring of several persons and had transmitted the information thus obtained to S. despite the fact that it had been classified as “ strictly secret ” . S. had asked CARDINAL persons to kill NORP After the first attempt had failed , the perpetrators had activated , in DATE , an explosive device which had been attached to NORP ’s car . The car had caught fire and NORP had died inside . The investigator ’s decision referred to a different set of proceedings brought against CARDINAL persons accused of having activated the device .

The applicant immediately filed a complaint against the decision which a public prosecutor dismissed on DATE . The public prosecutor requested that the applicant be remanded in custody pursuant to LAW ( a ) , ( b ) and LAW .

On DATE the applicant , in the presence of CARDINAL lawyers , was heard by a judge of the Bratislava I ORG . The applicant stated that he knew neither NORP nor the persons allegedly involved in his killing . His deprivation of liberty was arbitrary . The evidence on which the investigator relied had not been obtained in accordance with the relevant provisions of the criminal law and , as such , it could not be used in proceedings before a court . The applicant also complained that the investigator had not allowed him or his lawyers to consult the file without relying on any relevant reason . The judge informed the applicant that he would not put the file at his disposal as , at that stage of proceedings , such action was within the power of the investigator .

On DATE the judge remanded the applicant in custody with effect from DATE . The judge did not accept that there was a risk of the applicant ’s absconding or influencing witnesses within the meaning of LAW ( a ) and ( b ) of LAW . However , the decision stated , with reference to LAW , that the applicant was charged with an offence carrying a minimum prison sentence of DATE . The court ’s decision also stated that the investigator had violated the applicant ’s right to be presumed innocent by holding that his actions had met the constituent elements of the offences in issue .

The applicant filed a complaint which he supplemented several times . He alleged that ORG judge had not allowed him or his counsel to consult the case file and that the evidence available had not been obtained in accordance with the procedural requirements and did not justify his being accused of the offences in issue . The applicant also submitted that the relevant events had occurred in DATE and that , subsequently , public authorities had influenced public opinion , indicating that the applicant was responsible for the events in question . Furthermore , the first - instance court had disregarded the applicant ’s own position , namely that the prosecuting authorities were biased and had striven to remand him in custody by all means . The applicant relied on the ORG ’s case - law under LAW and CARDINAL of the LAW .

On DATE the applicant ’s counsel requested permission to consult the file . ORG permitted them to do so from TIME on DATE .

ORG dismissed the applicant ’s complaint against the decision on his detention on remand at a meeting held on DATE , apparently shortly after the applicant ’s counsel had consulted the file . The court met in camera ; the relevant law excluded both the applicant and the public prosecutor from attending .

NORP The decision stated that the applicant had been remanded in custody in accordance with the applicable procedural rules and that his detention was justified under LAW . As to the applicant ’s argument that he had been accused of the offences in issue arbitrarily , the decision stated that ORG had thoroughly examined the evidence included in the file . It noted that the criminal proceedings against the applicant were at the initial stage only and concluded that the evidence available at that time justified the suspicion that the offences in issue had been committed . The applicant ’s detention was not arbitrary . As to the applicant ’s objections to the conduct of the criminal proceedings , ORG pointed out that they fell within the competence of the public prosecutor in charge of the case .

On DATE the Bratislava I ORG dismissed the applicant ’s request for release .

On DATE a judge of the GPE I ORG refused to extend the applicant ’s detention . The decision stated , inter alia , that there had been relevant reasons for the applicant ’s detention on remand when the GPE I ORG had delivered the above decisions of DATE and DATE . The file contained evidence both against the applicant and in his favour . The former type of evidence had been taken in DATE in the context of criminal proceedings against CARDINAL other persons . As such it could not be used in the context of the criminal proceedings against the applicant . It was not clear why the investigator had not re - examined the witnesses concerned in the context of the criminal proceedings against the applicant . The reliability of certain statements could be cast into doubt as they had been made by persons linked to organised crime .

The judge further held that in the period after DATE no evidence had been obtained in support of the accusation against the applicant . Thus during DATE the applicant was detained the investigator and the prosecutor had failed to gather sufficient evidence capable of strengthening the suspicion that the applicant had committed the offence imputed to him . On the contrary , the evidence obtained in the course of DATE was in favour of the applicant . The ground for his detention had therefore ceased to exist .

On DATE the public prosecutor ordered the applicant ’s release .

On DATE the Special Prosecution Service at ORG discontinued the criminal proceedings on the ground that the facts underlying the proceedings had not occurred . The decision stated , inter alia , that the file contained no relevant evidence indicating that the applicant had committed the offence imputed to him . There was no proof that the accused persons in the other set of proceedings had committed the offence which , according to the accusation , the applicant had allegedly incited them to commit .

On DATE an extraordinary briefing was held at which the Minister of the ORG provided details concerning the arrest of the applicant . The Minister read out extracts from the decision by which the applicant had been accused .

On DATE the DATE PERSON with nationwide distribution published an article about the case . It reported on the Minister ’s statements at the above briefing . Reference was also made to a statement by a public prosecutor who had pointed out that the decision on the applicant ’s guilt or innocence lay with a court and had expressed the view that the existing evidence was sufficient .

On DATE PERSON published an interview with the investigator who had accused the applicant of the above offences . The investigator stated that the police had had sufficient evidence , comprising both witness statements and documents , to bring criminal proceedings against the applicant .

On DATE PERSON reported on statements made by the public prosecutor in charge of the applicant ’s case . According to those statements , CARDINAL witness had confirmed that the applicant had offered him SKK CARDINAL for the killing of the person concerned .

Finally , on DATE PERSON published an article about the judge of the Bratislava I ORG who had remanded the applicant in custody . The article indicated that the judge had been aware that the applicant had been summoned to appear before a police investigator on DATE . At that time the judge had been on duty and he had had a premonition that “ something would happen ” . The judge expressed the view that the case had fallen to be dealt with by him by pure chance . The judge had had only one day to study the file , which comprised CARDINAL pages . The hearing of the applicant prior to his detention on remand had lasted TIME . The judge confirmed that , according to documents included in the file , CARDINAL witness had confirmed that the applicant had asked him to eliminate a witness against him for SKK CARDINAL .

On DATE the applicant filed a complaint with ORG . He alleged a violation of his rights under LAW , DATE and under LAW , CARDINAL of the Convention . He also relied on several constitutional provisions .

As regards the proceedings leading to the Bratislava I ORG decision to remand him in custody , the applicant complained that the judge had not allowed him and his counsel to consult the case file , indicating that such a decision was within the competence of the investigator . The applicant thus could not show that his accusation had been based on evidence which had been obtained by unlawful means and which , for that reason , could not be used in proceedings before a court . The judge had not examined whether relevant reasons for the applicant ’s detention had existed .

The applicant further complained that the judge of the Bratislava I ORG had subsequently given an interview in which he had made comments on the applicant ’s deprivation of liberty and disclosed details from the case file . The applicant affirmed that those statements had been made in the context of a campaign launched against him . His rights to a fair hearing and to be presumed innocent had thereby been violated .

As regards the decision given by ORG on DATE , the applicant complained that the principle of equality of arms had been breached as he had not had sufficient time , after his counsel had consulted the file , to supplement his complaint against the decision on his detention on remand . He had been accused on the strength of evidence obtained contrary to the relevant provisions of LAW in that it had been taken previously within the framework of another set of proceedings . That had been a deliberate attempt to diminish his ability to defend himself . That evidence could not be used in proceedings before courts , including proceedings concerning his detention on remand .

On DATE ORG rejected the complaint . The decision stated that ORG lacked the power to review the factual findings of ordinary courts in matters relating to detention on remand . ORG found that in the context of the criminal proceedings brought against him the applicant risked a minimum prison term of DATE . The material condition for his detention on remand under LAW had therefore been made out . Both courts had examined the file and concluded that the evidence available justified the suspicion that the applicant had been involved in the offences concerned . However , a “ reasonable suspicion ” that a person had committed an offence did not require the existence of proof . In respect of this part of the applicant ’s complaint ORG concluded that it lacked the power to substitute the decision - making of the ordinary courts on the applicant ’s detention on remand .

The Constitutional Court further declared manifestly ill - founded the complaints under LAW and LAW . It noted that the applicant had been assisted by CARDINAL advocates during his examination by the judge of ORG . He had had an adequate opportunity to defend his rights . As to the alleged violation of LAW , ORG held that it had been open to the applicant to bring proceedings with a view to challenging the lawfulness of his detention on remand . However , he had not availed himself of that right . There was no causal link between the conduct of the ordinary courts in the proceedings in issue and the applicant ’s right under LAW . As regards the principle of equality of arms enshrined in LAW , it was not applicable to proceedings in which the courts deprive a person of liberty for the purpose of his or her criminal prosecution .

Finally , ORG noted that the applicant had filed his complaints under LAW and CARDINAL of the Convention about the statements made by ORG judge DATE after he had learned about the article in issue . In that respect , the statutory time - limit had not been respected .

Article CARDINAL § CARDINAL gives the accused person the right to consult the file with certain restrictions enumerated therein . Paragraph CARDINAL provides that , at the pretrial stage , the public prosecutor or the police authority can only refuse a person access to a file concerning him or her for exceptional reasons .

Article CARDINAL § CARDINAL provides that an accused person can be remanded in custody where he or she is prosecuted for an offence punishable with a minimum prison sentence of DATE .

Article CARDINAL § CARDINAL provides that a complaint is available against a decision to remand a person in custody .

Under LAW , where the facts established sufficiently justify the conclusion that a criminal offence was committed by a particular person , the investigator or police authority shall deliver a decision , without delay , accusing that person of the offence in issue . The accused is to be notified of the decision within DATE and not later than at the beginning of his or her first examination .

In accordance with ORG practice ( ORG CARDINAL/CARDINAL ) , when considering whether reasons for remanding a person in custody exist , the authorities may have regard exclusively to circumstances and findings which have their basis in the procedural steps aimed at the establishment of evidence and which are relevant for the conclusion that a statutory reason exists for detaining a person in custody .

In decision PERSON CARDINAL of DATE ORG held that the detention on remand of a person under LAW is lawful where the accused person is prosecuted for an offence punishable with a minimum prison term of DATE provided that a justified suspicion exists that the person concerned committed the offence imputed to him or her . The above minimum prison term as such does not render an accused person ’s detention mandatory in each case . LAW CARDINAL permits a decision not to remand such an accused person in custody where it is

In decision NtvI-CARDINAL/CARDINAL of DATE ORG expressed the view that the minimum prison term set out in LAW could be the sole reason for a person ’s detention only for a limited time , in particular at the initial stage of criminal proceedings . If a person was detained for longer , further relevant reasons were required .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr P. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , and their co - Agent , Mr PERSON .

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

The applicant , a judge , is currently a member of ORG ( Second Criminal Division ) .

The facts of the present case concern proceedings for the applicant ’s compulsory transfer on the ground of “ environmental incompatibility ” ( incompatibilità ambientale ) , instituted by ORG ( “ the ORG ” ) at a time when the applicant held office in another court . In the course of the proceedings , CARDINAL members of ORG made a number of statements which the applicant considered defamatory . At the end of his term as a member of the ORG , A. was appointed as a judge of ORG ) .

The proceedings ended with a decision by the ORG to transfer the applicant .

The applicant subsequently applied to ORG ( “ the ORG ” ) , which set aside the decision on DATE , holding in particular that the statements in issue concerned “ new information ” of which the applicant should have made aware beforehand in order to have the opportunity to make submissions in reply . The ORG did not appeal against that judgment , which became final .

In response to a request by certain members of the ORG , it was decided to publish the documents relating to the transfer proceedings in the ORG ’s official bulletin . The applicant challenged that decision in the ORG , which ordered a stay of its execution . An appeal was lodged against the ORG ’s order . The parties have not informed ORG outcome of those proceedings .

In addition , on the basis of the documents relating to his compulsory transfer , the applicant was accused of corruption and abuse of office . On DATE the proceedings concerning those accusations were discontinued by order of the GPE investigating judge ( giudice per le indagini preliminari ) . CARDINAL sets of disciplinary proceedings were instituted in respect of the same allegations . In CARDINAL decisions delivered on DATE and DATE the disciplinary section of the ORG ruled that there was no case to answer .

The applicant himself subsequently requested a transfer . He was moved to ORG .

According to the applicant , the initial decision to transfer him was reported by the ORG broadcaster PERSON ’s PERSON teletext channel , by a large number of privately owned television channels and in the press .

On DATE the applicant brought a claim for compensation against A. , C. , NORP and PERSON in LOC , alleging that the statements they had made to the ORG during the transfer proceedings had damaged his honour and infringed his right to protection of his reputation .

While the case was being prepared for hearing , A. and C. objected that they should enjoy immunity under section CARDINAL bis of Law CARDINAL/CARDINAL , introduced by LAW no . CARDINAL of DATE . By virtue of that provision , members of the ORG can not be prosecuted for opinions expressed in the performance of their duties ( see “ Relevant domestic law and practice ” below ) . The applicant submitted in reply that the immunity clause in question applied only in the context of criminal proceedings .

On DATE the judge responsible for preparing the case referred the matter to the bench and invited the parties to make their final submissions .

On DATE ORG held a hearing at which the parties made their final submissions . Judgment was then reserved .

In a judgment deposited with the registry on DATE ORG dismissed the applicant ’s claim for compensation .

Referring to judgment no . CARDINAL of ORG , it held that it would have been illogical to grant immunity from criminal prosecution for certain acts while retaining the possibility of civil proceedings in respect of the same conduct . It took the view that the immunity in question should apply to civil and disciplinary proceedings as well as to criminal proceedings , so that members of the ORG could remain free from interference in performing their duties .

In conclusion , ORG found that A. and C. should enjoy immunity ; it therefore held that the applicant ’s requests for investigative measures should not be granted . It also dismissed the compensation claim against ORG and PERSON

The applicant appealed against that judgment . He argued , in particular , that during its scrutiny of the PERSON introducing section CARDINAL bis of the PERSON cited above , ORG had replaced the wording “ can not be prosecuted ” ( non sono perseguibili ) with “ can not be punished ” ( non sono punibili ) .

In a judgment of DATE ORG dismissed the applicant ’s appeal in so far as it was directed against C. and allowed it in so far as it concerned the statements by A.

It held that the immunity provided for in section CARDINAL bis should be limited to the expression of opinions relating to “ the exercise of the powers and duties of members of the ORG ” . Whereas C. had expressed opinions while remaining within the scope of his duties , PERSON ’s comments had gone beyond what was normal in a situation of that kind . ORG ordered A. , GPE and PERSON to pay the applicant compensation .

A. appealed on points of law to ORG , arguing that the immunity provided for in section CARDINAL bis covered any statement made within the NCJ . The applicant lodged a cross - appeal against ORG and an appeal on points of law against C.

The case was set down for hearing before a CARDINAL - member bench of ORG of ORG . On DATE the applicant asked for CARDINAL of the judges to withdraw on account of their links with A.

On DATE , counsel for the applicant asked for the case to be heard by the combined divisions of ORG ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) .

The President of ORG allowed the request . Counsel for the applicant then asked the President to ensure that , in the interests of impartiality , the bench of the combined divisions was made up of judges “ who have had no dealings of any kind with PERSON ( or , of course , with [ his own client ] ) ” .

On DATE the applicant ’s lawyers complained to the President that the composition of the bench did not comply with the rules on representation of the presidents of the different divisions .

On DATE the applicant requested CARDINAL of the judges on the bench of the combined divisions to withdraw on account of their links with A. He added that , if they did not do so , his request was to be treated as an application for the removal of the judges in question .

On DATE the applicant observed that CARDINAL of the CARDINAL judges ( Ca . ) had not withdrawn . He therefore asked for a decision on his application for that judge ’s removal .

In a decision of CARDINAL DATE the combined divisions dismissed his application .

On DATE the applicant applied for that decision to be set aside , arguing that it breached certain procedural rules .

On DATE counsel for the applicant likewise applied for the decision to be set aside in so far as it concerned the order for his client to pay costs .

On DATE the applicant again requested Ca . to withdraw on the ground that he was now president of the division of which A. was a member . His request was unsuccessful .

On DATE the combined divisions held a hearing . In a judgment adopted DATE and deposited with the registry on DATE they allowed ORG ’s appeal but dismissed the applicant ’s cross - appeal against ORG and his appeal against C.

ORG outlined the following legal principle :

“ The guarantee laid down in LAW no . CARDINAL/CARDINAL has a broader scope than the applicant maintained , extending to the sphere of civil liability in cases concerning the expression of an opinion directly linked to a vote taking place in the course of the ORG ’s work and relating to the subject under discussion . This guarantee would be devoid of purpose if members of the ORG , who are exempted from all criminal liability , were on the other hand exposed to the risk of civil proceedings for activities involving the performance of the duties assigned to them ; this would have a serious effect on their function itself . ”

The combined divisions went on to examine ORG reasoning as to A. ’s liability . They decided to quash that part of the judgment , remitting the case to a different division of ORG .

However , they upheld ORG judgment in so far as it dismissed the applicant ’s claims against C. In accordance with the law , the part of ORG judgment that was not quashed became final immediately .

In respect of the part of the judgment that was quashed , the parties had DATE and DATE from the date on which ORG judgment had been deposited to institute proceedings in ORG . However , none of the parties availed themselves of this option . Accordingly , on DATE ORG judgment became final in so far as it allowed the appeal by A.

Article CARDINAL § CARDINAL of the LAW provides that the judiciary constitutes “ a branch that is autonomous and independent of all other powers ” . By Article CARDINAL , the ORG has jurisdiction over “ appointments , assignments and transfers , promotions and disciplinary measures concerning judges ” . The ORG is presided over by the President of GPE ; the President of ORG and ORG at that court are ex officio members . CARDINAL of the other members are elected by all the ordinary judges “ from among the [ judges ] belonging to the various categories ” , and CARDINAL by ORG . The last - mentioned group , known as “ lay members ” of the ORG , are elected from among university law professors and practising lawyers with CARDINAL years’ experience . Members are elected for a DATE term and can not be immediately re - elected . During their term of office they may not be registered on professional rolls , or be members of ORG or a regional council ( LAW , DATE , DATE and CARDINAL of the LAW ) .

LAW , CARDINAL of the LAW reads as follows :

“ Members of the judiciary may not be removed from office ( sono inamovibili ) . They may not be dismissed or suspended from office or assigned to other courts or functions except by a decision of ORG , taken either on the grounds and with the guarantees for the defence set forth in the [ law on ] the judiciary or with their own consent .

The Minister of ORG has the power to initiate ( promuovere ) disciplinary proceedings .

Judges may be distinguished from one another only by their different functions .

Article CARDINAL provides that , without prejudice to the powers of the ORG , the organisation and functioning of services relating to justice are the responsibility of the Minister of ORG .

Law no . CARDINAL of DATE amended PERSON no . CARDINAL of DATE on the establishment and operation of the ORG . Thus , LAW added a new section CARDINAL bis to the DATE Law , worded as follows :

“ Members of ORG can not be punished for opinions expressed in the performance of their duties in connection with the subject under discussion . ”

On DATE ORG objected that LAW no . CARDINAL/CARDINAL was unconstitutional in that it exempted members of the ORG from any criminal liability for abuses of authority committed in the performance of their duties . In judgment no . CARDINAL of CARDINAL DATE ORG dismissed the plea of unconstitutionality as being ill - founded . It observed in particular that the provision in issue was favourable to defendants in that it guaranteed members of the ORG a “ reinforced right ” to freedom of expression in the performance of their duties . The immunity it established was different from parliamentary immunity , since members of parliament “ [ could ] not be prosecuted ” for their opinions , whereas members of the ORG “ [ could ] not be punished ” . Accordingly , they could not escape the jurisdiction of the criminal courts , which could assess whether the conduct complained of had exceeded the limits laid down in CARDINAL cited above , namely whether or not it concerned “ the subject under discussion ” . Lastly , the granting of immunity to the ORG ’s members was justified by its position and its functions as the body guaranteeing the autonomy and independence of the judiciary .

Law no . CARDINAL/CARDINAL lays down “ guarantees relating to the judiciary ” . It provides , as a general rule , for the irremovability of judges with a view to preserving their independence . It remains possible , however , to order the compulsory transfer of judges who are in a position of “ environmental incompatibility ” or who , “ for any reason , even through no fault of their own , are unable to perform their duties in their current post with the requisite independence and impartiality ” .


Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

The applicant was born in DATE . He is currently serving a prison sentence .

On DATE the ORG convicted the applicant of aggravated theft and sentenced him to imprisonment . While in prison , on unspecified dates the applicant wrote a letter to ORG of ORG and he received a reply . Dissatisfied with that reply , on DATE the applicant sent a letter to the President of ORG , complaining about the judge who had replied to his letter . The relevant passages of the applicant 's letter read :

“ ( ... ) It can not be excluded that further acts of that kind on the part of ORG of ORG would make me complain to the judicial supervision about the irresponsible clowns placed in that ORG .

I will start by saying that any little cretin , whether he wears a gown or not , should vent his need to intimidate others by making allusions to legal responsibility [ for their acts ] on his mistress , if he has one , or on his dog , but not on me . I am not going to be afraid of any such clown who wants to intimidate me , but the truth is that my request of DATE was addressed to the court , not to some fool .

I expect that the President of ORG will somehow convey my request to that bully and that he will , at the same time , read his reply to me ( ... )

Not only does [ the judge ] write rubbish about my alleged request for a pardon , which my request was absolutely not , but he also intimidates me . If he is such a brilliant lawyer that he is able to reply to questions that were not asked DATE and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me . It would not change the fact that such a limited individual , such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter . A cretin he will remain and I see no reason to be afraid of any legal consequences . “ You know , you understand , shut up ” – that is all the education he has , as a fool does not need any better . ”

Subsequently , on an unspecified date , ORG instituted criminal proceedings against the applicant . On DATE the prosecuting authorities lodged a bill of indictment against the applicant with ORG . He was charged with proffering insults against a ORG authority at its headquarters or in public , an offence punishable under LAW , committed by sending a letter to the President of ORG . In this letter the applicant had insulted an unidentified judge of that court 's ORG and all judges of that court . The applicant had been questioned in connection with the offence . He had stated that he had not meant the court as a whole , but CARDINAL judge , and this in his personal , not professional , capacity . He maintained that the letter could only be regarded as an insult against a private person , but not a ORG institution .

On DATE ORG convicted the applicant of insulting a ORG authority and sentenced him to DATE imprisonment . The court found that on DATE the applicant had sent a letter to the President of ORG in which he referred to all judges of ORG in an insulting and abusive manner as “ irresponsible clowns ” . Moreover , further on in the same letter , he referred in a particularly insulting manner ( “ w sposób szczególnie obraźliwy ” ) to an unidentified judge of ORG , to whom he had allegedly written certain letters , which remained unanswered .

The court had regard to the results of the applicant 's examination by psychiatrists who found that he could be held criminally responsible .

The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter . The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting ORG as a judicial authority . He had first addressed himself to the judges of that court as a group , and then focused on CARDINAL unidentified judge . Accordingly , it had to be understood that the applicant had insulted the court as the ORG authority , and the unidentified judge could be regarded as a symbol of that court .

The court further observed that the applicant , as a citizen , had a constitutional right to criticise the ORG authorities . However , the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem .

The court further observed that the sentence was commensurate with the applicant 's degree of guilt and with the seriousness of the offence . The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case , i.e. by LAW .

The applicant and his officially assigned lawyer lodged appeals against this judgment .

On DATE ORG , following a request from all of the judges of ORG to be allowed to step down , considered that , in view of fact that the offence had been directed against the judges of that court , it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the ORG .

On DATE the ORG upheld the contested judgment , having examined both the appeal lodged by the applicant himself and that of his lawyer .

The court first noted that the first - instance court had accurately established the facts of the case . The court went on to state that it shared the conclusions of the first - instance court , namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting ORG as a ORG authority . The legal assessment of the facts of the case was correct , and the sentence imposed corresponded to the degree of the applicant 's guilt . The applicant had a long criminal record , even though he had been assessed positively by the penitentiary services , and could be held criminally responsible . The applicant 's lawyer had argued that the applicant had intended to insult a specific person , not an institution . However , in the light of the court 's other findings , this analysis was rejected .

The applicant 's lawyer lodged a cassation appeal with ORG .

On DATE ORG dismissed the appeal and confirmed the contested judgment . The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of LAW in that the applicant 's acts , in the light of his submissions as to his motives , did not amount to a punishable criminal offence .

ORG first noted that the grounds of the applicant 's cassation appeal had been laconic and limited in their reasoning . Moreover , it clearly transpired therefrom that in fact the applicant 's lawyer contested the assessment of evidence and the factual findings made by the lower courts , whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of ORG . This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions .

NORP However , the court emphasised , it was worth noting that ORG in its judgment had examined all complaints submitted in the appeal against the first - instance judgment , including those concerning the assessment of evidence and the factual findings of the first - instance court . No new arguments had been submitted to ORG to show that there had been any procedural shortcomings in the proceedings . Certainly the argument that the applicant 's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint .

ORG went on to state that the applicant 's abusive letter , referred to and quoted by ORG , had clearly exceeded the limits of acceptable criticism . Even if it were acknowledged that in the second part of the letter the applicant had focused on CARDINAL judge , it had to be recognised that at the beginning he had attacked all the judges of ORG . The appellate court correctly had regard thereto . It had also indicated why it considered that the applicant 's attitude could be qualified as an offence under LAW . ORG therefore dismissed the cassation appeal as unfounded .

Article CARDINAL of LAW DATE , applicable at the relevant time , read as follows :

“ Anyone who insults a ORG authority at the place where it carries out its duties or in public , is liable to DATE imprisonment , to a restriction of personal liberty or a fine . ”