Remainder inadmissible;No violation of Art. 5-3

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

The ORG für ORG ( “ ORG , hereafter “ ORG ” ) was founded in DATE . According to its statutes , the objective of the bank was the pooling and prudent management of the financial means of the trade unions and cooperative organisations . The majority shareholder at the time was ORG ( PERSON , hereafter “ the ORG ” ( PERCENT ) ) together with the ORG cooperatives ( PERCENT ) . After the ORG went bankrupt in DATE , ORG , a NORP bank , took over their shares . From DATE on , the ORG was the only shareholder . On DATE a merger between ORG and ORG , the NORP postal savings bank , which had been privatized some time before , created the largest retail bank in GPE . Due to what became known as “ the ORG affair ” in which high losses were incurred , ORG was sold on CARDINAL DATE to a consortium led by a GPE private equity firm , ORG

NORP In DATE ORG had gone into speculative transactions in the LOC which were conducted by PERSON , son of the then director of the board of management , PERSON . When it had become public that PERSON had been entrusted with ORG CARDINAL without his father seeking the formal approval of ORG , the NORP investments had been abandoned , but such transactions had been started again by PERSON successor , PERSON , with ORG approval DATE . These investments led to a massive loss of CARDINAL , with ORG risking insolvency in DATE . It seems that the ORG was only saved by a financial guarantee given by the ORG . The losses themselves were booked into offshore accounts in the LOC and accounts at GPE futures broker ORG . ORG concluded in a report in DATE that the transactions had not been in compliance with NORP banking laws .

Details of the above - described speculative investments became public in DATE when ORG ’s former partner ORG filed for bankruptcy in GPE . Shortly before the company went bankrupt , a personal loan of ORG MONEY was given to PERSON , the Chief Executive Officer of ORG . DATE PERSON was arrested in the GPE and charged with falsifying the account books . When the extent of the exposure to the LOC investments became known at DATE , ORG Chairman , PERSON , and PERSON , President of the ORG , the majority shareholder of ORG , both resigned . In DATE PERSON successor , PERSON , resigned as well .

NORP Since FAC held PERCENT of the shares in ORG , creditors of and shareholders in ORG who had suffered losses caused by the insolvency of the futures broker claimed compensation from ORG in the amount of MONEY . On DATE ORG agreed to pay CARDINAL in order to avoid prosecution in the GPE and to settle compensation claims after having acknowledged its role in ORG ’s collapse . A financial guarantee made by GPE stabilised the bank and made it possible to continue business .

On DATE Parliament adopted the ORG - PSK Security Collateral Act ( ORG - PSK Sicherungsgesetz ) which granted ORG the possibility to take over liability in the amount of ORG CARDINAL ( Haftungsübernahme ) , as in the meantime considerable amounts had been withdrawn from giro and savings accounts at the bank . The LAW also contained the condition that the bank had to be sold to a third party .

The events involving ORG received extensive media coverage inside and outside GPE .

On DATE ORG was dissolved and elections were scheduled for DATE . On DATE the elections took place and ORG won the majority of seats in ORG ( PERSON ) . Together with ORG ( Österreichische Volkspartei ) , which became the second - biggest group in ORG , it formed a coalition government . The swearing in ceremony ( GPE ) of the new government took place on DATE . In the meantime , in its first parliamentary session on DATE ORG decided to set up ORG ( GPE ) which had the task of investigating into the efficiency of the bodies controlling and monitoring the well functioning of the capital market in GPE . In this context the events leading to the difficulties of ORG and the role of ORG ( ORG ) were CARDINAL of the principal subject matters of the enquiry of the commission . The commission did not deliver a written report , since its activities ended prematurely on DATE , but in oral conclusions given by its president to ORG , the necessity of a reform of ORG was emphasized .

In DATE preliminary enquiries ( Vorerhebungen ) were instituted against the applicant on suspicion of breach of trust and fraud in aggravating circumstances in connection with his former position as director of the board of management of ORG . Investigations were also opened against several co - suspects .

DATE and DATE the applicant was repeatedly questioned by ORG ( Bundeskriminalamt ) and ORG . The applicant , who was staying in his house in PERSON ( GPE ) , attended the interviews in GPE .

On DATE preliminary investigations ( Voruntersuchungen ) were opened against the applicant and several co - suspects .

Further questioning of the applicant was scheduled for DATE . On DATE in the morning the applicant felt ill in the bathroom of his house in PERSON and was taken by ambulance to a hospital specialising in heart diseases . Subsequently , through his lawyer , he informed ORG of these events and stated that he could not appear for questioning in GPE on DATE .

The events surrounding the difficult financial situation of ORG and the preliminary investigations against leading managers of the bank were widely covered by the NORP media . In issue no . CARDINAL of the print magazine ORG , which came out on DATE , an article reporting on the applicant was published , stating that the illness which he claimed had prevented him from appearing for further questioning in GPE , had been a simple pretext for attempting to evade court proceedings in GPE .

Meanwhile , on DATE , the Investigating Judge at ORG , who had been made aware of the imminent publication of the above - mentioned article , issued a warrant of arrest against the applicant . According to the warrant there was a serious suspicion ( dringender PERSON ) against the applicant of having committed breach of trust , fraud in aggravating circumstances and offences under section CARDINAL of LAW ( Aktiengestz ) . He was suspected of having abused his power as director of the board of management of ORG when disposing of the bank ’s assets and causing damage in the amount of ORG CARDINAL . From DATE onwards he had concluded high - risk speculative transactions with Mr PERSON , in disregard of losses accrued from previous such transactions , and had circumvented internal safeguards , deceiving the statutory organs of the bank and its employees .

The Investigating Judge stated that in DATE the applicant had deceived other members of the board of directors and members of the supervisory board ( GPE ) by concealing from them that in DATE losses of ORG CARDINAL,CARDINAL,CARDINAL had accrued . By deceiving them as to the actual financial situation of the bank he had induced them to agree to a lump sum settling of his own and his wife ’s pension claims against ORG as an employee of that company . On DATE he had received a payment of CARDINAL NORP Schillings ( ORG ) , causing a financial loss to ORG of the same amount . By employing the same means he had obtained a premium payment in the amount of ORG CARDINAL . Further , he had made ORG sell him a penthouse apartment in a prestigious building owned by the bank at a price far below the market value .

NORP Moreover , the balance sheets of ORG and its affiliated companies ( ORG ) were incorrect and dissimulated its real financial situation . There were significant omissions ; for example , the balance sheets did not report the above - mentioned losses resulting from high - risk transactions , and by using complex constructions avoided admitting the need for depreciation ( PERSON ) in the amount of ORG CARDINAL and continued to treat the losses as outstanding money .

The suspicion against the applicant was based on investigations by ORG ( ORG für ORG ) , ORG and ORG , enquiries by ORG ( ORG ) , material obtained at house searches and various statements by witnesses which had incriminated the applicant . The Investigating judge referred , inter alia , to a detailed report by ORG according to which he had initiated large - scale investments in risky speculations in breach of the relevant provisions of law . From the transcripts of meetings of the board of directors and the supervisory board it appeared that he had obtained the consent of its members by concealing the risks incurred , and providing false information as to guarantees given and other circumstances .

The Investigating Judge based the warrant of arrest on the risk of the applicant absconding under section CARDINAL § CARDINAL ( CARDINAL ) of LAW . Such a risk was considered to exist because although the applicant had attended interviews by the authorities in the past , he had not shown up for DATE . According to the accounts of his defence lawyer he suffered from a heart disease , had to stay at home and could only leave his house for medical consultations . Because of his ill health he had to cut short conversations and telephone calls frequently and would not be at the court ’s disposal for DATE . This account of the defence was , however , in striking contradiction ( eklatantem Widerspruch ) to statements by CARDINAL witnesses , who had given a different account of the applicant ’s conduct . They had stated in particular that they had seen the applicant driving his car and , at the same time , using his mobile phone . Further , the medical certificates submitted by the defence appeared rather neutral in that the doctors recommended that the applicant not leave “ the region ” . On the basis of the ORG statements and the medical certificates there was no good reason to doubt that the applicant had attempted to evade justice . Since the information on his conduct , in contrast to the alleged state of health of the applicant , would become public on DATE through the publication of an article in the print magazine News , it would also become clear to the applicant that this would cause the NORP authorities to react , thus increasing the risk of him absconding .

On the basis of that warrant of arrest the applicant was arrested by the NORP police on DATE .

On DATE ORG at the Aix - en - Provence Appeal Court ( ORG ) asked for an order remanding the applicant in custody pending extradition .

On DATE the investigation chamber ( Chambre de l’instruction ) at the Aix - en - ORG ordered the applicant ’s release on bail in the amount of EUR CARDINAL on the condition that he remain on NORP territory and hand over his passport . It further decided to grant the request for extradition in principle but considered that before handing the applicant over to the NORP authorities a further medical report should be obtained .

On DATE the investigation chamber found that there were no reasons to delay the implementation of the extradition request . The applicant appealed against that decision .

On DATE ORG ( PERSON ) dismissed the appeal .

On DATE the applicant was admitted to the cardiology department of ORG .

On DATE the applicant requested the investigation chamber to stay the implementation of the extradition order because of his bad health . According to a medical report the applicant was suffering from angina pectoris .

On DATE the investigation chamber provisionally stayed the implementation of the extradition order .

Since the applicant ’s health had deteriorated , a bypass operation was scheduled for DATE . On CARDINAL DATE , however , as a result of close co - operation between the NORP and the NORP authorities , the applicant was declared fit to travel and was immediately transported by a specially equipped airplane from the hospital in GPE to GPE , where he arrived on TIME .

After the applicant ’s arrival in GPE on DATE he was formally arrested by the NORP police on the basis of the warrant of arrest of DATE .

On DATE the competent investigating judge at ORG ordered the applicant ’s detention on remand . She noted that the applicant had not attended the interview scheduled for DATE at ORG ( Bundeskriminalamt ) and had been excused at short notice by his defence counsel , who had stated that the applicant had had a very serious heart attack , was in need of permanent medical care and not fit to travel . These claims were in contrast to the applicant ’s conduct before and during the extradition proceedings . In this connection the investigating judge referred to the same arguments relied on by ORG DATE . The investigating judge concluded that in view of these circumstances , it was necessary to keep the applicant in custody pending trial . The applicant filed a complaint against that decision .

While in detention the applicant was transferred to the cardio surgery department of ORG in GPE ( Allgemeines Krankenhaus ) where , on DATE , a triple bypass operation was carried out on him . On DATE , while still officially in detention on remand , the applicant was transferred to a rehabilitation centre .

Meanwhile , on DATE , the applicant had filed a complaint ( Beschwerde ) against the warrant of arrest . He submitted that the warrant of arrest was unlawful because there was neither a serious suspicion against him , nor a risk of him absconding ( section CARDINAL § CARDINAL ( CARDINAL ) of LAW ) . He had never gone into hiding and , with CARDINAL exception , had complied with all summonses for questioning by the NORP authorities . The CARDINAL exception , his failure to appear for questioning on DATE , had been caused by his bad health , which had been proven by medical certificates . The warrant had merely been based on the article published in News on DATE and the statements of the journalists , which were dubious . Furthermore , he was well integrated in GPE , had relatives and real estate there and his domicile in GPE .

On DATE ORG dismissed the complaint . It found that there was a serious suspicion against the applicant of having committed offences including fraud and breach of trust and referred to the results of the criminal investigations , to which the Investigating Judge had also referred in the warrant of arrest .

As regards the risk of absconding , ORG observed that the risk had to earned a high salary and received other payments before his retirement . In the course of the preliminary investigations some of the accounts held by the applicant or by foundations created by him had been frozen , but , even allowing for a particularly comfortable lifestyle , it was highly probable that the applicant still possessed financial means which would be sufficient for absconding and starting a new life elsewhere . In view of the particularly high amount of supposed damage , CARDINAL one billion euros , and the various offences the applicant was accused of , he risked a term of imprisonment of DATE in the event of conviction . This was certain to be seen as a particularly severe sanction by a person in the applicant ’s position .

Moreover , the applicant had already taken steps to evade justice in GPE . ORG referred to the failure of the applicant to appear for questioning on DATE and the description of the serious state of the applicant ’s health , which was in contradiction to the detailed statements made by the CARDINAL journalists who had written the article in the print magazine News on DATE . After his arrest by the NORP police the applicant had not been admitted to hospital because of a serious heart attack , but in order to avoid any potential damage to his health . The applicant was released shortly afterwards and only DATE had entered a private clinic . There were no medical reports which , on the basis of a detailed diagnosis , proved that treatment in a hospital was indispensable .

Taking all these elements into account , it was considered that there was a risk of the applicant absconding .

On DATE the applicant filed a “ fundamental rights complaint ” ( Grundrechtsbeschwerde ) with ORG . He submitted that the warrant of arrest issued against him had infringed his right to liberty and reiterated that there was no serious suspicion against him or a risk that he might abscond . He disputed in particular the assumptions that he had access to financial means besides the accounts which had been frozen and that his medical condition was not particularly serious .

On DATE ORG ( General - prokuratur ) filed observations on the applicant ’s fundamental rights complaint in which it asked ORG to dismiss the complaint . While the office accepted that the complaint was admissible , since the warrant of arrest had been one of the elements which had led to the applicant ’s arrest in GPE even though he had been released in the meantime , it was unfounded .

On DATE the applicant replied to ORG Office ’s submissions .

On DATE ORG dismissed the fundamental rights complaint . ORG agreed with ORG that the complaint was admissible . As regards the merits of the complaint , it observed that there was a serious suspicion against the applicant and there was also a risk that he might abscond . It was possible that the applicant had sufficient financial means at his disposal because , on the basis of the file , he had received considerable payments in the past , only a part of which were in the accounts which had been frozen . ORG agreed with ORG that there were other factors indicating a risk of the applicant absconding . ORG found that the steps taken by the doctors treating the applicant in GPE had been intended as preventive measures ( vorbeugende PERSON ) . The reference to the statement of the journalists had merely been a supplementary indication , but not a decisive element . It was therefore not relevant that on DATE their statements had been shown to be untrue . Since ORG had to examine the impugned decision on the basis of the elements known to ORG on DATE , those developments and others , such as medical reports obtained after that date , could not be taken into account . ORG had correctly applied the relevant provisions because a risk of absconding was also considered to exist when a suspect whose place of residence was known had tried to evade justice by deliberately delaying extradition to GPE .

On DATE , while extradition proceedings were pending against him in GPE , the applicant filed a request for the lifting of the warrant of arrest with ORG .

On DATE ORG dismissed this request . It observed , inter alia , that a risk of the applicant absconding existed as he had not turned up for questioning in GPE on DATE and had argued that a severe illness had prevented him from attending , while witnesses had observed him in situations in GPE which were not compatible with his alleged serious state of health . This being so , there was no doubt that the applicant had tried to evade justice in GPE .

On DATE the applicant filed a complaint against ORG decision of DATE . He argued in particular that the statements of the witnesses who had allegedly seen him driving a car were untrue and that his state of health was serious , a fact which had been confirmed by recent examinations by specialists .

On DATE ORG dismissed the applicant ’s complaint of CARDINAL DATE and referred at length to a previous decision of DATE ( see paragraph CARDINAL above ) . It added that the risk of absconding had actually increased in the meantime , because on DATE ORG had filed a bill of indictment against the applicant and , on the basis of this indictment , he risked a lengthy term of imprisonment . The fact that he was at present staying in another member state of ORG did not remove the risk of him absconding , since the fact that he was outside the jurisdiction of the NORP authorities rendered in any event his prosecution by the NORP authorities more difficult .

On DATE the applicant filed a fundamental rights complaint against ORG decision of DATE . He stressed that there was no risk of him absconding because the seriousness of his medical condition had meanwhile been confirmed by several specialists who had examined him in GPE . These reports had led ORG at the Aix - en - ORG to ask that court to suspend the applicant ’s extradition . These facts were , however , disregarded by ORG .

On DATE ORG dismissed the applicant ’s fundamental rights complaint against ORG decision of DATE . ORG found that the applicant had essentially repeated the arguments he had made in his previous fundamental rights complaint of DATE , which had been answered by the court in its decision of DATE . In addition , ORG found that ORG had sufficiently dealt with the medical reports submitted in the extradition proceedings . The mere fact that the applicant had derived different conclusions from them did not render the assessment by ORG arbitrary .

DATE . On DATE the applicant filed another request for the warrant of arrest issued against him to be lifted . He maintained that no serious suspicion of his having committed a criminal offence existed and that there was no risk of him absconding . Because of his serious medical condition , which had been sufficiently clarified by various medical reports , such a risk had to be excluded . Moreover , as long as he had been fit to do so he had voluntarily cooperated with the NORP judicial authorities .

On DATE ORG dismissed the request . ORG observed that the bill of indictment against the applicant had been drawn up in the meantime , on DATE , and the suspicion against him had therefore grown . As regards the risk of absconding , it referred to statements by witnesses who had seen the applicant after he had refused to attend an interview in GPE on DATE , and who had seen him behaving in a way which did not correspond to his allegedly serious medical condition . In addition , the medical reports showed that the applicant was suffering from a heart condition but not to an extent which would make absconding impossible .

On DATE the applicant appealed against ORG decision of DATE .

On DATE ORG dismissed the applicant ’s appeal , quoting at length its previous decisions of DATE ( see paragraph CARDINAL above ) and DATE ( see paragraph CARDINAL above ) .

On DATE the applicant filed a fundamental rights complaint against ORG decision of CARDINAL DATE .

On DATE ORG rejected the applicant ’s fundamental rights complaint as inadmissible . It found that under the relevant act it was an essential condition for filing a fundamental rights complaint that detention of the person lodging the complaint had actually been ordered by a criminal court . No complaint could be raised by a person already released . In the present case the applicant had already been released by the NORP courts at the time the court of second instance gave its decision and since the warrant of arrest was no longer being enforced by detention , he could not file a fundamental rights complaint .

On DATE the applicant requested again ORG to lift the warrant of arrest issued against him on DATE . He submitted that on DATE ORG at the Aix - en - ORG had applied to ORG to have the applicant ’s extradition postponed because he was not fit to travel . On DATE the investigation chamber at ORG granted ORG request and decided to stay the enforcement of the extradition order . In such circumstances the warrant of arrest was no longer justified .

On DATE ORG dismissed the applicant ’s request for release of DATE as it was not persuaded by the applicant ’s argument that he was not fit to travel because he suffered from a serious heart condition . It found that shortly after a supposed heart attack , on CARDINAL DATE , the applicant had returned to his house instead of staying at the hospital . On DATE he had been capable of returning to his house from a clinic in GPE and , according to a statement by witness ORG , taken on DATE , the latter had seen the applicant driving his car on DATE . Moreover the transfer of the applicant to a cardiology department at a hospital following his arrest in GPE had only been ordered as a preventive measure . Also , the medical reports obtained by the NORP courts only referred to coronary insufficiency and occasional cardiac disrhytmia but denied that there had been a myocardial infarct or that there was a risk of ischaemia . According to these reports the pain the applicant complained of probably had other , possibly psychological , causes , and his transport from GPE to GPE would be compatible with his state of health . These findings were not affected by statements by medical surgeons appointed by the applicant as these were also in contradiction to the findings of the official court - appointed expert . Moreover , in its decision of QUANTITY DATE the Aix - en - Provence Appeal Court , when ordering release on bail , had not denied that there was a risk of the applicant absconding . The decision of the Aix - en - Provence Appeal Court of DATE to postpone the applicant ’s extradition could not be interpreted as a finding that the applicant was not fit to travel , but merely meant that for medical reasons the enforcement of the extradition order was postponed . The conclusion drawn by the applicant that since he was not fit to travel he could not abscond was not logical , as there was a difference between the authorities taking responsibility for and running the risk associated with his transport and he himself taking a possible medical risk in his own interest .

On DATE the applicant appealed against this decision to ORG .

On DATE the applicant requested release from detention . He submitted that the medical reports obtained hitherto showed the seriousness of his heart condition and that the reports of CARDINAL journalists , who had alleged in an article to have seen him driving a car , were untrue .

On DATE ORG dismissed the request for release . It found that the risk of the applicant absconding persisted and endorsed the reasons given by the investigating judge . It added that the applicant had used his precarious state of health as a means to evade justice in GPE . According to a report by medical expert ORG of CARDINAL DATE , the applicant suffered from coronary heart disease , angina pectoris and hypertension and normocardial atrial fibrillation . The treatment prescribed was medicamentous and in addition a quick and as complete as possible regeneration of his blood flow was recommended . That report concluded that at the time of his transport to GPE , the applicant had been fit to travel and be questioned .

On DATE a triple bypass heart operation was carried out on the applicant .

On DATE the applicant filed a complaint against ORG decision of CARDINAL DATE . He submitted that from the medical reports in the file it must have been clear that his heart condition had been serious from the outset . In his report of CARDINAL DATE doctor ORG had confirmed that his arterial constriction of PERCENT had made a bypass operation indispensable . In view of this medical data , the argument that there was a risk of him absconding had to be discounted .

On DATE ORG dismissed the applicant ’s complaints of CARDINAL DATE ( against ORG decision of CARDINAL DATE ) , DATE ( against ORG decision of CARDINAL DATE ) and of DATE ( against ORG decision of CARDINAL DATE on ordering detention on remand ) . ORG also decided that the applicant ’s detention could be extended until DATE . In the same decision ORG dismissed objections by the applicant and some of his co - accused against the bill of indictment .

As regards the applicant ’s complaint against ORG decision of CARDINAL DATE on his detention on remand , ORG found that the reasons provided in support of the finding that there was a risk of the applicant absconding , as set out in its previous decisions of DATE and CARDINAL DATE , were still valid . There were reasons to assume that the applicant had substantial financial means besides the funds in his frozen accounts and he had made steps to evade justice in GPE , as was clear from his previous conduct . On DATE of court hearings in GPE he had regularly entered the hospital but always left soon after , which showed that his real intention had been to hinder his extradition to GPE . This was also confirmed by the medical report of doctor ORG , according to which the applicant ’s state of health had been stable , notwithstanding the necessity of a bypass operation , and that he had been fit to travel and that he could have attended court hearings . Moreover the court noted that the applicant ’s transport to GPE by airplane had gone smoothly and that it had not been necessary to use the medical equipment on board . Those considerations , together with those already mentioned in the previous decisions , and the fact that the bill of indictment against the applicant had meanwhile become final , confirmed that a risk of him absconding existed . It was true that , on DATE , a bypass operation on the applicant had been carried out and that as a result his mobility had been reduced , but only for the very short period of DATE .

On DATE the applicant filed a fundamental rights complaint ( Grundrechtsbeschwerde)against ORG decision .

On CARDINAL DATE ORG dismissed the fundamental rights complaint against ORG decision of CARDINAL DATE . ORG observed first that its task in reviewing a decision on the existence of a risk of absconding consisted essentially in examining whether the existence of such a risk could , in an non - arbitrary manner , be deduced from the facts on which the decision was based . ORG decision could not be considered irrational or arbitrary . That court had based its decision on CARDINAL essential facts , namely , that the applicant risked a particularly high sentence if convicted , that not all of his financial means were in his frozen accounts and that he had known links abroad . These elements themselves indicated a particularly high risk of his absconding . The fact that the applicant had actually taken concrete steps to evade justice in GPE by pretending that he was not fit to travel although this had not been true , at least for a certain period , were only additional considerations which had been confirmed by the statements of doctor ORG , a court - appointed expert . A risk of absconding existed if a suspect , by whatever means , attempted to hinder criminal proceedings in GPE or to delay them . The question of whether events which occurred after the impugned decision had been taken might require the report of the expert doctor ORG to be supplemented could be left open , because they only concerned one element among those which had already provided a sound basis for the decision .

From DATE until DATE the applicant , while officially in detention on remand , stayed at the GPE rehabilitation centre . On DATE he was moved to GPE prison .

On DATE the applicant filed a new request for release from detention . He submitted that all the experts who had examined him in GPE and later in GPE DATE with the exception of DATE had agreed that his heart condition was serious and that a coronary bypass operation was indispensable . That opinion had been shared by the director of the hospital in the GPE detention centre who had ordered the transfer of the applicant to a public hospital for urgent medical treatment . At that hospital he had undergone an urgent triple bypass operation on DATE . Since it had now been objectively proven that the applicant had never pretended to be ill but had , from the very beginning , suffered from a serious heart disease , there was no longer any basis for the presumption that he might abscond and thus detaining him .

DATE . On DATE ORG refused to release the applicant and in the same decision ordered that his detention continue until DATE . As regards the existence of a serious suspicion against him , the court referred to the charges against the applicant as described in detail in the bill of indictment of DATE , which had meanwhile become final . It also referred to the contents of ORG decision of DATE on the applicant ’s detention . As regards the heart disease which , in the applicant ’s view , would prevent him from fleeing , ORG referred to the report by the court appointed medical expert doctor ORG , according to which a risk of the applicant absconding could not be excluded by his state of health . ORG was still persuaded that the applicant had used his heart disease , which undoubtedly existed , as a pretext in order to avoid standing trial in GPE . ORG also found that other factors , which had already been discussed in detail in the court ’s previous decisions , confirmed the existence of a risk of the applicant absconding .

On DATE the applicant lodged an appeal against ORG decision of CARDINAL DATE with ORG .

On DATE ORG dismissed the applicant ’s appeal . In the same decision it extended his detention until DATE . As to the existence of a serious suspicion against him and the reasons for finding that there was a risk of him absconding , ORG referred to its previous decisions on appeals brought by the applicant and quoted extensively from them .

On DATE the applicant filed a fundamental rights complaint with ORG against ORG decision of DATE .

On DATE ORG dismissed the fundamental rights complaint . Referring to the findings in its CARDINAL previous decisions on complaints by the applicant , ORG found that ORG had based its decision on facts which it had argued logically and coherently and from which it could deduct without any arbitrariness the existence of a risk of the applicant absconding . This decision was served on the applicant ’s lawyer on DATE .

On DATE the applicant filed a further request for release with ORG , submitting that there were no specific reasons which would justify detention on remand and that he should be released on bail . Further medical certificates dated CARDINAL DATE and DATE , which he had obtained in the meantime , showed that he had not been fit for questioning on DATE or since that date . Accordingly , his detention on remand was not justified .

On DATE ORG held a hearing on review of the applicant ’s detention on remand ( GPE ) . It decided that the applicant ’s detention should continue and that the decision would be valid until DATE . As regards the existence of a serious suspicion against him and the risk of him absconding , ORG referred to the detailed findings in the decision of ORG of CARDINAL DATE and DATE . The court still based its findings regarding the applicant ’s state of health on the report of the court - appointed expert doctor ORG , who had concluded that the applicant had been fit to travel at the time of his extradition .

On DATE the applicant filed an appeal against ORG decision of DATE .

DATE . On DATE ORG dismissed the applicant ’s appeal and extended the validity of the detention order until DATE . It found that , as explained in detail in its previous decisions , a serious suspicion of the applicant having committed criminal offences existed . Further , it confirmed that there was a risk of him absconding . As regards the applicant ’s argument that he had no further means besides the funds in his frozen accounts , it noted that a further investment hitherto unknown had meanwhile been discovered , which cast doubt on the veracity of that contention . Taking all those circumstances into account , ORG considered that the real reason the applicant had delayed his extradition to GPE was not anxiousness about his health , but an attempt to evade justice in GPE .

On DATE the applicant filed a fundamental rights complaint against ORG decision of CARDINAL DATE . He submitted that before his arrest in GPE he had not made any attempt to abscond . His serious heart condition DATE and in view of his bypass operation there could no longer be any doubt that his heart disease was not serious and genuine – had been the only reason he had not attended an interview with the NORP authorities on DATE . As he had always considered the warrant of arrest issued against him unlawful , the fact that he had used all means provided for by NORP and NORP law in order to oppose its enforcement could not be held against him . ORG had based its findings concerning a risk of him absconding on mere assumptions and , in doing so , had disregarded all the medical facts which had been attested by the various heart specialists who had examined him . Also , the statements of the CARDINAL journalists , which had initially led to the warrant of arrest being issued against him , had been untrue . On DATE ORG had found so in proceedings instituted by him under LAW and had granted him ORG CARDINAL in compensation .

On DATE ORG dismissed the applicant ’s fundamental rights complaint against ORG decision of CARDINAL DATE . ORG found that ORG had based its conclusion that a risk of absconding existed on a set of facts which it had established in a logical and coherent manner . The facts relied on by ORG were that the applicant had sufficient means to abscond at his disposal , that the bill of indictment had meanwhile become final and the trial was about to start soon , that the applicant risked a very heavy sentence of imprisonment if convicted and that he had solid links abroad . The arguments raised by the applicant in his fundamental rights complaint had been taken into account by ORG but , had correctly not been considered decisive . In ORG view there had been no breach of the applicant ’s right to liberty .

The trial against the applicant started on DATE . On DATE the applicant filed a request for release from detention with the trial court . He maintained that no serious suspicion of his having committed a criminal offence existed and that there was no risk of him absconding . Because of his serious medical condition , which had been sufficiently clarified by various medical reports , such a risk had to be excluded . Moreover , on CARDINAL DATE ORG had granted the applicant ’s action against PERSON , finding that an article published in the issue no . DATE of the periodical News reporting on the applicant ’s state of health before his arrest in GPE and claiming in essence that the applicant had not been ill was untrue . This article had been used as a basis for his arrest and the assumption that there was a risk of him absconding . The applicant claimed that since those allegations had been proven incorrect , he should be released .

On DATE the trial court dismissed his request orally and a written version of the decision was served on the applicant ’s lawyer on DATE . As to the suspicion against him and the risk of him absconding , the court referred to the previous decisions of ORG of DATE , DATE and DATE . The only new argument was the reference to ORG judgment of CARDINAL DATE . However , the article in question had not been the basis for ORG decisions ordering the continuation of his detention on remand .

On DATE the applicant appealed against ORG decision of DATE .

On DATE ORG dismissed the applicant ’s appeal , quoting at length its previous decisions .

On DATE the applicant filed a fundamental rights complaint against ORG decision of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s fundamental rights complaint . That decision was served on the applicant ’s lawyer on DATE . As to the existence of a serious suspicion against the applicant , ORG referred to the bill of indictment of DATE . In his up to now CARDINAL fundamental rights complaints the applicant had contested the existence of a risk of his absconding and ORG had answered these arguments . ORG found that the applicant had verbally repeated his previous submissions in his present request and in reply referred him to its previous decisions . ORG found further that ORG had based its conclusion that a risk of his absconding existed on a set of facts which it had established in a logical and coherent manner . The facts relied on by ORG were that the applicant had sufficient means to abscond at his disposal , that the bill of indictment had meanwhile become final and the trial had started , that he risked a very heavy sentence of imprisonment in the event of conviction and that he had solid links abroad . It was irrelevant that a publishing company had meanwhile been ordered to pay compensation to the applicant under the media act because ORG had not considered the article as relevant for its decision on his detention .

On DATE the applicant filed a further request for release from detention with the trial court . He submitted , inter alia , that by suspending the trial in the period between CARDINAL DATE and DATE the trial court had failed to comply with its obligation to conduct the proceedings speedily .

On DATE the trial court dismissed his request orally and a written version of the decision was served on the applicant ’s lawyer on DATE . It found that the existence of a serious suspicion against the applicant was based on the bill of indictment of DATE and the confessions made by his co - accused at the trial . As to the existence of a risk of absconding it referred in general to previous decisions of ORG of DATE , DATE , CARDINAL DATE and DATE . Insofar the applicant argued that his detention had become disproportionate because the proceedings were not being conducted speedily , the trial court observed that the proceedings were particularly complex . It argued that the suspension of the trial between CARDINAL DATE and DATE had been necessary because the transcripts of the hearing had had to be typed , corrected and served on the defence counsels , a newly appointed expert had had to be given time to prepare his expert report and the applicant himself had been absent in DATE for a surgical operation

On DATE the applicant filed a complaint against ORG decision of DATE .

On DATE ORG dismissed the applicant ’s appeal , quoting at length its previous decisions . Referring to its previous decisions on the matter it found that there was a serious suspicion against the applicant and a risk that he might abscond . It also considered that the length of the applicant ’s detention had not been disproportionate . It was true that proceedings against a detained person must be conducted with particular diligence but the extent and complexity of the proceedings also had to be considered . As regards the suspension of the hearing from CARDINAL DATE to DATE , ORG observed that during this period the first - instance court had not been inactive , as could be seen from the explanations it had given .

On DATE ORG dismissed the applicant ’s fundamental rights complaint . That decision was served on the applicant ’s lawyer on DATE . Insofar the complaint concerned ORG findings on the existence of a risk of his absconding and its refusal to apply more lenient measures than detention , ORG rejected the complaint as inadmissible because the applicant had failed to substantiate his arguments in the proceedings before ORG . Insofar as the applicant complained that the trial court had not complied with its obligation to conduct proceedings speedily , in particular by suspending the trial , ORG found that the reasons given by ORG on this point were reasonable and coherent and it did not appear that the trial court had failed to take appropriate measures for keeping the period of detention to the necessary minimum . Accordingly the applicant ’s detention had not been disproportionate .

On DATE the public prosecutor filed the bill of indictment against the applicant and the co - accused . The applicant and some of the co - accused filed objections which , on DATE , were dismissed by ORG .

On DATE the trial started and CARDINAL court hearings took place DATE .

On DATE the applicant was convicted of fraud on CARDINAL of the counts which had been separated from the main proceedings and sentenced to CARDINAL ears of imprisonment .

On DATE ORG convicted all the accused of breach of trust , fraud and falsification of balance sheets ( ORG ) . It sentenced the applicant to DATE of imprisonment and the other accused to terms of imprisonment of CARDINAL . The written version of the judgment was served on the applicant ’s counsel on DATE .

The applicant and several of the co - accused filed pleas of nullity and appeals with ORG on DATE . On DATE ORG decided on these remedies . As regards the applicant ORG upheld his conviction of breach of trust but acquitted him of the other charges and reduced the sentence to DATE of imprisonment .

On DATE the applicant filed a complaint of exercise of direct administrative authority and coercion with ORG against ORG , ORG , ORG and ORG . The applicant claimed that his rights under LAW and CARDINAL of the LAW had been infringed by the repeated passing on of strictly confidential information , protected by the obligation of official secrecy , from the case file of ORG to the print media . He submitted that since DATE documents from the criminal proceedings against him had been leaked to the press , in particular ORG magazine . On DATE the magazine even published the whole bill of indictment as a supplement to its issue no . DATE . The leaking of documents and other information from a confidential file qualified as a breach of official secrecy ( Verletzung des Amtsgeheimnisses ) , a criminal offence under LAW . The unlawful passing on of information to the media , in particular since only documents which were unfavourable to the applicant were leaked and exonerating material was not , was leading to a “ trial by newspaper ” , a situation which was in conflict with the principle of presumption of innocence guaranteed by LAW and in breach of his right to a fair trial under LAW . These unlawful acts , which were attributable to the organs of the judiciary , had to be qualified as the exercise of direct administrative authority and coercion , as otherwise he would be left without protection against them .

On DATE ORG rejected the complaint as inadmissible as it did not consider itself competent to deal with it . It found that the acts complained of , namely , leaking of information to the media from the confidential case file on the criminal investigations against the applicant , fell into the sphere of the judiciary and not the exercise of power by the administration . Acts of the judiciary were not subject to review by ORG .

As regards the applicant ’s argument that ORG must have been competent because otherwise there would have been a gap in the system of judicial protection in GPE , the ORG found that it was in the nature of things that compliance with LAW in criminal proceedings could only be examined by a higher court ex post after the end of a trial . Moreover , the applicant was not left without protection against a breach of his right to the presumption of innocence by the media , as he could bring an action under civil law and use other remedies provided for in LAW . Lastly , breaches of the obligation to official secrecy could be the object of an official liability action against the state .

On DATE the applicant filed a complaint with ORG against ORG decision .

On DATE ORG dismissed the complaint . It observed that an independent administrative panel could only examine complaints directed against acts qualifying as the exercise of direct administrative authority and coercion . Such acts typically involved an administrative organ either exercising physical coercion against an individual or issuing an order to the individual concerned . The passing on of information was , however , neither the exercise of physical coercion nor the issuing of an order and could not thus be the object of a complaint to an independent administrative panel . This did not mean , as the applicant claimed , that he was left without any possibility to defend his rights . In connection with the alleged breach of his right to a fair trial and the principle of presumption of innocence under LAW through unlawful dissemination of confidential information from his case file , he could have resorted to other means of judicial protection provided for by criminal law or the law on data protection .

NORP The applicant did not apply to ORG as in his complaint he had only raised issues of constitutional law .

On DATE ORG granted an action by the applicant against PERSON GmbH. The ORG found that an article published in issue no . DATE of the periodical News which contained statements to the effect that News had tracked down the former ORG boss , who was allegedly in ill health , in the south of GPE where he had appeared surprisingly fit . Despite having been observed rushing in his excessively expensive ORG car from CARDINAL business meeting to another , and making calls from his mobile phone while speeding , he had refused to appear at a court hearing in GPE because of health problems . The statements , which had conveyed the impression that the applicant had not been ill and that his heart condition had merely been a pretext for avoiding the hearing , were found to have constituted defamation ( üble GPE ) . It ordered the publication of the judgment in the periodical News and ordered News to pay compensation in the amount of ORG CARDINAL,CARDINAL to the applicant .

ORG noted that the applicant ’s health problems had not merely been a pretext but had really existed and been confirmed by various medical specialists who had examined the applicant . The journalist who had written the article had admitted during questioning by the police on DATE , DATE after the publication of the article , that he had meanwhile realised that he and his colleague had not followed and photographed the applicant in GPE , but that a different person living in the vicinity of the applicant had done so . Since the published article accused the applicant of disreputable conduct and the article was , objectively speaking , untrue , the applicant was therefore entitled to compensation .

There was wide media coverage of the events concerning the financial difficulties of ORG and the implication of the applicant and other former key managers of the bank in the events . Later on the development of the criminal investigations were discussed in numerous articles in the press . Particular attention to the case was given by the magazine ORG , which published various separate booklets added to its regular issues which reproduced verbatim audit reports by ORG on ORG and , in issue no . DATE , published parts of the draft bill of indictment against the applicant and co - accused .

NORP Several NORP politicians , including members of parliament , high - ranking public officials , well - known public figures and persons affected by the events surrounding the ORG crisis commented in public on the applicant ’s arrest and the criminal proceedings against him .

( CARDINAL ) On DATE Mr Grasser , then Federal Minister of Finance , published a statement through ORG ( ORG ) and stated that rescuing ORG with public money had to be a last resort and that he had had consultations with ORG , the bank ’s majority owner and the bank ’s management on this matter . He also said that , in his view , the auditing of the bank had not been lax ( zu lax ) . For DATE the irregularities could not be detected . It was also decisive , in his opinion , that within the CARDINAL - tier auditing and monitoring system , the first CARDINAL tiers – board of management , internal monitoring , supervisory board and external certified accountants ( Wirtschaftsprüfer ) DATE “ hushed up matters deliberately ” ( vorsätzlich vertuscht ) so that there was no possibility for the fifth tier , namely , monitoring by the state , to come into play . The effectiveness of monitoring was not the issue in point .

( CARDINAL ) On DATE Mr PERSON , Regional Governor of GPE , made a press statement entitled “ ORG socialists must give back their luxurious dwellings ! ” He accused the applicant , inter alia , of squandering MONEY belonging to the trade union bank and receiving penthouses at a ridiculous price as a reward . He further stated that “ these luxury left wingers without morals or decency should give back what they have obtained illegally ( was sie sich erschlichen haben ) and , if need be , be forced to do so by the courts . ” He also welcomed the fact that an action for eviction ( PERSON ) had been lodged against the applicant and his wife .

( CARDINAL ) On DATE Mr Leser , a university professor and well - known intellectual with close links to ORG , stated that he noted the “ absence of any expression of guilt ” by ex - director of the board of management PERSON and the retired president of the trade union Mr PERSON . He added that in the past those responsible for similar calamities ( ORG ) had “ often taken their own lives ” .

( CARDINAL ) In an interview published in the newspaper ORG on CARDINAL DATE Mr Grasser , after answering questions on the state ’s guarantee for ORG , the takeover of ORG ( see “ the background of the case ” ) and the effectiveness of the state ’s controlling and monitoring system of the capital market , was asked the following question : “ It has been suggested that bank robbers could by no means do as much harm as has been done to ORG . The bracket of sanction is the same [ under criminal law ] . Should CARDINAL change that ? ” He replied : “ There have been several developments in this area since DATE . But there must be more severe measures as regards external certified accountants . And there must be higher penalties for those who have embezzled and stolen . Misuse in that bank was shameless to such an extent that an example should be made quickly . ”

( CARDINAL ) In an interview published in the newspaper Der Standard on DATE PERSON , president of ORG , stated that he wanted “ to see all those implicated before a court ” .

( CARDINAL ) On DATE Mr Grasser issued a further statement to the ORG which was entitled “ Grasser repudiates reproaches regarding the ORG bank monitoring report DATE ” and was sub headed “ ORG - case like ‘ bank holdup’ – ‘ criminal PERSON of the board of management ” . The press release contained , in particular , the following statements . Mr PERSON repudiated at a press conference reproaches that ORG had not reacted adequately to the monitoring report of ORG . “ As far as I am concerned the matter is settled ” he said , adding that it was “ ridiculous ” that excuses were being sought , when after all the ORG - case was a “ criminal case ” just like a “ bank hold - up ” , into which the organs of the judiciary were enquiring . In the ORG monitoring report there had been no references to losses or a guarantee of ORG , Grasser replied when asked why he had not become suspicious because of certain foundations mentioned in the report . ORG had been the object of numerous audits , but apparently the board of management had acted with intent and “ criminal energy ” . Moreover , PERSON , the ORG - appointed external certified accountants firm , had drawn up a “ glowing ” report .

( CARDINAL ) On DATE the newspaper PERSON published a lengthy interview with PERSON , chairperson of ORG group of parliamentarians in ORG . In the interview relations between the CARDINAL parties in coalition , ORG and ORG , and what coalitions might result from the imminent elections were discussed . To the question “ after the ORG - affair one has the feeling that ORG has resigned itself to accept second place in the elections , ” PERSON answered : “ It is very sad that it has come to that , for the bank , for the savers , for the trade union . All are making an effort to clear up this criminal case as quickly as possible . That is CARDINAL side . The other is : Mr PERSON makes a public appearance and ORG feels it immediately at the polls . And this hurts . I do not hear , by the way , the clinking of handcuffs of certain ORG managers . Naturally ORG is reaping the benefits at the moment and this is doubly regrettable : after all , the elections are not about the criminal machinations of the ORG management but whether PERSON , despite his long list of sins , should become chancellor again . ”

( CARDINAL) On DATE Mr PERSON , press officer for ORG , issued a press release informing the press of the arrest of the applicant in GPE , which read as follows : “ At the request of ORG , ORG issued a NORP warrant of arrest on TIME DATE against PERSON . The question whether PERSON should be remanded in custody has repeatedly been examined since the beginning of the ORG proceedings . The decisive factor for the present request for his detention was that the suspicion against PERSON had considerably increased as a result of the investigations during DATE , and that he had not come to GPE to be heard . He had alleged that he was seriously ill and submitted a medical certificate advising him not to leave the region ( Southern France ) . This is in striking contrast to the observations of several witnesses . It is thus to be assumed , also in the light of the advanced stage of the preliminary proceedings , that PERSON is trying to avoid criminal prosecution . Thanks to the excellent cooperation with the NORP criminal justice authorities and PERSON , PERSON was arrested DATE . ”

( CARDINAL ) On DATE Mr Jarolim , a Member of ORG and spokesperson of ORG on legal matters , gave a press conference in which he stated as follows : “ There are considerable tensions within the judiciary in the ORG case . Crimes have been reported [ ORG ] from inside the judiciary against unknown perpetrators because details from the questioning of PERSON , in which he had spoken of payments from ORG to ORG , were leaked to the press . ORG party will also report [ ORG ] any such crimes ” . Mr Jarolim urged for an indictment in the ORG case and the arrest of PERSON .

( CARDINAL ) On DATE Mr Leitl , president of ORG , reacted with the words “ thank PERSON , finally ” to the news of the arrest of the applicant . He also added that “ this is a step towards clearing up the criminal case , something which should happen as soon as possible . ”

( CARDINAL ) On DATE Mr Grasser , commenting on the applicant ’s arrest , said that he was “ happy ” that the judiciary had taken initial steps . All was now in the hands of the independent courts , in which he had full confidence . It was important that the criminal case be cleared up completely .

( CARDINAL ) On DATE Mr Hundstorfer , when interviewed on television , stated in connection with the arrest of the applicant , that he was “ very happy ” that the state of law ( PERSON ) was functioning , and appropriate steps were being taken . For ORG it was important that the ORG criminal case be treated objectively and processed as quickly as possible .

( CARDINAL ) Mr Gusenbauer , then secretary general of ORG and Member of ORG , stated on DATE on television that the arrest of the applicant was a step which was already overdue and that it was only strange that it had happened so late .

( CARDINAL ) According to a press release distributed by the ORG on DATE Mr Westenthaler , secretary general of the political party “ Alliance Future for GPE ” ( NORP PERSON ) said that the “ red ORG boss was finally behind bars ” .

( CARDINAL ) On DATE when asked by journalist about the applicant ’s arrest , Mr Schenz , a member of the ORG supervisory board , stated that “ as a member of the ORG supervisory board I must decline to comment , but CARDINAL thing I do wish to say is : it is about time ” .

( CARDINAL ) On DATE Mr Grasser stated that the arrest of the applicant was “ not a question of party policy ” . “ Now the matter is with the courts . All those guilty should , with no regard to their reputation , be punished with the full rigor of the law ” . The ORG case was a criminal case of incredible dimension and he was happy that the judiciary was now active , and opined that those guilty should be called to account as quickly as possible

( CARDINAL ) In an open letter dated DATE and addressed to ORG Mr PERSON , Regional Governor of PERSON , wrote that the applicant was an “ economic criminal ” ( “ schwerer Writschaftskrimineller ” ) , whom he did not want to have in LOC . At that time the applicant , after his coronary bypass operation on DATE , had been admitted to a rehabilitation clinic in GPE , in GPE .

Under LAW and CARDINAL of LAW Strafprozeβordnung ) , as in force at the relevant time , a person can be held in pre - trial detention , inter alia , if he or she is strongly suspected of having committed a criminal offence and there is a risk that he or she will abscond or reoffend . LAW provides other more lenient measures such as the concerned person ’s solemn promise not to abscond , the court ’s instruction to that person to stay at a certain place or to notify it of any change of address , the provisional withdrawal of travel documents or the setting of bail . Paragraph CARDINAL provides that the judge concerned has to order pre - trial detention if the purpose of this detention can not be achieved by a more lenient measure .

NORP Under CARDINAL and CARDINAL pre - trial detention can initially only be ordered for DATE , extendable initially for DATE and subsequently extendable for DATE periods at a time until the first hearing in the case . From that date onwards a decision ordering pre - trial detention is subject to no further time - limit . It is nevertheless open to the accused to submit an application for release at any time ( LAW ) . In any event , all authorities involved in the criminal proceedings are obliged to make efforts to keep the duration of the pre - trial detention as short as possible ( LAW ) . An accused has to be released when the reasons for his detention no longer exist or the duration of his detention becomes unreasonably long ( LAW )

Pre - trial detention may only then be extended beyond DATE where this is inevitable in view of the reason for the arrest because of the special difficulties or complexity of the investigations ( LAW ) .

Pre - trial detention comes to an end , at the latest , when the accused begins to serve his sentence , the duration of which is reduced by the time spent in pre - trial detention ( LAW ( Straf - gesetzbuch ) .

Where an accused lodges an appeal that has statutory suspensive effect , for example , a plea of nullity ( LAW ) or an appeal against sentence ( LAW ) , he remains in detention until the final decision is taken ( LAW .

By virtue of section CARDINAL ) of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) , independent administrative panels have jurisdiction , inter alia , to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion ( ORG unmittelbarer verwaltungsbehördlicher Befehls- PERSON ) .

Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them . Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by an independent administrative panel .

Section CARDINALb of LAW ( Mediengesetz ) is entitled “ Protection of the presumption of innocence ” ( PERSON der Unschuldsvermutung ) and , as in force at the relevant time , read as follows :

“ CARDINAL . A person suspected of having committed an offence but not yet convicted by final judgment , who is portrayed by the media as being guilty or as the perpetrator of the offence and not only as a suspect , is entitled to claim compensation from the media owner for the insult suffered . The amount of compensation shall not exceed CARDINAL ORG ; ...

There shall be no right to compensation if

( CARDINAL ) a true report about a hearing at a public session of ORG , ORG , ORG , the ORG of a Land or a committee of these general representative bodies is concerned ,

( CARDINAL ) a true report about a conviction at first instance is concerned which indicates that the conviction is not final ,

( CARDINAL ) NORP the person concerned has made a confession in public or to the media and has not withdrawn it ,

( CARDINAL ) a live broadcast is concerned and the producer of the broadcast has applied the care required of journalists ,

( CARDINAL ) NORP the publication of the information has occurred on a retrievable website and the owner of the website or its employees or contractors have not neglected the principles of journalistic diligence ,

( CARDINAL ) a verbatim quotation of the statement of a third person is concerned and if there was a predominant public interest in the publication of the quoted statement . ”

Section CARDINAL § CARDINAL of LAW reads as follows :

“ Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person can not be secured or if conviction of such a person is impossible on grounds precluding punishment , has not been requested or such a request has been withdrawn . If no punishment can be imposed in the event of the offender having proved the truth , the defence of truth shall also be available to the owner ( publisher ) of the media product in question as the interested party ... ”

Section CARDINAL of LAW deals with the publication of a judgment ( PERSON ) . It states , inter alia , that a criminal judgment concerning a media - related offence can , at the request of the prosecution , be published in the parts which are necessary to inform the public about the offence and the conviction . At the request of the prosecution , the publication of a judgment has to be ordered in separate proceedings if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific individual is not possible . The person against whom proceedings under LAW , DATE and DATE can be brought is , besides the owner and publisher of a media the person who has made , for instance in an interview , the statement at issue . Section CARDINAL of LAW provides that the court competent for dealing with proceedings under LAW is ORG for criminal matters of the district in which the offence had been committed .

Section CARDINAL of LAW ( ORG ) provides as follows :

“ CARDINAL . Anybody who , as the result of defamation , has suffered damage or loss of profit , may claim compensation .

NORP The same applies if anyone has disseminated statements which jeopardize another person ’s reputation , gain or livelihood , the untruth of which was known or must have been known to him . In this case the injured party may also claim a retraction statement and the publication thereof ... ”

Article CARDINAL of LAW ) reads as follows :

“ CARDINAL . Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”


No violation of Art. 2 (death of applicant's son);Violation of Art. 2 (inadequate investigation);No Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , a NORP citizen of NORP origin , was born in DATE and lives in the town of Cizre , in south - east GPE .

The facts surrounding the death of the applicant 's son , PERSON , are disputed by the parties .

The facts as presented by the applicant are set out in Section B below ( see paragraphs CARDINAL ) . The Government 's submissions concerning the facts are summarised in Section C below ( see paragraphs CARDINAL ) . GPE evidence submitted by the Government is summarised in Section D ( see paragraphs CARDINAL below ) .

NORP The applicant 's son PERSON was born in DATE . When he was a child PERSON suffered from meningitis . The applicant was unable to have him treated and he remained mentally disabled .

PERSON was always interested in NORP national music , poetry and colours and on many occasions used to walk in front of the crowd on NORP national holidays , carrying the NORP colours ; yellow , red and green .

These activities of PERSON attracted the attention of the police , who took to following him and , on occasions , raided his family home . PERSON was taken into custody CARDINAL times , and on each such occasion he was beaten and tortured by the police .

In DATE , police officers from ORG raided the applicant 's home and told the applicant that they had come to take PERSON to ORG for treatment . They took the applicant and PERSON to ORG . PERSON was terrified that he would be killed in the hospital and jumped out of a window and escaped .

Thereupon the police officers took the applicant around NORP town centre and neighbouring villages for DATE , during which they unsuccessfully looked for PERSON . The police officers beat the applicant and threatened him by saying that they would kill him if he did not find his son and hand him over to the police . The applicant was released at DATE , only after having promised the police officers that if he saw his son he would bring him in himself .

PERSON did not return home because of his fear of the police . He stayed with friends and telephoned the applicant 's house every day in order to speak to his mother . The police often visited the applicant 's house to ask about PERSON whereabouts .

After some time , PERSON no longer telephoned and the police no longer came to the applicant 's home . The applicant therefore began to suspect that the police had caught PERSON .

On DATE PERSON strangled body was found near the PERSON watermill , near the PERSON village . A report of an interview with CARDINAL women from PERSON , who had been taking yoghurt to the market in Cizre in TIME , and another person , was published in PERSON newspaper on DATE . According to this interview , CARDINAL armed persons , CARDINAL of whom was thought to be a police officer , had strangled PERSON while his arms were tied behind his back . Soldiers , who had come to the place where PERSON had been strangled following the killing , had dragged his body behind an armoured personnel carrier , claiming that they were doing so because they thought there might be a booby - trap under the body .

The applicant 's family heard at a later stage that PERSON corpse was at the hospital . A member of the family went to the hospital where the body was handed over to him . The whole of PERSON ribcage , throat and neck were covered in bruises . His face and eyes were dirty with mud and there were red spots and bruises in CARDINAL places on his neck .

NORP The police took a statement from the applicant , asking him , “ Who could have killed your son ? Who do you suspect ? Did you have any enemies ? ” PERSON possessions were then handed over to the applicant .

The applicant contacted the ORG and asked him what had happened to his son . The ORG told him that PERSON had been strangled . He did not take any statements from the applicant , nor did he ask the applicant whether he wished to start legal proceedings .

On DATE the applicant and his family lodged a petition with ORG to find out whether there was an on - going investigation and what stage it had reached . The prosecutor had been friendly until the applicant mentioned the case of PERSON . The applicant was told by the ORG 's clerk that the case was closed . The applicant later discovered that the investigation was continuing .

The authorities were informed about the killing when the headman ( muhtar ) of the PERSON village approached the ORG on DATE and reported that he had seen a body at the road intersection of his village .

In his testimony of DATE , the muhtar stated that , after he had informed the gendarmerie , the ORG and a number of gendarmes had arrived at the scene . The Prosecutor had warned those present that the body could be booby - trapped and a decision was taken to trail the body for a short distance with a rope attached to an armoured vehicle . When it was clear that the body had not been booby - trapped , the Prosecutor and the doctor carried out an in situ examination of the body . The body was then taken to Cizre by car .

On DATE ORG forwarded their reports of the incident , together with a sketch showing the position of the body where it was found , to the ORG 's office in Cizre . ORG informed the Prosecutor that the identity of the person(s ) who had strangled the victim was not known .

A criminal investigation was opened immediately by ORG . The Prosecutor instructed ORG on DATE to carry out a comprehensive investigation and to keep him informed on a regular basis about this investigation .

On DATE the ORG took a statement from the applicant . He told the Prosecutor that his son had been mentally ill and beyond his control . He further said that he had no complaints against anyone .

The Cizre Gendarmerie Headquarters informed ORG on DATE and DATE and DATE and CARDINAL DATE that the investigation was still continuing and that there had not been any developments .

On DATE the Prosecutor instructed ORG to up - date him DATE . On CARDINAL DATE the ORG instructed ORG to continue the investigation until the expiry of the statutory limitation period .

The Cizre Gendarmerie Headquarters regularly continued to inform the Prosecutor that there had been no developments in the investigation .

On DATE the Mayor of Şırnak informed ORG in GPE that the allegation that PERSON had been taken into custody prior to his death was baseless . In support of his submissions , the Mayor enclosed copies of the custody ledgers in which PERSON name did not feature .

The Cizre Prosecutor informed ORG that the allegation that the applicant had not been given any information by his office was baseless .

According to an indictment filed by ORG with ORG on DATE , a certain PERSON and the applicant 's deceased son , PERSON , had raped a DATE boy in breach of LAW . As a result , PERSON had been arrested on DATE .

On the basis of a report prepared by ORG on DATE , which stated that PERSON was seriously , mentally impaired , the trial court held that PERSON could not be held criminally responsible for his actions . On DATE the trial court ordered PERSON to be detained in a mental institution for a minimum period of one year . The decision became final on DATE and was forwarded to the office for the execution of judgments on DATE . This had been the reason for police officers ' visit to the applicant 's house in DATE - to take PERSON to ORG .

The following information appears from the documents submitted by the Government .

On DATE the ORG filed an indictment with ORG in which PERSON was charged with the rape of DATE boy on DATE .

Pursuant to a request made by ORG , ORG examined PERSON on DATE . ORG concluded in their report , drawn up on DATE , that PERSON was an imbecile and therefore he did not have criminal culpability . The report recommended the detention of PERSON in a mental institution .

On DATE the ORG established that PERSON and a certain PERSON had raped the DATE child . Taking into account the report of ORG , ORG ordered PERSON detention in a mental institution for a minimum period of DATE , during which time he would receive psychiatric treatment . This judgment became final on CARDINAL DATE , following the rejection by ORG of the appeal lodged by PERSON

On DATE , ORG and a doctor carried out an in situ examination of PERSON body at a location near the Sulak village , QUANTITY from the town of Cizre . They recorded their findings . According to their report , the body had been trailed with a rope in case there had been a booby - trap under it . After it had been established that it was safe , the body had been searched and a NORP flag found in CARDINAL of the pockets .

The cause of death was established by the doctor as asphyxiation , caused by strangulation . Rigor mortis and post mortem hypostasis had set in . The cause of death having been thus established , the doctor decided that a full autopsy was not necessary . The Prosecutor issued a burial license .

Also on DATE the Cizre Prosecutor questioned the applicant . He told the prosecutor that his son had been mentally ill and beyond his control . The applicant did not have any complaint against anyone for the murder of his son .

According to a report which was prepared by the deputy commander of ORG on DATE and forwarded to the ORG 's office in Cizre , it had been established that PERSON had been strangled elsewhere and his body dumped at the place where it was found .

On DATE the Cizre prosecutor instructed ORG to carry out a “ secret and a proper search ” for the perpetrator(s ) of the murder . The Prosecutor also asked to be kept informed regularly about the investigation .

On DATE the Cizre Prosecutor summonsed the applicant and his son PERSON to his office .

According to a report drawn up by CARDINAL gendarme soldiers on DATE , “ the perpetrator(s ) of the murder of PERSON had been secretly and properly searched for by the soldiers but could not be found . The office of the Prosecutor would be informed once the perpetrator(s ) were found ” .

DATE and DATE , ORG repeated his above mentioned instructions to ORG ( paragraph CARDINAL ) and asked the ORG to continue to inform his office DATE of any developments until the expiry of the statutory limitation period on DATE .

Gendarmes from ORG drew up identical reports on DATE , DATE and CARDINAL DATE , DATE , DATE and DATE , and finally on DATE . These reports were forwarded to ORG .

According to a report , drawn up by gendarmes on DATE , it had been established that PERSON had been killed by members of the ORG who had then left the NORP flag in the deceased 's pocket .

On DATE the gendarmerie informed the Prosecutor that they were unable to find any person who knew the identity of the perpetrators .

On DATE ORG summonsed the applicant and CARDINAL of his relatives to his office .

On DATE ORG sent a letter to ORG ( hereinafter “ the Directorate ” ) in which he stated that the investigation into the murder was continuing and that his office was being kept informed DATE by the gendarmerie . The applicant had not informed the ORG 's office of his allegations , namely that his son had been detained at the police headquarters and that his son had subsequently escaped , or that CARDINAL female villagers had seen CARDINAL armed men strangling PERSON . The Prosecutor had not , therefore , taken these allegations into account in his investigation . He would , however , from that moment on .

On DATE a statement was taken from the applicant by ORG . The applicant confirmed the accuracy of the contents of the statement he had made on DATE ( see paragraph CARDINAL above ) and further stated that his son had been arrested by police who had wanted to take him to a psychiatric hospital . However , his son had managed to escape from the window of the police station . The applicant and police officers had unsuccessfully searched for him for DATE . PERSON had never returned since that date . The applicant had been told by a number of children that they had seen PERSON . Police officers had also visited his home and looked for PERSON . Following the discovery of the body of his son , the applicant had been told by a number of people that QUANTITY women from the LOC village had seen his son while he was being beaten up by CARDINAL people . The women did not know whether the CARDINAL men had been police officers . The reason why the applicant suspected that the police were responsible for the murder of his son was because the police officers had insisted on finding PERSON following his escape from the police station and had repeatedly come to his house to find PERSON .

On DATE and DATE ORG questioned PERSON and PERSON , the brothers of PERSON . Both brothers gave similar statements to that of their father .

On DATE ORG asked ORG to find the CARDINAL women who , according to the applicant , had witnessed the strangulation of PERSON .

On DATE and DATE the deputy commander of ORG informed ORG that none of the villagers in PERSON had witnessed the strangulation of PERSON .

The gendarmerie continued to draw up similar reports until DATE which were then forwarded to ORG .

The relevant domestic law and practice are set out in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .


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 . 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 .


No violation of P1-3;Not necessary to examine Art. 14

The applicant was born in DATE and lives in PERSON . He is a university lecturer and researcher in private law and is a member of the NORP civil service .

On DATE he was appointed to a post at ORG , GPE , which at the material time was a NORP overseas territory . The holder of the post was required to live in the territory .

The applicant applied to be registered on the electoral rolls for his place of residence . He was entered on the general electoral roll for the municipality of ORG but was refused registration on the special electoral roll for the DATE ballot on self - determination . On DATE the mayor of Nouméa notified him that he had been deemed not to satisfy the residence requirements laid down in section CARDINAL of the Act of DATE in that he could not show that he had been permanently resident in GPE since DATE . The applicant did not appeal against that decision .

On DATE ORG was signed . It laid down transitional arrangements for the political organisation of GPE and for its move to self - determination . It altered GPE constitutional status , making it a sui generis territory with its own specially designed institutions . LAW was consequently amended to provide that the measures required for the implementation of the Accord were to be laid down in an institutional LAW .

Institutional Act no . CARDINAL of DATE brought about the twelfth institutional reform in GPE since DATE , giving it its ninth different status since DATE . It strengthened ORG 's powers and introduced a DATE residence requirement for taking part in the election of members of ORG and the provincial assemblies .

On DATE the applicant applied to be registered on the special electoral roll for the elections to ORG and the provincial assemblies on CARDINAL DATE in the municipality of Nouméa . He was refused registration on the ground that he could not show that he had been permanently resident in GPE in DATE prior to CARDINAL DATE .

The applicant applied to ORG for a review of the conformity of the LAW with the LAW , and for registration on the special electoral roll for the municipality of ORG . On DATE the court dismissed his applications .

The applicant appealed on points of law to ORG , complaining that ORG had found against him despite the fact that the refusal to register him contravened various provisions of domestic and international law , in particular LAW and CARDINAL of the LAW of CARDINAL DATE , ORG , DATE , CARDINAL - CARDINAL and CARDINAL of LAW DATE , LAW , DATE and CARDINAL of LAW of DATE , LAW and the Citizen of DATE , Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of the new Criminal Code , and the Preamble to LAW DATE .

On DATE ORG dismissed his appeal on the ground that the conditions for taking part in elections to ORG and the provincial assemblies followed from an institutional LAW which ranked as constitutional law in that it reproduced the wording of ORG , which itself had constitutional status by virtue of LAW . It dismissed the applicant 's arguments concerning the provisions of the Convention , holding in particular that the precedence accorded to international undertakings did not apply in the domestic legal order in relation to provisions ranking as constitutional law .

The applicant also produced to the ORG a decision of DATE in which ORG had dismissed , on the same grounds , an appeal which was similar to his but which alleged a violation of LAW No . CARDINAL .

LAW of powers among the ORG , GPE , provinces and municipalities

Section CARDINAL : Powers vested in the ORG and GPE

“ ORG shall be the deliberative body of GPE . It shall have CARDINAL members : CARDINAL from the LOC provincial assembly , CARDINAL from the LOC provincial assembly and CARDINAL from the NORP provincial assembly .

Members of ORG shall be elected for a DATE term in the manner prescribed in Part V. ... ”

“ The power to initiate territorial laws and regulations shall be vested conjointly in the ORG and the members of ORG . ”

Section CARDINAL : Powers assigned to ORG

“ The powers assigned to GPE by LAW shall be exercised by ORG , with the exception of those conferred by LAW on the ORG or the President of the Government . ”

“ ORG shall adopt the budget and approve the accounts for GPE . ... ”

“ In criminal matters , ORG may make offences against territorial laws and regulations punishable by fines that are commensurate with the classification of petty and more serious offences [ contraventions et délits ] and do not exceed the maximum amount applicable for offences of the same nature under national legislation and regulations . It may also make such offences subject to such additional penalties as are provided for in national legislation and regulations for offences of the same nature .

ORG may also make provision for administrative penalties for any offence . ”

LAW : Territorial laws

“ Instruments by which ORG enacts provisions on the matters listed in the following paragraph shall be designated as ' territorial laws ' .

Territorial laws may be enacted in the following areas , being those in which powers are exercised by GPE , or from the date on which they are transferred pursuant to this Act :

( CARDINAL ) symbols of identity and name as referred to in DATE ;

( CARDINAL ) NORP rules on the assessment and collection of taxes , duties or charges of any kind ;

( CARDINAL ) basic principles governing labour law , trade - union law and social - security law ;

( CARDINAL ) NORP rules on aliens ' access to employment ;

( CARDINAL ) customary civil status , rules governing customary land and customary assemblies ; boundaries of customary areas ; procedure for appointing members of the Customary ORG and the customary councils ;

( CARDINAL ) rules governing hydrocarbons , nickel , chromium and cobalt ;

( CARDINAL ) rules governing publicly owned land in GPE and the provinces , subject to the provisions of Article CARDINAL , point ( CARDINAL ) ;

( CARDINAL) rules on access to employment , pursuant to LAW ;

( CARDINAL ) rules on civil status and capacity , systems of matrimonial property , inheritance and voluntary dispositions ;

( CARDINAL ) basic principles concerning ownership , rights in rem and civil and commercial obligations ;

( CARDINAL ) NORP apportionment among the provinces of the operating grant and the equipment grant referred to in paragraphs I and II of Article CARDINAL ; and

( CARDINAL ) NORP powers transferred and the schedule for their transfer , as provided in LAW . ”

Part V : Elections to ORG and the provincial assemblies

LAW : Electorate and electoral rolls

“ ORG and the provincial assemblies shall be elected by an electorate composed of persons who

( a ) satisfy the conditions for registration on GPE electoral rolls for the ballot of CARDINAL DATE ; or

( b ) are listed in the appended table and have been resident in GPE for DATE on the date of the election to ORG and the provincial assemblies ; or

( c ) have reached the age of majority after DATE and can either show that they have been resident in GPE for DATE , or have a parent who was eligible to vote in the ballot of CARDINAL DATE , or have a parent who is listed in the appended table and has been resident in GPE for DATE on the date of the election . ... ”

“ Examination of the merits

ORG has to determine whether the restrictions imposed on the electorate for the purposes of the local referendums of CARDINAL DATE and in DATE or thereafter constitute a violation of articles CARDINAL and CARDINAL of the LAW , as the authors maintain .

CARDINAL In the present case , the ORG has taken note of the fact that the local ballots were conducted in the context of a process of self - determination of the population of GPE . ...

CARDINAL In relation to the authors ' complaints , the ORG observes , as the ORG party indeed confirms , that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between ( a ) persons deprived of the right to vote , including the author(s ) in the ballot in question , and ( b ) persons permitted to exercise this right , owing to their sufficiently strong links with the territory whose institutional development is at issue . The question which the ORG must decide , therefore , is whether this differentiation is compatible with LAW . The ORG recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the LAW .

CARDINAL The ORG has , first of all , to consider whether the criteria used to determine the restricted electorates are objective .

CARDINAL ORG considers that the above - mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with GPE , namely the different forms of ties to the territory , whether specific or general – in conformity with the purpose and nature of each ballot . The question of the discriminatory or non - discriminatory effects of these criteria nevertheless arises .

CARDINAL ... the ORG considers that the criterion used for the DATE referendum establishes a differentiation between residents as regards their relationship to the territory , on the basis of the length of ' residence ' requirement ( as distinct from the question of cut - off points for length of residence ) , whatever their ethnic origin or national extraction . ...

CARDINAL The ORG therefore considers that the criterion used for the DATE referendum did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction .

CARDINAL Finally , the ORG considers that in the present case the criteria for the determination of restricted electorates make it possible to treat differently persons in objectively different situations as regards their ties to GPE .

CARDINAL ORG also has to examine whether the differentiation resulting from the above - mentioned criteria is reasonable and whether the purpose sought is lawful vis - à - vis the Covenant .

CARDINAL The ORG recalls that , in the present case , article CARDINAL of the LAW must be considered in conjunction with article CARDINAL . It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self - determination process . ...

CARDINAL Consequently , the ORG considers that the criteria for the determination of the electorates for the referendums of DATE and DATE or thereafter are not discriminatory , but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the LAW .

CARDINAL ORG considers that it is not in a position to determine the length of residence requirements . It may , however , express its view on whether or not these requirements are excessive . In the present case , the ORG has to decide whether the requirements have the purpose or effect of restricting in a disproportionate manner , given the nature and purpose of the referendums in question , the participation of the ' concerned ' population of GPE .

CARDINAL.CARDINAL ORG considers , first , that the cut - off points adopted do not have a disproportionate effect , given the nature and purpose of the referendums in question , on the authors ' situation , particularly since their non - participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum .

CARDINAL The ORG further considers that each cut - off point should provide a means of evaluating the strength of the link to the territory , in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum . The ORG considers that , in the present case , the difference in the cut - off points for each ballot is linked to the issue being decided in each vote : the CARDINAL-year cut - off point DATE rather than DATE as for the first ballot DATE is justified by the time frame for self - determination , it being made clear that other ties are also taken into account for the final referendum .

CARDINAL Noting that the length of residence criterion is not discriminatory , the ORG considers that , in the present case , the cut - off points set for the referendum of DATE and referendums from DATE are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots , namely a self - determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided . This being the case , these cut - off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who , over and above their ethnic origin or political affiliation , have helped , and continue to help , build GPE through their sufficiently strong ties to the territory .

ORG , acting under LAW , paragraph CARDINAL , of LAW to LAW , is of the view that the facts before it do not disclose a violation of any article of the LAW . ”