PYROBATYS, A.S. V RESTRUKTURALIZACII v. SLOVAKIA

Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant , PYROBATYS , a.s . v reštrukturalizácii ( “ the applicant company ” ) , is a joint - stock company established under the laws of GPE with its head office in GPE .

The applicant company was represented before the ORG by Mr Š. GPE , a lawyer practising in PERSON .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant company was established in DATE in the legal form of a limited - liability company with the name of ORG , ORG . It later changed its legal status to that of a joint - stock company under the name of ORG , a.s . It then entered the process of restructuring , which is reflected in its name , as indicated in paragraph CARDINAL above . The restructuring was concluded in DATE .

On DATE separate contracts were entered into between a joint - stock company , A. , and , respectively , the applicant company and a limited - liability company B. ( “ the contract ” ) .

Under the contract A. let property to the applicant company and B. in return for payment of rent . The property consisted of an administration building , factory LOC and garages . Leases were concluded for DATE .

On DATE ORG ( PERSON súd ) declared PERSON , which had meanwhile changed its name , insolvent and appointed a receiver .

Later in DATE B. was merged with the applicant company .

The applicant company and company ORG had the same address , which was formerly also the address of company B. It appears from a publicly available official source ( http://www.orsr.sk ) that there were also ownership and personal connections between these companies .

By a letter of DATE , acting through the intermediary of its receiver , unsuccessfully requested an amicable settlement with the applicant company in respect of an amount of money that was allegedly owed by the latter by way of outstanding rent under the contract .

On DATE , acting through its receiver , sued the applicant company before ORG súd ) for payment of rent under the contract .

The claimant sought an order for the payment of the equivalent of QUANTITY ( ORG ) and a ruling to the effect that neither party be awarded costs .

NORP Despite the claimant ’s failure to pay the court fees , ORG went on to examine the action , inter alia by seeking the applicant company ’s written observations in reply to the action and in respect of expert evidence , as well as by twice hearing the action on its merits .

To defend the action the applicant company appointed an advocate , for whose services up to DATE it paid him the equivalent of some EUR CARDINAL .

Meanwhile , on DATE , ORG had ordered that the claimant pay the court fees , amounting to the equivalent of some ORG CARDINAL .

On DATE the claimant requested an exemption from the obligation to pay the court fees on the ground that , being insolvent , it had no means to pay .

On DATE ORG refused the request of CARDINAL DATE . No copy of the decision was served on the applicant company . Despite a specific written request , to which they have responded , the respondent Government have failed to provide the ORG with a copy of this decision and of any other documents or information enabling the ORG to ascertain the decision ’s content .

The decision of DATE could have been challenged by way of an appeal on the part of the claimant , in the absence of which it became final and binding on DATE .

By way of an order that was served on the claimant on DATE , it was again asked to pay the court fees . No payment was made .

On DATE , following a hearing of the action held on DATE , ORG discontinued the proceedings and ruled that no party was entitled to have its costs reimbursed . The ruling has the procedural form of a decision ( uznesenie ) .

ORG observed that the claimant had neither been granted an exemption from the obligation to pay the court fees nor had it paid the court fees , despite having been ordered to do so . ORG held that , in such circumstances , pursuant to section CARDINAL(CARDINAL ) of LAW ( Law no . PERSON . , as amended ) , the action could not be examined .

As to the ruling on costs , ORG observed that :

- the action had not been withdrawn ,

- the situation was not such as to call for an examination of procedural responsibility for the discontinuation of the proceedings ( LAW no . PERSON . , as amended - “ the ORG ” ) and for the application of the criterion of success in the proceedings ( LAW ORG ) ,

- LAW ORG was to be applied , which allowed for moderation of the repercussions of the rules on costs ,

- the case was “ exceptional and worthy of particular consideration ” in terms of LAW ORG , in view of the circumstances in which the contract had been concluded and the fact that the validity of the contract was being examined in another set of proceedings before ORG , which had the aim of securing vacant possession of the LOC in question .

The applicant company appealed against the ruling on costs , claiming compensation in an amount equivalent to some ORG CARDINAL,CARDINAL in respect of legal representation and costs reimbursable under the applicable statutory rules , plus the costs of the appeal .

The applicant company contended that ORG findings of fact were erroneous and that its conclusions were not susceptible of review on account of lack of reasoning .

Furthermore , the applicant company submitted that its costs were the responsibility of the claimant , who had provoked them . LAW ORG could only be applied in situations which fell within the purview of CARDINAL of the remaining rules on costs , if all conditions for their application had been met , but their application would produce an intolerable outcome . In so far as ORG had referred to the other set of proceedings , in which the validity of the contract was to be examined , their subject matter was in fact not the validity of the contract but the amount of the rent set out in it .

On DATE the ORG upheld the relevant part of ORG decision . The ruling has the procedural form of a decision ( uznesenie ) , in which ORG found that :

- ORG had erred in making reference to the criterion of success in the proceedings ( LAW ORG ) ;

- the rule that would normally have had to be applied was that costs are to be borne by the party which had caused the discontinuation of the proceedings ( LAW ORG ) ;

- ORG had been right in taking account of the financial standing of both parties ;

- in view of the circumstances the question of the validity of the contract , which was being examined in another set of proceedings , could be considered a ground “ worthy of particular consideration ” ;

- by applying LAW ORG the first - instance court had rightly moderated the repercussions of the application of LAW ORG for the claimant , whose only objective was to realise and distribute fairly its estate in insolvency ;

- ORG was also of the opinion that “ the amount of the costs would not have existential consequences for [ the applicant company ] and would not jeopardise its property holdings ” .

On DATE the applicant company lodged a complaint with ORG ( Ústavný súd ) under LAW .

The complaint was directed against ORG decision of DATE , the applicant company arguing that that decision had violated its rights to a fair hearing , procedural equality and protection of property , as well as prohibition of discrimination .

NORP In particular , the applicant company contended that the amount at stake in the proceedings was rather significant from its perspective and that it had accordingly needed to acquire legal representation . It also advanced the following arguments .

ORG conclusion concerning the lack of dramatic effects of the costs ruling on the applicant company was without any foundation in fact and evidence whatsoever and , as such , plainly arbitrary .

The claim for reimbursement of costs was independent of the financial standing of the party making it . In so far as financial standing of a party was to be taken into account , it was only the standing of the party that would otherwise be liable to reimburse another party ’s costs .

As regards the claimant , at the relevant time it had been the owner of real property .

There was no statutory provision for exemption of an insolvent claimant from obligation to pay court fees and neither was there any provision exempting it from reimbursement of procedural costs it had itself provoked .

In the present case the claimant had been liberated from responsibility for the consequences of its actions and the burden of this responsibility had arbitrarily been placed on the applicant company .

In other words , the applicant company ’s property holdings had been interfered with , in that it had been denied a proprietary claim without any legal basis .

On DATE ORG declared the complaint admissible .

On DATE ORG found that there had been no violation of the applicant company ’s rights in issue .

ORG observed that the applicant company had no right to a favourable outcome of the litigation it had been a party to . The reasons given by ORG for its decision were such that any arbitrariness was ruled out . On the one hand , it had upheld the reasons given by ORG , and on the other it had reinforced those reasons by adding further reasons of its own , in particular the reasons related to the financial standing of both parties to the proceedings .

In addition , ORG observed that the decision not to exempt the claimant from the obligation to pay the court fees was not the subject matter of the present proceedings and that the relevant circumstances might have changed between that decision and the contested decision not to award the applicant company reimbursement of its costs .

In so far as the applicant company had contended that ORG had drawn conclusions concerning its financial standing without actually examining that standing , ORG reiterated that , as a matter of principle , it had no power to examine whether the ordinary courts had adequately established and assessed the facts . It emphasised , in particular , that “ [ CARDINAL fact that the applicant company disagreed with ORG view could not give rise to a conclusion that the latter was manifestly ill - founded or arbitrary , nor did it provide for a basis for ORG to substitute its own legal opinion for that of ORG . ”

NORP In accordance with its existing doctrine , ORG held that since there had been no violation of the applicable procedural rights of the applicant company , by definition there could not have been any violation of the applicant company ’s substantive proprietary rights . In those circumstances , there was no basis for the prohibition of discrimination to be applied either .

Article CARDINAL provides that :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such a decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated . ”

Under LAW , at the request of the party concerned , the party to the proceedings may be fully or partly exempt from the obligation to pay court fees where it is justified by the situation of that party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success .

A party which has been entirely successful is to be awarded costs necessary for purposeful assertion or defence of its rights against the unsuccessful party ( LAW ) . In the event of success in part , the costs are normally to be split proportionally ( LAW ) . However , even in the event of success in part , full award of costs may be granted if the party was unsuccessful in merely a negligible proportion or if the scope of the substantive claim depended on expert evidence or judicial discretion ( LAW ) .

A party which is liable for the necessity of discontinuing proceedings is obliged to reimburse the costs of such proceedings ( Article CARDINAL § CARDINAL ) .

Article CARDINAL , as in force at the relevant time , provides that :

“ If there are reasons worthy of particular consideration , the court exceptionally does not need to award reimbursement of costs or their part . ”

In a commentary on LAW , with reference to a previous yearbook of judicial decisions , the view was expressed that , when assessing “ reasons worthy of particular consideration ” , regard should be had to personal , proprietary , income and other circumstances applying to all parties to the proceedings , and also the circumstances which caused the parties to assert their rights before the court , as well as to their attitude in the proceedings ( see PERSON súdny poriadok , PERSON a kolektív , ORG , spol.s r.o . , ORG , p. CARDINAL ) .

The position described in the preceding paragraph forms part of settled case - law ( see , for example , judgment ( rozsudok ) of ORG in case file no . M Cdo CARDINAL/CARDINAL , judgment of ORG of DATE in case file no . III . ÚS CARDINAL , decision ( uznesenie ) of ORG of DATE in case file no . CARDINAL GPE CARDINAL/CARDINAL and decision of ORG of DATE in case file no . QUANTITY M Cdo CARDINAL ) .

In the decisions quoted , the courts also opined that the application of LAW must be rather exceptional and adequately reasoned . The existence of the special circumstances has to be established on the basis of the situation of all parties to the proceedings . It is necessary to take into account not only the situation of the person liable to pay the costs but also the impact of the decision refusing the reimbursement of costs on the property of the party who is entitled to reimbursement under normal circumstances .

Court fees are collected , inter alia , for individual procedural steps or for proceedings before the courts , provided that these have to be initiated by an application ( section CARDINAL(CARDINAL ) ) .

The fee payer ( poplatník ) is the person making the application for a procedural step which is subject to court fees if the tariff scale provides that the fee is payable on the making of the application ( section CARDINAL ) ) .

The duty to pay the court fees arises when the application is made , if made by the fee payer ( section CARDINAL(CARDINAL)(a ) ) . In such a case , the court fees become payable at the same time ( section CARDINAL(CARDINAL ) ) .

If the court fees payable on the making of an application have not been paid , the first - instance court is to order the fee payer to pay the fees within DATE , usually DATE . If the fees have not been paid within this period , the court is to discontinue the proceedings ( section CARDINAL(CARDINAL ) ) .


Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - award

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

The applicant , who is living in GPE , is a practising lawyer by profession .

The applicant represented a commercial manager in administrative criminal proceedings before ORG for alleged violations of ORG the FFLD ” ) . Referring to charges brought by ORG ( GPE ) concerning CARDINAL samples of turkey meat , the applicant on DATE filed observations , stating that :

“ Since the samples taken are not labelled as frozen food ( contrary to the attempt to play tricks on my client ( PERSON ) in the expert opinion underlying the criminal charge ) , they are not covered by LAW ( CARDINAL ) of the ORG . ”

On DATE ORG requested ORG to institute proceedings against the applicant , claiming that his serious and unfounded allegations had tarnished ORG reputation and were incompatible with a lawyer ’s professional duties .

Subsequently , on DATE , ORG opened disciplinary proceedings against the applicant .

On DATE he filed observations , submitting that ORG had repeatedly applied an extensive interpretation of the provisions in issue . By suggesting that the authority had attempted to play tricks on his client , he had merely sought to express his doubts as to the authority ’s legal opinion “ with a nod and a wink ” , even though there may have been sufficient grounds for instituting proceedings for abuse of authority .

By decision of CARDINAL DATE ORG ( NORP ) of ORG discontinued the proceedings . It found that , while the applicant ’s allegations may have infringed the profession ’s honour and reputation , his statements disclosed only a minor degree of culpability , as they had apparently been made in the context of a heated exchange between him and the authority concerned .

On DATE ORG prosecutor ( PERSON ) appealed . He asserted that the expression “ attempt to play tricks on my client ” , used by the applicant , insinuated that the authority had been acting fraudulently .

Subsequently , on DATE , the applicant filed observations in which he repeated his defence , namely that his remarks were not meant to be taken literally . He had resorted to innuendo , alluding to an allegedly unlawful practice on the part of ORG . He alleged in particular that the latter used its position to pursue its aims in the field of food inspection policy .

On DATE ORG ( PERSON Berufungs- und ORG ) granted the prosecutor ’s appeal . It quashed the decision of CARDINAL DATE and remitted the case to ORG .

Having held an oral hearing , at which the applicant was present , ORG on DATE convicted the applicant under LAW ( ORG ) and , relying on LAW of LAW ( GPE ) , issued a written reprimand . Moreover , it ordered the applicant to pay the costs of the proceedings .

ORG held that the applicant had used a defamatory and disparaging expression . Pursuant to LAW a lawyer , when defending the interests of his client , was entitled to address the perceived incorrectness of any official document in an appropriate manner . The applicant ’s statement had transgressed the limits of acceptable conduct . In the submissions at issue he had failed to indicate any facts or circumstances which would have justified the use of the expression “ attempt to play tricks on my client ” . The applicant would have been free to institute proceedings for abuse of authority ( PERSON ) , had there been grounds for such a suspicion . In conclusion , ORG found that the applicant had infringed the profession ’s honour and reputation .

On DATE the applicant lodged an appeal against the decision and on DATE ORG prosecutor submitted his observations in reply .

Following another oral hearing , ORG dismissed the applicant ’s appeal on DATE . It confirmed that the applicant had transgressed the limits laid down in LAW . The impugned statement had been defamatory and had disparaged the staff of ORG . Since that statement had been made in writing , it had been well - considered . Therefore , it could not be said that the applicant had acted with a minor degree of culpability .

On DATE the applicant lodged a complaint with ORG ) . He complained , inter alia , that there had been a violation of LAW , submitting that ORG charges against his client had been objectively wrong . By using the impugned expression , he had merely sought to emphasise his argument .

By decision of DATE ORG dismissed the applicant ’s complaint . It found that the interference complained of had served the aim of maintaining the authority and impartiality of the judiciary and that the disciplinary authorities had duly balanced the applicant ’s rights under the LAW against the profession ’s interest in safeguarding its standards of professional duties . Hence , they had given ample reasons why there had been no violation of the applicant ’s right to freedom of expression . The decision was served on the applicant on DATE .

Section CARDINAL of LAW ( ORG ) regulates the professional duties incumbent on lawyers . When representing a client , a lawyer is entitled to make use of any means of defence which are not contrary to his mandate , his conscience or the law .

According to section CARDINAL ( CARDINAL ) of LAW ( GPE ) , a lawyer who acts in breach of his / her professional duties or , through his / her conduct within or outside his / her professional activity , infringes the profession ’s honour or reputation , is deemed to have committed a disciplinary offence which must be dealt with by ORG .

Section CARDINAL ( CARDINAL ) of LAW , in the version applicable at the material time , provided for the following disciplinary penalties : a written reprimand , a fine of MONEY , a prohibition on practising as a lawyer for a period not exceeding one year and removal from the Bar roll .


Preliminary objection allowed (non-exhaustion of domestic remedies)

On CARDINAL DATE ORG ( PERSON ) opened criminal proceedings against the applicant under LAW ( Finanzstrafgesetz ) concerning charges of attempted smuggling , and heard him as a suspect .

On DATE ORG transmitted the information ( PERSON ) to ORG of ORG .

On DATE ORG of ORG , in summary proceedings , issued a penal order ( PERSON ) against the applicant finding him guilty of attempted smuggling in that he had , on CARDINAL DATE , when crossing the border between GPE and GPE in his car , failed to declare various goods with a total value of NORP schillings ( ORG ) CARDINAL . ORG imposed a fine of ORG CARDINAL on the applicant and , in case of default , DATE imprisonment . Further , it ordered the forfeiture of the sum of ORG CARDINAL which had been deposited as a security for the goods concerned .

On DATE the applicant filed an objection ( PERSON ) against the penal order . Thereupon , ORG of ORG , after having carried out investigations , fixed CARDINAL DATE as the date for hearing the applicant 's case and informed the applicant ’s counsel accordingly .

NORP On DATE ORG of ORG held the hearing . Neither the applicant nor his counsel appeared .

On DATE ORG of ORG , noting that the applicant had , without an excuse , failed to appear at the hearing , convicted him of attempted smuggling , imposing a fine of ORG CARDINAL , with DATE imprisonment in default . It also upheld the forfeiture of the sum which had been deposited as a security for the goods concerned .

On DATE the applicant filed an appeal with ORG ) . He submitted , in particular , that he had not declared the goods in question to the customs authorities since he had not intended to import them into GPE but only to transport them through GPE .

On DATE ORG of ORG dismissed the applicant 's appeal . This decision was served on the applicant 's counsel on DATE .

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

Article CARDINAL of LAW , so far as relevant , reads as follows :

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

Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities’ duty to decide . So far as relevant , it reads as follows :

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

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

In proceedings under LAW an application for transfer of jurisdiction to the superior authority is excluded .

The relevant provisions of LAW ( PERSON ) relating to the application against the administration ’s failure to decide read as follows :

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

“ ( CARDINAL ) On an application against the administration ’s failure to decide under LAW the relevant authority is to be ordered to give a decision within DATE and either produce to ORG a copy of the decision or state why in its opinion there has not been a breach of the duty to decide . The time - limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time - limit . If a decision is made within the prescribed time - limit , the proceedings in respect of the application against the administration ’s failure to decide shall be stayed . ”

“ ( CARDINAL ) Subject to any contrary provision of LAW , the ORG shall give a judgment in all cases .

( CARDINAL ) In respect of applications under LAW , ORG may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time - limit which must not exceed DATE . If ORG does not use that possibility or the authority in question fails to comply with the order , the ORG shall rule on the application against the administration ’s failure to decide by giving a judgment on the merits , for which it shall have full discretion in the administrative authority ’s stead . ”

According to ORG judgment of CARDINAL DATE ( published in the official text collection PERSON ) ORG can be seized with an application against the administration ’s failure to decide under LAW , taken in conjunction with section CARDINAL of LAW , also where an authority of first instance failed to give a decision within the statutory DATE time - limit , provided that no other remedy ( such as a request for a transfer of jurisdiction ) lies against the failure to decide .

According to statistical information provided by the Government , ORG dealt with a total of CARDINAL applications against the administration ’s failure to decide DATE and DATE .

In PERCENT of the cases ( CARDINAL of CARDINAL ) the proceedings resulted in the respondent authority giving a decision within DATE from the time when ORG was seized . ORG took DATE to issue the order to the respondent authority to give the decision within a DATE time - limit ( section QUANTITY of LAW ) . In these cases the proceedings before ORG were discontinued as the applicant ’s claim was satisfied ( CARDINAL of CARDINAL cases ) , or on the ground that the applicant , having achieved his aim , withdrew the action ( CARDINAL of CARDINAL cases ) .

In PERCENT of the cases ( CARDINAL of CARDINAL cases ) the respondent authority failed to comply with ORG order and ORG had itself to give a decision on the merits under section CARDINAL § CARDINAL of LAW . It did so after an average duration of the proceedings before it of DATE and DATE .

The remaining PERCENT of the cases ( CARDINAL of CARDINAL ) were rejected by ORG for lack of jurisdiction or for other grounds of inadmissibility .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE a private individual , in his capacity as representative of a commercial company , lodged a criminal complaint with the NORP authorities against the applicant . As a result , criminal proceedings were instituted against her and CARDINAL other NORP citizens for fraud which had caused particularly high damage and which had been committed by persons who commit acts of fraud as a profession .

On DATE the investigating judge summoned the applicant to appear before her and submit statements in defence . At the same time , the investigating judge invited the competent NORP ORG to provide judicial assistance according to LAW procedure . The relevant application to these authorities indicated that the proceedings were based on the above - mentioned complaint and some testimonies . Finally , the investigating judge sent a fax message to FAC of GPE , PERSON , where the applicant normally resided , whereby she summoned again the applicant to appear before her .

By a document of DATE , ORG informed the investigating judge that ORG had served on the applicant the summon to appear of DATE .

On DATE the investigating judge issued an arrest warrant against the applicant following an opinion of ORG at ORG . The arrest warrant indicated the offence committed by the applicant , the relevant facts of the case and the relevant Articles of LAW .

After the completion of the investigation proceedings , the file was transmitted to ORG who , on the basis of the file of the case , proposed to commit the applicant and CARDINAL other NORP citizens for trial before the CARDINAL - member ORG of GPE . Furthermore , ORG proposed that the arrest warrant should continue to produce its effects and that the accused be detained until the hearing , in the event that they were arrested .

On DATE the indictments chamber of ORG adopted the proposal of ORG . Its decision no.CARDINAL/CARDINAL was delivered on DATE .

NORP The applicant came to GPE on DATE and was arrested in GPE on DATE , at TIME On DATE the applicant was brought to the police station of GPE where she was kept until DATE at TIME

On DATE the applicant was transported to a police detention centre in GPE . She met her lawyer on DATE . The lawyer arranged for her to be transported to GPE women ’s prison . She claims that in PERSON prison she was kept together with “ common criminals ” . Being a vegetarian , she could not eat the food served . As a result , she started losing her hair . She was not interrogated during this period of time either .

On DATE the applicant appealed against decision no . CARDINAL of the indictments chamber of ORG . She also applied for release .

On DATE and CARDINAL DATE the applicant submitted further observations to substantiate her appeal and reiterated her application for release .

On DATE the indictments chamber of ORG adopted ORG proposal not to bring the applicant to trial . Accordingly , it discontinued the proceedings against the applicant and ordered her release . Furthermore , it held that no compensation should be granted to the applicant for her detention pending trial , because her detention was due to her own gross negligence . PERSON negligence consisted in the fact that the applicant had refused to appear before the investigating judge in order to rebut the charges and produce the relevant documents which were later submitted before the indictments chamber and which would have prevented her from being provisionally detained , if they had been submitted at an earlier stage .

The applicant was released on DATE . On DATE she was expelled from GPE .

The Code of Criminal Procedure provides as follows :

“ Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ... , if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand . ”

“ The ORG does not have any obligation to compensate a person who ... has been detained on remand if the latter , intentionally or by gross negligence , was responsible for his own detention . ”

“ Upon an application submitted orally by the person who has been acquitted , the court which heard the case shall decide on the ORG ’s obligation to pay compensation in a separate decision issued at the same time as the verdict . However , the court may also issue such a decision proprio motu ...

The decision regarding the obligation of the ORG to pay compensation can not be challenged separately ; it is , however , quashed when the decision on the principal issue of the criminal trial is reversed . ”


Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life

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

The applicant was born in DATE and lives in GPE .

The applicant lived with her family in GPE , a village in LOC . During the DATE intervention , the NORP military troops evicted the applicant and her family from their home and forced them to leave PERSON and flee to the south .

The applicant alleged that until DATE , when the properties were transferred to her children , she had been the owner of CARDINAL plots of land in GPE , CARDINAL of which had CARDINAL house each on them . CARDINAL of these houses had been the applicant ’s home . It was an ancestral house built in DATE , comprising huge , spacious rooms , CARDINAL bedrooms , a living room , a kitchen and a bathroom . It had CARDINAL levels and a huge yard . It was built of stone , had marble floors and a titled roof , and wooden doors and windows . The second house was the applicant ’s holiday home , built in DATE and situated in the locality known as GPE . It had CARDINAL spacious bedrooms and was very close to the sea ( QUANTITY ) .

In support to her claim to ownership , the applicant produced affirmations of ownership issued by ORG , stating that she was the legal and registered owner of the QUANTITY houses and of the pieces of lands registered under the plots nos . CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL/CARDINAL , CARDINAL , CARDINAL and CARDINAL .

The applicant also produced certificates of registration for CARDINAL of the CARDINAL properties at issue .

The applicant claimed that she had been prevented from returning to her home and properties because the NORP military authorities had continuously occupied and used them .

NORP On DATE the applicant made an attempt to return to her home and property in GPE and in GPE by participating in a convoy of cars of fellow refugees intending to return home . The demonstration organisers had informed the Commander of ORG ( ORG ) forces in GPE of their intentions .

The applicant and her fellow refugees stopped at the check point in the " buffer zone " , on the main road linking GPE and GPE . There , they asked the ORG officer on duty to be allowed to return to their homes , property and villages . They requested the same officer to forward their demand to the NORP military authorities . The officer replied that the latter had refused their request .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . He appealed and reconsideration took place on CARDINAL DATE whereby the previous decision was upheld . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On DATE the applicant was detained on remand on suspicion of having committed numerous offences , inter alia kidnapping and aggravated robbery .

The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty , which gave rise to a fear that the applicant would obstruct the proceedings .

His pre - trial detention was extended by decisions of DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE and DATE .

In all the above - mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order . In some the courts also referred to the complexity of the case , the need to conduct further investigations , the probability of collusion between the applicant and the co - accused and exertion of unlawful pressure on witnesses by the applicant and the fear that the applicant would go into hiding .

On many occasions the applicant requested release or that a more lenient preventive measure be applied . Each time his requests were dismissed .

The applicant appealed against the decisions extending his detention on several occasions . CARDINAL of his appeals was allowed to the effect that the period of extension of his detention was reduced by DATE ( ORG of Appeal decision of CARDINAL DATE ) .

On DATE the prosecution service filed with ORG a bill of indictment . The applicant was charged with CARDINAL offences , including aggravated robbery , kidnapping and illegal possession of a weapon .

The first hearing planned for DATE was adjourned . Subsequent hearings were held on DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . The hearing of DATE was adjourned . As a consequence of the court ’s exceeding the permissible period of the length of intervals between hearings , the proceedings had to be conducted anew .

Subsequent hearings were held on DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . The hearing of DATE was adjourned due to a lay judge ’s illness . Subsequent hearings were held on DATE , CARDINAL DATE , DATE , DATE , DATE and DATE . A hearing of DATE was adjourned due to the absence of witnesses . The next hearings took place on DATE , DATE , DATE and DATE .

On DATE the ORG convicted the applicant of CARDINAL offences , acquitted him of the remaining three and sentenced him to DATE imprisonment . The applicant and other accused appealed .

On DATE the ORG quashed the judgment and remitted the case as it found that the judges deciding on the case had not been impartial .

The hearings of CARDINAL DATE , DATE , DATE and DATE were adjourned since the applicant had so requested and since one of the accused had been absent .

A subsequent hearing was held on DATE . A hearing of DATE was postponed due to the absence of a lawyer representing CARDINAL of the accused . Hearings were held on DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE and DATE .

On DATE ORG found that the length of proceedings had been excessive in the applicant ’s case and awarded him compensation . In its reasoned grounds the court stated that as a result of the fact that the trial court had exceeded the permissible length of time between the hearings of DATE and DATE , the proceedings had to be conducted anew . It also noted that the adjournment of the hearing of CARDINAL DATE had been unjustified .

Subsequent hearings were held on DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .

In the course of the proceedings the applicant and other accused lodged numerous requests for exclusion of several judges from the case , hearing of additional witnesses , commissioning expert opinions , transfer of the case to a different court , rereading of the bill of indictment , drawing up a new bill of indictment , the appointment of a new legal - aid lawyer , correction of the record of a hearing , etc .

On DATE ORG sentenced the applicant to DATE imprisonment . The reasoned grounds for this judgment are being drawn up . The applicant expressed his intention to lodge an appeal .


Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

In DATE her parents built a holiday home without planning permission on land situated in GPE ) . According to the applicant , however , the house was built in DATE .

Following her mother ’s death , a deed of partition was drawn up on DATE between the applicant ( who , inheriting from her mother , became the remainderman of CARDINAL of the property ) and her father . That deed , which specifically mentions the existence of the building , was registered with ORG at ORG and a registration fee was paid .

The applicant ’s father died on DATE and she became the full and sole owner of the entire property . On inheriting the property , the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home . The deeds were registered with the local authorities and the applicant paid the inheritance tax . From then on , the applicant paid an DATE property tax ( précompte immobilier ) and secondresidence tax on DATE home . According to the applicant , it went without saying that her father had also paid the relevant taxes on the house .

The applicant carried out renovations on the house costing MONEY ( ORG ) and had the trees on the adjoining land felled .

In DATE the partly government - controlled NORP water - supply company carried out works to connect the house to the drainage and water - supply systems . There was no reaction from the local authorities at that time .

On DATE a report was drawn up by a police officer who noted that trees had been felled on the property in breach of LAW , paragraph CARDINAL , of the NORP forestry decree of CARDINAL DATE .

On DATE a report was drawn up by a police officer who noted that the holiday home had been erected in DATE without planning permission and that it was located in a forested area in which no such permission could be issued . The report also noted that the exterior and roof of the house had been renovated .

On DATE the applicant voluntarily reported to the police to make a statement , which was placed on record .

By a decision of DATE , the municipal council ( collège des bourgmestre et échevins ) asked the planning inspector to issue an opinion on any remedial action to be taken . By a letter of DATE , the planning inspector applied to the public prosecutor for the site to be restored to its original condition .

CARDINAL reports dated DATE and DATE mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons .

At the request of the ORG public prosecutor , the applicant was questioned in GPE on DATE by a NORP police officer . A report was drawn up on that occasion .

On DATE the public prosecutor asked the local police to confirm whether or not the building in issue still existed .

A report of DATE established that the situation had not changed .

NORP The NORP public prosecutor issued the applicant with a summons to appear in court on CARDINAL DATE , firstly , for having maintained a holiday home , erected without planning permission , DATE and DATE and , secondly , for having felled CARDINAL pine trees in breach of the above - mentioned NORP forestry decree . According to the applicant , there were CARDINAL other houses built without permission in the same forested areas , which had neither been the subject of reports establishing that an offence had been committed nor of prosecution .

On DATE ORG issued an interlocutory judgment in absentia , since the applicant had not been duly summoned .

On DATE she was once again summoned to appear before ORG .

On DATE that court acquitted the applicant of the above - mentioned charges . It held in particular that after DATE the applicant could legitimately assume , as could any reasonably prudent citizen , that maintaining the building in issue would no longer constitute an offence . The court further held that it did not have jurisdiction to deal with the planning inspector ’s application to have the land restored to its original condition . The prosecutor appealed .

By a judgment of DATE , ORG upheld the judgment in so far as the applicant was acquitted of the charge of felling the trees . However , it found her guilty of maintaining a building erected without planning permission , pursuant to LAW of CARDINAL DATE , and changed the impugned period to DATE and DATE , having regard to the date on which the applicant ’s father had died .

In her submissions the applicant had alleged a violation of the reasonable - time requirement under LAW , considering that the criminal proceedings had been conducted beyond that time - limit and that after such a long period there had been an interference with her rights of defence , in particular since it had been impossible for her to prove that the house had been built before DATE . She had also criticised the failure of the authorities to act , pointing out that her parents had paid the second - residence tax , that a notarised deed mentioning the building had been registered by the authorities , that she had paid inheritance tax on property that included the building , that extensive infrastructure works had been carried out by a partly government - controlled company with no reaction on the part of the local authorities and that for DATE no legal action had been taken . She had also alleged a violation of the principle of protection of the legitimate expectations of citizens and complained of discrimination in comparison with neighbouring property owners .

ORG found that a deed of partition drawn up in DATE and signed by the applicant established that the holiday home had been built in DATE and concurred furthermore with the findings contained in the report drawn up on DATE . ORG considered that the applicant knew or should have known that the building had been erected without planning permission . As a reasonable and prudent citizen , and even taking account of the attitude of the authorities as she had described it , the applicant could not have inferred that the situation was totally legal and that no proceedings would be brought against her . ORG found that the applicant had acted most imprudently by proceeding to renovate the LOC after the death of her father . It also found that the fact that CARDINAL other dwellings had also been erected in the same forested area without planning permission and without their owners being prosecuted did not amount to discrimination .

With regard , more particularly , to compliance with the reasonable - time requirement , ORG found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established and that the applicant had , since DATE , been liable to prosecution . Considering , firstly , that overrunning the reasonable time did not cause the proceedings to become time - barred and , secondly , that , and in particular of the fact that the applicant had no criminal record , ORG merely pronounced a finding of guilt against the applicant .

Referring to the planning inspector ’s application lodged pursuant to Articles CARDINAL et seq . of the above - mentioned decree of CARDINAL DATE , which it deemed to be reasonable , ORG ordered the applicant to restore the site to its former condition and to demolish the building within DATE of the judgment becoming final , with a fine of ORG CARDINAL per day ’s delay . It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non - compliance with the demolition order . The applicant was also ordered to pay the costs and expenses of the proceedings .

The applicant appealed on points of law .

By a judgment of DATE , ORG dismissed the appeal .

On grounds based on a violation of LAW , the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time - barred .

ORG held that exceeding a reasonable time did not cause criminal proceedings to become time - barred and that , consequently , ORG had not been bound to base its decision on that point .

The applicant also submitted that , bearing in mind that ORG had merely pronounced a finding of guilt against her , she could not be bound to restore the site to its original condition or to pay the costs of the proceedings .

ORG responded that restoration of the site to its original condition did not constitute a penalty but a civil measure , in the same way as the payment of the full costs of the proceedings at the fixed rate , and that consequently these measures were not inconsistent with a simple finding of guilt .

The court also dismissed the ground based on LAW whereby the applicant alleged that after a DATE period during which they had tolerated the situation , thus creating an apparently lawful situation , the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life .

ORG found that ORG had held , in its unfettered discretion , that the applicant had been most imprudent in maintaining the house without planning permission , that the measure sought by the planning inspector was reasonable and that , consequently , that ground of appeal was inadmissible .

The house was demolished in DATE pursuant to an enforcement order . According to an expert , the value of the house at the material time was EUR CARDINAL . The demolition costs amounted to ORG CARDINAL,CARDINAL .

The NORP town and country planning decree of CARDINAL DATE ( which came into force on DATE ) provides as follows .

The NORP Government shall determine the conditions that must be met by an application in order to be considered complete . Where the application concerns works , operations or modifications as referred to in Article CARDINAL , the contractor shall mention specifically which works , operations or modifications have been carried out , made or continued without permission and for which of these works , operations or modifications planning permission is being sought .

ORG may allow joint applications for permission to be made to the local authority under this decree and under the decree of CARDINAL DATE concerning environmental permits . ORG may determine the conditions and procedures for compiling the application file .

Anyone who

carries out , continues or maintains the operations , works or modifications defined in Articles CARDINAL and CARDINAL , either without advance permission or in contravention of that permission , or after the expiry , cancellation or lapse of the term of that permission , or where that permission has been suspended

shall be liable , on conviction , to a prison sentence of DATE and DATE and a fine of between ( EUR CARDINAL ) and ( EUR CARDINAL ) or either of these penalties .

All the provisions of LAW , including LAW and LAW , shall apply to the offences referred to in LAW .

Without prejudice to the powers of senior police officers and their assistants [ agents et officiers de police judiciaire ] , the planning inspectors , the other civil servants appointed by ORG , and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offences defined in this part and to place them on record . The reports establishing the offences described in this part shall remain valid until any evidence to the contrary is produced .

The senior police officers , their assistants and the civil servants referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary .

§ CARDINAL . NORP In addition to the penalty , and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works , operations or modifications referred to in LAW have been carried out , the court shall order that the site be restored to its original condition or that the illegal use cease and/or the execution of any construction or adaptation works and/or payment of a fine equal to the capital gain accrued on the property subsequent to the offence .

The capital gain can no longer be claimed in the following cases :

NORP in the event of repetition of an offence that has been made punishable by this decree ;

NORP in the event of failure to comply with a cessation order ;

where the offence causes unacceptable planning - related nuisance for neighbours ;

where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land - use plan .

ORG may determine other conditions and procedures in cases in which the capital gain can not be claimed .

Where the action brought by the planning inspector and that brought by the municipal council do not coincide , the action brought by the first - mentioned shall take priority .

For execution of the remedial measures , the court shall set a time - limit of a maximum of DATE and , upon expiry thereof , at the request of the planning inspector or the municipal council , a fine per DATE ’s delay in implementing the remedial measure .

§ CARDINAL . An action for remedial measures shall be lodged with the prosecutor ’s office by ordinary letter , on behalf of the NORP region or the municipal council , by the planning inspectors and officials of the municipal council .

§ CARDINAL . Where the action involves an application for construction or adaptation works and/or payment of an amount equal to the capital gain , explicit reasons must be given for that action in terms of town and country planning , compatibility with the immediate environment and the seriousness of the offence .

§ CARDINAL . NORP The application shall mention at least the relevant requirements and give a description of the situation prior to the offence . A recent extract from the planning register shall accompany the application .

ORG may establish additional conditions which must be met by the letter referred to in § CARDINAL , first sub - paragraph , and the file accompanying that letter .

§ CARDINAL . NORP The court shall determine the amount of the capital gain .

Where the offender is ordered to pay an amount equal to the capital gain , he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in DATE following the judgment .

The NORP Government shall determine the method for calculating the amount to be claimed and payment of the capital gain .

Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not coincide , the court shall determine the necessary remedial measure that it deems appropriate .

The planning inspector and the municipal council may also , before the court of first instance , sitting as a civil court , in the jurisdiction in which the works , operations or modifications referred to in LAW are wholly or partially carried out , apply for remedial measures as defined in LAW . The provisions of LAW , second sub - paragraph , § § CARDINAL , DATE and DATE and LAW shall also apply .

The offender shall immediately inform the planning inspector and the municipal council , by registered mail or by delivery against receipt , when the reparation measure imposed has been voluntarily carried out . Following a site inspection , the planning inspector shall immediately draw up a report of his findings .

The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender .

Unless there is any evidence to the contrary , the report of findings alone shall constitute evidence that the remedial measure has been performed and of the date thereof .

Where the site is not restored to its original condition , adverse use is not ceased or construction or adaptation works are not carried out within the time - limit set by the court , the decision of the court referred to in Articles CARDINAL and CARDINAL shall order that the planning inspector , the municipal council and , as the case may be , the civil party may proceed to enforce the judgment themselves .

The authority or individual enforcing the judgment or order shall be authorised to sell , transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use .

Any offender still in default shall be bound to indemnify all enforcement costs , less the proceeds from the sale of the materials and items , upon presentation of a statement , issued by the authority referred to in sub - paragraph CARDINAL , or budgeted and declared enforceable by the civil court judge dealing with attachment of property .

Article CARDINAL

Where the offence referred to in LAW does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land - use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots , and where either planning permission is subsequently obtained with a view to such works , operations and modifications , or the site is restored to its original condition and the adverse use is terminated , the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time - limit set by the planning inspector .

The planning inspector shall not propose a settlement until he has received the prior written agreement of the public prosecutor .

Payment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation . ”

By a judgment of DATE , ORG reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on LAW of CARDINAL DATE :

“ LAW , first sub - paragraph , as amended , of the decree must be read in the context of LAW , according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law ; ... According to that last provision , it is a matter for the court to assess the formal and substantive legality of the application referred to in LAW as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers ; ... More particularly , the court must ascertain whether the authority ’s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning ; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable view of proper town and country planning , the court shall not allow the application ; ... It is not a matter for the court , however , to assess the appropriateness of the measure sought ; the court must allow the remedial measure sought if it is in conformity with the law . ”

On DATE ORG held in another judgment that “ the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence ” .

Article CARDINAL of the royal decree of DATE concerning the design and implementation of draft regional plans and regional plans defines forested areas as follows :

“ Forested areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation . They may incorporate buildings that are necessary for such exploitation and for monitoring the timber , as well as hunting and fishing shelters , provided that the latter can not be used as a residence , even on a temporary basis . Reconversion into an agricultural zone shall be allowed in accordance with the provisions of LAW relating to the demarcation of agricultural and forested zones . ”

Section CARDINAL of ORG of DATE provides :

“ CARDINAL . In addition to the penalty , the court shall order , at the request of the delegated civil servant or the municipal council , but with their mutual agreement in the cases referred to in ( b ) and ( c ) ,

( a ) either restoration of the site to its original condition

( b ) DATE or landscaping or development works

( c ) NORP or payment of an amount representing the capital gain accrued on the property subsequent to the offence ;

By a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) , ORG ( PERSON ) considered that , although of a civil nature , a remedial measure is a matter of public policy and is , in certain respects , an ancillary penalty which can not be dissociated from the criminal penalty ; in fact , this measure is an extension of the criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence . The case - law of ORG conflicts with that ( judgments of CARDINAL DATE and DATE ) .

The PERSON of DATE contains the preliminary part of LAW . A new section QUANTITY , which came into force on DATE , is worded as follows :

“ If the length of the criminal proceedings should exceed a reasonable time , the judge may make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law .

If the judge makes a simple finding of guilt , the guilty party shall be ordered to pay costs and , as appropriate , to perform restitution . A special confiscation order shall be made . ”

In relation to the prosecution of town and country planning offences , the Government have produced statistics covering DATE . For the NORP region alone , these statistics establish that , on average , CARDINAL reports are drawn up DATE and that CARDINAL judgments ordering restoration were issued in DATE ( out of CARDINAL decisions ) , CARDINAL in DATE ( out of CARDINAL ) , CARDINAL in DATE ( out of CARDINAL ) , CARDINAL in DATE ( out of CARDINAL ) , CARDINAL in DATE ( out of CARDINAL ) and CARDINAL in DATE ( out of CARDINAL ) .


The applicant , Mr PERSON , is a national of ORG ( hereinafter “ the FRY ” ) born in DATE . He is currently detained in ORG in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

The facts of the case , as apparent from public information and the documents submitted by the applicant , may be summarised as follows .

The applicant was indicted , together with others , by the Prosecutor of ORG for the Former GPE ( hereinafter “ the ORG ” ) . On DATE a judge of ORG of the ORG , finding that there was a prima facie case against the indictees , confirmed the indictment and issued a warrant for their arrest . The applicant was then the President of the FRY .

In DATE the applicant was voted out of office . On DATE he relinquished the position of President of the FRY . He was subsequently arrested on charges brought under FRY domestic law .

On DATE the applicant was transferred to GPE , despite an order of ORG of the FRY suspending his surrender to the ORG pending consideration of its legality .

On DATE the applicant made an initial appearance before ORG , during which he was formally charged and invited to plead guilty or not guilty . The applicant refused to enter a plea but attempted to argue that the ORG was an unlawful institution . The presiding judge refused to hear his arguments . Noting the applicant ’s refusal to plead , ORG ex officio entered a plea of not guilty on his behalf . It also ordered his detention on remand .

On DATE the applicant lodged a preliminary motion arguing , in so far as is relevant here , that the ORG was illegal .

At a status conference on DATE , the applicant attempted to make an oral statement to the effect that the ORG lacked a legitimate basis . He was prevented from so doing by the presiding judge , who invited him to make it in writing in the form of a preliminary motion . The applicant did so .

On DATE , the applicant having refused to be represented before a tribunal which he considered illegal , ORG appointed CARDINAL practising lawyers as amici curiae to defend the applicant ’s interests . On DATE the amici curiae submitted a brief supporting the applicant ’s preliminary motions of CARDINAL and DATE .

On DATE , at a second status conference , ORG gave an oral decision rejecting the applicant ’s preliminary motions . The amici curiae made oral submissions concerning the proposed conduct of the trial . The applicant was allowed to speak uninterrupted . He alleged that ORG was biased , since she had failed to bring prosecutions in connection with the military intervention by ORG member GPE on the territory of the ORG which took place in DATE . He also complained about the conditions in which he was detained , and in particular about the lack of privacy .

ORG decision rejecting the applicant ’s preliminary motions was published in writing , with reasons , on DATE .

The indictment of CARDINAL DATE has been amended on CARDINAL occasions , and CARDINAL further indictments have been brought . The applicant has consistently refused to plead , and pleas of not guilty have been entered on his behalf .

On DATE a hearing was held before ORG of the ORG , the purpose of which was to decide whether the various indictments should be heard in separate sets of proceedings . The applicant submitted a request for his release and promised to appear for any hearings .

On DATE ORG of the ORG decided that the CARDINAL indictments should be heard in a single set of proceedings .

The applicant ’s trial opened on DATE .

It was reported on DATE that the applicant had repeated his request for release to ORG , and on DATE that it had been refused .

The applicant brought summary civil proceedings ( kort geding ) against GPE before the President of ORG ( arrondissementsrechtbank ) of GPE . He sought an order directed against the ORG for his unconditional release ; in the alternative , for him to be returned to the ORG ; in the further alternative , for the ORG to make representations to “ the so - called ORG ” ( i.e. the ORG ) and other competent international bodies and institutions for his release ; in the still further alternative , for the ORG to make representations to “ the alleged ORG ” ( again , i.e. the ORG ) and other competent international bodies and institutions for his return to the FRY . He argued , essentially , that his transfer to the ORG was illegal as a matter of the domestic law of the FRY ; that the ORG itself lacked a basis in international law , having been set up by a resolution of ORG of ORG ( to wit , resolution no . CARDINAL of DATE ) and not by a multilateral treaty ; that the ORG was the handmaiden of ORG and therefore not an independent and impartial tribunal in the sense of LAW ; that the actions of ORG and the ORG were discriminatory ; and that he was entitled to immunity as a former head of state . In view of these considerations GPE was acting unlawfully by allowing him to be detained and remain in detention on its territory ,

A public hearing was held on DATE .

The President of ORG gave judgment on DATE . He found that the ORG did in fact have sufficient legal basis ; that it offered sufficient procedural guarantees , as found by ORG in its GPE v. GPE decision ( no . CARDINAL/CARDINAL , DATE ) ; and that , GPE having lawfully transferred its jurisdiction over the ORG ’s indictees to the ORG , the courts of the GPE were not competent to consider the applicant ’s request for release .

The applicant lodged an appeal against this judgment , but withdrew it again as of DATE .

Article CARDINAL § CARDINAL of LAW ( Wetboek van Burgerlijke Rechtsvordering ) provides that all cases where a speedy and provisionally enforceable decision is required in the interests of the parties shall be heard in summary proceedings by the President of ORG , who shall set a hearing date on DATE .

Article CARDINAL provides for an appeal against the President ’s judgment to ORG ( gerechtshof ) , and for a further appeal – on points of law –to ORG ( PERSON ) .

Article ORG provides that a provisionally enforceable decision taken in summary proceedings shall not prejudge the merits of the case .