Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

At the material time the first applicant was the editor of the DATE magazine ORG and the second applicant was a journalist on the magazine .

In its edition of CARDINAL to CARDINAL DATE L'Evénement du Jeudi published an article by the second applicant under the headline : “ PERSON : the Left puts its house in order ” .

The article was particularly critical of PERSON , the former head of PERSON ( national company for the construction of workers ' housing ) , and of his relations with PERSON 's new management , who on DATE had lodged a criminal complaint against Mr Gagneux alleging misuse of company property and had applied to join the proceedings as a civil party .

On DATE Mr Gagneux summoned the applicants to appear in ORG to answer a charge of publishing information concerning applications to join criminal proceedings as a civil party , an offence under LAW of DATE . Mr Gagneux considered that he had been the victim of a breach of that provision on account of the following passages of the article published in L'Evénement du Jeudi :

“ Never before ! The managers of a public company have condemned their predecessors ' running of the company DATE and lodged a criminal complaint ! ”

“ ORG d'Etat foiled ! In bringing a complaint against their predecessor PERSON for misappropriation and misuse of company property , PERSON 's managers have shown courage . As they are well aware , there is a serious risk that it will be discovered that men with links to the ORG ] have been able to make free with the ' immigrants ' cash ' . ”

In a judgment of DATE ORG found the applicants guilty and fined them MONEY ( ORG ) each . In addition to that sentence , damages were awarded to PERSON in his civil action and an order was made for the judgment to be published .

The court noted that the prohibition in LAW was general and absolute ; the information had only to concern a criminal complaint that had been lodged together with an application to join the proceedings as a civil party .

The court further stated that the prohibition was intended to safeguard the presumption of innocence and to prevent any external influence on the course of justice . Accordingly , it was necessary in a NORP society for the “ protection of the reputation or rights of others , for preventing the disclosure of information received in confidence , or for maintaining the authority and impartiality of the judiciary ” within the meaning of LAW .

On DATE the applicants appealed against that judgment .

In a judgment of CARDINAL DATE ORG upheld the applicants ' conviction and the amount of the fine but reduced to MONEY the damages awarded to Mr Gagneux as the civil party . Its decision included the following passage :

“ The trial court rightly dismissed the defendants ' submission that LAW of DATE was incompatible with Article CARDINAL [ of the Convention ] , noting that the provisions of that Act , which were designed to protect persons against whom a complaint is lodged , to safeguard the presumption of innocence and to prevent any external influence on the course of justice , fell within the scope of the restrictions on freedom of expression permitted by LAW , the restriction in question being proportionate to the aim pursued . ”

The applicants then appealed on points of law . In their grounds of appeal they submitted , as they had done in the courts below , that there had been a violation of LAW . They referred to the general and absolute nature of the prohibition of publication , arguing that it was disproportionate to the aim pursued .

In a judgment of DATE ORG held that the criminal proceedings had become barred as a result of an intervening amnesty . It further held that it was still required to rule on the appeal on points of law in respect of the civil action and dismissed it , stating in particular :

“ ORG rightly dismissed the defendants ' submission that LAW was incompatible with LAW ...

While the first paragraph of LAW states that everyone has the right to freedom of expression , the second paragraph provides that the exercise of that freedom , since it carries with it duties and responsibilities , may be subject to such formalities , restrictions or penalties as are prescribed by law and are necessary in a democratic society for , inter alia , the protection of the rights of others , and for maintaining the authority and impartiality of the judiciary ; such is the purpose , which is proportionate to the aim pursued , of LAW cited above . ”

Section CARDINAL of the Act of DATE provides :

“ The publication , before a judicial decision has been given , of any information concerning applications to join criminal proceedings as a civil party under LAW [ former ] Code of Criminal Procedure [ Code d'instruction criminelle ] [ LAW of the current Code of Criminal Procedure ( Code de procédure pénale ) ] shall be prohibited , on pain of a fine of ORG CARDINAL,CARDINAL as laid down in the last paragraph of CARDINAL of the LAW of DATE ... ”

Article CARDINAL of the Civil Code provides :

“ Everyone is entitled to be presumed innocent until proved guilty . Where a person ... the subject of ... a criminal complaint lodged together with a civil - party application is , before any judgment has been given against him , publicly portrayed as being guilty of an offence or offences in respect of which an inquiry or judicial investigation is being conducted , the court may direct , even on a summary application , that a notice be printed in the publication concerned in order to end the breach of the presumption of innocence ... ”

NORP The relevant provisions of LAW read :

“ Except where the law provides otherwise and without prejudice to the rights of the defence , proceedings during the inquiry and the judicial investigation shall be confidential ... ”

“ Where , after a judicial investigation begun on a criminal complaint and civil - party application , a decision has been taken that there is no case to answer , the public prosecutor may summon the civil party before the criminal court in which the case was investigated . If the complaint and civil - party application are held to have been an abuse of process or to have been intended purely to gain time , the court may impose a civil fine , the amount of which shall not exceed FRF CARDINAL . The proceedings must be brought within DATE on which the decision that there is no case to answer becomes final .

Within the same period and without prejudice to the institution of criminal proceedings for malicious prosecution , the person placed under investigation or any other person who was the subject of the complaint may , if he does not bring a civil action , seek damages from the complainant ... ”


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

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

On DATE the applicant found a burglar in his flat and caused him fatal injuries . On DATE he was arrested and remanded in custody , and on DATE he was charged with manslaughter .

On DATE the applicant requested that Mr PERSON , a privately retained lawyer , be admitted as a defence counsel .

On DATE the applicant challenged his detention before the GPE ORG of Kostroma . He also requested that Mr PERSON be admitted to the proceedings as defence counsel . On an unidentified date Mr PERSON was refused admission as defence counsel , apparently on the grounds that he had failed to submit proof that he was a member of a bar association .

On DATE the court examined the applicant ’s request for release , in proceedings at which the applicant was present in person and was assisted by PERSON , a legal aid counsel . The court upheld the applicant ’s pre - trial detention , having found that it was justified in view of the seriousness of the charge and the applicant ’s character . This decision could be appealed to ORG within DATE , but no cassation appeal was lodged .

On DATE the GPE ORG of GPE examined the charges against the applicant . The applicant was represented in the proceedings by PERSON . He was found guilty of causing grievous bodily harm and sentenced to CARDINAL years’ imprisonment .

On DATE Mr PERSON requested on the applicant ’s behalf an extension of the DATE time - limit for lodging an appeal against the judgment of DATE . On DATE the request was refused . No appeal was lodged against the refusal .

DATE and DATE the applicant was serving his sentence in ORG OT-CARDINAL/CARDINAL , a penitentiary facility in GPE . The parties submitted the following accounts of conditions in DATE , including health care and the prevention of tuberculosis .

The unit where the applicant was housed was shared by CARDINAL inmates . The diet was poor because the vegetable supply was limited to potatoes and beetroot . No medicines were available in the facility . During the applicant ’s imprisonment in GPE there was an outbreak of tuberculosis , and the applicant had fears of contracting tuberculosis himself . He claimed to have developed chronic bronchitis , but he submitted no medical evidence of it .

On the applicant ’s arrival in DATE he underwent a medical examination including an x - ray and clinical tests . He was found to be in good health .

He was placed in unit no . DATE , a dormitory which measured QUANTITY . m , including a sleeping area of CARDINAL sq . m , a storage room , canteen , common room , washroom and toilet . At the material time the dormitory housed CARDINAL inmates , which afforded them QUANTITY . m of personal space in the sleeping area , or QUANTITY . m in the whole unit including common areas . The catering in DATE conformed to the standard requirements . Inmates were provided with CARDINAL meals a day .

Persons infected with tuberculosis were placed separately from the rest and treated in a specialised section of the local hospital . At the material period no outbreak of tuberculosis was registered in GPE . Sanitary and epidemiological checks were conducted in the facility on a DATE basis . The reports for DATE indicated that there had been no infectious diseases registered in ORG in that period . There have always been sufficient supplies of medicines in the medical unit of DATE .

During his imprisonment the applicant consulted a doctor on a number of occasions , which were recorded as follows . On DATE he had a tooth removed by a dentist . On DATE he was diagnosed with acute bronchitis . He was given leave from work and underwent medical treatment . The applicant did not turn up for the second appointment with the doctor . On DATE he was diagnosed with furunculosis ( boils ) , for which he received treatment . On DATE and on DATE he was diagnosed with a common cold ; on both occasions he was given leave from work and underwent medical treatment .

The applicant underwent regular mandatory ORG examinations which took place on DATE , on DATE and on DATE and did not reveal any disease .

The Government submits that the applicant did not lodge any complaints concerning the conditions in OTCARDINAL/CARDINAL during his term of imprisonment or after release .

LAW CARDINAL of the Penitentiary Code of DATE provides for a minimum standard of QUANTITY of personal space for male convicts in correctional colonies .


No violation of Art. 5-1;No violation of Art. 5-3

ORG The applicant is a NORP citizen . In DATE he was involved in a traffic accident in which he suffered serious brain damage . He subsequently showed a distinct tendency to become aggressive .

ORG In DATE he was convicted of offences under LAW , CARDINAL and CARDINAL of GPE ( threatening behaviour and inflicting bodily harm ) and sentenced to preventive detention ( sikring ) for a maximum period of DATE in accordance with Article CARDINAL para . CARDINAL ( e ) of LAW ( see paragraph CARDINAL below ) . In an expert psychiatric opinion obtained at that time , he was declared mentally ill ( sinnssyk ) and he spent the period from DATE to DATE in mental hospitals .

ORG From DATE to DATE the applicant was detained for a period of DATE at either ORG or ORG in accordance with the provisions of LAW ( lov om psykisk helsevern ) .

ORG In DATE the applicant was placed under " judicial observation " ( judisiell observasjon ) after having physically assaulted his father . The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity ( mangelfullt utviklede og varig svekkede sjelsevner ) and that there was a clear risk of his committing further criminal offences .

ORG By a judgment of CARDINAL DATE ORG ( herredsrett ) of PERSON convicted the applicant of an offence under LAW . It sentenced him to CARDINAL days’ imprisonment and authorised the use of security measures under LAW para . CARDINAL ( a ) to ( f ) of LAW for a maximum period of DATE .

ORG On DATE the prosecuting authority decided to detain the applicant in accordance with Article CARDINAL para . CARDINAL ( e ) in a security ward at ORG Preventive Detention Institution ( " Ila " ) .

ORG On DATE ORG decided , pursuant to LAW CARDINAL ( a ) to ( c ) to release the applicant on the condition , inter alia , that he reside at his GPE home . Owing to a number of violent incidents , the applicant was however rearrested , and by a judgment of DATE the ORG of PERSON sentenced him to CARDINAL days’ imprisonment , which sentence was deemed to have been served in detention on remand .

ORG On DATE ORG decided to place the applicant in preventive detention once more at Ila in accordance with Article CARDINAL para . CARDINAL ( e ) . On DATE he was released to his GPE home under preventive supervision in accordance with LAW para . CARDINAL ( a ) to ( c ) .

ORG A number of unfortunate episodes led ORG to decide under Article CARDINAL para . CARDINAL ( e ) to detain the applicant again . He returned to PERSON on DATE .

ORG On DATE ORG decided to apply Article CARDINAL para . CARDINAL ( f ) , of LAW and on DATE the applicant was sent to FAC . On DATE he was transferred to ORG ( " GPE " ) .

ORG Whilst so detained , the applicant was convicted by ORG of Asker and PERSON on DATE and sentenced to CARDINAL months’ imprisonment for physically assaulting prison staff at PERSON and PERSON on CARDINAL occasions . The expert psychiatric opinion obtained for the trial concluded , as before , that the applicant was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity .

ORG With regard to the question of security measures , the court pointed out that the information available showed that detention in a prison or similar institution was inappropriate and had a destructive influence on the applicant . The court found that he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment . It accordingly authorised the prosecuting authority to impose security measures under LAW para . CARDINAL except those provided in sub - paragraphs ( e ) and ( f ) , namely detention in a security ward or in a prison .

Having served his sentence the applicant was released on DATE and placed in a flat at PERSON under the surveillance of the local police .

ORG On DATE the applicant was arrested and detained on remand , again charged with offences under Articles CARDINAL and CARDINAL of the Penal Code . A further expert psychiatric opinion was obtained . It reached the same conclusion as the CARDINAL earlier ones .

ORG By judgment of DATE ORG of PERSON found the applicant guilty on most of the charges brought against him and sentenced him to CARDINAL days’ imprisonment . Furthermore , the court authorised the prosecuting authority to use any of the security measures mentioned in Article CARDINAL para . CARDINAL of the Penal Code for a maximum period of DATE . It found that , having regard to the applicant ’s almost total lack of self - control in certain situations and to his physical strength , it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under Article CARDINAL para . CARDINAL ( e ) and ( f ) should this prove necessary . Apparently there was such a need , since the applicant remained at Ila .

ORG The applicant appealed to ORG ( PERSON ) against the decision as regards preventive detention . In a decision ( kjennelse ) of CARDINAL DATE Mr Justice PERSON stated , inter alia , on behalf of the unanimous court :

" I consider it beyond doubt that the scope of the security measures should be extended as set out in the judgment now appealed against . Like ORG I find that the requirements for imposing security measures are fulfilled . [ The applicant ] , who must be considered to have , as required by DATE [ of LAW ] , a deviant character , represents a serious danger regarding new offences , including threatening behaviour under LAW . I may add that it can not be considered disproportionate to impose security measures on such a clearly dangerous offender . In my view , the protection of society requires that the authorities should be able to impose such security measures as are considered necessary in order to prevent [ the applicant ] from committing further serious offences . In view of the summing - up of counsel for the defence , I would point out that I find no basis for arguing that the decision of a NORP court concerning the authorisation to use security measures in a case like the present one would violate [ LAW ) . It is for the implementing authorities to ensure that the security measure takes a form which in practice not only protects the interests of society but also seeks to promote those of [ the applicant ] , including his need for psychiatric treatment . "

ORG On DATE the applicant was transferred from PERSON to GPE pursuant to a decision of ORG under Article CARDINAL para . CARDINAL ( f ) of LAW .

ORG On DATE he was convicted by ORG of Asker and PERSON of having attacked a prison officer and was given a suspended sentence of CARDINAL days’ imprisonment . On DATE he was transferred from GPE to ORG near GPE in order to receive treatment from a psychologist for DATE . Certain examinations were carried out , but the applicant was sent back to PERSON after attacking CARDINAL of the nurses .

ORG On DATE the applicant was sent to ORG , where it was established that he had become psychotic . As he thus met the requirements for compulsory placement , he was kept there until DATE , on which date the hospital concluded that he was no longer psychotic .

ORG The applicant nevertheless stayed at the hospital on a voluntary basis , but after DATE he became aggressive towards other patients and staff . As he refused to be placed in the ward for difficult patients , he was sent back to GPE , still under the authorisation of ORG in accordance with Article CARDINAL para . CARDINAL ( f ) of LAW .

ORG With effect from DATE the preventive measures were changed . Under Article CARDINAL para . CARDINAL ( a ) to ( c ) ORG decided that the applicant should be released from GPE , on condition that he live in a house at GPE under the supervision of the Probation and After Care Service ( kriminalomsorg i frihet ) .

ORG On DATE the applicant physically assaulted the social workers supervising him and ORG decided on DATE to replace preventive supervision under LAW para . CARDINAL ( a ) to ( c ) by detention in a secure institution , at least for a short time , in accordance with Article CARDINAL para . CARDINAL ( f ) . The applicant was transferred to LOC .

ORG On DATE he was released from ORG and moved to the house at GPE .

ORG Following several violent incidents ORG decided on DATE , in accordance with a recommendation from the Probation and After Care Service , that preventive supervision at ORG should cease and that the applicant was to be transferred to PERSON under Article CARDINAL para . CARDINAL ( e ) .

ORG On DATE ORG decided that the applicant should be released and placed under preventive supervision pursuant to Article CARDINAL para . CARDINAL ( a ) to ( c ) of LAW and he was brought back to the house at GPE . However , as on several occasions he violated the restrictions imposed on him the ORG decided , in DATE , to detain him at PERSON again in accordance with Article CARDINAL para . CARDINAL ( e ) .

ORG On DATE the applicant was convicted by ORG of PERSON of offences under LAW in conjunction with LAW ( threatening behaviour and physical assaults ) , committed against CARDINAL social workers , a member of his family , a neighbour of his parents and members of that person ’s family . He was sentenced to CARDINAL days’ imprisonment , which sentence was deemed to have been served in detention on remand . However , he continued to be detained at Ila under Article CARDINAL para . CARDINAL ( e ) as authorised by ORG on DATE and upheld by ORG on DATE ( see paragraphs CARDINAL and CARDINAL above ) .

ORG The review available under NORP law of the lawfulness of the applicant ’s repeated periods of detention in the PERSON security ward and in prison ( under Article CARDINAL para . CARDINAL ( e ) or ( f ) of LAW ) formed the subject matter of the PERSON v. GPE judgment of CARDINAL DATE ( Series A no . CARDINAL ) . In that case the ORG concluded that there had been no violation of LAW para . CARDINAL ( article CARDINAL ) with regard to the scope of judicial review available but that there had been a violation of this provision ( articleCARDINAL ) on account of a failure in certain review proceedings to take a decision " speedily " .

ORG While the applicant was detained again at PERSON the authorities continued their efforts to solve the problems of his placement . On DATE Dr Odd PERSON , psychiatrist , submitted an expert opinion to the director of PERSON concerning the use of security measures . PERSON stated that the applicant ’s state of mind and conduct had not significantly changed from DATE since DATE . He recommended an extensive programme whereby the applicant could live in his own home in GPE , under the surveillance of CARDINAL social workers during day time and with regular counselling by a psychologist or psychiatrist , the whole project to be supervised by a project leader . It was estimated that to run the programme would cost QUANTITY per year . In DATE a meeting was arranged at PERSON , attended by representatives from ORG , ORG ( fylkeslegen ) , ORG and After Care Service , the applicant ’s lawyer , social workers and the psychiatrist , PERSON . Since certain matters remained to be clarified , no concrete proposal was adopted .

ORG On DATE ORG ( anstaltrådet ) at PERSON discussed the question of continuing the security measures in the light of the fact that the court authorisation to that effect would expire on DATE . Following this meeting the majority of the ORG decided to recommend to the ORG and ORG prosecutor ( ORG i PERSON og ORG ) to request the prolongation of the authorisation to use security measures under Article CARDINAL para . CARDINAL ( a ) to ( f ) of LAW .

The recommendation was forwarded to the ORG prosecutor by letter of DATE in which the acting director of PERSON , inter alia , stated as follows :

" [ The applicant ] has now been placed , for DATE , in closed preventive detention [ lukket sikring ] at PERSON . During this period he has on several occasions acted aggressively towards the prison officers . During previous stays in the institution he has attacked employees and has shown that his threats may be serious . Since DATE [ the applicant ] has been placed in a cell of his own in section G since , for security reasons , it could not be justified to offer him a place in the open ward . Furthermore , [ the applicant ] has not been granted leave of absence since I fear that , due to [ his ] behaviour in prison , similar incidents might occur during such leave . I refer to the fact that he has been convicted several times for threatening behaviour and physical assault , most recently by a judgment of [ CARDINAL ] DATE convicting him of similar offences committed while on leave in DATE . ... [ The applicant ] has disclosed a deviant character from a very young age . His behaviour and conduct do not appear to have changed essentially since DATE when he suffered brain damage . In DATE he was on CARDINAL occasions transferred to GPE under preventive supervision but every time it was discontinued due to circumstances relating to [ the applicant ] . Therefore I consider it probable - or rather very likely - that he will commit new offences involving violence if he were to be released when the security measure authorisation expires . The possibility also exists that he would then commit far more serious offences than those of which he has previously been convicted . It has turned out to be impossible to make other arrangements acceptable to [ the applicant ] . As recently as DATE and CARDINAL DATE ORG refused [ the applicant ’s ] requests to replace the detention with preventive supervision . The arrangement proposed by PERSON , psychiatrist , appears to be more secure , but considerably more expensive than the previous ill - fated arrangements ... However , DATE there is no adequate alternative to continuing preventive detention at PERSON . Accordingly , I would recommend renewed preventive detention upon expiry of the authorisation to use security measures on [ CARDINAL ] DATE ... "

ORG On the basis of the above recommendation the PERSON and ORG " filed charges " ( satte under tiltale ) against the applicant by " indictment " ( tiltalebeslutning ) of DATE in order to obtain ORG authorisation , pursuant to LAW CARDINAL , second sub - paragraph , of LAW , to prolong by DATE the authorisation to use security measures .

ORG On DATE the chief of police requested ORG to detain the applicant on remand for DATE in accordance with LAW ( PERSON ) , in order to obtain a medical opinion to be used during the forthcoming hearing concerning the question of further authorisation to use security measures . It was noted that the existing authorisation would expire on DATE .

ORG On DATE ORG considered the question of detention on remand . The applicant maintained that detention on remand beyond DATE would be illegal and would mean that he would be punished for the same offences twice . He alleged that the only reason why the authorities had requested his detention on remand was because they had failed to take the necessary procedural steps , although they had known for DATE when the authorisation to use security measures would expire .

On this occasion , ORG decided to obtain CARDINAL expert statements and an opinion from ORG ( PERSON rettsmedisinske kommisjon ) , despite the fact that the applicant and the prosecution agreed that a statement by PERSON would be sufficient .

ORG In its decision of CARDINAL DATE to detain the applicant on remand for DATE after DATE ORG stated :

" In accordance with NORP law the prosecuting authority shal consider and , where appropriate , determine the question of prolonging the period during which security measures can be used , even if the person in question has not committed new criminal offences , see Article CARDINAL para . CARDINAL of LAW . ... In addition , the second paragraph in fine of LAW detention on remand in cases where such detention is needed pending a new decision on security measures , on the condition that continuing the use of security measures is the most likely outcome of the case and that one of the specific conditions for detention under the first paragraph of Article CARDINAL is fulfilled . In this case it is the condition in the third sub - paragraph of the first paragraph which is relevant , namely the risk of new criminal offences punishable by CARDINAL months’ imprisonment . ... The security measure issue can not be examined before DATE . This is due to the fact that the necessary expert opinion will not be ready before that date . ... The ORG finds reason to grant the prosecutor ’s request , see [ the above - mentioned provisions of LAW ] . The ORG finds it very likely that [ the applicant ] - if released in DATE - would commit criminal offences such as threatening behaviour ( LAW ) and physical assault ( LAW ) . He has without doubt strong character deviations , little tolerance and he easily makes threats , and also attacks people . DATE he is opposed to any arrangement for supervision . In its assessment the ORG refers first of all to what has happened earlier . ORG decision of DATE contains a thorough account of DATE . Since DATE he has been convicted twice for violations of Articles CARDINAL and CARDINAL . PERSON , psychiatrist , too must be understood as considering that [ the applicant ] , due to his weak impulse control and impaired capacity to control himself , will find himself in situations where he reacts with verbal threats if he is released and that things will - despite his good intentions - go wrong . Furthermore , it is likely that the case to be brought before the district court will end with the granting of an authorisation to use security measures against [ the applicant ] - for DATE and with CARDINAL or more of the measures mentioned in Article CARDINAL para . CARDINAL ( a ) to ( f ) of LAW . It suffices here to refer to the fact that this has been recommended by PERSON prison authorities and that PERSON has drawn up a new plan for security measures . In the present circumstances , the ORG can not see that the detention constitutes a disproportionate measure . [ The applicant ’s ] case is sad and tragic , but the ORG can not have regard solely to his interests but must also take into account the risk of the applicant ’s exposing others to fear and danger . As far as the ORG can see from the case documents , it appears that the outcome will be the use of security measures to be implemented at ORG which should work better than the last programme and which would provide him with far better living conditions than he has experienced during DATE . "

ORG The applicant appealed against this decision to ORG PERSON ) . On DATE ORG upheld the decision of the lower court and added :

" There is no doubt that , under NORP law , it has up to now been assumed that it is permissible to prolong security measures beyond the maximum period even if the person concerned has not committed any crime during that period ... ORG does not find that such an arrangement constitutes a violation of LAW No . CARDINAL to LAW ( PCARDINAL - CARDINAL ) on double jeopardy . The statutory requirement that the ORG must fix a maximum period for security measures is based , inter alia , on concern for the convicted person , namely to afford him after a certain period judicial review of the necessity of continued security measures ... ORG has no particular reason to doubt that there is a very imminent risk that [ the applicant ] would commit new criminal offences were he to be released at DATE of security measures , without the prison or the prosecuting authorities having any control over him ... In order to prevent new acts of violence it is necessary that he be taken care of also after the expiry of the security measure . Accordingly , there is a need for detention on remand and a very high probability that a further authorisation to use security measures will be granted ... ORG notes that detention on remand does not appear to be a disproportionate measure . The interests of protecting society override those of the [ applicant ] in being released . The fact that the request for detention on remand of [ CARDINAL ] DATE ... was based on the ground that time was needed in order to obtain an additional expert opinion is , in ORG view , of no relevance to the question of detention . The hearing at which the extension of the security measures is to be examined can not be held until an opinion has been submitted by a further expert in psychiatry , in addition to PERSON . Until the hearing can be held it is necessary to take care of [ the applicant ] , in view of the danger of repetition of crime . ORG has understanding for the feeling of hopelessness expressed by [ the applicant ’s ] counsel about the fact that a programme for [ the applicant ] has still not been made . However , nt ] has previously received , it can not be maintained that his detention on remand would amount to a violation of LAW ( article CARDINAL ) . "

ORG The applicant appealed against this decision to ORG . On DATE ORG of ORG ( Høyesteretts kjæremålsutvalg ) rejected the appeal . In its decision the court stated :

" In accordance with LAW para . CARDINAL , second sub - paragraph , [ of LAW ] the ORG must in cases concerning security measures fix a maximum period beyond which no measures can be taken without the ORG ’s permission . A decision to prolong an authorisation does not mean that the person in question is convicted or punished again for the offences which constituted the basis for the judgment allowing the use of security measures . The fact that these offences constitute the basis for using security measures has already been decided in this judgment . What is relevant for the question whether the use of security measures should be prolonged beyond the initial maximum period fixed is an assessment of the other circumstances which provide the reasons for using security measures , the person ’s mental capacity and the risk of further criminal offences being committed . It follows from the judgment allowing the use of security measures , read in conjunction with Article CARDINAL para . CARDINAL , second sub - paragraph , that the period of security measures may be prolonged , if there is reason to do so after such an evaluation . In view of the above , it does not appear that the ORG based its decision on an incorrect interpretation of Article CARDINAL para . CARDINAL of Protocol No . CARDINAL to the Convention ( PCARDINAL - CARDINAL - CARDINAL ) by assuming that a prolongation of the period of security measures in accordance with LAW para . CARDINAL , second sub - paragraph , of LAW would not be contrary to the LAW provision ( PCARDINAL - CARDINAL - CARDINAL ) . The ORG does not find either that ORG decision is based on an incorrect interpretation of ORG CARDINAL or CARDINAL of the Convention ( article CARDINAL , article CARDINAL ) . "

ORG The applicant accordingly remained at PERSON , in detention on remand , after ORG authorisation of CARDINAL DATE expired on CARDINAL DATE .

ORG On DATE ORG decided to extend the applicant ’s detention until DATE , stating as follows :

" The basis for the continuing detention - both factual and lega - is the same as when the ORG examined the detention issue on CARDINAL DATE ; see also the decisions of ORG and ORG of ORG . The ORG does not consider the extension to be disproportionate either . With reference , among other things , to the recommendation of ORG and the psychiatrist PERSON submissions during the ORG session of CARDINAL DATE , it is likely that the case will result in a prolongation of the authorisation to use security measures against [ the applicant ] . The fact that the question of the continued use of security measures ought to have been decided before the expiry of the period authorised can not constitute a ground for release ... "

ORG The applicant appealed against this decision to ORG .

ORG On DATE the experts , PERSON and PERSON , submitted their opinion to ORG . It concluded :

" CARDINAL . It is questionable whether [ the applicant ] can be regarded as a person with an underdeveloped mental capacity .

[ The applicant ] suffers from a permanently impaired mental capacity

[ The applicant ] is not in a state of insanity during the examination and there is no sign of reduced consciousness .

Prolonged authorisation to use security measures should not be granted and in case it is , it should exclude detention in a prison or in a security ward . "

ORG On DATE ORG upheld ORG decision of DATE . ORG stated :

" The ORG finds that there is a great risk that [ the applicant ] will commit criminal acts which are punishable by imprisonment for a term exceeding DATE if he were to be released DATE and that , therefore , continued detention on remand is necessary until the question of prolonging the authorisation to use security measures can be examined in court . The ORG disagrees with counsel for [ the applicant ] that it is unlikely that such prolongation will be granted . In the light of the risk of new criminal offences being committed , to release the applicant , before an examination of whether to prolong the authorisation to use security measures , would be so questionable that to detain him on remand until such time does not seem disproportionate . Nor does it appear to be contrary to LAW CARDINAL ( article CARDINAL ) of LAW . The ORG also refers to the fact that the extension of the detention on remand is based on the need to reschedule the case as it will be necessary to replace the judge ... "

ORG On DATE ORG of ORG rejected the applicant ’s appeal against the above decision of ORG .

ORG On DATE ORG extended the period of detention on remand by DATE , until CARDINAL DATE , referring in substance to its decisions of CARDINAL DATE and DATE .

ORG On DATE ORG rejected the medical expert opinion of CARDINAL DATE and requested the submission of a revised opinion in the case .

ORG On DATE the prosecutor - general ( Riksadvokaten ) withdrew the request for a prolongation of the authorisation to use security measures against the applicant . He was accordingly released on CARDINAL DATE .

ORG During his detention from DATE to CARDINAL DATE , the applicant was held in solitary confinement , as had been the case also from DATE until that period .

ORG In DATE , DATE and DATE the applicant committed several offences . As a consequence he was arrested on DATE and detained on remand until DATE . By judgment of CARDINAL DATE he was convicted , inter alia , of threatening behaviour and physical assault under ORG CARDINAL and CARDINAL of the Penal Code and was sentenced to CARDINAL months’ imprisonment . Furthermore , ORG authorised the use of security measures pursuant to LAW CARDINAL ( a ) to ( f ) of LAW for DATE . This judgment was upheld by ORG on DATE , excluding only the security measure set out in DATE . CARDINAL ( c ) .

ORG In the meantime the applicant had been arrested again , on CARDINAL DATE , and detained on remand . By judgment of CARDINAL DATE he was sentenced to CARDINAL days’ imprisonment for further violations of , amongst other provisions , Articles CARDINAL and CARDINAL of the Penal Code . He was released on CARDINAL DATE . He served the remaining part of the sentence from DATE until DATE . By judgment of DATE the applicant was sentenced by ORG to CARDINAL months’ imprisonment having been found guilty on CARDINAL counts of threatening behaviour and physical assault from DATE until DATE . The applicant appealed against this judgment but ORG of ORG refused leave to appeal . He served the prison sentence .

On DATE ORG sentenced the applicant to CARDINAL days’ imprisonment for physical assault on a prison officer . On DATE it convicted him on CARDINAL charge of threatening behaviour , CARDINAL charges of physical assault and CARDINAL charges of invasion of privacy and sentenced him to CARDINAL months’ imprisonment . An appeal to ORG was dismissed on DATE . On a further appeal , ORG , in a judgment of DATE , reduced the sentence to DATE .

ORG The Director of Public Prosecutions has , upon the advice of the PERSON police and the public prosecutor of PERSON and Telemark , decided not to request an extension of the order of security measures ( see paragraph CARDINAL above ) , which expired on DATE .

ORG Article CARDINAL of LAW in its relevant parts reads as follows :

" CARDINAL . If an otherwise punishable act is committed in a state of insanity or unconsciousness or if a punishable act is committed in a state of unconsciousness due to self - inflicted intoxication , or in a state of temporarily reduced consciousness , or by someone with an underdeveloped or permanently impaired mental capacity , and there is a danger that the offender , because of his condition , will repeat such an act , the court may decide that the prosecuting authority , as a security measure , shall

( a ) assign or forbid him a particular place of residence ,

( b ) place him under surveillance by the police or a specially appointed probation officer and order him to report to the police or the probation officer at designated intervals ,

( c ) forbid him to consume alcoholic beverages ,

( d ) place him in secure private care ,

( e ) place him in a mental hospital , sanatorium , nursing home or security ward , where possible , in accordance with the general provisions promulgated by the King ,

( f ) keep him in preventive detention .

If such condition involves a danger of acts of the kind covered by Articles CARDINAL , CARDINAL , CARDINAL ( second paragraph ) , CARDINAL ( first , second and third paragraphs ) , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL - CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL ( first paragraph ) , CARDINAL , CARDINAL , CARDINAL , CARDINAL or CARDINAL , the court shall decide to apply such security measures as are mentioned above .

These measures are terminated when they are no longer regarded as necessary , but may be resumed if there is reason to do so . The security measures listed under ( a ) to ( d ) may be employed concurrently . The court shall determine the maximum period for which security measures may be imposed without its further consent .

Unless the court has decided otherwise , the prosecution may choose between the above - mentioned security measures . The decision to terminate , resume or alter a security measure is made by ORG . Before a decision about security measures or their termination is made , the opinion of a medical specialist must normally be obtained . The same procedure should be followed at regular intervals during the period in which security measures are in force . ... "

ORG Article CARDINAL of LAW Procedure reads as follows :

" Any person who with just cause is suspected of CARDINAL or more acts punishable by law with imprisonment for a term exceeding DATE may be arrested when :

( CARDINAL ) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautions ;

( CARDINAL ) there is an immediate risk that he will interfere with any evidence in the case , e.g. by removing clues or influencing witnesses or accomplices ;

( CARDINAL ) it is deemed to be necessary in order to prevent him from again committing a criminal act punishable by imprisonment for a term exceeding DATE ; and

( CARDINAL ) he himself requests it for reasons that are found to be satisfactory . When proceedings relating to security measures have been instituted , or it is probable that such proceedings will be instituted , an arrest may be made regardless of whether a penalty may be imposed , as long as the conditions in paragraph CARDINAL are otherwise fulfilled . The same applies when a judgment in favour of security measures has been pronounced or it is a question of extending the maximum period for using security measures . "

ORG Arrest and detention may be ordered under the second paragraph of Article CARDINAL if a request has been made for an authorisation to use security measures under LAW , or if a judgment has been given on the matter or if there is question of extending the maximum period of an LAW on remand under the second paragraph of Article CARDINAL may in such instances serve as a provisional measure to apply until the authorisation may be implemented ( ORG , GPE straffeprosess , vol . II , first edition DATE , p. CARDINAL , and second edition DATE , pp . CARDINAL - CARDINAL ) .

ORG The applicant submitted a copy of a decision of DATE by ORG of ORG , quashing a decision by a city court to prolong an authorisation to use security measures under LAW . Such prolongation should , after a main hearing ( hovedforhandling ) , be decided by way of judgment by the city court which had initially given the authorisation , sitting , not with a single judge ( forhørsrett ) , but with lay assessors ( domsmenn ) .

ORG On DATE ORG delivered a judgment ( PERSON , p. CARDINAL ) which included the following statements about the interpretation of the second paragraph of Article CARDINAL :

" The connection between the criminal acts that provided the grounds for security measures , and the new - extended - authorisation of such supervision is quite crucial to the question whether the second paragraph , cf . the first paragraph , of LAW requires that there must be a justified suspicion of a new criminal act punishable by imprisonment for a term exceeding DATE . ORG can not see that any such requirement can be read into the provision . Since the original criminal act can be the offence that provides grounds for continued security measures , it must also be possible for it to be the offence that forms the basic condition for a remand in custody pursuant to the said provision , which moreover will also in this instance require tha the general conditions for a remand in custody , e.g. a risk of repetition of an offence , are fulfilled ( see PERSON DATE , p. CARDINAL ) . This interpretation is supported by the legislative background of this provision . Before the DATE LAW the provision concerning a remand in custody in connection with proceedings relating to security measures was contained in Article CARDINAL para . CARDINAL ( b ) , item CARDINAL , of LAW . There was nothing in that provision which indicated a new criminal act as a condition for a remand in custody in connection with proceedings for an extension of security measures . There is nothing in the legislative history in connection with the inclusion of this provision among the provisions of LAW concerning remanding in custody which indicates that any change on this point was intended . Nor is it indicated by any considerations of policy . It is conceivable that the need for an extension of security measures will first become clear close to the expiry of the period of the security measures without there being any reason to criticise the prosecuting authority for not raising the question earlier , and without the need that has become apparent having any basis in the commission of a new criminal act punishable by imprisonment for a term exceeding DATE . In such cases it may appear to be unconditionally necessary in order to prevent the commission of new serious criminal acts that the offender should be remanded in custody until a new legally enforceable authorisation for security measures subsists . ORG can not see that this interpretation of the second paragraph of Article CARDINAL , cf . the first paragraph , of LAW to the effect that a new criminal act punishable by imprisonment for DATE is not required - is contrary to the provision in ORG . The provision in the LAW which might conceivably be applicable must be LAW CARDINAL ( c ) ( article QUANTITY ) . ORG has interpreted this provision ( article CARDINAL - CARDINAL-c ) to the effect that it ‘ permits deprivation of liberty only in connection with criminal GPE ( see , inter alia , the ORG ’s judgment of CARDINAL DATE in the PERSON case ) . The rule must be that a person who is convicted of a criminal act can not , after having served his sentence , be subjected to a new remand in custody on the basis of the matters that have been adjudicated because there is reason to fear the commission of new criminal acts . In cases of security measures , however , the situation is - as the ORG has stated - that an authorisation of limited duration is given to apply specific security measures , which can be extended if the conditions for such extension subsist . The extension will be a part of the reaction system - see LAW para . CARDINAL ( a ) of the LAW ( article CARDINAL - CARDINAL-a ) . When a decision is made to remand an offender in custody as a step in proceedings for the extension of security measures , because he is dangerous and it is necessary to protect vulnerable persons - in this case children against sexual assaults - ORG can take no other view than that the remand in custody , in the same way as when a remand in custody is otherwise used pending a sentence becoming legally enforceable , has the necessary connection with the criminal acts committed and the lawful prosecution thereof . ORG also finds it necessary to consider the restriction which ORG has read into Article CARDINAL para . CARDINAL ( c ) of the LAW ( article CARDINAL - CARDINAL-c ) as regards the condition ‘ necessary to prevent him from committing a criminal act’ , i.e. that a remand in custody must be to ‘ prevent a concrete and specific offence’ ( see , inter alia , the ORG ’s judgment of CARDINAL DATE in the PERSON case ) . This need for concretisation is significant . A more general risk of punishable offences would not be sufficient ... In the opinion of ORG , the risk of a criminal act [ in this case ] was concrete and specific for the purposes of Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) ... "

ORG Article CARDINAL of the Code of Criminal Procedure requires that the detention should not be a disproportionate measure .

ORG According to chapter CARDINAL , section CARDINAL , of LAW , a person who , because of his or her mental state , does not seek the medical supervision and psychiatric health care which he or she needs and whose nearest relatives fail to ensure that he or she does so , may be subjected to compulsory medical examination and may , if necessary , be placed without his or her own consent , for DATE , for treatment in a hospital or other appropriate place .

However , under section CARDINAL , a person suffering from serious mental illness may be admitted to hospital without his or her consent if his or her nearest relatives or a public authority so desire , and if the senior physician at the hospital considers , on the basis of the patient ’s state of health , that such admission is necessary in order to prevent him from suffering harm or that the prospect for recovery or substantial improvement is jeopardised or that the patient presents a serious danger to himself or others .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in DATE and lives in GPE .

At TIME on CARDINAL DATE the applicant and PERSON were sitting in his car , which was parked in a spot where the street lights were not working . A police patrol of QUANTITY officers from ORG of Bucharest Police Section No . CARDINAL approached the car and asked for their identity papers .

The applicant presented his passport and driving licence for inspection . Police officer ORG asked him , “ Do you think you are at border control ? ” ( “ bă , ce te crezi , la vamă ? ” ) and asked him to present his NORP identity card ( cartea de identitate ) . The police agents checked his identity but then refused to return his papers , claiming that he was drunk . The applicant denied being drunk and offered to go to ORG to have his blood alcohol level tested . The police refused , saying that they were not traffic police .

Police officer PERSON took the identity papers and went to the police van . Meanwhile , officer ORG invited the applicant to step out of his car and prove that he was not drunk . When the applicant got out , the police officer pushed him between his car and the wall of a building . The applicant said : “ Poor old chap , you ’re behaving like a militiaman ” ( “ tataie , te porţi ca un miliţian ” ) . ORG immediately handcuffed the applicant with his hands in front . He then pulled the handcuffs down , causing the applicant to fall to the ground .

The CARDINAL officers then kicked him several times , first in the stomach then in the kidneys . His glasses came off and his mobile phone fell to the ground . The applicant started shouting . The CARDINAL officers pulled him to his feet and hustled him into their van .

During this time Ms. PERSON was still inside the applicant ’s car and because it was dark she could not see outside . PERSON returned to the applicant ’s car and invited Ms. PERSON to accompany them to the police station , which she did . PERSON drove the van and GPE sat on the back seat with the applicant and continued to punch him in the head , eyes and temples all the way to the police station . The applicant protected his mouth and nose with his handcuffed hands .

At the police station the applicant was taken to a room in the basement . His glasses and mobile phone were returned to him . He immediately called ORG , a lawyer friend , and told him that he had been beaten up by police officers . The lawyer asked him to pass the phone to CARDINAL of the police officers . After a phone conversation between the lawyer and agent PERSON , the police took the handcuffs off the applicant and allowed him to leave the station , after asking him not to press charges .

The police agents drafted a report on the incident which they dated DATE . It was registered with Police Section No . CARDINAL on DATE .

They stated that they had approached the applicant ’s car as they had noticed that the occupants were having sexual intercourse ; they had to insist that the applicant present his passport for identification ; after obtaining the identity papers , they had asked Ms. PERSON to get into their van while they drafted the offence report ( procesul verbal de contravenţie ) . At that moment , the applicant became aggressive , threw his glasses , mobile phone and then himself to the ground , shouting that he was being abused by police . Their description of the incident continued as follows :

“ To defuse the situation we decided to handcuff [ the applicant ] and take him and [ Ms C.B. ] to the [ police station ] ...

We had to use physical force to handcuff [ the applicant ] because he himself was using physical force against us , trying to push us away while threatening us . He deliberately hit his head on the ground and on the van doors . It was only with difficulty that we managed to protect him from his own violence and agitation .

After the discussions we had at the police station ... he calmed down and apologised for his previous behaviour , claiming that he was drunk and got scared that his wife would find out about what had happened TIME .

We took note of the change in his behaviour and decided to give him a verbal warning . ”

Officer PERSON drafted a standard report on the use of force during the incident . He described the incident in a few lines and recorded that he had used physical force and handcuffs . He described the applicant as being under the influence of alcohol and aggressive , refusing to calm down and thus disturbing public order . He left blank the box on the report form concerning any visible injuries on the applicant . He reported that the applicant had been sanctioned with a verbal warning .

Lastly , the police agents wrote an offence report on PERSON , whom they fined CARDINAL new NORP lei ( ORG ) for prostitution . She admitted the offence and signed the report .

The Government shared the point of view of the official reports on the incidents . They stated that the police officers had approached the applicant and PERSON that night , informing them that they were about to be fined for engaging in sexual intercourse . PERSON had previously been on trial for prostitution by this time .

The applicant was under the influence of alcohol , refused to present his identification papers and threatened the police officers with allegations that he had relatives in the police hierarchy . He got out of the car and handed his passport to officer ORG , but started shouting that he was being abused by police , then lost his balance , fell to the ground and injured himself . He became aggressive and police agent PERSON had to use handcuffs to restrain him .

At TIME on CARDINAL DATE the applicant consulted a forensic doctor , who drafted a medical report , noting as follows :

“ – tumefaction of the right temporal bone with inhomogeneous ecchymosis of QUANTITY ;

– right upper eyelid showing inhomogeneous purple ecchymosis of QUANTITY ;

– left lower eyelid showing inhomogeneous purple ecchymosis of QUANTITY ; subconjunctival haematoma in the external quadrant of the left eye ;

– inhomogeneous purple ecchymosis on the left temporal bone with a subjacent tumefaction of QUANTITY ;

– red ecchymosis of QUANTITY ( QUANTITY on the horizontal axis ) on the cervical inferior median artery ;

– bilateral , radial , red horizontal marks of approximately QUANTITY each around the radio - carpal articulations ;

– complaints of headaches , bilateral lumbar pains . ”

At TIME the forensic doctor noted the existence of bruising and that the temporal bone had not been damaged . The X - ray and ultrasound scan revealed no damage to the lungs , internal organs or spine .

The applicant was hospitalised from DATE for further investigation of his severe and persistent headaches . No cranial trauma was discovered .

On DATE the Mina Minovici National Forensic Institute ( “ the ORG ” ) issued a report reiterating the findings above and concluding as follows :

“ [ The applicant ] had , on DATE of the examination by [ ORG ] ( DATE ) traumatic injuries that could have been produced on DATE by being repeatedly hit with a hard object and possibly through being handcuffed ( lesions noted around the radio - carpal articulations bilaterally ) .

He needed DATE of medical care . ”

NORP The applicant submitted pictures taken on DATE which show bruises on his right temple , bruising around both his eyes and redness around his left eye . He also submitted several pictures of the place where the incident had occurred .

On DATE the applicant lodged a criminal complaint against the QUANTITY police officers . ORG of Bucharest Police interviewed the applicant , the QUANTITY police officers , Ms. PERSON and the applicant ’s lawyer friend .

On DATE the applicant was interviewed by the investigators . He presented his version of the events , claiming police brutality . He admitted to having drunk CARDINAL spritzers and an espresso TIME of the incident . He said that he had shouted at the police that TIME , but that he had only been trying to protect himself from their aggressive behaviour .

NORP The CARDINAL officers denied inflicting any violence on the applicant . Their version of the events reiterated the statements made in the official police report of DATE . They claimed that they had informed the applicant that he and Ms. PERSON were committing an offence , for which they were going to be sanctioned . They stated that the applicant had started shouting and had become violent , thus disturbing public order . They had therefore been forced to take action , by handcuffing him and taking him to the police station .

In her statement of DATE , Ms. PERSON admitted that she and the applicant had been negotiating a price for sexual services when the police had arrived . She said that the applicant had been drunk , loud and abusive towards the police officers . She had seen the applicant fall to the ground and be helped up by the police officers , who had then handcuffed him with his hands behind his back and escorted him to the police station . She did not see the police officers being violent towards him during the incident or at the police station . According to her statement , the applicant hit his eye when he fell to the ground and banged himself on a step .

M.N. was interviewed on DATE . He stated that the applicant had called him that night , had sounded scared and had claimed to have been beaten up by police officers . ORG stated that the officer had explained over the phone why the applicant had been taken to the police station and informed him that the applicant was not under arrest . TIME he called the applicant again on his mobile phone , by which time the latter had already been released .

On DATE the police sent the file to ORG of ORG for further investigation of the accusation of abusive behaviour , and to ORG regarding the applicant ’s allegations that he had been hit and had suffered other forms of violence .

On DATE , based on the evidence gathered by the police and without hearing fresh testimony from those involved in the incidents , ORG decided not to prosecute . On DATE the head of ORG upheld that decision , despite the applicant ’s complaint .

On DATE the applicant complained to ORG about the prosecutor ’s decisions , citing police brutality and the lack of an effective investigation .

On DATE ORG dismissed the complaint . On the basis of the documents in the file and after hearing pleas from the parties’ representatives and the prosecutor but not from the applicant or the police officers involved in the events , it established that the applicant had behaved aggressively that night , had been under the influence of alcohol , had disturbed public order and had deliberately tried to hurt himself . It found no evidence in the file that the reports made by the police officers were untrue , and noted that the applicant had not contested their veracity . It also noted that the applicant had been engaged in illegal activities , which gave the police permission to intervene , to check his identity and to prevent him from continuing . Lastly , it reiterated that according to the applicable law , the police were not to be held responsible for minor injuries caused to a person during the lawful exercise of their powers .

The applicant appealed , dissatisfied in particular with the interpretation given by the court of the evidence in the file , and pointing out that he had not complained about the reports made by the police on the incidents , but about the police ORG brutality that night .

In a final decision of CARDINAL DATE ORG reexamined the evidence in the file and upheld ORG judgment . The decision became available to the parties on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

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

By a writ filed on DATE C.R. , a bank , brought proceedings against PERSON before the PERSON della legge ( “ the Commissario ” ) seeking termination of her lease and an eviction order against her for non - payment of her rent . On DATE the PERSON authorised the commencement of the action against the applicant and summoned the parties to appear on DATE . As the applicant did not attend the hearing the case was listed for DATE . On DATE the applicant deposited with the registry a bankbook ( libretto al portatore ) , mentioning a sum to be handed over to the claimant bank if it were to accept a settlement out of court .

On DATE C.R. claimed the sum in question , the PERSON ordered notification of the claim to the applicant and gave her DATE to file her submissions . On DATE , as PERSON had not filed any observations , ORG repeated its claim of DATE

On DATE C.R. declared that it did not wish to withdraw its action , even if it obtained the sum concerned . On DATE the PERSON gave the applicant DATE to file submissions .

At a hearing on DATE the applicant confirmed her offer of DATE and asked for the money to be attached to guarantee payment . ORG objected , seeking the applicant ’s eviction . On DATE the PERSON scheduled a hearing for DATE , which was later put back by DATE because he had another engagement , for the attempt to reach a friendly settlement prescribed by law in eviction cases ( section CARDINAL of Law no . CARDINAL of DATE ) ; when that attempt came to nothing the PERSON opened the first of CARDINAL time - limited stages for adducing evidence , each waivable by the claimant ( primo termine probatorio – see paragraph CARDINAL below ) . On DATE he opened the second such stage ( secondo termine probatorio ) .

On DATE the applicant asked the PERSON to open the first of CARDINAL further time - limited stages waivable by the defendant ( primo termine reprobatorio ) , and he did so on DATE . On DATE the applicant asked for evidence to be taken from a witness . The PERSON listed a hearing for that purpose to take place on DATE , but on that date the witness failed to appear . On DATE the applicant filed documents , and on CARDINAL DATE the PERSON asked her to inform him whether she wished to maintain her request for witness evidence to be taken . On DATE , at the applicant ’s request , the PERSON listed a new hearing for that purpose to take place on DATE , later adjourned to CARDINAL DATE on account of another engagement . As the witness failed to appear , the PERSON fixed a new hearing for DATE , that being the last opportunity to hear the witness . On DATE C.R. asked the PERSON to declare that the witness could no longer be called , having failed to appear within the time allowed ; on CARDINAL DATE the PERSON allowed that application .

On DATE PERSON requested the opening of the next time - limited stage ( secondo termine reprobatorio ) ; the PERSON complied with that request on DATE . On DATE Mrs Tierce asked for evidence to be taken from another witness , who was examined on DATE .

On DATE the applicant asked the PERSON to open the fifth and last time - limited stage for the completion of the evidence - taking ( termine di controprova ) , which he did DATE . On DATE the PERSON observed that the time allowed for the last stage of the presentation of evidence had expired . On DATE the applicant asked for the return of a cheque that she had previously deposited with the registry . On DATE the PERSON gave C.R. DATE to make its final submissions . On DATE C.R. asked PERSON to vacate the LOC , as her lease had expired on DATE . On CARDINAL DATE the PERSON gave the applicant DATE to submit her observations .

NORP On DATE C.R. had again applied to the PERSON for an eviction order against the applicant , as it needed the building in order to carry on its own business there . On DATE the PERSON scheduled a hearing for DATE for the attempt to reach a friendly settlement prescribed by PERSON no . CARDINAL of DATE .

On DATE , at the request of ORG , with no objection on the applicant ’s part , the CARDINAL cases were joined on account of the connection between them as regards their subject matter and the identity of the parties .

On DATE PERSON declared that she was prepared to vacate the LOC in exchange for compensation . The case was adjourned for DATE to give the parties time to reach an agreement on that point .

On DATE the applicant requested the opening of the statutory DATE period for the submission of objections ( termine statutario per rispondere ed eccepire ) , and the PERSON allowed that application on DATE . On DATE , as the applicant had not raised any objection , ORG requested the opening of the first termine probatorio . On DATE the PERSON observed that the time allowed for the applicant to lodge objections had not yet expired . On DATE the applicant asserted that her lease had not yet run out .

On DATE the PERSON gave C.R. DATE to submit observations . On DATE contested PERSON assertion . On DATE the PERSON gave PERSON DATE to submit observations .

On DATE C.R. again sought an order for the applicant ’s eviction , and the PERSON gave her DATE to submit observations . On DATE the applicant confirmed what she had asserted on DATE , and on DATE the PERSON gave C.R. DATE to submit observations .

On DATE ORG requested the opening of the second termine probatorio ( thus waiving the right to the time allowed for the first stage ) . On DATE the PERSON gave PERSON DATE to submit observations and opened the second stage . On DATE C.R. filed documents . On DATE the applicant submitted that ORG ’s assertions were ill - founded in fact and in law , and on DATE the PERSON gave C.R. DATE to submit observations .

On DATE C.R. requested the opening of the first termine reprobatorio , and on DATE the PERSON decided to close the proceedings on account of the parties’ inaction . On DATE C.R. again requested the opening of the first termine reprobatorio . DATE the PERSON rescinded his decision of DATE as having been taken on the basis of a mistake as to the facts and opened the first termine reprobatorio . On DATE C.R. asked for a date to be fixed for oral argument and the examination of CARDINAL witness ; on DATE the PERSON arranged a hearing for that purpose , to be held on DATE . On DATE the witness indicated that he could not attend the hearing on the date chosen . On DATE , at ORG request , the PERSON decided to hold a new hearing on DATE , on which date evidence was taken from the witness . On DATE ORG asked for DATE to be fixed for the presentation of oral argument ; on DATE the PERSON set the case down for hearing on DATE .

On DATE ORG withdrew its request for an adversarial hearing and requested the opening of the second termine reprobatorio . On DATE the PERSON gave the applicant DATE to submit observations . On DATE C.R. again asked the PERSON to open the second termine reprobatorio , and he did so on DATE . On DATE ORG asked for evidence to be taken from a witness ; on DATE the PERSON arranged a hearing for that purpose to be held on DATE , at which the witness gave evidence .

On DATE PERSON requested the opening of the termine di controprova , and the PERSON allowed that application on DATE . On DATE the applicant filed documents and asked for an expert report and the convening of an arbitration board . On the following day the PERSON gave C.R. DATE to file observations . On DATE C.R. requested PERSON immediate eviction and asked for a witness to be called ; on DATE the PERSON arranged a hearing for that purpose to be held on DATE , when a witness gave evidence . On DATE C.R. asserted that it had not received instructions from the judge about the appointment of an expert , and the applicant repeated her request for the convening of an arbitration board and confirmed the appointment of her expert . On DATE the PERSON asked ORG to appoint its expert and on DATE the applicant asked the PERSON to repeat his request of CARDINAL DATE . On DATE the PERSON gave C.R. DATE to file observations . On DATE the applicant again asked for an arbitration board to be convened and an expert appointed . On the following day the PERSON asked ORG to specify how much the applicant owed it . On DATE the applicant repeated her request of DATE . On DATE the PERSON observed that ORG had not expressed an opinion on either the convening of an arbitration board or the expert report . On DATE C.R. indicated the amount of the applicant ’s debt and on the following day the PERSON gave her DATE to file observations .

On DATE , noting that all CARDINAL time - limited stages for the presentation of evidence had expired , ORG requested the opening of the time - limited stage for the filing of final submissions ( termine ad allegare ) ; the PERSON allowed that application on DATE .

On DATE and CARDINAL DATE C.R. and PERSON filed their final submissions .

The PERSON reserved judgment ( irrotulazione ) at a hearing on DATE .

In a judgment of CARDINAL DATE the PERSON ordered the applicant to vacate the LOC with immediate effect .

On DATE PERSON appealed to the judge of civil appeals ( PERSON delle appellazioni civili ) and on DATE she summoned ORG On DATE the PERSON authorised the summons and a hearing was set down for DATE so that the parties’ lawyers could enter an appearance .

On DATE , as the first - instance judgment was enforceable with immediate effect , ORG asked for the applicant to be evicted , which was done on DATE .

On DATE the applicant asked the PERSON to open the first termine probatorio , which he did DATE . On DATE she asked for ORG to be served with the decision to open the previous stage .

On DATE C.R. asked the PERSON to open the second termine probatorio , which he did on DATE . On DATE ORG asked for that decision to be served on the applicant .

On DATE the applicant requested the opening of the first termine reprobatorio ; the PERSON allowed her application on DATE . On DATE the applicant asked for that decision to be served on C.R. On DATE she filed documents .

On DATE C.R. asked the PERSON to open the second termine reprobatorio , and he did so on DATE . On DATE C.R. asked for the sum recorded in the bankbook ( deposited by the applicant on DATE ) to be checked and the accrued interest added ; this was done by the registrar on DATE .

On DATE ORG requested the opening of the termine di controprova , and the PERSON complied in a decision of CARDINAL DATE . On DATE C.R. asked for that decision to be rescinded , as the decision of CARDINAL DATE had not yet been served . The PERSON allowed the above application on DATE . On DATE C.R. again asked for the decision of CARDINAL DATE to be served . On DATE , ORG indicated that it wished to have evidence taken from CARDINAL witnesses and the PERSON set down a hearing for that purpose on CARDINAL DATE , but the witnesses failed to appear . On DATE , at ORG request , the PERSON arranged for a new and final hearing to be held on DATE for the witnesses to be examined ; CARDINAL witness gave evidence on that occasion .

On DATE PERSON asked the PERSON to fix the termine di controprova , which he did on DATE . On DATE the PERSON corrected a clerical error . On DATE the applicant deposited a cheque with the registry .

On DATE she asked for the opening of the time allowed for the filing of final submissions ; the PERSON complied on DATE . On DATE and DATE the parties filed their final submissions .

On DATE the PERSON set down for DATE the hearing for the appearance of the parties and transmission of the file to the judge of civil appeals for judgment to be reserved .

In a judgment of DATE , published on DATE , the judge of civil appeals upheld the applicant ’s appeal in part by reducing the arrears of rent to be paid .

Under LAW of Book II of ORG , once the claimant has appeared and confirmed that he wishes to bring an action the judge must give the defendant , if he so requests , time equivalent to CARDINAL hearings ( corresponding to DATE ) to reply and raise objections .

Under LAW no . CARDINAL of DATE ,

( a ) NORP evidence may be adduced by the parties , both at first instance and on appeal , during CARDINAL time - limited stages , divided up as follows :

( i ) CARDINAL termini probatori , each lasting for CARDINAL consecutive hearings ( DATE ) ;

( ii ) CARDINAL termini reprobatori , each lasting for CARDINAL consecutive hearings ;

( iii ) a termine di controprova , lasting for CARDINAL consecutive hearings ;

( b ) the termini probatori , the termini reprobatori and the termine di controprova are opened by the judge at the request of the most diligent party , in succession , when all the evidence adduced in the previous stages has been admitted , or when the time allowed for those stages has been waived or has expired ;

( c ) termini probatori can be waived unilaterally by the claimant ; termini reprobatori can be waived by the defendant only ; the termine di controprova can not be waived except with the consent of all parties ;

( d ) the termine ad allegare ( the time - limited stage for the filing of the parties’ final submissions ) is opened by the judge at the request of the most diligent party ; it lasts for DATE . Once the time allowed for the parties to file their final submissions has expired , the registry transmits the file to the judge within DATE . The judge , of his own motion , sets down a hearing at which judgment will be reserved and keeps the file with a view to reaching his decision ;

( e ) the judge gives his decision within DATE of the hearing at which he reserves judgment .

Title LAW no . CARDINAL of DATE ( the “ Sole law on the renting of immovable property ” ) contains the following procedural rules :

Section CARDINAL

( Jurisdiction of the Commissario della legge )

“ Disputes about the level of rent , termination of the lease at or before the end of its term or failure to comply with its conditions fall in the first instance within the jurisdiction of the PERSON della legge .

Judicial proceedings must be preceded by an attempt to reach a friendly settlement conducted by the Commissario della legge .

Judgments are immediately enforceable even in the event of an appeal , save where the Commissario della legge decides otherwise .

Judgments concerning the level of rent take effect between the parties immediately .

The Commissario della legge , after considering the application for an eviction order and assessing the grounds advanced , may order immediate enforcement of such a measure within the time specified . ”

Section CARDINAL

( Delayed payment by the tenant )

“ In the event of a delay in payment , at the first hearing of the termination proceedings the judge may , if requested to do so , allow the tenant not DATE to put matters right . Payment of arrears of rent , service charges , statutory interest and costs shall prevent termination of the lease .

The period of grace mentioned in the first paragraph may be granted to the tenant only once in any DATE period . ”

Section CARDINAL

( Date of execution )

“ Where , in his decision , the judge orders the tenant to vacate the premises , he shall , after taking into account the arguments of the opposing parties , fix the date of enforcement not DATE after the date on which the decision itself takes effect . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant was employed at ORG in PERSON . On DATE she was given a notice concerning termination of her employment as , due to restructuring , her position had become redundant .

On DATE the applicant challenged the dismissal before the PERSON ORG ( Okresný súd ) .

On DATE ORG sent a copy of the action to the defendant – the applicant ’s employer – and requested that it submit its observations in reply within DATE . The defendant did so on DATE .

On DATE ORG requested that the defendant submit documentary evidence within DATE . The defendant replied on DATE .

On DATE ORG requested that the defendant submit further documentary evidence within DATE .

On DATE the defendant informed ORG that the applicant ’s action was identical with another action before the same court and proposed that both actions be joined . On DATE it replied to ORG request of DATE .

On DATE the President of ORG assigned the case to another ORG of that court .

A hearing listed for CARDINAL DATE had to be adjourned as the applicant did not appear . A new hearing was called for DATE .

On DATE ORG held a hearing at which it heard the parties . It was adjourned until DATE . The parties were invited to submit documentary evidence and ORG decided to call witnesses .

On DATE the applicant extended the scope of her action in that she also claimed compensation for wages lost as a consequence of her dismissal .

On DATE the defendant requested that the hearing listed for DATE be postponed as CARDINAL of the witnesses who had been called and who were its employees could not attend . The hearing scheduled for DATE was consequently adjourned sine die .

On DATE ORG held another hearing at which the parties and CARDINAL witness were heard . Another witness who had apologised for being unable to attend did not appear . The hearing was adjourned until DATE with a view to calling that witness .

On DATE another hearing was held at which ORG heard the above witness . It was adjourned until DATE in order that the defendant might submit additional documentary evidence .

On DATE ORG held another hearing which the applicant did not attend . Following this hearing , on DATE , ORG dismissed the action . It found that the procedural and material legal requirements for a dismissal had been satisfied in the applicant ’s case . The judgment was served on the defendant on DATE and on the applicant on CARDINAL DATE .

On DATE the applicant lodged an appeal . She submitted the reasons for her appeal on CARDINAL DATE . She contested ORG judgment on the grounds that it was based on findings which , according to her , were not proven by the evidence submitted . In the event that the court of appeal upheld ORG judgment , the applicant requested that it grant her leave to appeal on points of law .

On DATE ORG invited the defendant to file its observations in reply to the appeal . The defendant replied on DATE .

On DATE the applicant submitted further reasons for her appeal . In substance , she contested the ORG judgment on the ground that , in her opinion , there was not enough evidence to prove that her dismissal had been in accordance with the relevant law .

On DATE ORG transmitted the casefile to ORG ( PERSON súd ) for a decision on the appeal .

In a letter of CARDINAL DATE the applicant demanded that ORG deal with her case promptly .

On DATE ORG held a hearing on the appeal at which the parties were heard . The hearing was adjourned and ORG invited the defendant to submit further evidence within DATE . The defendant replied on DATE .

A hearing on the appeal scheduled for DATE had to be adjourned as the applicant did not appear and it was not clear whether the summons had been duly served on her . ORG however again requested the defendant to submit further evidence . The defendant replied on DATE .

Further hearings on the appeal which were fixed for DATE and CARDINAL DATE had to be cancelled as the applicant did not appear and , again , it was not clear whether the summons had been duly served on her .

On DATE ORG listed a hearing on the appeal for CARDINAL DATE . On CARDINAL DATE ORG requested that the summons for that hearing be served on the applicant by the Police . On CARDINAL DATE the PERSON ORG informed ORG that , despite several attempts , they had been unable to reach the applicant at her permanent residence .

On DATE ORG held further hearing on the appeal . The applicant did not attend . ORG was however satisfied that the summons had been duly served on her by alternative means , i.e. that it had been deposited with the competent post office and the applicant had duly been given a written notice to that effect at the address of her permanent residence . Following this hearing , on DATE , ORG upheld the judgment of ORG . It found the latter ’s judgment factually and legally correct and considered the appeal unfounded . ORG did not address the applicant ’s request for leave to appeal on points of law . The judgment of ORG was served on the defendant on DATE and on the applicant on CARDINAL DATE . No appeal lay against it and , upon its service on the parties , it became final and binding .

On DATE the applicant filed an appeal on points of law ( dovolanie ) arguing that ORG and ORG had assessed the evidence incorrectly and had drawn wrongful legal conclusions .

On DATE ORG instructed the applicant to appoint a lawyer within DATE as legal representation was mandatory in proceedings on appeals on points of law . On DATE , it sent a copy of this appeal to the defendant and invited the latter to present observations in reply within DATE . The defendant replied on DATE .

As it was not possible to serve the request of CARDINAL DATE on the applicant by regular means , on DATE ORG requested that it be served by the Police . ORG informed ORG on DATE that the request had not been served as the applicant was not staying at her permanent residence .

In the meantime , on DATE , the applicant ’s lawyer submitted further reasons for the appeal on points of law .

On DATE the applicant ’s lawyer appeared before ORG and confirmed that she was representing the applicant in the proceedings on her appeal on points of law . On DATE ORG submitted the casefile to ORG for a decision on that appeal .

On DATE ORG declared the applicant ’s appeal on points of law inadmissible . By virtue of LAW it examined ex officio whether the proceedings were not vitiated by the procedural flaws set out in LAW of that Code . It found no such flaws and observed that the appeal was neither admissible on any of the admissibility grounds pursuant to LAW . ORG thus did not examine the merits of the case . The decision was served on the defendant on DATE and on the applicant ’s lawyer on DATE .

Part CARDINAL governs legal remedies . Appeals on points of law ( dovolanie ) are regulated in Head CARDINAL of that Part .

Under Article CARDINAL an appeal on points of law lies against final and binding decisions of appellate courts if some of the statutory admissibility criterion are met .

The general admissibility criterion , i.e. those applicable to both judgments ( rozsudok ) and resolutions ( uznesenie ) , are set out in Article CARDINAL . These comprise situations ( a ) where the courts decided in a matter outside their jurisdiction ; ( b ) where a person who acted as a party to the proceedings lacked legal capacity to be a party to court proceedings ; ( c ) where a party to the proceedings lacked capacity to act in court proceedings and was not duly represented ; ( d ) where the courts decided in a matter which had been res iudicata or which had already been pending in another proceedings ( lis pendens ) ; ( e ) where the proceedings could only commence by way of an action and no such action was actually filed ; ( f ) where the courts prevented a party to the proceedings from acting before them ; and ( g ) where the case was decided upon by an excluded judge or where the composition of the court was incorrect .

In addition to the above general admissibility criteria , special admissibility criteria apply if the court of appeal decided in the form of a judgment . These are defined in LAW . Its paragraph CARDINAL provides for an appeal on points of law if the appellate court overturned the judgment of a first instance court . In accordance with its paragraph CARDINAL , an appeal on points of law also lies against a judgment of the appellate court in which the latter did not follow the binding legal view previously expressed in the same matter by the court of cassation . Under paragraph CARDINAL ( a ) , an appeal on points of law is also admissible against a judgment of an appellate court in which it upholds a judgment of a first instance court and , at the same time , it rules that such an appeal is admissible as the case concerns a matter of particular legal importance . Finally , under paragraph CARDINAL ( b ) , an appeal on points of law is also admissible against a second judgment of an appellate court in which it upholds a second judgment of a first instance court if , in the second round , the first instance court decided differently than in its first judgment ( which had been quashed by the first decision of the court of appeal ) because it was bound by the legal view expressed by the court of appeal in its first judgment . This rule applies also to the third and , as the case may be , subsequent judgments of the court of appeal .

Pursuant to Article CARDINAL ( CARDINAL ) a person who appeals on points of law must be legally represented .

NORP In accordance with LAW ( CARDINAL ) the scope of the examination of an appeal on points of law by the court of cassation is in principle limited to the grounds of appeal submitted by an appellant . Except for flaws listed under LAW and flaws that have resulted in an incorrect decision on the merits , the court of cassation does not review ex officio any procedural flaws that have not been complained of by an appellant .


Christos Rozakis;Egbert Myjer;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Sverre Erik Jebens

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

On DATE at TIME , the applicant was arrested on suspicion of having carried out a robbery of a petrol station in GPE . On DATE he admitted being responsible for the robbery . He was charged at TIME

On DATE at TIME , the applicant made his first appearance in the GPE court , where he instructed his solicitors to make an application for release on bail . The police officer gave evidence to the court stating that the robbery was not connected with terrorism and that , subject to the proper conditions , he would have no objection to bail . The sitting resident magistrate refused the application , indicating that the offence was a scheduled offence and that he therefore did not have the power to order release ( section GPE ) of LAW and section CARDINAL(CARDINAL ) of GPE ( Emergency LAW DATE ) .

On DATE the applicant applied to ORG for bail . On DATE the High Court heard and granted his application .

On DATE the applicant pleaded guilty in ORG to an offence of robbery and was sentenced to CARDINAL years’ detention in a young offenders’ institution , followed by DATE of probation .

Meanwhile , on DATE , the applicant made an application for judicial review , seeking a declaration of incompatibility of the legislation cited above with Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG rejected the applicant ’s application . Mr PERSON held :

“ There is nothing in the text of LAW nor in the jurisprudence of ECtHR which requires that the court before which an arrested person must be brought should be the same court that has power to grant him bail . He must be brought promptly before a court or an officer authorised to exercise judicial power . He must also have the opportunity to apply for bail . It is not necessarily the case , however , that these CARDINAL separate and distinct rights require to be vindicated at the same time or in the same forum . Provided that the arrested person is brought promptly before a court that has power to review the lawfulness of his detention and that he has the opportunity to apply without undue delay for release pending his trial , the requirements of LAW are met .

The applicant was brought before the GPE court promptly DATE within TIME of his arrest . His appearance before the magistrate was automatic and did not depend on any initiative from the applicant . Moreover , the resident magistrate was empowered to review the lawfulness of the applicant ’s detention ... Here the magistrate can review the legal basis on which the arrested person is detained . He must be satisfied that the arrest and continued detention are lawful . If he is not so satisfied , he must order the release of the person detained . The applicant in the present case was therefore entitled to a prompt automatic examination by a competent judicial officer of the legal basis of his arrest and continued detention . He was moreover entitled to – and did obtain – a prompt examination by a judge of his right to release on bail . ... ”

The judge also rejected the arguments under LAW that accused members of the security forces were treated more favourably concerning bail than other accused persons and refused leave to appeal .

On DATE the ORG refused leave to appeal to ORG , but certified as points of law of general public importance whether the legislation was compatible with the LAW and whether LAW required that the court before whom an accused person was brought pursuant to LAW should have the power to admit him to bail .

On DATE leave to appeal was refused by ORG .

Section CARDINAL(CARDINAL ) of LAW ( which came into force on DATE ) is substantially the same as section CARDINAL(CARDINAL ) of GPE ( Emergency LAW Act DATE ( in force at the time of the applicant ’s appearance ) , and provides :

“ Subject to subsections ( CARDINAL ) and ( CARDINAL ) , a person to whom this section applies shall not be admitted to bail except –

( a ) by a judge of ORG or ORG , or

( b ) by the judge of the court of trial on adjourning the trial of a person charged with a scheduled offence . ”

The sole jurisdiction of ORG , ORG and trial judge to grant bail in the case of scheduled offences dates from DATE and is based on the original provisions of GPE ( Emergency LAW DATE . The rationale derives from ORG ( “ Report of the Commission to consider legal procedures to deal with terrorist activities in GPE ” ( QUANTITY . DATE ) ) , which concluded that resident magistrates who heard bail applications were particularly susceptible to threats and intimidation ( at the relevant time one had been shot and the homes of CARDINAL others bombed ) . LAW provides for the position to be DATE reviewed by ORG . DATE reports on the working of the legislation are laid before ORG for this purpose .

In the DATE report of ORG , PERSON of Berriew ORG recommended the return of bail applications to the GPE court , noting that the requirement for all applications in scheduled offences to go before ORG led in practice to some defendants spending DATE in custody and that a significant proportion of cases were ultimately not proceeded with , or defendants were acquitted or given non - custodial sentences . He recommended that the power be given to a small number of specially trained magistrates . However , in his DATE report , he noted a continuing danger from sophisticated terrorist crime and numerous serious criminal offences with a strong terrorist link , with syndicated crime having a paramilitary connection increasing and significant levels of intimidation remaining . In considering whether or not to give resident magistrates the power to deal with bail applications , he did not repeat his earlier recommendation , observing that the security assessment was that there would be a significant threat of intimidation and violence towards them and those close to them . He did , however , agree that bail hearings should be available at the weekends and this change was brought into force immediately .

Robbery , in so far as it involves any explosive , firearm , imitation firearm or weapon of offence , is specified in paragraph CARDINAL ( b ) of schedule CARDINAL to LAW CARDINAL as a scheduled offence .

This was set out in the Rules of ORG ( GPE ) Order CARDINAL , supplemented by Practice Direction DATE no . CARDINAL . This provided for ORG to sit DATE except DATE and DATE for the purpose , inter alia , of hearing bail applications . The Practice Direction instituted a deadline for papers to be lodged by TIME on DATE before bail applications were heard . From DATE , the deadline was moved to TIME and the office adopted the practice of accepting faxed applications . A bail judge would also consider admitting a late application in a genuinely exceptional case .

As from DATE , ORG also sat on DATE to hear bail applications .