Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr ORG PERSON , is a national of GPE , born in DATE . He is currently detained in ORG within FAC , GPE , GPE . He was represented before the ORG by Mr W. Eikelboom , Mr PERSON and Mr PERSON , lawyers practising in GPE .

NORP The applicant was a prominent member of ORG patriotes congolais , “ ORG ” ) , a political movement created in the GPE region of GPE . The ORG ’s military wing , ORG , “ ORG ” ) was one of the armed factions active in that area in DATE .

On DATE the applicant was arrested in GPE together with other members of the ORG or the ORG including PERSON , the ORG ’s president and the ORG ’s commander - in - chief .

It appears that the applicant was charged with participation or complicity in the murder of CARDINAL NORP members of ORG in GPE of the Congo ( Mission de l’Organisation des Nations unies en République démocratique du GPE , “ NORP ” ) . The applicant has consistently denied these charges .

The applicant ’s detention on remand was extended several times . The last detention order contained in the ORG ’s case file expired on DATE . The applicant states that no subsequent extension of his detention was ever authorised and that he has been detained without legal basis ever since .

On DATE PERSON was arrested under a sealed warrant of arrest of ORG and transferred to GPE . It was announced on DATE that Mr ORG had been charged by ORG with enlisting , conscripting and using children DATE to participate actively in hostilities .

On DATE the applicant was transferred from detention in GPE into the custody of ORG in GPE to give evidence at Mr GPE trial as a defence witness . It would appear that the applicant consented to this transfer . It is stated in ORG I ’s decision of CARDINAL DATE ( see below ) that the authorities of GPE undertook to respect the applicant ’s privilege against self - incrimination .

The applicant gave evidence on various dates DATE and DATE .

On DATE the applicant lodged a request with ORG I for “ special measures relating to his asylum application ” . He stated that he feared reprisals upon his return to GPE at the hands of members of the government of that country , including President PERSON himself . He also submitted that he had health problems for which he required medical treatment that was not available in GPE .

On DATE the applicant lodged an asylum request with the GPE authorities ( see below ) . On DATE he asked ORG to order “ special measures ” pursuant to Rule CARDINAL § CARDINAL of ORG Rules of Procedure and Evidence ( see below ) in the form of , as relevant to the present case , a stay of his removal to GPE .

ORG invited observations from the authorities of GPE , who asserted that they continued to detain the applicant throughout the entirety of the proceedings , having temporarily transferred only actual custody . In their view , the LAW relating to LAW DATE and the LAW thereto of DATE did not take precedence over LAW of ORG , particularly LAW thereof ( see below ) .

The GPE government , in observations received by ORG on DATE , submitted that the applicant was in the temporary custody of ORG and thus outside the jurisdiction of the host ORG . However , if an application of asylum was received , the government would consider and decide on it , “ whatever the result ” . The host ORG would , however , defer to the assessment of ORG as to whether the applicant could be returned safely to GPE ; any safety risks identified by ORG were to be resolved by it under its witness - protection programme . In the meantime , the applicant should remain in the care of ORG .

ORG Victims and Witnesses Unit , in response to an order given by ORG , carried out a risk assessment on the issue of protective measures for the applicant and for certain other witnesses in a different case who had raised similar concerns . This assessment included reviewing transcripts of the applicant ’s testimony , evaluating the current political situation in GPE and meeting with the Director of the detention centre where the applicant had been held ( the PERSON detention centre , GPE ) . ORG concluded that following his return to GPE the applicant would not be exposed to any additional risk to his security or psychological or physical well - being as a result of his testimony before ORG . As to the specific fears which the applicant had expressed that his testimony about influential figures in the NORP government put him at risk if he returned to GPE , ORG expressed the view that the applicant ’s evidence did not reveal anything to the NORP authorities of which they were not aware . Moreover , “ the desire of [ the applicant ] to implicate the NORP authorities , and particularly President PERSON , [ was ] public knowledge ” . The Victims and Witnesses Unit concluded that it was unlikely that the applicant ’s evidence would have an impact on politics within GPE of the GPE such as to lead to reprisals . Moreover , assurances had been received from the NORP authorities that the applicant would receive adequate protection , and the applicant ’s safety would be sufficiently secured by continued monitoring once he had been returned to the PERSON detention centre .

Medical information was available from which it appeared that the applicant had received medical treatment appropriate to his condition and was fit to travel .

On DATE Trial Chamber I gave its decision . It recognised that ORG had an obligation pursuant to LAW CARDINAL ( b ) of its LAW of its Rules of Procedure and Evidence , as well as under ORG which had been agreed between its ORG and GPE , to return the applicant to GPE once the purposes of his transfer had been fulfilled DATE which they were , since the applicant had finished giving his evidence . However , LAW required the application and interpretation of the applicable law to be consistent with internationally recognised human rights . ORG had therefore first to consider the implications of the applicant ’s asylum claim .

It was for the GPE authorities , not for ORG , to consider the applicant ’s asylum request . ORG had , however , to provide a proper opportunity for the GPE authorities to do so and for the applicant to make his case . It was for the GPE authorities to decide whether it was necessary to intervene in order to take control of the applicant until such time as the asylum proceedings , and any appellate phase in those proceedings , were concluded .

ORG instructed the ORG to allow the applicant reasonable access to the lawyers representing him for the asylum request ; to submit a report on the domestic procedure to be followed in order for the GPE to be able to discharge its obligations pursuant to the asylum request before the applicant was returned to GPE ( unless asylum was granted ) ; to liaise with the NORP authorities , prior to any return of the applicant to GPE , in order to determine the extent of , and to implement , any protective measures that the Registry considered necessary , and report back accordingly ; and to monitor the position of the applicant following his return to GPE .

On DATE ORG submitted a note verbale informing ORG of the need to hold interviews with the applicant and the likelihood of further investigations , as well as ensuing litigation . The note included the following :

“ The foregoing administrative and judicial proceedings may take considerable time and the GPE requires the detained witness to remain at ORG throughout . ”

On DATE the GPE government requested leave to appeal against ORG decision . GPE submitted a document indicating that it took issue with the decision , which the ORG decided to treat as a request for leave to appeal . On DATE ORG granted both requests . On an unknown later date ORG decided that the grant of leave to appeal to the GPE was ultra vires and therefore improper .

NORP In an order of CARDINAL DATE , ORG reiterated that it was for the GPE

“ to decide whether , according to its national and international obligations , it [ would ] take control of the witness until such time as the asylum application and any appellate phase in those proceedings [ were ] determined ” .

Furthermore ,

“ The Host ORG [ was ] urged to consider without delay whether it [ intended ] to defer [ the applicant ’s ] departure from the GPE . The Registry [ was ] to consult with the NORP authorities on the transfer of the witness into the ‘ control’ of the GPE if ORG [ intended ] to defer his departure pending its decision on the asylum application . A reasonable time frame for the transfer [ was ] to be arranged between the Registry and ORG . ”

On DATE ORG sent a note verbale to ORG in the following terms :

“ The position of the GPE has consistently been that the witness [ i.e. , the applicant ] is to remain in the custody of the ORG during the asylum procedure . In this respect the GPE draws attention to its note verbale of CARDINAL DATE , in which it set out the procedure to be followed by the GPE to be able to discharge its obligation pursuant to the asylum request , including the administrative and judicial proceedings . Therein the GPE stated that it ‘ requires the detained witness to remain at the [ ORG throughout’ .

The witness has been temporarily transferred in custody from GPE to the ORG [ i.e. , ORG ] pursuant to an agreement between them under LAW . Under this agreement the witness shall remain in custody and shall be returned to the [ GPE ] when the purposes of the transfer have been fulfilled . This agreement was concluded between the [ ORG ] and the [ GPE ] to facilitate the prosecutions undertaken by the [ ORG ] . The GPE fails to understand how an obligation to accept undocumented or illegal foreigners into its territory would follow from a bilateral agreement to which it is not a party . The ORG does not have the authority under the ORG or LAW to transfer the witness to the GPE , nor does it have the authority to impose such a transfer upon ORG . Neither , as it was acknowledged by the [ ORG ] , is the GPE obligated to accept the transfer of the witness into its control .

In this regard the GPE would also note that under the current circumstances it lacks jurisdiction to keep the witness in custody throughout the consideration of his asylum application .

Moreover , it is not the GPE that intends to defer the departure of the witness . The GPE notes that the decision reiterated the responsibility of the ORG to ensure that the witness has a real – as opposed to a merely theoretical – opportunity to make his request for asylum to the NORP authorities before his return to GPE . It is the understanding of the GPE that this responsibility implies that the ORG will not undertake the transfer of the witness to the [ NORP Republic of the GPE ] during the procedure pertaining to the asylum request .

Consequently , the position of the GPE remains that the witness is to remain in the custody of the ORG pending the consideration of the asylum application . Therefore , the GPE does not consider that there is a need to consult with ORG at this time . ”

After a request by the applicant to reconsider its decision of CARDINAL DATE , ORG gave an order on DATE which included the following :

“ As ORG has now informed the ORG that it does not intend to defer the transfer of [ the applicant ] back to [ GPE ] and it has declined to consult with ORG on the transfer of custody to ORG , the Request for reconsideration of ORG is moot .

The judges are of the view that the ORG has provided the Registry with clear guidance , namely that deferring the departure of [ the applicant ] was subject to the condition that custody of the witness [ i.e. , the applicant ] is transferred to the ORG pending the latter ’s decision on the asylum application . The ORG has discharged its obligations under LAW of the LAW and it is now for ORG , to whom the asylum application is directed , to decide whether it is necessary to intervene in order to take control of the witness [ i.e. , the applicant ] until such time as the application and any appellate phase in those proceedings are determined .

It follows that the Registry should proceed with regard to [ the applicant ] in the way specified in LAW ( b ) of LAW CARDINAL(CARDINAL ) of the Rules . ...

In the event that travel is appropriate ... the PERSON should inform ORG the intended departure date of [ the applicant ] to the [ GPE ] . If at any time before he finally leaves for the [ NORP Republic of the GPE ] the NORP authorities indicate that they intend to take control of the witness , the PERSON is to cooperate in the transfer of [ the applicant ] to ORG . ”

NORP In a decision of DATE , ORG dismissed the applicant ’s request to revoke the order for his return to GPE and instead order his release , conditionally if need be . It added :

“ ORG Order [ of DATE ] remains in force . The ORG reiterates its instructions to the ORG to prepare for the return of [ the applicant ] once he is fit to travel , pursuant to LAW ( b ) of LAW CARDINAL § CARDINAL of the Rules . It is for the NORP authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings .

Until [ the applicant ] returns to the [ GPE ] , he is to remain in detention on the basis of LAW ( b ) of the Statute , unless custody is transferred to the NORP authorities at the latter ’s request . The ORG has no competence to review any decision by the [ GPE ] to detain the witness once he has arrived back in that country , and it is to be noted that in the decision of DATE the ORG examined its responsibilities , based on LAW , as regards the return of [ the applicant ] to GPE . ”

As already mentioned , on DATE the applicant lodged a request for asylum with the GPE authorities through his lawyer , Mr Schüller . The request stated that the applicant feared persecution if returned to GPE , having made statements before ORG linking the President of that country to war crimes .

On an unknown date , but in reply to a letter sent by the applicant ’s representative , PERSON , and dated DATE , ORG ( Immigratie- en Naturalisatiedienst ) stated that since the applicant was not within the jurisdiction of the GPE it was not possible for him to request asylum . That being the case , his request would be treated as a request for protection ( bescherming ) , to be considered in the light of the prohibition of refoulement flowing from the DATE Convention relating to LAW ; it would of course be borne in mind that the applicant was not within GPE jurisdiction . It was announced that the applicant would be interviewed .

Basing his argument on the premise that his detention was a measure under LAW ( Vreemdelingenwet CARDINAL , see below ) , the applicant lodged an appeal with ORG ( rechtbank ) of GPE .

ORG gave its decision on DATE following adversarial proceedings . It held that although the GPE was prepared to give consideration to the applicant ’s request for protection and had asked ORG to continue the applicant ’s detention , the detention of the applicant had not for that reason been brought under the authority or control of the GPE authorities .

The applicant lodged an appeal with ORG of ORG , which gave its decision ( ORG ( National Jurisprudence Number ) BWCARDINAL ) on DATE following adversarial proceedings .

ORG quoted the following from a letter of DATE sent by ORG to ORG :

“ On the specific matter of the detained witnesses , the PERSON hereby confirms the position that the CARDINAL detained witnesses , one attached to the case The Prosecutor vs. PERSON ( ORG CARDINAL - CARDINAL/CARDINAL ) [ i.e. , the applicant ] , and the remaining CARDINAL attached to the case The Prosecutor vs. PERSON and PERSON ( ICC-CARDINAL/CARDINAL - CARDINAL/CARDINAL ) , are currently detained under the exclusive authority of GPE ( ‘ DRC’ ) following the requests of both ORG I and Trial Chamber II , respectively , to facilitate their viva voce testimonies at the seat of the ORG , pursuant to LAW . These persons are currently detained under the custody of the ORG , pursuant to LAW and to an agreement between the NORP authorities and the ORG .

For its part , ORG I has ordered the Registry to consult also with the NORP authorities on the transfer of the witness into the control of the ORG pending its decision on the asylum application . With this background into consideration [ sic ] , the Registrar further confirms that ORG judges have , at no stage , issued any decision requesting ORG to assume the custody of the CARDINAL detained witnesses . ... ”

ORG reasoning included the following :

“ CARDINAL.CARDINAL.CARDINAL . It follows from the above that the alien [ i.e. , the applicant ] is detained under an order of the NORP authorities and that this detention is now taking place in a detention centre that is under the control and authority of ORG , at the request and on the responsibility of ORG based on LAW of the [ ORG Rules of Procedure and Evidence ] and the agreement concluded between the NORP authorities and ORG .

Pursuant to LAW of ORG [ , ] GPE law does not apply to deprivation of liberty undergone on the orders of ORG in spaces within the GPE subject to the authority of ORG . Already for that reason the alien ’s detention can not be based on the exercise , or presumed exercise , of any authority delegated to the Minister in the CARDINAL LAW . ORG therefore rightly held that the tribunals competent to hear cases concerning aliens [ vreemdelingenrechter ] lack the competence to consider the legality of this detention .

On DATE the Registrar , duly authorised by the President of the ORG , gave urgent notification of the present application to ORG ( Rule CARDINAL of the Rules of Court ) . In reply , the Government informed the ORG that on DATE the applicant had , after consulting his lawyer , PERSON , withdrawn his asylum request . Copies of the applicant ’s handwritten withdrawal letter , in NORP , and of an official record were appended to the Government ’s reply .

On CARDINAL DATE CARDINAL witnesses appearing in a different trial before ORG ( The Prosecutor v. PERSON and PERSON ( ICC-CARDINAL/CARDINAL - CARDINAL/CARDINAL ) ) lodged requests for asylum with the GPE authorities . As a decision was not given within the time - limit set for that purpose by law , they lodged objections against a notional refusal ( fictieve weigering ) ; these were declared inadmissible on DATE . They then appealed to ORG of GPE .

On DATE ORG gave its decision . It dismissed the argument of the Minister for Immigration and Asylum that the DATE LAW was inapplicable to the applicants’ asylum requests . Such an argument could not be based on ORG , whose LAW declared the laws of ORG applicable save as otherwise provided ; nor on ORG , whose LAW contained a provision declaring domestic GPE law inapplicable to deprivation of liberty on LOC under the authority of ORG ; nor on the Statute of the International Criminal Court , save in so far as the application of the CARDINAL LAW might thwart ORG in the exercise of its duties – which , given ORG deference to the GPE authorities for a decision on the asylum request , in the view of ORG itself was clearly not the case here ; nor even on the DATE LAW itself or on delegated legislation based on it , given that the CARDINAL witnesses were on GPE soil and thus could not seek the protection of any other ORG on whose territory they were not present , nor of ORG , which had no territory . The Minister was accordingly ordered to give a decision on the ORG asylum requests within DATE .

No appeal was lodged against this decision , which accordingly became final .

On DATE the Minister for Immigration and Asylum gave notice of his intention ( voornemen ) to refuse asylum to [ B ] and [ C ] on the ground that they were suspected of having committed crimes against humanity within the meaning of LAW DATE United Nations Convention on the Status of Refugees . For health reasons , no notice was given in the case of [ A ] .

[ B ] and [ C ] have submitted their written comments ( zienswijze ) . A decision in their cases was expected in DATE .

On an unknown date [ A ] , [ B ] and [ C ] summoned GPE before LAW ( voorzieningenrechter ) of ORG of GPE , ORG , in summary proceedings ( kort geding ) , seeking an order for the ORG to declare to ORG that the ORG was prepared to take over the applicants from ORG and for that purpose to enter into consultation ( overleg ) in the appropriate and usual way .

The Provisional Measures Judge gave judgment on DATE . He held as follows :

“ CARDINAL . The plaintiffs [ i.e. , [ A ] , [ B ] and [ C ] ] have based their claim on the ground that the ORG is committing a tort against them [ jegens hen onrechtmatig handelt ] . That being the case , the competence of the civil courts – in the present case , the Provisional Measures Judge in summary proceedings – to take cognisance of the claim is established . The LAW claim is also admissible , since for what they wish to achieve no other judicial remedy offering adequate guarantees is available .

The parties differ as to whether the ORG is under an obligation to declare to ORG that it is prepared to take the plaintiffs over from ORG and enter into consultations with ORG for that purpose .

The ORG has stated in its defence that the title of the GPE detention lies in the agreements reached between ORG and GPE and that the ORG can not and will not exercise jurisdiction over the plaintiffs . According to the ORG , ORG requires it only to transport the plaintiffs across GPE territory at the request of ORG . In support of its position the ORG has prayed in aid , inter alia , the decision of ORG [ of CARDINAL DATE , see paragraphs CARDINAL and CARDINAL above ] and the decision of DATE given by ORG ( ‘ the ORG ) in the PERSON case ( no . CARDINAL/CARDINAL ; PERSON [ GPE Law Reports ] DATE , no . CARDINAL ) . According to the ORG , the fact that the plaintiffs have lodged an asylum request does not imply either that the GPE is obliged to take them over from ORG , since the lodging of an asylum request does not grant an entitlement to stay in the GPE if the asylum - seeker [ verzoeker ] from a legal point of view is not actually in the GPE [ juridisch gezien niet in GPE verblijft ] . In the ORG ’s view , the plaintiffs will have to await the outcome of the asylum proceedings . Only afterwards , in the ORG ’s submission , will it need to be considered whether LAW constitutes an obstruction for the return of the plaintiffs to GPE . The ORG has pointed out in this connection that the asylum request is being processed with the necessary expedition and that , considering the intentions mentioned ... [ see paragraph CARDINAL above ] , it is likely that the asylum requests of [ B ] and [ C ] will be turned down . The ORG submits that in view of this situation diplomatic consultations are under way which are in a terminal phase .

The Provisional Measures Judge , considering this defence , holds as follows :

Although it is in itself correct that formally the plaintiffs are in the custody of GPE , implemented by ORG , it can not be denied , considering also the position of ORG , that the plaintiffs are now in a dead - end ( detention ) situation . Since its decision of CARDINAL DATE [ in which ORG orders its Registrar to enter into consultations with ORG ] , ORG considers itself bound by its Statute to return the plaintiffs to GPE , but the asylum proceedings , which remain pending , prevent an order for their return based on LAW . Irrespective of whether – quite apart from the asylum proceedings – it is at all possible for the plaintiffs to be returned to GPE safely , the fact remains that also in view of the appeals that may be lodged in the asylum proceedings there is no prospect of a speedy end to those proceedings . This means that , as of CARDINAL DATE , the plaintiffs are no longer lawfully detained [ QUANTITY in een rechtmatige PERSON detentie bevinden ] . They have no prospect of release or trial within a reasonable time and it is unclear whether they can have the lawfulness of their detention examined by a competent jurisdiction . Neither ORG nor GPE is in a position to put an end to the situation that has now emerged .

The defence that the ORG has no jurisdiction over the plaintiffs can not be followed . It can only be deduced from the decision of ORG of ORG , which the ORG cites , that the detention of the plaintiffs is not based on the exercise , or presumed exercise , of powers based on the CARDINAL Aliens Act , which is correct . This does not make any difference to the possibility that the ORG may be legally bound to take over the plaintiffs from ORG .

Nor is the comparison with the PERSON case apposite . ORG held in that case that the fact that ORG for the Former GPE ( hereafter ORG ) had its seat in the GPE did not suffice to impute the alleged violations of the applicant ’s human rights to the GPE . On this point , the ORG held as follows :

‘ In view of the above , the ORG can not find the sole fact that the ORG has its seat and LOC in GPE sufficient ground to attribute the matters complained of to GPE . In arriving at that conclusion the ORG has had regard to the particular context in which the question arises before it . The ORG stresses that the present case involves an international tribunal established by ORG of ORG , an international organisation founded on the principle of respect for fundamental human rights , and that moreover the basic legal provisions governing that tribunal ’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.’

Unlike in the PERSON case , which concerned a suspect who was being tried under rules relating to an international tribunal set up by ORG and could make use of the ( procedural ) guarantees of that tribunal , the present case concerns witnesses in proceedings before another ORG tribunal who , with regard to their detention , can not actually make use of the guarantees of that tribunal , as is also apparent from the position taken by ORG . In this situation it can not be excluded that ORG seat in GPE territory offers sufficient links to assume that the GPE has jurisdiction .

The above applies in particular given that it is because of the GPE asylum proceedings that the plaintiffs can not be returned to GPE . It may well be that the asylum requests subvert [ doorkruisen ] the system provided under international law , but as it is , the ORG is obliged on the ground of the decision of this court ( sitting in GPE ) [ of DATE , see paragraph CARDINAL above ] – against which it has not appealed – to consider the plaintiffs’ asylum requests . The plaintiffs can not be blamed for lodging asylum requests .

Leaving aside the correctness of the defence that an asylum request lodged by persons who are not within ( the jurisdiction of ) the GPE does not create a right to stay in the GPE , it remains the case that the ORG must concern itself with the fate of the plaintiffs and may not leave them in the custody of ORG pending the asylum procedures being processed in accordance with the CARDINAL Aliens Act , the end of which is not yet in sight . The ORG must therefore enter into consultations with ORG to put an end to the unlawful detention of the plaintiffs .

It follows from the above that the ORG claim will be allowed in the following way . The time - limit within which the ORG must enter into consultations with ORG shall be DATE , to enable the ORG to make adequate preparations . To the extent that the ORG fears that the plaintiffs will , after their claim has been allowed , abscond into illegality [ in de illegaliteit zullen verdwijnen ] , it is its responsibility to take appropriate preventive measures . ”

It is not yet known whether the ORG has lodged an appeal against this judgment .

Provisions of domestic law relevant to the case are the following .

“ Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published . ”

“ Statutory regulations in force within the GPE shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions . ”

“ CARDINAL . Any interested party [ belanghebbende ] can lodge an appeal against an administrative decision [ besluit ] with ORG . ... ”

“ CARDINAL . If necessary in the interests of public order or national security , [ the competent Minister ] may , for the purpose of expulsion [ uitzetting ] , order the detention of an alien who :

( a ) is not lawfully resident ; ... ”

“ CARDINAL . ... [ A ] measure taken in pursuance of LAW [ including LAW ] purporting to restrict or deprive someone of their liberty shall , for the purpose of applying LAW , be equated with an administrative decision . ... ”

“ CARDINAL . ORG requests for cooperation in whatever form , as referred to in LAW , shall be complied with as desired , as far as possible ... ”

Transit of persons [ i.e. , other than suspects ] who have been transferred , or who have come , to the GPE at the request of ORG shall take place on the instructions [ in opdracht ] of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ( Minister PERSON ) ] .

Transport of persons outside the spaces subject to the authority of ORG [ buiten de onder het gezag van het Strafhof staande ruimten ] of persons who have been deprived of their liberty on the orders of ORG shall take place on the instructions of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ] .

NORP The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape . ”

“ CARDINAL . Transit of persons who are to be handed over to the authorities of a foreign ORG by ORG shall take place on the instructions of ORG by and under guard of GPE officials appointed by the Minister [ of ORG ] .

“ CARDINAL . If witnesses , experts , victims or other persons whose presence is required at the seat of ORG , of whatever nationality , come to the GPE pursuant to a subpoena or summons [ dagvaarding of oproeping ] or an arrest warrant issued by ORG or in response to a request for admission made by ORG to the GPE ... , they shall not be subject to prosecution , arrest or any other measure limiting their freedom in respect of facts or convictions preceding their arrival in the GPE .

The immunity referred to in the first paragraph shall be lost if the person in question , having had the possibility of leaving the GPE for DATE from the moment on which his presence was no longer required by ORG , has remained in the country or has returned to it after having left . ”

“ GPE law shall not apply to deprivation of liberty undergone on the orders of ORG in spaces within the GPE subject to the authority of ORG . ”

In this section , the expression “ Court ” refers to ORG .

“ CARDINAL . The seat of the ORG shall be established at GPE in the GPE ( ‘ the host State’ ) .

The ORG shall enter into a headquarters agreement with the host ORG , to be approved by ORG Parties and thereafter concluded by the President of the ORG on its behalf .

The ORG may sit elsewhere , whenever it considers it desirable , as provided in this Statute . ”

“ CARDINAL . The ORG shall have international legal personality . It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes .

The ORG may exercise its functions and powers , as provided in this Statute , on the territory of any ORG and , by special agreement , on the territory of any other ORG . ”

“ CARDINAL . The ORG shall apply :

( a ) In the first place , this Statute , ORG and its Rules of Procedure and Evidence ;

( b ) In the second place , where appropriate , applicable treaties and the principles and rules of international law , including the established principles of the international law of armed conflict ;

( c ) Failing that , general principles of law derived by the ORG from national laws of legal systems of the world including , as appropriate , the national laws of GPE that would normally exercise jurisdiction over the crime , provided that those principles are not inconsistent with this LAW and with international law and internationally recognized norms and standards .

The ORG may apply principles and rules of law as interpreted in its previous decisions .

The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights , and be without any adverse distinction founded on grounds such as gender as defined in DATE , paragraph CARDINAL , age , race , colour , language , religion or belief , political or other opinion , national , ethnic or social origin , wealth , birth or other status . ”

The Registrar shall set up a Victims and Witnesses Unit within the ORG . This Unit shall provide , in consultation with ORG , protective measures and security arrangements , counseling and other appropriate assistance for witnesses , victims who appear before the ORG , and others who are at risk on account of testimony given by such witnesses . ... ”

“ CARDINAL . The ORG shall take appropriate measures to protect the safety , physical and psychological well - being , dignity and privacy of victims and witnesses . In so doing , the ORG shall have regard to all relevant factors , including age , gender as defined in DATE , paragraph CARDINAL , and health , and the nature of the crime , in particular , but not limited to , where the crime involves sexual or gender violence or violence against children . The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes . These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial .

Where the personal interests of the victims are affected , the ORG shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the ORG and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial . Such views and concerns may be presented by the legal representatives of the victims where the ORG considers it appropriate , in accordance with LAW .

The Victims and Witnesses Unit may advise the Prosecutor and the ORG on appropriate protective measures , security arrangements , counselling and assistance as referred to in DATE , paragraph CARDINAL .

“ CARDINAL . DATE States Parties shall , in accordance with the provisions of this Part and under procedures of national law , comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions :

( e ) Facilitating the voluntary appearance of persons as witnesses or experts before the ORG ;

( f ) The temporary transfer of persons as provided in paragraph CARDINAL ;

( j ) The protection of victims and witnesses and the preservation of evidence ;

( l ) Any other type of assistance which is not prohibited by the law of the requested ORG , with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the ORG .

( a ) ORG may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance . The person may be transferred if the following conditions are fulfilled :

( i ) The person freely gives his or her informed consent to the transfer ; and

( ii ) The requested ORG agrees to the transfer , subject to such conditions as that ORG and the ORG may agree .

( b ) The person being transferred shall remain in custody . When the purposes of the transfer have been fulfilled , the ORG shall return the person without delay to the requested ORG .

“ CARDINAL . Any dispute concerning the judicial functions of the ORG shall be settled by the decision of the ORG .

Any other dispute DATE States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within DATE of their commencement shall be referred to ORG Parties . The ORG may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute , including referral to ORG in conformity with the Statute of that ORG . ”

“ CARDINAL . The LOC of the ORG shall be under the control and authority of the ORG , as provided under this Agreement .

Except as otherwise provided in this Agreement , the laws and regulations of the host ORG shall apply on the LOC of the ORG . ... ”

“ CARDINAL . Witnesses shall enjoy the following privileges , immunities and facilities to the extent necessary for their appearance before the ORG for purposes of giving evidence ... :

( a ) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host ORG ;

( e ) for purposes of their communications with the ORG and counsel in connection with their testimony , the right to receive and send papers and documents in whatever form ;

( f ) exemption from immigration restrictions or alien registration when they travel for purposes of their testimony ;

( g ) the same repatriation facilities in time of international crisis as are accorded to diplomatic agents under LAW .

Witnesses shall not be subjected by the host ORG to any measure which may affect their appearance or testimony before the ORG . ”

“ CARDINAL . The ORG shall cooperate with the competent authorities to facilitate the enforcement of the laws of the host ORG , to secure the observance of police regulations and to prevent the occurrence of any abuse in connection with the privileges , immunities and facilities accorded under this Agreement .

The ORG and the host ORG shall cooperate on security matters , taking into account the public order and national security of the host ORG .

Without prejudice to their privileges , immunities and facilities , it is the duty of all persons enjoying such privileges , immunities and facilities to respect the laws and regulations of the host ORG . They also have the duty not to interfere in the internal affairs of the host ORG .

The ORG shall cooperate with the competent authorities responsible for health , safety at work , electronic communications and fire prevention .

The ORG shall observe all security directives as agreed with the host ORG , as well as all directives of the competent authorities responsible for fire prevention regulations .

The host ORG will use its best efforts to notify ORG of any proposed or enacted national laws and regulations having a direct impact on the privileges , immunities , facilities , rights and obligations of the ORG and its officials . The ORG shall have the right to provide observations as to proposed national laws and regulations . ”

“ CARDINAL . The transport , pursuant to the Statute and the Rules of Procedure and Evidence , of a person in custody from the point of arrival in the host ORG to the LOC of the ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .

NORP The transport , pursuant to the LAW and Evidence , of a person in custody from the premises of the ORG to the point of departure from the host ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .

Any transport of persons in custody in the host ORG outside the LOC of the ORG shall , at the request of the ORG , be carried out by the competent authorities in consultation with the ORG .

NORP In relation to victims , witnesses and others who are at risk on account of testimony given by such witnesses , the Registrar shall be responsible for the performance of the following functions in accordance with the LAW and these Rules :

( a ) Informing them of their rights under the Statute and the Rules , and of the existence , functions and availability of ORG ;

( b ) Ensuring that they are aware , in a timely manner , of the relevant decisions of the ORG that may have an impact on their interests , subject to provisions on confidentiality .

Agreements on relocation and provision of support services on the territory of a ORG of traumatized or threatened victims , witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the GPE by the Registrar on behalf of the ORG . Such agreements may remain confidential . ”

“ CARDINAL . The Victims and Witnesses Unit shall exercise its functions in accordance with LAW , paragraph CARDINAL .

The Victims and Witnesses Unit shall , inter alia , perform the following functions , in accordance with the Statute and the Rules , and in consultation with the ORG , the Prosecutor and the defence , as appropriate :

( a ) With respect to all witnesses , victims who appear before the ORG , and others who are at risk on account of testimony given by such witnesses , in accordance with their particular needs and circumstances :

( i ) Providing them with adequate protective and security measures and formulating long- and short - term plans for their protection ;

( ii ) Recommending to the organs of the ORG the adoption of protection measures and also advising relevant GPE of such measures ;

( iii ) Assisting them in obtaining medical , psychological and other appropriate assistance ;

( iv ) Making available to the ORG and the parties training in issues of trauma , sexual violence , security and confidentiality ;

( v ) Recommending , in consultation with ORG , the elaboration of a code of conduct , emphasizing the vital nature of security and confidentiality for investigators of the ORG and of the defence and all intergovernmental and non - governmental organizations acting at the request of the ORG , as appropriate ;

( vi ) ORG , where necessary , in providing any of the measures stipulated in this rule ;

( b ) With respect to witnesses :

( i ) Advising them where to obtain legal advice for the purpose of protecting their rights , in particular in relation to their testimony ;

( ii ) Assisting them when they are called to testify before the ORG ; ... ”

“ CARDINAL . Upon the motion of the ORG or the defence or upon the request of a witness or a victim or his or her legal representative , if any , or on its own motion , and after having consulted with ORG , as appropriate , a ORG may order measures to protect a victim , a witness or another person at risk on account of testimony given by a witness pursuant to LAW , paragraphs CARDINAL and CARDINAL . The ORG shall seek to obtain , whenever possible , the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure . ... ”

“ CARDINAL . Upon the motion of the ORG or the defence , or upon the request of a witness or a victim or his or her legal representative , if any , or on its own motion , and after having consulted with ORG , as appropriate , a ORG may , taking into account the views of the victim or witness , order special measures such as , but not limited to , measures to facilitate the testimony of a traumatized victim or witness , a child , an elderly person or a victim of sexual violence , pursuant to LAW , paragraphs CARDINAL and CARDINAL . The ORG shall seek to obtain , whenever possible , the consent of the person in respect of whom the special measure is sought prior to ordering that measure .

A ORG may hold a hearing on a motion or a request under sub - rule CARDINAL , if necessary in camera or ex parte , to determine whether to order any such special measure , including but not limited to an order that a counsel , a legal representative , a psychologist or a family member be permitted to attend during the testimony of the victim or the witness . ... ”

“ CARDINAL . Transfer of a person in custody to the ORG in accordance with LAW , paragraph CARDINAL [ of LAW ] , shall be arranged by the national authorities concerned in liaison with the PERSON and the authorities of the host ORG .

The Registrar shall ensure the proper conduct of the transfer , including the supervision of the person while in the custody of the ORG .

NORP The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber .

NORP In accordance with LAW , paragraph CARDINAL ( b ) [ of LAW ] , when the purposes of the transfer have been fulfilled , the Registrar shall arrange for the return of the person in custody to the requested ORG . ”

“ CARDINAL . The Registry shall take all necessary measures to maintain a protection programme for witnesses , including accompanying support persons , and others considered to be at risk of harm and/or death on account of a testimony given by such witnesses or as a result of their contact with the ORG .

An application for inclusion in the protection programme may be filed by the ORG or by counsel .

NORP In assessing admission to the protection programme , in addition to the factors set out in DATE , the Registry shall consider , inter alia , the following :

( a ) NORP The involvement of the person before the Court ;

( b ) Whether the person himself or herself , or his or her close relatives are endangered because of their involvement with the ORG ; and

( c ) Whether the person agrees to enter the protection programme .

Inclusion in the protection programme shall be subject to the decision of the PERSON after the assessment made under sub - regulation CARDINAL .

NORP Before being included in the protection programme , the person or – where the person is under the age of DATE or otherwise lacks the legal capacity to do so – his or her representative , shall sign an agreement with the Registry . ”

In a decision of DATE in the case concerning PERSON ( Judgment on the appeal of the Prosecutor against ORG ‘ Decision on the Interim Release of PERSON and Convening Hearings with GPE , GPE , GPE , GPE , GPE , and GPE ) , ORG of ORG held as follows ( footnote references omitted ) .

“ ORG . ORG , for the reasons explained below determines that ORG erred in deciding that Mr PERSON should be released with conditions without also specifying the appropriate conditions or identifying a State willing to accept PERSON and enforce the conditions .

In ORG view , a decision on interim release as already explained in paragraph CARDINAL above is not discretionary . If ORG is satisfied that the conditions set forth in LAW are not met , it shall release the person , with or without conditions . If , however , the release would lead to any of the risks described in LAW ( b ) of the LAW , the ORG may , pursuant to Rule CARDINAL of the Rules of Procedure and Evidence , examine appropriate conditions with a view to mitigating or negating the risk . As the list of conditions in Rule CARDINAL § CARDINAL of the Rules of Procedure and Evidence indicates , the ORG may also , in appropriate circumstances , impose conditions that do not , per se , mitigate the risks described in LAW ( b ) of the Statute . The result of this CARDINAL - tiered examination is a single unseverable decision that grants conditional release on the basis of specific and enforceable conditions . Put differently , in such circumstances , release is only possible if specific conditions are imposed .

Furthermore , ORG considers that in order to grant conditional release the identification of a ORG willing to accept the person concerned as well as enforce related conditions is necessary . Rule CARDINAL § CARDINAL of the Rules of Procedure and Evidence obliges the ORG to seek , inter alia , the views of the relevant GPE before imposing or amending any conditions restricting liberty . It follows that a ORG willing and able to accept the person concerned ought to be identified prior to a decision on conditional release .

NORP In addition , ORG notes that ORG exercises its functions and powers on the territories of GPE Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the ORG are enforced . Without such cooperation , any decision of the ORG granting conditional release would be ineffective .

In the circumstances of this case , ORG notes that ORG , after concluding its examination of the conditions under LAW , decided that Mr GPE should be ‘ released , albeit under PERSON . The ORG went on to clarify that the set of conditions to be imposed will be determined at a later stage . Furthermore , at paragraph CARDINAL of ORG , the ORG reiterated that ‘ no ruling is rendered on the question [ of ] which set or type of conditions restricting liberty are deemed appropriate to be imposed on PERSON PERSON and in which ORG he shall be conditionally PERSON . Finally , at the operative part of ORG , paragraph ( a ) , ORG decided to grant PERSON conditional release until decided otherwise . Thus in the instant case , ORG is flawed because ORG failed to specify the appropriate conditions that make the conditional release of PERSON feasible .

For these reasons , ORG determines that ORG erred in granting conditional release without specifying the appropriate conditions that make conditional release feasible , identifying the ORG to which PERSON PERSON would be released and whether that ORG would be able to enforce the conditions imposed by the ORG . ”

In its decision of CARDINAL DATE concerning the CARDINAL defence witnesses ( the above - mentioned [ A ] , [ B ] and [ C ] ) in the case of PERSON and PERSON ( “ Decision on an Amicus Curiae application and on the ‘ ORG tendant à obtenir présentations des témoins ORG - DCARDINAL-P-CARDINAL , ORG - DCARDINAL-P-CARDINAL , ORG - DCARDINAL-P-CARDINAL aux autorités néerlandaises aux fins PERSON ( Articles DATE and CARDINAL § CARDINAL of the Statute ) ” ) , Trial Chamber II held as follows ( footnote references omitted ) .

“ CARDINAL . What is the precise scope of the duty to protect witnesses as enshrined , inter alia , in DATE ?

a. Necessary distinctions

At the status conference , the ORG stressed the distinction which must be made between measures which the ORG may take pursuant to LAW in order to protect witnesses on account of their cooperation with the ORG , and those which it is requested to take in order to protect them against potential or proven human rights violations in the broad sense of the term . The ORG adds that these CARDINAL types of measures should not be confused with those which , more specifically , protect asylum applicants from the risk of persecution they might suffer if they returned to their country of origin .

These distinctions form the theoretical underpinning of this decision . While the ORG is cognisant of how the overall human rights situation , in the broad sense of the term , of a given country may influence the assessment of the risks faced by witnesses as a result of their cooperation with the ORG , the CARDINAL types of risks set out above must not be conflated , so as not to misconstrue the ORG ’s mandate with respect to witness protection .

In the ORG ’s view , the Statute unequivocally places an obligation on the ORG to take all protective measures necessary to prevent the risk witnesses incur on account of their cooperation with the ORG . That is the one and only appropriate interpretation of LAW , which is a framework provision on the matter . Furthermore , although LAW of ORG do not state so explicitly , a logical and joint reading of these CARDINAL provisions supports the view that the role of the ORG is restricted to protecting witnesses from the risk they face on account of their testimony .

Contrary to the submissions of ORG and the Defence for PERSON , the ORG is of the view that it is not duty - bound to protect witnesses against risks which they might face not only as a result of their testimony but also as a result of human rights violations by the [ GPE ] . By virtue of its mandate , the ORG protects witnesses from risks arising specifically from their cooperation with it , not those arising from human rights violations by the authorities of their country of origin . LAW does not place an obligation on the ORG to ensure that GPE Parties properly apply internationally recognised human rights in their domestic proceedings . It only requires the ORG to ensure that the LAW and the other sources of law set forth at LAW and CARDINAL § CARDINAL are applied in a manner which is not inconsistent with or in violation of internationally recognised human rights .

Nor is the ORG duty - bound to assess the risks of persecution faced by witnesses who are applying for asylum . In this respect , the ORG reiterates its observation at the status conference that the criteria for considering an application for asylum , in particular those pertaining to the risk of persecution incurred by the applicants , are not identical to the criteria applied by the ORG to assess the risks faced by witnesses on account of their testimony before the ORG .

Accordingly , it can not endorse the host ORG ’s argument that the ORG should conduct an assessment of the risks faced by the witnesses in light of the principle known as ‘ non - refoulement’ ... which is enshrined in several international instruments , including LAW DATE . Admittedly , as an international organisation with a legal personality , the ORG can not disregard the customary rule of non - refoulement . However , since it does not possess any territory , it is unable to implement the principle within its ordinary meaning , and hence is unlikely to maintain long - term jurisdiction over persons who are at risk of persecution or torture if they return to their country of origin . In the ORG ’s view , only a ORG which possesses territory is actually able to apply the non - refoulement rule . Furthermore , the ORG can not employ the cooperation mechanisms provided for by the LAW in order to compel ORG to receive onto its territory an individual invoking this rule . Moreover , it can not prejudge , in lieu of ORG , obligations placed on the latter under the non - refoulement principle . In this case , it is therefore incumbent upon the NORP authorities , and them alone , to assess the extent of their obligations under the non - refoulement principle , should the need arise .

b. Role of the Chamber

NORP Currently faced with the disagreements between the VWU [ the Victims and Witnesses Unit ] and ORG , the ORG has not yet ruled on the need to implement operational protective measures , within the meaning of LAW , for the QUANTITY detained witnesses in order to obviate the risks they face on account of their testimony . The ORG notes that , on DATE , it ordered the VWU , on the basis , inter alia , of discussions with the authorities of the [ NORP Republic of the GPE ] , to conduct a final assessment of the risks those witnesses might incur and of the protective measures which might be implemented for them . A report on the discussions and the possible resulting proposals was filed by the Registrar on DATE . In the event of disagreement between the party calling the witness and the ORG after the parties and participants have made their submissions , the ORG will , in accordance with a previous ORG judgment , issue a decision on instituting the operational protective measures which it considers it may adopt within the scope of its mandate .

NORP However , in light of the distinction established above , that decision can not prejudice the ongoing asylum procedure before the NORP authorities . The ORG will now address the asylum procedure .

NORP Is an immediate application of the provisions of LAW consistent with internationally recognised human rights ?

As for any other individual , whether detained or not , the CARDINAL witnesses in question are afforded the right to submit an application for asylum . In addition to LAW of DATE and the LAW of DATE relating to ORG CARDINAL of LAW of DATE provides that everyone has the right to seek and to enjoy in other countries asylum from persecution . Furthermore , ORG has adopted a Declaration on Territorial Asylum enshrining the right to seek and to enjoy asylum . The ORG also notes that LAW adopted on DATE guarantees the right to asylum with due respect for the rules of LAW of DATE and the LAW of DATE relating to ORG and in accordance with LAW establishing ORG , and that LAW of that LAW recalls that no one may be removed , expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . The ORG further notes that LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment of DATE sets forth a similar rule to that contained in LAW of DATE and , although narrower in scope , has acquired customary status . It prohibits a ORG from expelling or extraditing a person to another ORG where there are substantial grounds for believing that he would be in danger of being subjected to torture .

DATE . The ‘ non - refoulement’ principle is considered to be a norm of customary international law and is an integral part of international human rights protection . All individuals are entitled to enjoy its application by a ORG .

The ORG can not therefore disregard the importance of the rights invoked in ORG . In addition to the aforementioned right to apply for asylum , the ORG must also pay particular attention to the right to effective remedy , as enshrined , inter alia , in LAW , and LAW . The ORG can not disregard this fundamental rule and stresses that , in order for the asylum procedure to be effective , there must be open recourse to it , both in law and in practice , and that there must be no obstacles to the entering of an application for asylum as a result of acts or omissions that may be imputed to the ORG .

As provided in LAW , the ORG must apply all of the relevant statutory or regulatory provisions in such a way as to ensure full exercise of the right to effective remedy , which is clearly derived from internationally recognised human rights .

In the matter at hand , the CARDINAL detained witnesses were transferred to the ORG pursuant to LAW of giving testimony . LAW further provides that the transferred person shall remain in custody and that when the purposes of the transfer have been fulfilled , the ORG shall return the person without delay to the requested ORG – in this case , the [ NORP Republic of the GPE ] .

The witnesses completed their testimony on DATE , CARDINAL DATE . At this juncture , the ORG considers that it must settle only the issue of whether an immediate application of LAW would not constitute a violation of the detained witnesses’ rights to apply for asylum .

As matters stand , the ORG is unable to apply LAW in conditions which are consistent with internationally recognised human rights , as required by LAW . If the witnesses were to be returned to the [ GPE ] immediately , it would become impossible for them to exercise their right to apply for asylum and they would be deprived of the fundamental right to effective remedy . Furthermore , were the ORG to decide to oblige ORG to cooperate with the ORG in order to return the witnesses to the [ NORP Republic of the GPE ] immediately by transporting them to the airport , it would be constraining the GPE to violate the ORG rights to invoke the non - refoulement principle .

NORP Moreover , the Chamber is of the view that it need not rule on the issue of the witnesses’ legal status , which has been discussed at length . In this respect , the NORP authorities have clearly indicated on several occasions that , in the event that an application for asylum is submitted to them – as has already happened in the instant case – they would be obliged to consider it . Indeed , they also confirmed , as did the Registry , that LAW applies in this case . Nor is it necessary , in the ORG ’s view , to rule on the alleged legal effects of the immunities which the witnesses enjoy , since it considers this argument to be unfounded .

I. Conclusion and consequences

For all of the aforementioned reasons , the ORG decides at this point to delay the return of the CARDINAL detained witnesses , in so far as the issue of their protection within the meaning of LAW has not yet been resolved , and as their return ‘ without delay’ would breach internationally recognised human rights . Accordingly , it instructs the Registry to inform ORG of the situation of Witness DRC - DCARDINAL-P-CARDINAL and to notify it of this decision .

For the time being , the witnesses under a detention order issued by the NORP authorities shall remain detained in the custody of the ORG pursuant to LAW . The ORG does not endorse the ORG ’s argument that their continued detention would have no legal basis now that they have completed their testimony before the ORG .

In the ORG ’s view , the legal instruments cited above authorise the ORG to maintain the witnesses in its custody . Those provisions shall continue to apply until such time as the ORG has ruled on the critical issue of whether the obligation under LAW to return the witnesses can be implemented without contravening the ORG ’s other obligations under LAW and without violating the three witnesses’ internationally recognised human rights . ”

ORG for the Former GPE was established by ORG / RES/CARDINAL of CARDINAL DATE . Annexed to this ORG was the Statute of that ORG , which contains the following provision :

“ The judges of ORG shall adopt rules of procedure and evidence for the conduct of the pre - trial phase of the proceedings , trials and appeals , the admission of evidence , the protection of victims and witnesses and other appropriate matters . ”

The Rules of Procedure and Evidence adopted in pursuance of that provision , in their relevant part , provide as follows :

“ ( A ) Any detained person whose personal appearance as a witness has been requested by the ORG shall be transferred temporarily to the detention unit of the ORG , conditional on his return within the period decided by the ORG .

( B ) The transfer order shall be issued by a Judge or ORG only after prior verification that the following conditions have been met :

( i ) the presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested ORG during the period the witness is required by the ORG ;

( ii ) transfer of the witness does not extend the period of his detention as foreseen by the requested ORG ;

( C ) The Registry shall transmit the order of transfer to the national authorities of the ORG on whose territory , or under whose jurisdiction or control , the witness is detained . Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar .

( D ) The Registry shall ensure the proper conduct of the transfer , including the supervision of the witness in the detention unit of the ORG ; it shall remain abreast of any changes which might occur regarding the conditions of detention provided for by the requested ORG and which may possibly affect the length of the detention of the witness in the detention unit and , as promptly as possible , shall inform the relevant Judge or ORG .

( E ) On expiration of the period decided by the ORG for the temporary transfer , the detained witness shall be remanded to the authorities of the requested ORG , unless the ORG , within that period , has transmitted an order of release of the witness , which shall take effect immediately .

( F ) If , by DATE decided by the ORG , the presence of the detained witness continues to be necessary , a Judge or ORG may extend the period on the same conditions as stated in ORG - rule ( B ) . ”

The member States of ORG ( ORG ) have entered into an agreement ( Agreement between the Parties to ORG regarding the Status of their Forces , GPE , DATE , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) – “ ORG ” ) . It regulates , among other things , criminal jurisdiction over members of their armed forces serving on each other ’s territory . Article VII of this Agreement , in its relevant parts , provides as follows .

“ CARDINAL . Subject to the provisions of this Article ,

a. the military authorities of the sending ORG shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;

b. the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .

a. The military authorities of the sending ORG shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that ORG with respect to offences , including offences relating to its security , punishable by the law of the sending ORG , but not by the law of the receiving ORG .

NORP In cases where the right to exercise jurisdiction is concurrent the following rules shall apply :

a. The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

i. NORP offences solely against the property or security of that State , or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent ;

ii . NORP offences arising out of any act or omission done in the performance of official duty .

b. In the case of any other offence the authorities of the receiving ORG shall have the primary right to exercise jurisdiction .

c. If the ORG having the primary right decides not to exercise jurisdiction , it shall notify the authorities of the other ORG as soon as practicable . The authorities of the ORG having the primary right shall give sympathetic consideration to a request from the authorities of the other ORG for a waiver of its right in cases where that other ORG considers such waiver to be of particular importance .

The foregoing provisions of this Article shall not imply any right for the military authorities of the sending ORG to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving ORG , unless they are members of the force of the sending ORG .

a. The authorities of the receiving and sending GPE shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving ORG and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions .

b. The authorities of the receiving ORG shall notify promptly the military authorities of the sending ORG of the arrest of any member of a force or civilian component or a dependent .

c. The custody of an accused member of a force or civilian component over whom the receiving ORG is to exercise jurisdiction shall , if he is in the hands of the sending ORG , remain with that ORG until he is charged by the receiving ORG .

a. The authorities of the receiving and sending GPE shall assist each other in the carrying out of all necessary investigations into offences , and in the collection and production of evidence , including the seizure and , in proper cases , the handing over of objects connected with an offence . The handing over of such objects may , however , be made subject to their return within the time specified by the authority delivering them .

a. Regularly constituted military units or formations of a force shall have the right to police any camps , establishment or other LOC which they occupy as the result of an agreement with the receiving ORG . The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such LOC .

b. Outside these LOC , such military police shall be employed only subject to arrangements with the authorities of the receiving ORG and in liaison with those authorities , and in so far as such employment is necessary to maintain discipline and order among the members of the force . ... ”

An additional agreement concluded in DATE ( Agreement among GPE Parties to ORG and the other GPE participating in the Partnership for Peace regarding the Status of their Forces , GPE , DATE ) extends the territorial application of this provision to ORG member GPE participating in the Partnership for Peace .

On DATE the government of GPE and GPE and the government of GPE , acting in pursuance of a resolution of ORG under LAW of CARDINAL DATE ) , concluded an agreement under which the GPE government undertook to host a ORG for the purpose and the duration of a trial under NORP law and procedure of CARDINAL NORP nationals accused of bombing a civilian passenger aircraft over GPE , GPE , in DATE ( Agreement between the Government of GPE and the Government of GPE and GPE concerning a NORP trial in the GPE ( with annexes ) , [ DATE ] CARDINAL United Nations Treaty Series , pp . CARDINAL et seq . ) . ORG in the GPE existed until DATE .

Article CARDINAL of the Agreement , entitled “ LAW on the Premises of the Scottish Court ” , provided as follows :

“ ( CARDINAL ) The LOC of ORG shall be under the control and authority of ORG , as provided in this Agreement .

( CARDINAL ) Except as otherwise provided in this LAW , the laws and regulations of the host country shall apply within the premises of ORG .

( CARDINAL ) NORP Scottish Court shall have the power to make regulations operative on the premises of ORG for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions . ORG shall promptly inform the competent authorities of regulations thus made in accordance with this paragraph . No law or regulation of the host country , which is inconsistent with a regulation of ORG , shall , to the extent of such inconsistency , be applicable within the LOC of ORG .

( CARDINAL ) PERSON dispute between ORG and the host country as to whether a regulation of ORG is authorised by LAW , or as to whether a law or regulation of the host country is inconsistent with any regulation of ORG authorised by LAW , shall be promptly settled by the procedure set out in LAW [ i.e. , negotiation and consultation between the Parties ] . Pending such settlement , the regulation of the ORG shall apply and the law or regulation of the host country shall be inapplicable within the premises of ORG to the extent that ORG claims it to be inconsistent with its regulation . ”

The GPE gave effect to the Agreement by means of ORG of Justiciary ( Proceedings in GPE ) ( ORG ) DATE ( DATE , no . CARDINAL ) , which , in its relevant part , provides as follows :

Witnesses

“ CARDINAL . ( CARDINAL ) Witnesses in GPE who are cited to appear for the purpose of proceedings being conducted by virtue of this Order may be cited to appear at the premises of the court .

( CARDINAL ) Any warrant for the arrest of a witness shall be authority for him to be transferred , under arrangements made in that regard by the Secretary of ORG , to the LOC of the court .

( CARDINAL ) It shall be competent for witnesses who are outwith GPE to be cited to appear before ORG of Justiciary sitting in the GPE in the same way as if the court had been sitting in GPE and , accordingly , subsection ( CARDINAL ) of section CARDINAL of ORG ( ORG ) Act DATE ( service of GPE process overseas ) shall have effect as if the reference to a court in GPE included the High Court of Justiciary sitting , by virtue of this Order , in the GPE . ”


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

On DATE the applicant 's son , born in DATE , was drafted into military service . On DATE he was killed during military operations in GPE . In DATE the applicant instituted proceedings for damages against ORG . She claimed that her son was sent to participate in military operations in breach of statutory provisions since he had only served for DATE while it was only permitted to send for military operations servicemen who had served DATE .

On DATE the ORG granted the claim and awarded the applicant damages in the amount of MONEY ( ORG ) and costs in the amount of FAC . The judgment was not appealed against and became final .

On DATE a writ of execution was issued .

On DATE the applicant sent the writ of execution to ORG of ORG .

On DATE ORG returned the writ to the applicant and advised her that it should be sent directly to ORG .

On DATE the applicant sent the writ of execution to ORG .

On DATE the applicant sent a complaint to the Minister of Finance concerning non - execution of the judgment in her favour .

In the reply of CARDINAL DATE the applicant was informed that ORG forwarded the writ of execution to ORG . However the latter did not take necessary measures in order to execute the payment under the writ .

On DATE the applicant sent a complaint to the Minister of Defence concerning non - execution of the judgment in her favour .

On DATE the sum awarded on DATE was paid to the applicant .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

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

The applicant sued PERSON and PERSON in LOC of GPE , contesting their property rights to a house in the village of NORP located in that district . PERSON brought a counter action , claiming her property rights on certain buildings and a plot of land in the same village .

On DATE the court dismissed the applicant 's claim and partially granted that of PERSON

On DATE ORG upheld the judgment on appeal . The judgment thus became binding and enforceable on that date .

Subsequently , the applicant lodged consecutive applications for supervisory review with ORG , ORG of ORG and the President of ORG of GPE . These applications were dismissed on DATE , DATE and DATE respectively .

Under LAW , binding and enforceable judgments are amenable to supervisory review by higher judicial instances at various levels . The supervisory review procedure was repeatedly amended over DATE .

The supervisory review procedure in force up to DATE is presented in the ORG 's judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL/CARDINAL , ORG CARDINALIX ) .

On DATE the new Code of Civil Procedure entered into force . The provisions governing the supervisory review procedure DATE and DATE are presented in the ORG 's previous judgments and decisions ( see LOC v. GPE , no . PERSON , DATE , and LAW v. GPE , nos . CARDINAL/CARDINAL , CARDINAL , NORP , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , PERSON and PERSON , § DATE , CARDINAL DATE ) . In particular , the new Code provided that supervisory review applications against binding and enforceable judgments could only be lodged by the parties to the proceedings and other persons whose rights and legal interests were affected by the judgments concerned . The LAW also set a DATE time - limit for lodging such applications .

In the judgment of CARDINAL DATE ( No . ORG ) ORG of GPE found that the supervisory review procedure governed by LAW gave rise to a number of issues with regard to the principle of legal certainty enshrined in the LAW , as interpreted by ORG . ORG found in particular that binding and enforceable judgments delivered by courts of general jurisdiction could be altered in supervisory review proceedings not only consecutively but also indefinitely . The court explicitly refrained from declaring these and other shortcomings of the supervisory review procedure unconstitutional , in order to avoid a procedural vacuum that would undermine the effective administration of justice . It upheld nonetheless the obligation of the legislator to reform the supervisory review procedure so as to make it compatible with the principle of legal certainty , taking account of the case - law of ORG ResDH ( CARDINAL)CARDINAL of CARDINAL DATE of ORG .

ORG also stated that the domestic remedies should not be considered exhausted within the meaning of LAW prior to the judgment delivered on supervisory review , as the latter may find a violation of any right and repeal the domestic decision at issue . ORG concluded that individuals should be able to complain to ORG upon completion of the supervisory review procedure , provided the latter is reformed so as to constitute an effective judicial remedy compatible with the constitutional requirements and the present judgment of ORG .

On DATE the Law of CARDINAL DATE ( no . CARDINAL-ФЗ ) entered into force , introducing a number of further amendments to the supervisory review procedure .

Under the new provisions , judicial decisions may be challenged in supervisory review proceedings within DATE they become legally binding . Supervisory review proceedings may be entered into by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions , and only if other available ways of appeal have been exhausted before the decision becomes legally binding ( Article CARDINAL ) . This time - limit may be waived ( restored ) only in exceptional circumstances which exclude any possibility of lodging a complaint in time ( severe illness or incapacity of the plaintiff and so on ) , if such circumstances occurred within DATE after the contested judgment became binding ( LAW ) .

There are several levels of supervisory review of legally binding judgments and decisions . First , presidia of regional courts exercise supervisory review of judgments and decisions delivered by lower courts and by regional courts themselves acting as cassation instances ( LAW CARDINAL(CARDINAL ) ) . Second , judgments and decisions are amenable to supervisory review by ORG of ORG of GPE ( LAW CARDINAL(CARDINAL ) ) . Third , decisions taken by ORG on supervisory review may be challenged before the ORG of ORG of GPE if they disrupt the uniformity of the case - law ( LAW ) .

Moreover , the President or Deputy President of ORG of GPE may initiate supervisory review of binding judgments by ORG on a limited number of grounds and upon an application by the persons concerned , lodged within DATE the judgment became binding ( Article CARDINAL ) .

A supervisory review application to a regional court is considered by the president or deputy president of this court or by a judge delegated for this purpose ( Article CARDINAL § CARDINAL ) . Applications for supervisory review which are lodged with ORG of GPE are considered by a judge of this court ( Article CARDINAL § CARDINAL ) .

An application for supervisory review is considered by any court , except ORG of GPE , within DATE if the case file has not been requested , and within DATE if the case file has been requested from the lower instance , excluding the time elapsing between the request of the case file and its receipt . For supervisory review in ORG of GPE these time - limits are DATE respectively ; the latter may be extended by DATE by the President or Deputy President of ORG ( Article CARDINAL ) . Once it has been decided to transmit a case to the relevant instance for supervisory review , it must be examined within DATE by the court and within DATE by ORG ( Article CARDINAL § CARDINAL ) .

The judge considers a supervisory review complaint on the basis of the material appended thereto and , where appropriate , on the basis of the case file requested from the lower instance ( LAW ) . The judge makes a decision to transmit the application for supervisory review by the relevant instance or to refuse to do so ( LAW ) . The President or Deputy President of ORG of GPE may overrule a decision of the judge of this court to refuse to transmit the application for supervisory review ( LAW ) . A similar power of the regional courts ' presidents in respect of supervisory review applications lodged with presidia of those courts was abolished ( former LAW ) .

The grounds for quashing or varying of binding judgments on supervisory review were limited to significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights , freedoms and lawful interests and to safeguard public interests protected by law ( LAW ) .

If the supervisory review instance decides to quash the judgment or decision in full or in part , it may take any of the following actions : send the case back to a lower court for a new consideration , discontinue the proceedings , restore CARDINAL of the lower court decisions , modify the decision or make its own decision without sending the case for new consideration ( Article CARDINAL § CARDINAL ) .

The supervisory review is carried out on the basis of the arguments contained in the application . While the court may also invoke its own arguments , the supervisory review must not extend to those parts of the judgment that were not contested in the application ( LAW CARDINAL.CARDINAL ) .

Having noted questions arising in the courts ' application of the supervisory review procedure as amended by LAW DATE , ORG of GPE clarified various points in its ruling of DATE ( No . CARDINAL ) .

ORG stated that the DATE time - limit applies to all supervisory review instances ; it is not to be renewed after every rejection of a supervisory review complaint and application to a higher instance . On the other hand , the time spent by courts in considering supervisory review complaints should not be taken into account in the calculation of this time - limit . The court reiterated the exceptional nature of circumstances allowing this time - limit to be waived ( restored ) upon application by a physical or legal person . Courts should not take account of any such circumstance occurring DATE after the judgment became binding . A decision waiving the time - limit should be duly motivated .

ORG reiterated the obligation of exhaustion of ordinary ways of appeal prior to application for supervisory review . It also stated that the court examining an application for supervisory review should not take account of any document which has not been examined by the court of first instance and , in certain cases , by the court of second instance .

ORG finally drew the courts ' attention to new limits on the grounds for supervisory review enshrined in LAW , which should be read in the light of the LAW provisions . Referring to the principle of legal certainty , it stated that courts are not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment ; a different opinion of the supervisory review instance on the way the case should have been decided is not a sufficient reason for altering the lower court 's decision .


Remainder inadmissible;Violations of Art. 8;Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in ORG .

The applicant has been serving a DATE sentence of imprisonment . At the relevant time he was detained in LOC and he had already served DATE of his sentence .

On DATE his CARDINAL DATE daughter was hit by a bus and , because of her serious injuries , was admitted to the intensive - care unit . The applicant was informed that she had fallen into a coma and her condition was very serious .

On DATE he made an application for compassionate leave to visit his dying daughter in the hospital . On DATE his mother made an application for compassionate leave on behalf of the applicant . On DATE the Penitentiary Judge of the ORG requested an opinion from LOC on the applicant ’s prospects for rehabilitation .

On CARDINAL DATE the Penitentiary Judge received a negative opinion about the applicant . It stated in particular that the applicant was active in the prison subculture , was rude towards the prison officers , had been convicted of a serious crime ( incitement to murder ) and had a long prison sentence to serve .

On DATE the Penitentiary Judge of the ORG refused the leave request because of the poor prospects of the applicant ’s rehabilitation . The order was delivered to the applicant on CARDINAL DATE .

The applicant lodged an appeal with the Gliwice Regional Penitentiary Court on DATE .

On DATE the applicant ’s daughter died .

On DATE the Penitentiary Judge of ORG allowed the applicant to attend his daughter ’s funeral on DATE , under police escort .

On DATE the Director of the ORG informed the applicant orally about the permission . The applicant asked to be able to wear a suit and handcuffs . He also requested that the escorting officers should wear plain clothes . He submits that his request was denied and therefore he decided not to attend the funeral , since he believed his appearance with handcuffs and chains on hands and legs and under an escort of uniformed and armed officers would create a disturbance during the ceremony . He maintains that his sister had been likewise informed by the Director of ORG that the applicant would have to wear his prison clothes and would have to have joined shackles ( hand - cuffs and fetters joined together with chains ) .

The Government submitted that the applicant must have misunderstood the Director as he clearly could have attended the funeral in plain clothes and handcuffed .

The written decision was served on the applicant on DATE , after the funeral had already taken place . The decision only specified that the applicant was allowed to attend his daughter ’s funeral under escort . It did not mention whether he would have to wear joined shackles or whether he could wear plain clothes .

On DATE the ORG upheld the decision of DATE repeating the reasoning given by the Penitentiary Judge .

The applicant further states that earlier in DATE his request for compassionate leave to attend his father ’s funeral had been refused .

Article LAW § CARDINAL of LAW Sentences reads as follows :

“ In cases which are especially important for a convicted person , he or she may be granted permission to leave prison for a period not exceeding DATE , if necessary under the escort of prison officers or other responsible persons ( osoby godnej zaufania ) . ”

Section CARDINAL of the Rules for Execution of Imprisonment ( PERSON wykonywania kary pozbawienia wolnosci ) provides that when on leave from prison , the convict shall wear his own clothes .

Section CARDINAL § CARDINAL of GPE ( LOC o służbie więziennej ) of DATE ( as applicable at the material time ) lists various coercive measures that can be used by prison guards including joined shackles ( “ prowadnice ” ) .


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

On DATE ORG convicted the applicant of CARDINAL counts of fraudulent breach of trust ( PERSON ) and sentenced him to a cumulative sentence of CARDINAL years’ imprisonment suspended on probation and a fine of CARDINAL ORG ) . It found that the applicant , as a liquidator employed by the GPE agency ( Treuhandanstalt ) , had embezzled a total of CARDINAL PERSON belonging to the various firms he had liquidated or to the GPE agency itself . In particular , he had received money for a stock corporation he was liquidating and , contrary to a decision made by its shareholders to pay part of the sum to ORG , had transferred CARDINAL ORG to another company to conceal damage he had previously caused . The applicant had decided to embezzle money as the GPE agency had failed to pay him the supplementary commissions he had claimed under his contracts with it . In fixing the sentence of DATE imprisonment for the most serious count of fraudulent breach of trust ( compare ‘ Relevant domestic law’ below ) , the court considered as an aggravating factor the extraordinarily high amount of damage caused , amounting to CARDINAL PERSON .

On DATE ORG , allowing the appeal on points of law lodged by ORG solely against the fixing of the sentence , quashed ORG judgment in this respect and remitted the case to a different chamber of ORG . It left open whether , having regard to the amount of damage caused , the very mild sentence imposed could still be considered as an appropriate sanction . In any event , ORG had , inter alia , unlawfully taken into consideration grounds for granting probation when fixing the sentence itself .

On DATE ORG sentenced the applicant to a cumulative sentence of DATE and CARDINAL months’ imprisonment – a sentence which could not be suspended on probation ( see ‘ Relevant domestic law’ below ) – for CARDINAL counts of fraudulent breach of trust . It had previously discontinued the proceedings in respect of CARDINAL counts of fraudulent breach of trust in view of the sentence the applicant had to expect for the remaining counts he had been found guilty of .

In fixing the sentence of DATE and CARDINAL months’ imprisonment for the most serious count of fraudulent breach of trust ( compare ‘ Relevant domestic law’ below ) , ORG considered in mitigation that the applicant had confessed to the offences and regretted them , that he had no previous convictions and that he made serious efforts to redress the damage caused . Moreover , the proceedings had been lengthy and he might be prohibited from further exercising his profession as a tax consultant . Furthermore , following recent developments in the case - law , the applicant might be able to enforce the payment of supplementary commissions he had claimed from his former employer .

As aggravating circumstances ORG took into consideration that the applicant had caused very serious damage amounting to ORG PERSON and that he had flagrantly breached his duty as a tax consultant to keep accounts for assets not belonging to him separated from his own accounts . By withdrawing and transferring money on his own motion to settle his claims against his employer at that time instead of enforcing them in court , the applicant had negligently handled the assets of others in breach of his duties and had recklessly pursued his own profit . Moreover , the court considered as an aggravating factor that the applicant had embezzled money which belonged to , inter alia , ORG , whereby , against the background of NORP history , he had touched upon a very sensitive issue .

ORG noted that , compared to other cases in which a similarly grave damage had been caused , the cumulative sentence imposed was comparatively low , which was mainly owing to the fact that the applicant could now most probably enforce his claim for supplementary commissions before the civil courts .

On DATE the applicant lodged an appeal on points of law . He complained that ORG had considered as an aggravating factor that his offence had affected assets belonging to ORG . This was not an element which could lawfully be taken into account in determining his penalty .

In his submissions dated DATE , ORG argued that ORG , in referring to the fact that the applicant had embezzled money which should have been transferred to ORG , took account of the way in which the applicant had committed his offence and its background , which were permissible criteria for fixing a sentence under LAW ( see ‘ Relevant domestic law’ below ) .

On DATE ORG , without giving reasons , dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE the applicant lodged a constitutional complaint with ORG . Setting out the course of the proceedings before the criminal courts and the reasons given for their decisions , he complained that his sentence had been fixed at DATE and CARDINAL months’ imprisonment by reference to the fact that he had embezzled assets belonging to ORG . He had to serve this sentence as , contrary to his initial sentence , it exceeded DATE and could therefore no longer be suspended on probation . He had been imposed an executable prison sentence contrary to the rule of law and arbitrarily . In particular , the courts had failed to verify whether he had known at the time of the offence in DATE that the NORP Claims Conference was affected by his acts . Its involvement had in fact become apparent only in DATE when the decision on the distribution of the assets belonging to the company in liquidation had been taken . In any event , it had been a share of CARDINAL per cent of the amount of money in liquidation which had been claimed by the heirs of former associates of the company in liquidation who were represented by ORG . Moreover , by taking this criterion into account the courts had treated proprietors differently on grounds of their race or religion contrary to the right to equal treatment .

On DATE ORG communicated the complaint to ORG and ORG for observations . ORG ( PERSON ) arranged for the execution of the applicant ’s prison sentence to be suspended while the proceedings were pending before ORG following that court ’s informal request to do so .

In its observations of DATE ORG recalled that according to its case - law , only foreseen or foreseeable consequences of an offence could be considered as aggravating circumstances .

On DATE ORG declined to consider the applicant ’s constitutional complaint and declared that the motion for an injunction was therefore disposed of ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

ORG found that it was not necessary to consider the applicant ’s complaint in order to enforce his rights as the violation he alleged was neither severe nor did he suffer a particularly grave disadvantage by not obtaining a decision on the merits .

The court noted that the applicant complained only that ORG , in fixing his sentence , had wrongfully considered as an aggravating factor that he had embezzled assets belonging to ORG . However , even assuming that the impugned criterion had not been taken into consideration in determining his punishment , ORG would not have imposed a different sentence . ORG , in fixing the sentence for the most severe count of fraudulent breach of trust , had not attached decisive importance to the fact that the applicant had embezzled assets belonging to ORG . It had mainly taken into account the amount of damage the applicant had caused ( DEM CARDINAL ) , the disrespect of his professional duties as a tax consultant and his reprehensible pursuit of personal profit . Having regard to the enormous damage caused by the most severe count of fraudulent breach of trust alone , the impugned criterion could not have had a decisive influence on the sentence fixed . In these circumstances , the applicant did not suffer a particularly grave disadvantage by not obtaining a decision of ORG .

Section CARDINAL of LAW lays down the principles to be observed in determining a perpetrator ’s punishment . The guilt of the perpetrator is the basis for fixing the punishment ( section CARDINAL § CARDINAL ) . In fixing the penalty , the court shall counterbalance the circumstances being in the perpetrator ’s favour and against him , in particular his motives and aims , the extent of the breach of his duties , the manner in which the offence was executed and its consequences caused by fault of the perpetrator , his past life , personal and financial circumstances and his conduct after the offence ( section CARDINAL § CARDINAL ) .

If a perpetrator committed CARDINAL offence and thus incurred CARDINAL term of imprisonment or CARDINAL fine , the court , when giving its judgment on these offences at the same time , shall fix a cumulative sentence ( section QUANTITY of LAW ) . The cumulative sentence shall be fixed by increasing the severest sentence or fine incurred ( section LAW ) .

Pursuant to section CARDINAL of LAW , the court may , under certain circumstances , suspend on probation the execution of a prison term which does not exceed DATE . The court may grant probation if it can be expected that the conviction as such will already serve the convicted person as a warning and that he will not commit any further offences in the future even without the influence exerted by the execution of the sentence . Moreover , a comprehensive evaluation of the act and personality of the convicted person must reveal the presence of special circumstances .