Violation of Art. 5;Violation of Art. 18+5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE .

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

The applicant is a former Chairman of ORG and majority shareholder in ORG Most , a private NORP media holding company , which owned ORG , a popular television channel .

On DATE the applicant was interviewed by Mr ORG , senior special cases investigator at ORG ( “ the ORG ” ) . It appeared from the transcript of this interview that it concerned an investigation into a ORG - owned company known as ORG RGK NORP Video ( “ LANGUAGE Video ” ) in respect of the transfer of a broadcasting licence to a limited liability company , PERSON ( “ OOO Russian Video ” ) , in violation of various provisions of LAW .

After the interview , a witness statement was completed and signed by both the applicant and Mr Nikolayev . The applicant was allowed to check the notes made of the interview and to add his own comments . The investigating officer noted down on the statement that the applicant had been awarded the Friendship of the Peoples Order .

NORP In DATE Media Most was involved in a bitter dispute with ORG , a natural gas monopoly controlled by the ORG , over ORG debts to ORG .

After ORG had discontinued the negotiations on the debts , ORG offices in GPE were searched by special units from the ORG and ORG . A number of documents and other materials were seized as evidence in the framework of an investigation into alleged infringements of privacy by ORG security staff .

On DATE Mr Nikolayev opened a criminal investigation in respect of the applicant ( criminal case no . CARDINAL - CARDINAL ) concerning allegations of fraud . This case was joined to a criminal investigation ( case no . CARDINAL - CARDINAL ) in respect of NORP , an executive of ORG , which concerned allegations of embezzlement . In both cases the allegations related to the business relations between ORG and ORG and , in particular , ORG inclusion into ORG and an increase in the latter 's authorised capital , which resulted in a redistribution of each shareholder 's ' stake .

On DATE the applicant was summoned to attend the ORG on DATE at TIME to be questioned as a witness in relation to another criminal case . At the time of the summons by the ORG , the applicant was out of the country , but he nevertheless made arrangements to return to GPE . On arrival at the ORG on DATE , he was arrested and imprisoned in FAC pursuant to an order issued on DATE by Mr PERSON .

The order stated that , on the basis of ORG DATE of LAW ( “ the ORG ” ) , Mr Nikolayev considered that the crime of fraud , of which the applicant was suspected , constituted a serious public threat punishable by imprisonment alone , and that the applicant might obstruct the establishment of the truth in the case and attempt to elude the investigation and trial .

The applicant remained in custody until DATE , during which time he was interrogated twice , on DATE .

The interrogation on DATE took place in the presence of the applicant 's lawyers . It was explained to the applicant before the interview that he was suspected of committing large - scale fraud within the meaning of LAW ( b ) of LAW . More specifically , the charges were based on an allegation that in DATE , through the establishment of various commercial entities ( including Media Most ) , broadcasting functions were fraudulently transferred from ORG , a ORG - owned company , to ORG , a private company , thereby depriving ORG CARDINALth Channel , which was valued at MONEY ( ORG ) . It was alleged that in DATE the applicant , in concert with NORP , began using the CARDINALth Channel for his own purposes , without payment to the ORG .

The applicant declined to comment in detail on the investigation , other than to state that he found that it demonstrated an ignorance of NORP law and that a “ political contract ” had been taken out against him .

Mr PERSON noted down in the record of the interview that the applicant had been awarded the Friendship of the Peoples Order .

On DATE the applicant 's lawyers lodged a petition with Mr ORG , complaining that the applicant 's arrest was unlawful in that it did not comply with LAW ORG , that he was entitled to benefit from an amnesty exempting him from imprisonment on account of the award of the Friendship of the Peoples Order and LAW of DATE , and that the suspicions against him were inconsistent , absurd and false .

In addition , the applicant 's lawyers lodged a complaint with ORG in GPE under LAW of the ORG , claiming that the applicant 's detention was unlawful and requesting his immediate release . They argued that the arrest order had been issued in violation of LAW , CARDINAL of the ORG , since there were no exceptional circumstances justifying the applicant 's detention before the charges had been laid or any grounds for imprisonment on the basis of the charges brought . The arrest order appeared to have been politically motivated and imprisonment was unnecessary and constituted an excessive restraint . Furthermore , there were no grounds to suspect that the applicant intended to elude the investigation or any reason to believe that he would obstruct it . Finally , the applicant was subject to an amnesty exempting him from punishment and preliminary imprisonment due to having been awarded the Friendship of the Peoples Order .

On DATE Mr Nikolayev charged the applicant with fraud under LAW ( b ) of LAW . On DATE the applicant was interrogated in the presence of his lawyers . The applicant refused to sign the record of the interrogation because he did not understand the charges laid . He noted down on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them . He again declared that the investigation was being used by the authorities to discredit him and demanded his immediate release .

On DATE , DATE , Mr ORG ordered the applicant 's release from custody in exchange for an undertaking not to leave the country . The applicant was released at TIME on DATE .

After the applicant 's release , Mr ORG issued summonses for the applicant to appear for further questioning on DATE and CARDINAL , DATE and DATE . The applicant attended for questioning but refused to answer the questions that were put to him .

The applicant asked Mr Nikolayev on a number of occasions to allow him to leave the country for personal and business reasons . Mr ORG refused without giving detailed reasons .

During the applicant 's detention CARDINAL and DATE , the Acting Minister for ORG , PERSON , offered to drop the criminal charges against the applicant in connection with the NORP Video case if the applicant sold ORG to ORG , at a price to be determined by ORG .

While the applicant was in prison , ORG asked him to sign an agreement in return for which the applicant was told that all criminal charges against him would be dropped . The agreement between ORG and the applicant was signed on DATE ( the “ DATE agreement ” ) . It included a provision in Annex CARDINAL calling , inter alia , for the termination of the applicant 's criminal prosecution in relation to ORG and for an undertaking regarding his security . This provision read as follows :

“ The Parties realise that successful implementation of the Agreement is possible only if the individuals and legal entities concerned acquire and exercise their civil rights of their own free will and in their own interests , without compulsion by any other party to act in any particular way . In the current situation , this implies that certain interrelated conditions must be met , namely :

– termination of the criminal prosecution against Mr PERSON in connection with the criminal case initiated against him on DATE , his reclassification as a witness in the said case and suspension of the precautionary measure prohibiting him from leaving [ the country ] . Should this condition not be met , the Parties are relieved of their obligations hereunder ;

– provision to Mr PERSON and other shareholders ( stockholders ) and executives of the [ ORG subsidiaries ] of guarantees regarding their security and protection of their rights and freedoms , including the right to travel freely , to choose their place of stay and residence , to leave GPE freely and to return to GPE without hindrance ;

– renunciation of all steps , including public statements or dissemination of information by the organisations , their shareholders and executives , which would damage the foundations of the constitutional regime and violate the integrity of GPE , undermine the security of the ORG , incite to social , racial , national and religious discord or lead to the discrediting of the ORG institutions of GPE . ”

Annex DATE was signed by the parties and endorsed by Mr GPE 's signature .

Following the signing of the DATE agreement , the criminal prosecution against the applicant in connection with ORG was stopped by a stay of prosecution and an order cancelling the precautionary measure , issued by Mr PERSON on DATE . The order read as follows :

“ Analysis of the evidence confirms the illegal nature of [ the applicant 's ] doings . However , the actions of the head of ORG Most , PERSON , contain elements belonging to substantive law as well as elements relating to criminal - law provisions . In view of the specific nature of the act committed , it is impossible to attribute it to separate legal spheres .

In the course of the investigation , Mr Gusinskiy understood the unlawfulness of acquiring the right to another 's property and , in this connection , he has provided reimbursement for the damage he caused by assigning his share in the statutory capital of ORG to the ORG . In addition , he has significantly compensated for the harm caused to the interests of the ORG by voluntarily transferring ORG Most shares to a legal entity controlled by the ORG .

The steps taken by the accused are extenuating circumstances and attest to his sincere repentance which , in conjunction with other positive characterising details and the absence of a previous criminal record , enables a decision to be taken to exempt Mr Gusinskiy from criminal prosecution . ”

At the same time the precautionary measure forbidding the applicant to leave the country was lifted . On DATE the applicant left GPE and on DATE he went to his villa in LOC , GPE .

Following the applicant 's departure from the country , ORG refused to honour the DATE agreement , claiming that it had been entered into under duress .

On DATE the ORG closed the proceedings initiated following the applicant 's complaint about the unlawfulness of his detention . The court found that the complaint could not be examined since the detention order had by that time been cancelled , and only those actually detained could appeal against detention .

On appeal , this decision was upheld by ORG on DATE .

On DATE Mr Nikolayev initiated a further criminal investigation in respect of the applicant . The new charge was brought under LAW ( b ) of LAW and concerned the fraudulent obtaining of loans by ORG . The applicant was not provided with a copy of the order initiating the proceedings . However , according to the information gathered by the applicant 's lawyers , the criminal investigation was opened on the basis of an application filed by ORG with the ORG on DATE . ORG asked the ORG to investigate the spending of funds obtained by ORG Most and , in particular , to find out whether the use of the loans were in line with the activities permitted by ORG charter , whether the funds were used for their intended purpose , and whether the management of ORG Most had violated any law in relation to the loans . ORG , a ORG - controlled company , was involved as a guarantor of the loans .

On DATE Mr Nikolayev issued a further summons for the applicant to attend the ORG on DATE , to be informed of the charges against him and interrogated .

As the applicant did not attend the ORG , Mr ORG amended the order for the applicant 's prosecution . He re - instigated the charges for fraud under LAW of LAW , this time in connection with another incident , and imposed the precautionary measure of detention . The order was transmitted to ORG . The charges alleged that the applicant had fraudulently obtained loans .

The applicant was arrested in GPE on DATE pursuant to an international arrest warrant and imprisoned in that country on DATE . On DATE the applicant was released from prison on bail of MONEY and placed under house arrest in his villa in LOC .

Following an application by the applicant 's lawyers , ORG in GPE ruled on DATE that the initiation of the ORG Most loan investigation had been unlawful because the evidence gathered by the investigating authorities had not disclosed sufficient elements of fraud to institute criminal proceedings .

On DATE ORG set aside the judgment of DATE on the ground that no appeal lay against investigating authorities ' decisions to institute criminal proceedings .

Following proceedings in the NORP courts , on DATE a judgment was given in the applicant 's favour refusing the request by the NORP authorities for the applicant 's extradition from GPE . In refusing the extradition request , the NORP court ( Audiencia Nacional ) stated :

“ [ I]t is possible to observe in the documents furnished by [ the applicant ] ... certain noteworthy and peculiar circumstances which are unusual in the sphere of judicial claims for fraud and which , although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose , compel the ORG to consider [ the applicant 's ] argument as not completely without foundation as far as the facts and interferences are concerned and as not inconceivable or discountable on the basis of logical criteria and experience .

The agreement of DATE ... of sale by [ the applicant ] to ORG of a parcel of shares ... [ Annex DATE a supplementary agreement which is not common in relationships between sellers and purchasers of securities – concludes with CARDINAL signatures , CARDINAL of which is the habitual signature of the representative of ORG ... which appears in the body of the contract and in other annexes and another signature which at first sight does not coincide with [ the applicant 's ] normal signature – in the agreement , annexes and stamps in this extradition procedure . [ The applicant ] claims that this is the signature of a member of the NORP government .

NORP ... DATE after the date of the agreement , [ the applicant ] , who stood accused in the proceedings [ concerning NORP Video ] and had undertaken not to leave the country , was exempted from liability in the said proceedings and the measure restricting his freedom was lifted ...

NORP [ The applicant 's ] statements at the extradition hearing with regard to the pressure and coercion suffered , which he gives as the reasons prompting him to sign the agreement of DATE ...

The judgment of ORG of DATE ...

These peculiarities of the case must inevitably have legal significance for the judicial ruling on this extradition request since the fact that the ORG has perceived them ... obliges it , for reasons of legal security and effective judicial protection ... to stretch to the extreme the judgment of double incrimination , analysing the grounds for the accusation in view of the need to provide due legal protection ... ”

On DATE Judge PERSON , a Deputy President of ORG , lodged an application for supervisory review of the decisions of ORG of DATE and ORG of DATE . The judge maintained that it was the lawfulness of detention rather than detention itself which should have been the subject of the judicial review . He requested the ORG of ORG to remit the case for a fresh examination by ORG .

On DATE the ORG of ORG granted the application .

On DATE the Tverskoy District Court examined the substance of the complaint in respect of detention . At the hearing , the representative of the ORG ( the defendant ) argued that at the time of the applicant 's arrest he could have obstructed the course of justice because he had been the head of ORG Most and , accordingly , had unlimited opportunities to influence witnesses and had access to written evidence . Furthermore , as the applicant had dual citizenship and a travel passport , he could have escaped abroad . With regard to the applicant 's allegation that he had been entitled to an amnesty , the prosecutor noted that documentary proof that the applicant had indeed held the award in question had been submitted only on DATE , that is to say , after the arrest , and the applicant had been released on DATE . ORG accepted the ORG 's arguments . It found that , in the light of the explanations provided by the ORG 's representative , the wording of the detention order of CARDINAL DATE could not be regarded as strained and hypothetical . As to the award , the court found that the law on criminal procedure contained no restriction on the application of precautionary measures to a person subject to an amnesty .

“ A criminal prosecution may not be started , or , if already started , shall be stopped if

( CARDINAL ) an amnesty law has been passed which relieves [ the person concerned ] from punishment ... ”

“ If there are sufficient reasons to believe that the accused will elude the investigation or evade justice , obstruct the establishment of the truth in the case or engage in criminal activities ... , CARDINAL of the following precautionary measures may be imposed : an order not to leave the place of residence , a personal undertaking or an undertaking from a non - governmental organisation , taking into custody ... ”

“ In exceptional circumstances , a precautionary measure may be imposed on a suspect who has not been charged . In such a case , charges must be brought against the suspect within DATE of the precautionary measure being imposed . If no charges are brought within that period , the precautionary measure shall be lifted . ”

“ When considering the need to impose a precautionary measure and the nature of the precautionary measure to be imposed ... , the factors to be taken into account are ... the seriousness of the charges brought and the suspect 's or defendant 's personality , occupation , age , health , family status and other circumstances . ”

“ A precautionary measure shall be imposed by means of an order issued by an inquiry officer , investigator , prosecutor , or a reasoned decision delivered by a court , which must specify the offence of which the person is suspected or accused and the grounds for imposing the precautionary measure . The person concerned must be informed of the order or decision and , simultaneously , of the procedure for bringing a complaint against the decision to impose such a measure .

A person on whom a precautionary measure has been imposed shall be provided immediately with a copy of the order or decision . ”

“ Taking into custody shall be imposed as a precautionary measure ... for offences punishable by imprisonment of DATE . In exceptional circumstances , this precautionary measure may also be applied to offences punishable by imprisonment of DATE ... ”

The relevant parts of LAW ( b ) of LAW of DATE provide :

“ Fraud , namely , theft or acquisition of another 's property by misrepresentation or abuse of trust ... [ committed on ] a large scale ... shall be punishable by DATE imprisonment with or without expropriation . ”

On DATE ORG declared an “ amnesty in commemoration of the CARDINALth anniversary of the victory in the Great Patriotic War of DATE ” . The corresponding text ( “ the LAW ” ) came into force on DATE . It provided as follows :

NORP [ Convicted persons ] shall be exempted from serving a prison sentence , irrespective of its length :

( b ) [ if they have been ] awarded orders or medals of the GPE or GPE ;

Criminal proceedings pending before investigating authorities and courts which concern offences committed before the entry into force of the present Act shall be terminated in respect of :

( b ) the persons indicated in [ section CARDINAL ( b ) ] of the present Act ;

On CARDINAL May ORG also adopted an instruction on the application of LAW . The instruction provided as follows :

“ CARDINAL . The [ LAW ] shall be implemented by :

( b ) investigating authorities in respect of persons suspected or accused of crimes , if these authorities are conducting proceedings in respect of the said crimes ;

NORP The decision on the application of LAW shall be taken individually in respect of each person . If the information on the person is insufficient , the decision on the application of the amnesty may be postponed until additional documents are received ... ”


The applicant , Mr Yngvar Storbråten , is a NORP national who was born in DATE and lives in PERSON . He is represented before the ORG by Mr PERSON , a lawyer practising in the same town . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Attorney at the Attorney ORG ) .

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

In DATE the applicant opened a restaurant at ORG , in southern GPE . The restaurant was shut down in DATE and the applicant was declared bankrupt in DATE . This was the fifth time a business run by him had ended in this way .

In the course of DATE the tax authorities reassessed the applicant 's liability to pay value - added tax , investment tax and income tax for certain parts of DATE . In this connection , on an unknown date during DATE or DATE , the said authorities imposed PERCENT tax surcharges on him .

In the relevant bankruptcy report , the Administrator of the estate recommended that the applicant be disqualified from further business ( konkurskarantene ) . In the ORG 's view , both grounds for imposing a disqualification order under LAW ) of LAW DATE ( konkursloven ) had been fulfilled , namely , the existence of a reasonable suspicion against the applicant that criminal conduct had led to the bankruptcy and that he had displayed carelessness in his business practices making him unfit to establish a new company or to serve as a board member or as DATE manager of such a company .

On DATE the Eidsvoll Probate and Bankruptcy Court ( skifterett ) disqualified the applicant under section CARDINAL ) , points CARDINAL and CARDINAL , and ORG ) for DATE . The decision contained the following reasons :

“ The criminal offences referred to here are listed in LAW , items DATE , of the preliminary report , and are as follows : failure to submit a self - employed income declaration to the tax authorities , failure to keep accounting records , failure to register employees in the register of employees , failure to submit value - added tax returns , and contravention of LAW , see FAC , of LAW , relating to the essential disregard of provisions governing accounting , DATE reports and accounts , and the keeping of accounting records .

[ The applicant ] was notified of the proposal to disqualify him by the court 's letter of DATE . [ He ] was given until DATE to submit any objections in this matter . The court has not received any objections from the debtor .

The police ( Romerike Police District ) have been advised of the proposal to impose a disqualification order and of the fact that they are entitled to act as a party to the proceedings . No reply has been received indicating that they wish to exercise this right .

Under section CARDINAL of LAW , a disqualification order may be imposed on a debtor if there are reasonable grounds for suspecting him or her of having committed offences in connection with the activities that led to insolvency , or if he or she is unfit , on grounds of unsound business conduct , to serve as a director etc . in a new company .

The court finds that there are reasonable grounds for suspecting [ the applicant ] of having committed criminal offences in connection with the establishment of ORG . The matters listed in the trustee 's report may , in addition to constituting criminal offences , also be characterised as unsound business conduct . [ The applicant ] has entirely disregarded his duties to keep accounting records and submit returns to the authorities , including DATE reports and accounts , ORG returns and reports to the register of employees . These transgressions have made subsequent control of his business operations impossible .

The court finds that a person who disregards his duties to the public authorities to such an extent can not be considered fit to manage a business or to serve on the board or the management of a company .

The court finds that there is no doubt that the conditions for imposing a period of disqualification under section CARDINAL ) , points CARDINAL and CARDINAL , of LAW are fulfilled .

In so far as the court is aware , [ the applicant ] does not currently hold any managerial responsibilities in other companies , and there are no other circumstances that would make it unreasonable to disqualify him . The court therefore finds , after an assessment , that a disqualification order should be imposed as proposed by the trustee .

Since in this case it is DATE since the commencement of bankruptcy proceedings , the court finds that the disqualification period is to run from the date of this ruling , cf . GPE no . CARDINAL , page CARDINAL . ”

The disqualification order became final as the applicant did not lodge an appeal .

Subsequently , on DATE , ORG ( herredsrett ) convicted the applicant on CARDINAL counts , all of which were connected to the bankruptcy , namely , failure to comply with the book - keeping requirement in breach of LAW and of the relevant provisions of LAW DATE ( regnskapsloven DATE ) ; failure to declare business turnover in violation of section CARDINAL(CARDINAL ) of ORG DATE ( merverdiavgiftsloven ) ; and failure to submit tax declarations in breach of section CARDINAL - CARDINAL(CARDINAL)D of LAW DATE ( ligningsloven ) . He was sentenced to DATE imprisonment and tax surcharges were imposed on him . In those proceedings the applicant unsuccessfully relied on LAW .

On an appeal by the applicant to ORG ( lagmannsrett ) , the latter , referring to more recent ORG case - law under LAW No . CARDINAL , quashed ORG judgment on DATE in so far as it concerned the conviction and tax surcharges in respect of the tax and NORP offences ( apparently not a subject of complaint in his application under the Convention ) . Moreover , the applicant was partly acquitted and partly convicted of the book - keeping offences . On the other hand , the High Court agreed with the lower court that the imposition of a disqualification order did not preclude subsequent prosecution . In the light of the foregoing , it reduced the sentence to DATE imprisonment .

The applicant appealed to ORG on the ground that the criminal case against him entailed double jeopardy in violation of LAW No . CARDINAL and for this reason should have been dismissed .

On DATE the ORG unanimously rejected the applicant 's appeal . In his reasoning , approved in the main by the other four Justices sitting in the case , the first voting judge , Mr Justice PERSON , stated :

“ ( CARDINAL ) In the current proceedings , it is of key importance that a disqualification order may be imposed if either of the CARDINAL conditions specified in the first sub - section is met . Pursuant to point CARDINAL , there must be reasonable grounds for suspecting that a criminal act has been committed in connection with the bankruptcy or the activities that led to insolvency . Pursuant to point CARDINAL , an assessment of suitability is to be made . The effects of a disqualification order are the same in both cases , with the exception that sub - section CARDINAL also authorises disqualification from the debtor 's existing offices in other companies . This applies only to a disqualification order imposed pursuant to point CARDINAL of the first sub - section .

( CARDINAL ) Disqualification after bankruptcy was first introduced into the DATE LAW . Sections CARDINAL - CARDINAL(CARDINAL ) introduced an automatic DATE disqualification period for board members and managing directors of limited liability companies and also for all personal debtors in bankruptcy . During this period , a disqualified person was not permitted to form a new limited liability company , take up any new office on a board or become a managing director in any other limited liability company .

( CARDINAL ) Although the general rule was that a DATE disqualification period was mandatory , section CARDINAL - CARDINAL(CARDINAL ) authorised the probate and bankruptcy court , on an application , to decide that all or part of the disqualification period was to be remitted . Such a decision was to be made if there was no suspicion that the debtor had contravened any penal clause in connection with the bankruptcy or the company 's activities , and there was no doubt about the soundness of the debtor 's conduct as a manager or in another position he or she held in the company . The probate and bankruptcy court could also decide that a disqualification period was to be remitted if it found that no reasonable or public interest militated against this .

( CARDINAL ) On the other hand , the effect of disqualification pursuant to sections CARDINAL could be made more severe . If there were reasonable grounds for suspecting the debtor of having committed offences in connection with the bankruptcy or the company 's activities , the probate and bankruptcy court could decide that he or she was also to be removed from any position on a board or as a managing director of another company during the disqualification period , in other words the provision that we also find in section CARDINAL ) of LAW .

( CARDINAL ) The preparatory works for LAW ( Proposal No . DATE ) to the PERSON [ the larger division of ORG ] , p. CARDINAL ) explain the purpose of introducing provisions relating to disqualification as follows :

' There are several arguments for preventing a person who is involved in a bankruptcy from holding managerial responsibilities . If the bankruptcy is the result of dishonesty or other errors on the part of the company 's management , it will be desirable to ensure that the same people are not involved in the management of other limited liability companies . In other cases too , there can be reasons for introducing a certain disqualification period pending investigation of the circumstances of the bankruptcy with a view to revealing any irregularities or other inappropriate conduct . Even if the question of possible irregularities is disregarded , CARDINAL other important considerations are society 's interest in ensuring that resources are soundly managed and the interests of the creditors . Moreover , it is not in the interests of the company 's shareholders or helpful to its reputation for it to be managed by persons whose fitness for the position or solvency can be questioned . '

( CARDINAL ) ORG commented on the need for rules on disqualification in Recommendation O. No . DATE ) , p. CARDINAL :

' In the committee 's opinion , there is particular reason to withdraw the right to form new companies or take up new positions . It is particularly in this connection that we find the typical cases that disqualification is intended to deal with . The position with regard to offices that a person already holds is somewhat different . Disqualification from these can easily have unintended and negative effects both for the individuals targeted and for companies that lose a board member or managing director . The committee has therefore concluded that disqualification from already existing positions should be treated separately and made dependent on an individual evaluation , with a view to dealing with the cases where the need for disqualification is most obvious , that is , those where the circumstances suggest that offences have been committed in connection with the bankruptcy or the company 's activities . '

( CARDINAL ) The provisions on disqualification were later transferred from LAW to LAW , and later amendments have resulted in the current wording . Proposal No . CARDINAL ( DATE ) to the PERSON , p. CARDINAL , describes the purpose of these provisions as follows :

' The purpose of these provisions is to ensure that certain persons who have been involved in an earlier bankruptcy ( either personally or as part of the management of an insolvent limited liability company ) are not involved in forming or managing other limited liability companies for a certain period ( DATE ) .

The enactment of the provisions relating to disqualification periods in the new LAW will make it easier to stop serial bankrupts who , after being involved in CARDINAL or more bankruptcies , start up new companies and continue in business until these also fail , and who are suspected of irregularities in connection with their business activities .

The imposition of a disqualification order pursuant to the provisions of LAW is additional to other possible measures based for example on criminal liability , liability for damages , or the voidability of transactions . There is particular reason to note that the provisions of LAW relating to the stripping of rights are not made superfluous by the disqualification provisions . In practice , LAW is seldom used , but in cases where it is , it can be an advantage that the debtor is already subject to a disqualification order from the time of the bankruptcy and thus can not take up the types of positions to which the provisions of the new LAW apply , since it will generally take some time before a case can be tried pursuant to LAW . '

( CARDINAL ) Proposal no . CARDINAL ( DATE ) to the PERSON was not debated by the PERSON ( ORG ) , and the bill was put forward again , see Proposal no . CARDINAL ( DATE ) to the PERSON . This time , the Government proposed that disqualification should not be automatic , see section CARDINAL of the current LAW . The reason for this was partly to improve security under the law . The original wording of sections CARDINAL of LAW concerning exemptions from disqualification was characterised by the fact that the person in question was expected to prove his or her own innocence . It was also partly for practical reasons : as disqualification applied automatically , it was difficult to find qualified people who were willing to become board members or managing directors , particularly in cases where the goal was to save a company that was in difficulties .

( CARDINAL ) It was also proposed that the trustee 's first report to the probate and bankruptcy court , which must be submitted DATE after his or her appointment , should include an evaluation of whether any circumstances in the case come under the rules on disqualification , see section CARDINAL , point CARDINAL , of LAW . ORG submitted the following comments on this provision :

' ORG is of the opinion that this provision will help to make the rules on disqualification after a bankruptcy more effective . Such reports will provide probate and bankruptcy courts with material that will enable them to evaluate whether disqualification orders should be imposed at an early stage of the proceedings . A ruling can of course also be made before a report is received . It is important that a ruling on disqualification is made as promptly as possible if this provision is to stop serial bankrupts who are suspected of irregularities in connection with their business activities . '

( CARDINAL ) Under LAW of DATE No . CARDINAL , a central Disqualified Directors Register was established as part of ORG , see section CARDINAL(CARDINAL ) of the current LAW . This was done as a means of ensuring compliance with disqualification orders . In the preparatory works , Proposal no . DATE ) to the PERSON , p. CARDINAL , the Ministry commented that although consideration for the right to privacy of the person disqualified was an argument against an ' open ' register , this was less important than ensuring a real possibility for enforcing disqualification orders .

( CARDINAL ) Thus , on the basis of the preparatory works , it can be established that the purpose of the provisions relating to disqualification orders is to prevent a debtor in bankruptcy or the company managers from forming or managing new limited liability companies . The underlying consideration is that there are risks involved in the operation of a limited liability company , and that others must be protected against misuse of this form of business organisation by dishonest or irresponsible people . CARDINAL considerations are particularly emphasised , namely , sound management of resources and the interests of creditors and shareholders . The preparatory works emphasise that a decision to impose a disqualification order must be taken as soon as possible in order to prevent continued irregularities . Disqualification is not considered to be a penal measure ; on the contrary , it is emphasised that disqualification and penal sanctions supplement each other .

( CARDINAL ) Such interactions between disqualification and criminal prosecution are also laid down in the provisions of the LAW . By virtue of section CARDINAL(CARDINAL ) , the prosecuting authority is entitled to act as a party in cases concerning disqualification in the probate and bankruptcy court , and may apply for the disqualification period to be extended until there is a legally enforceable judgment in a criminal case in which the prosecuting authority has proposed , or is contemplating proposing , that the bankrupt be stripped of his or her rights under LAW . It is not possible to strip the bankrupt of his or her rights under LAW at an earlier stage than this . On the other hand , in ORG Reports DATE , p. CARDINAL , ORG established that if the police withdraw a charge for the offences that formed the basis for imposing disqualification , it is not possible to maintain the disqualification order under LAW ( CARDINAL ) , point CARDINAL , of LAW .

( CARDINAL ) LAW in relation to section CARDINAL(CARDINAL ) , point CARDINAL , of LAW

( CARDINAL ) I shall now return to the question of how the disqualification provisions are to be evaluated in relation to the LAW and the prohibition against double jeopardy in LAW and will first consider a disqualification order pursuant to the provision of section CARDINAL ( CARDINAL ) item DATE on the grounds that unsound business conduct makes the person in question unfit to form or manage a company . With CARDINAL minor reservation , which I shall discuss later , the parties in our cases agree that disqualification imposed under the first sub - section , point CARDINAL , is not a penalty and does not entail double jeopardy . Here , there is case - law from ORG dealing with the NORP provisions on disqualification . These are very similar to the NORP provisions in section CARDINAL ) , point CARDINAL . The NORP provisions are set out in LAW DATE . They stipulate , among other things , that a person who has been a director of an insolvent company and whose conduct is found to make him or her unfit to manage a company is to be disqualified ( the court issues a disqualification order ) from setting up or managing a company for a period of DATE . The court can make exemptions from disqualification . The public authorities must institute legal proceedings within DATE after the company is declared insolvent , and the decision is made by the ordinary courts .

( DATE ) ORG has examined the NORP rules on disqualification under the ORG in CARDINAL cases . In PERSON v. GPE ( no . CARDINAL/CARDINAL , judgment of DATE ) the parties agreed , and the ORG was of the same opinion , that proceedings concerning a decision on disqualification determined ' civil rights ' pursuant to LAW . The case concerned whether the legal proceedings had taken an unreasonably long time , and the ORG found that there had been a violation of the LAW . I note here that ORG ( see ORG ( PERSON ) DATE , p. CARDINAL ) has also found that decisions on disqualification in connection with a bankruptcy concern a ' civil right ' pursuant to LAW .

( CARDINAL ) In the case GPE , GPE and GPE v. GPE DATE . ) no . CARDINAL , decided on DATE , the applicants claimed that the decision to disqualify them determined a criminal charge . The ORG replied :

' The criteria for ascertaining whether a ' criminal charge ' has been determined are the domestic classification of the ' offence ' , the nature of the ' offence ' , and the nature and degree of severity of the potential and actual penalty ( see , for example , the PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL with further references ) . In the present case , the proceedings were classified as civil in domestic law , the disqualification of directors is a matter which is regulatory rather than criminal , and the ' penalty ' is neither a fine nor a prison sentence , but rather a prohibition on acting as a company director without the leave of the court . Whilst a great deal was undoubtedly at stake for the applicants , it can not be said that what is inherently a regulatory matter can thereby become a ' criminal charge ' within the meaning of LAW . Thus , none of these criteria indicates that the applicant was charged with a ' criminal offence ' , and the ORG considers that the proceedings in the present case did not determine a criminal charge within the meaning of LAW ( see also No . CARDINAL , ORG . DATE ) . '

( CARDINAL ) On the basis of this decision , I presume that the same applies to a NORP decision to impose a disqualification order under section CARDINAL ) , point CARDINAL , that is , it is not to be construed as a criminal charge within the meaning of LAW . This means that LAW will not bar subsequent criminal prosecution .

( DATE ) I would like to mention that in case no . CARDINAL , the defence counsel claimed that disqualification imposed under the first sub - section , point CARDINAL , must also be considered to determine a criminal charge if the grounds for considering a person unfit are suspicion that specific offences have been committed . I do not agree with this distinction . The basis for disqualification under section CARDINAL ) , point CARDINAL , is that the court has found the person in question to be unfit to form a new company or take part in the management of a new company . This is the case regardless of the further grounds cited by the court for judging the person unfit to take up such functions .

( DATE ) I shall now consider whether a disqualification order imposed under section CARDINAL ) , point CARDINAL ( reasonable ground for suspecting the person concerned of offences in connection with the bankruptcy ) , precludes subsequent criminal prosecution .

( CARDINAL ) For LAW to preclude subsequent criminal prosecution , the person charged must already have been ' finally acquitted or convicted ' . The first question here is whether it is the decision to impose a disqualification order that must be ' final ' , which it clearly is , or whether the requirement for a final decision refers to the offences that are the grounds for issuing the order . The real question in the present case is whether the imposition of a disqualification order precludes subsequent criminal prosecution of these underlying offences . In my opinion , it follows directly from the wording of LAW that the final decision relates to the offences that are the grounds for disqualification ; see the text of the LAW , ' tried or punished again ... for an offence for which he has been finally acquitted or convicted ' .

( CARDINAL ) There is no doubt that by issuing a disqualification order the adjudicating court expresses a view on whether the person in question may have committed the offences that constitute the grounds for imposing disqualification . But does it make sense to claim that when the court has decided whether or not to impose a disqualification order , the person has been finally acquitted or convicted of these offences ? In my opinion , it does not .

( CARDINAL ) Firstly , I refer to the requirement of guilt for the criminal offences in question here . A finding that there is reasonable ground for suspicion is not a final conviction , either literally or according to NORP legal tradition . The concept of just cause for suspicion is associated particularly with the conditions in which coercive measures – arrest , custody , search , and so on DATE may be used pursuant to LAW , and a decision to use such measures clearly does not constitute a final decision on guilt . These are of course temporary measures directly related to the criminal investigation . Coercive measures are used for the purpose of the investigation , and must be construed as ceasing to apply if the investigation is discontinued . However , as I have described above , the imposition of a disqualification order is also linked to the investigation of the case . ORG of ORG has established that if the prosecuting authority withdraws a charge in respect of the offences that were the basis for issuing a disqualification order , the disqualification order must also be withdrawn ( see ORG Reports DATE , p. CARDINAL ) . The same must apply in the event of an acquittal .

( CARDINAL ) Furthermore , the purpose of disqualification is an argument against the interpretation that a disqualification order constitutes a final decision regarding the underlying offences . In the preparatory works it is stated several times that the purpose of imposing a disqualification order is to prevent the person in question from continuing to misuse the company form through irregularities or other misconduct , and that disqualification orders must be issued swiftly . Use of the criterion ' reasonable ground for suspicion ' is related to the need for a rapid response , which is expected before investigation of the case is completed . This is not in keeping with the interpretation that disqualification constitutes a final decision on guilt . The preparatory works point to the fact that the completion of the investigation of a criminal case will take longer , and is thus something that will be considered later .

( DATE ) Finally , the procedural rules militate against regarding a decision to impose a disqualification order as a ' final conviction ' . The DATE amendments reversed the provisions on disqualification , so that instead of disqualification being automatic , it required a ruling by the probate and bankruptcy court , and at the same time a provision was introduced requiring the trustee to evaluate whether there were any circumstances in the case that came under the rules on disqualification , see section CARDINAL item CARDINAL of LAW , in the first report to the probate and bankruptcy court , which must be submitted DATE after appointment . In the report , the trustee gives a survey of possible criminal offences , but is unlikely to be able to assess the strength of the suspicion in relation to each offence . In general , the district court too has only limited opportunities for making a closer assessment of guilt as regards each offence . Since disqualification requires only that there is a reasonable ground for suspecting the person in question of CARDINAL offence , there is little reason for a debtor in bankruptcy to object to a single count , unless he or she claims not to have committed any offences at all . This means that there is little focus on specific offences . Thus , a ruling from the district court is not a suitable basis for determining which specific offences can be construed as having been finally adjudicated .

( CARDINAL ) In my opinion , these CARDINAL elements – the form of guilt , the purpose of disqualification and the rules of procedure – considered together lead to the conclusion that the imposition of a disqualification order can not be interpreted as a final conviction for the offences on which the decision is based .

( DATE ) It is of course the case that the phrase ' finally .... convicted ' is to be interpreted as an autonomous concept within the framework of the Convention . However , in my view , the raw material for the analysis must be the domestic legal system . On this basis , it seems to be reasonably clear that a debtor in bankruptcy has not been ' finally acquitted or convicted ' of the offences that form the basis of a decision to impose a disqualification order , and that LAW therefore does not apply .

( CARDINAL ) However , I would like to point out that in the limited case - law from ORG relating to LAW , I have not found any material from the ORG 's own legal system that can clarify the meaning of the term ' finally acquitted or convicted ' .

( CARDINAL ) In the decision of inadmissibility in the case of ORG v. GPE on DATE ( application FAC ) , the question was whether the temporary withdrawal of a driving licence for DATE for driving under the influence of alcohol and causing injury precluded subsequent criminal prosecution for the same offence . The withdrawal was a temporary measure involving no assessment of guilt . It could apply for a maximum of DATE and would cease to have effect if the person was convicted . ORG established that LAW did not preclude subsequent criminal prosecution , but reasoned that the withdrawal of the driving licence was a traffic safety measure and thus was not a ' criminal charge ' . ORG also referred to a ORG judgment DATE , on DATE , relating to LAW LOC v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALVII ) , which concerned the immediate withdrawal of a driving licence for DATE , without any finding of guilt . In this case too , it was found that the withdrawal of the driving licence ought to be regarded as a preventive measure for the safety of road - users .

( DATE ) On this basis , there is reason to consider whether , in the alternative , a disqualification pursuant to section CARDINAL ) item CARDINAL of LAW can be construed as a criminal punishment under LAW . A similar question has been of central importance in several of ORG decisions relating to LAW . I refer for example to ORG Reports DATE , p. CARDINAL and DATE , p. CARDINAL , both of which include a thorough discussion of the term ' punishment ' in this connection .

( CARDINAL ) There are strong indications that an evaluation of the legal institution of disqualification under the LAW must lead to the same conclusion for both the conditions laid down in section CARDINAL ( CARDINAL ) of LAW , which in practice are often invoked together . In the preparatory works , the purpose of disqualification is described in the same terms for both conditions . The primary purpose is to satisfy a non - penal need for protection in cases where bankruptcy is related to criminal or unsound business conduct on the part of a manager or board member , indicating that he or she is unfit to engage in such business activities . The person in question should therefore , for a period of time , be excluded from holding managerial responsibilities in limited liability companies . The condition set out in item DATE reasonable ground for suspicion of a criminal offence – can be regarded as a special case of the general criterion of fitness set out in item CARDINAL . Even if section CARDINAL ) item CARDINAL , is viewed separately , an evaluation relative to the Convention must be based on the common purpose of these CARDINAL provisions .

( CARDINAL ) In the above - cited GPE , GPE and GPE v. GPE , the key sentence in the reasoning is as follows ,

' In the present case , the proceedings were classified as civil in domestic law , the disqualification of directors is a matter which is regulatory rather than criminal , and the ' penalty ' is neither a fine nor a prison sentence , but rather a prohibition on acting as a company director without the leave of the court . '

( DATE ) In my opinion , these CARDINAL criteria are applicable in exactly the same way to a NORP disqualification order pursuant to section CARDINAL ) item CARDINAL of LAW . Thus , there is no doubt that disqualification is classified as a civil matter in NORP domestic law . The next criterion is often described as the nature and purpose of the measure . Here , ORG emphasises that disqualification is a matter that is regulatory rather than criminal . It is presumably of key importance here that the provisions relating to the disqualification of directors in GPE DATE and also in GPE – govern a very narrow field of business activities , namely , forming and managing limited liability companies . The nature of the measure can not be said to be significantly influenced by the fact that it is grounded on suspicion of offences rather than an assessment of unfitness . In any event , the fact that the main reason for disqualification is to protect others , not to punish , is a factor that weighs more heavily here . I would also like to mention one particular feature of the NORP provisions , which is that an assessment of whether disqualification is reasonable in the circumstances is always required before a decision is made , see section CARDINAL(CARDINAL ) . This also tends to strengthen the conclusion that disqualification is a means of regulating business activities rather than a punishment .

( CARDINAL ) Finally , as regards the severity of the measure , disqualification entails a prohibition against forming or managing new limited liability companies for DATE . It does not entail a general prohibition against engaging in business activities . As ORG stated in its judgment in the present case ,

' A person who is subject to a disqualification order is not prevented from running a general partnership , but is merely DATE for a relatively short period of time DATE prevented from using a form of business organisation in which personal liability is limited , and where there may therefore be less incentive to operate according to sound business principles . '

( DATE ) As regards the severity of the measure , particular attention has been paid to the provisions of section CARDINAL ) . In cases where this provision applies , disqualification may also apply to current positions and offices held in other companies . It is quite clear that this form of disqualification has a greater effect , see the comments in Recommendation O. No . DATE ( DATE ) , at the time when the provision was incorporated into LAW . The question is whether its effects are so severe that a different conclusion must be drawn with respect to the term ' punishment ' as used in the LAW . In my opinion , this is out of the question . As I understand the NORP rules , a disqualification order always applies to current positions held in other companies . Despite DATE and the fact that the disqualification period is longer than in GPE – ORG did not consider that the disqualification determined a ' criminal charge ' .

( CARDINAL ) Further , it has been claimed that recording disqualifications in an open register is particularly defamatory and thus increases the severity of the measure . As I have shown earlier , the purpose of establishing a register was to enforce disqualification orders more effectively . The Ministry considered that the need for effective enforcement overrode the interests of protection of privacy . In my view , no particular importance can be attached to such registration when evaluating the severity of disqualification as a measure .

( CARDINAL ) In accordance with the above , I am of the opinion that given the nature of disqualification orders , their purpose , and the fact that this is not a particularly severe encroachment on a person 's rights , a disqualification order can not be construed as a punishment within the meaning of the Convention . Therefore , and also because disqualification does not entail a criminal charge , LAW Protocol No . is not applicable .

( CARDINAL ) In the light of these conclusions , I will not discuss the third question in this case , namely , whether the offences that were the basis for the disqualification order pursuant to section CARDINAL ( CARDINAL ) item CARDINAL , are identical to the offences for which PERSON has been prosecuted and convicted . ”

On DATE ORG pronounced judgment in a similar case , which also became the subject of an application ( no . CARDINAL/CARDINAL ) lodged under LAW Per PERSON against GPE and which is being dealt with simultaneously with the present case .

In so far as relevant , section CARDINAL of LAW of DATE No . CARDINAL LAW ) read :

Section CARDINAL -Conditions for imposing a disqualification order

“ If a debtor 's estate is the subject of bankruptcy proceedings , the district court may impose a disqualification order on the debtor if

CARDINAL ) there are reasonable grounds for suspecting the person concerned of a criminal act [ straffbar handling ] in connection with the bankruptcy or the activities that led to insolvency , or

CARDINAL ) if it must be presumed that , for reasons of unsound business conduct , the person in question is unfit to establish a new company or to serve as a director or general manager ( managing director ) of such a company .

In taking a decision on this matter , importance shall be attached to whether , having regard to the debtor 's conduct and the circumstances as a whole , it appears reasonable to impose a disqualification order .

The imposition of a disqualification order means that , for DATE from the opening of bankruptcy proceedings , the debtor may not establish such a company as mentioned in the fifth sub - section , or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company . The district court may decide that the DATE period shall start from the date when the court takes its decision .

In the cases mentioned in the first sub - section , item CARDINAL , the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub - section held in such companies as mentioned in the fifth sub - section .

The term company in sub - sections CARDINAL and CARDINAL means a limited liability company , a public limited liability company , a branch office of a foreign company , a business foundation , a housing construction cooperative , a housing co - operative , a company aimed at promoting its members ' consumer interests ( consumer co - operative ) , a mutual insurance company or a ORG company . ”

For a summary of the legislative history of the provisions on disqualification under NORP law , reference is made to paragraphs DATE of ORG judgment quoted under Part A , sub - title CARDINAL , above .

In the parallel case of PERSON , in which the ORG delivered a decision on DATE as the present decision , ORG stated that in the assessment of reasonableness , emphasis should be placed on whether the conditions in both item CARDINAL and item CARDINAL were fulfilled .

The Government provided certain additional information , some of which is summarised below .

In the individual assessment of reasonableness to be carried out under LAW ) , account was to be had to such factors as the cause of the bankruptcy , the debtor 's conduct during the bankruptcy proceedings and the time element . In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order , the court might conclude that it would be unreasonable to impose a disqualification order .

In the preparatory works to LAW DATE , ORG had stressed that the rules would make it possible to put a stop to the activities of persons who were repeatedly involved in limited liability companies which became insolvent , and where there was reason to suspect improper business conduct . It had also been emphasised that disqualification orders should function as a supplement to stripping the offender of his or her rights ( rettighetstap ) , which was a punitive measure imposed under LAW . In this context , the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings , whilst it would normally take longer to investigate and prosecute possible criminal offences . The possibility of swift action was necessary to achieve the preventive purpose of the measure .

The duration of the disqualification DATE usually DATE could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to strip the person in question of their rights under LAW . The disqualification period could then be extended until the court had decided the criminal case .

The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information . If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for the disqualification order , or further investigation showed that no such criminal offence had been committed , the public prosecutor was to request that the disqualification order be lifted ( PERSON , ORG of ORG ) .

A disqualification order could be imposed by a court of first instance ( tingretten ) or by the probate and bankruptcy courts ( skifteretten ) . Such a measure was usually taken on the basis of written proceedings . However , the parties had the right to request an oral hearing . In his or her report to the probate and bankruptcy court , the liquidator was to provide information on whether , in his or her opinion , there were circumstances suggesting that a disqualification order should be imposed . Both the bankrupt 's estate ( represented by the liquidator ) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order . The opposing party would be the debtor , board member or other person against whom the order would apply . It was rare that the prosecution or the bankrupt 's estate intervened as a party to the proceedings . The court 's decision would , accordingly , normally be taken only on the basis of the information and recommendation in the liquidator 's report , and the information and objections provided by the defendant .

Under section CARDINALA of LAW , a failure to comply with a disqualification order was a criminal offence punishable by DATE imprisonment and/or fines .


Violation of Art. 11;No violation of Art. 8 with regard to the divulgence of the applicant's membership of the freemasons;Not necessary to examine Art. 8;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant , who was born in DATE , is a judge . After DATE he applied for membership of ORG d’Italia di PERSON . On CARDINAL DATE he became a member of ORG in GPE .

During DATE the applicant read in the national press that certain ORG prosecutors , in particular the state prosecutor of GPE ( GPE di GPE ) , had begun inquiries , which , according to certain rumours , also concerned lodges associated with ORG d’Italia di PERSON .

In DATE the applicant asked to distance himself from the organisation and on DATE he was made a “ dormant member ” .

The GPE public prosecutor ’s office sent ORG ( Consiglio Superiore della Magistratura ) a list of judges who were PERSON . ORG then sent it to the Minister of ORG and ORG at ORG , who instituted disciplinary proceedings against the judges . The list was then made public – at least in part – by the press .

In DATE , after an inquiry had been commenced , the applicant was questioned by an inspector from ORG for ORG . Subsequently , in DATE , he was questioned by ORG at ORG .

NORP In DATE he was summoned to appear before the disciplinary section of ORG . He was accused of having undermined the prestige of the judiciary by committing a serious breach of his duties , and thus being unworthy of the trust that must be had in a judge .

In his address , counsel for the applicant referred to a decision of the same section , given DATE , which drew a distinction between secret associations – of which judges were forbidden from being members – and discreet associations . Counsel for the applicant also noted that the guidelines of ORG , which stated that judicial office was incompatible with membership of the NORP , had been adopted during DATE , which was DATE after the applicant had left the organisation of his own accord .

At the end of the proceedings the disciplinary section found that the applicant had breached LAW no . CARDINAL of CARDINAL DATE ( “ the DATE decree ” ) and gave him a warning .

NORP The applicant appealed on points of law to ORG , which examined the case in plenary session on DATE . It dismissed the appeal in a judgment of DATE .

On DATE ORG indicated again ( having already made a similar recommendation on an unknown date ) that it was not in favour of the applicant ’s promotion – for which the requisite conditions had been fulfilled since DATE in view of the disciplinary sanction that had been imposed on him .

NORP The particular provisions of LAW referred to by the Government are the following :

“ All citizens shall have the duty to be loyal to the Republic and to comply with the LAW and the laws .

ORG to whom public offices are entrusted shall perform them with discipline and honour , and take an oath where it is required by law . ”

“ Public officials shall be at the exclusive service of the nation .

If they are members of ORG they shall be promoted only by seniority .

The right to become members of political parties may be limited by law in the case of members of the judiciary , professional members of the armed forces on active duty , police officials and officers , and diplomatic and consular representatives abroad . ”

“ Reasons shall be stated for all judicial decisions .

An appeal on points of law to ORG for a breach of the law shall always be allowed against sentences and measures concerning personal freedom delivered by the ordinary or special courts . The provision may be waived only in the case of sentences pronounced by military courts in time of war .

Appeals to ORG against decisions of the PERSON and ORG shall be allowed only on grounds inherent to jurisdiction . ”

Under LAW no . CARDINAL of CARDINAL DATE , any judge who “ fails to fulfil his duties or behaves , in or outside the office , in a manner unworthy of the trust and consideration which he must enjoy ” will incur a disciplinary sanction .

Being called upon to judge the constitutionality of LAW decree with regard to LAW , ORG ruled that , in disciplinary proceedings against judges , the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by LAW ( judgment no . CARDINAL of CARDINAL DATE , § CARDINAL ) .

However , with regard to the fact that DATE did not specify the types of conduct which might be regarded as unlawful , ORG pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision : trust and consideration which a judge must enjoy and the prestige of the judiciary . Indeed , according to ORG , those values constituted principles of professional conduct which could not be included in “ pre - prepared guidelines because it [ was ] not possible to identify and classify every example of inappropriate conduct which might provoke a negative reaction in society ” ( ibid . , § CARDINAL ) . The court subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct , that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories . It concluded that “ the provisions in this area [ could ] not but be of general scope because a specific directive would have the effect of legitimising conduct which had not been foreseen , but nonetheless attracted society ’s opprobrium ” . It added that those considerations justified the wide scope of the rule and the wide margin of appreciation conferred on a body which , acting within the guarantees inherent in any judicial procedure , was – by virtue of its composition – particularly well - qualified to judge whether the conduct considered in each case did or did not undermine the protected values ( ibid . , § CARDINAL ) .

ORG stated , lastly , that this interpretation accorded with its case - law on the subject of lawfulness ( ibid . , § CARDINAL ) .

Law no . CARDINAL of DATE on the implementing provisions of LAW ( right of association ) of the LAW concerning secret associations and the dissolution of the association called PCARDINAL provides that membership of a secret association is a criminal offence ( section CARDINAL ) . With regard to civil servants , section CARDINAL provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules . However , in respect of judges of the judicial , administrative and military courts , jurisdiction remains vested in the respective disciplinary bodies .

On DATE ORG , which had convened following a message from ORG who is its president DATE to discuss the incompatibility between the exercise of judicial functions and membership of the NORP , passed guidelines . The TIME ( discussion and text of the guidelines ) of that meeting were published in the Official Bulletin ( PERSON consiliari , pp . CARDINAL - CARDINAL ) and sent to the presidents of the ORG , ORG and ORG .

According to those guidelines , “ judges’ membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment , by solemn oaths , of bonds such as those required by ORG lodges , raises delicate problems as regards observance of the values enshrined in LAW ” .

ORG added that it was “ evidently [ within its ] powers to ensure compliance with the fundamental principle of LAW , according to which ‘ judges are beholden only to the law’ ” . In its words , “ this scrutiny include[d ] ... thorough care to ensure that , in the exercise of his functions , every judge respect[ed ] DATE and appear[ed ] to respect – the principle of being beholden to the law alone ” .

ORG subsequently referred to a judgment of CARDINAL DATE of ORG in which the court had undertaken a balancing exercise between judges’ freedom of thought and their obligation to be impartial and independent .

It added : “ it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirement of the exercise of the administrative activity peculiar to the ORG , there is also , beyond the limit laid down by PERSON no . CARDINAL of DATE , the acceptance of constraints which ( a ) are superimposed on the obligation of loyalty to the LAW and of impartial and independent exercise of judicial activity and ( b ) undermine the confidence of citizens in the judiciary by causing it to lose its credibility ” .

Lastly , ORG considered it “ necessary to suggest to the Minister of Pardons and ORG that it might be advisable to consider including among the restrictions on judges’ rights of association reference to all associations which – for their organisation and ends – impose particularly strong bonds of hierarchy and solidarity on their members ” .

On DATE ORG passed further guidelines stating that the exercise of judicial functions was incompatible with membership of the NORP .


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

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

On DATE the applicant was arrested and placed in police custody on suspicion of attempted homicide .

On DATE ORG ordered that the applicant be detained on remand on suspicion of robbery .

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

The applicant appealed against the detention order , but his appeal was dismissed .

DATE and DATE the applicant was serving a prison sentence in respect of another conviction .

In DATE the police established the applicant ’s true identity as at the time of arrest he had been using another person ’s identity card . The applicant acknowledged that he had been sought pursuant to a wanted notice since in DATE he had failed to return to prison after CARDINAL days’ leave .

Subsequent decisions extending the applicant ’s pre - trial detention were taken on DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE .

In their decisions the courts referred to the need to conduct further investigations , a reasonable suspicion that the applicant had committed the offence and the risk of the applicant ’s obstructing the proper course of the proceedings . The courts took into account new elements which emerged in the course of the proceedings and specified the actions which needed to be taken . In particular , new investigative measures appeared necessary in view of the fact that the applicant had used a forged identity card at the time of his arrest . Accordingly , the person whose identity the applicant had used had to be heard and the applicant ’s true identity had to be established .

On DATE a bill of indictment was filed with ORG against the applicant and CARDINAL co - accused . The applicant was charged with several robberies , failure to return to prison from leave and forgery of identity documents . The prosecutor requested the court to hear CARDINAL witnesses .

The applicant appealed against several of the decisions extending his detention on several occasions , namely the decisions of DATE , DATE , CARDINAL DATE and DATE . All of his appeals were dismissed .

On many occasions the applicant requested that his detention pending trial be lifted . On each occasion his requests were dismissed . His appeals against the dismissals were also dismissed .

Hearings were held on : DATE ( adjourned ) , DATE , DATE , DATE , CARDINAL DATE ( when the court decided to conduct the proceedings anew since the composition of the court had to be changed due to the prolonged illness of a lay judge ) , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE and DATE .

The applicant and the Government differed as to whether disciplinary measures were imposed on witnesses who had failed to appear at hearings .

On DATE the applicant was released from detention . The court found that at this stage of the proceedings his release under police supervision would secure the proper conduct of the proceedings .

On an unknown date in the course of the proceedings the applicant gave the authorities a false address for his place of abode .

On DATE ORG gave a judgment and sentenced the applicant to DATE and CARDINAL months’ imprisonment . The applicant appealed .

On DATE ORG upheld the judgment . The judgment is final .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) , are stated in the ORG ’s judgments in cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger

The applicant was born in DATE . He is currently serving a prison sentence at FAC ) No . DATE , GPE ( “ the LOC ” ) .

On DATE the Deputy Prosecutor of PERSON initiated criminal investigations into the murder of PERSON

On DATE the applicant ’s wife was arrested on suspicion of the murder of PERSON On DATE she was released .

On DATE the prosecutors placed Mr ORG on the list of persons suspected of the crime . The investigations were suspended .

On DATE the applicant was arrested following the issue of a warrant by the Head of ORG of ORG on suspicion of the murder of PERSON , and the criminal investigations resumed . The applicant chose Mr Shelepa to defend him in the proceedings .

On DATE the ORG remanded the applicant in custody in view of the pending criminal investigations against him . The applicant remained in detention throughout the proceedings .

On DATE the applicant and Mr V. were charged with aggravated murder .

On DATE the ORG extended the maximum period of the applicant ’s pre - trial detention to DATE .

On DATE the applicant and his lawyer completed their study of the case file .

On DATE the prosecutors referred the case together with the indictment , containing charges of aggravated murder and theft , to ORG ( “ the ORG ” ) . The latter received the case file on DATE .

On DATE the court remitted the case for additional investigation as it was incomplete . It also ordered the applicant to remain in detention . On DATE the prosecutors received the case file .

On DATE the prosecutors resumed the pre - trial investigations .

On DATE ORG extended the maximum period of the applicant ’s detention to DATE on the ground that it was not possible to complete the investigation .

On CARDINAL DATE the investigations were completed and the applicant , together with his lawyer , was given access to the case file . On DATE the latter finished consulting the file .

On DATE the prosecutors referred the case to ORG .

On DATE the court received the case file and on DATE it remitted the case for additional investigation . The court refused to change the applicant ’s preventive measure .

On DATE the prosecutors received the case file .

On DATE ORG extended the maximum period of the applicant ’s detention to DATE .

On DATE the Deputy Prosecutor General of GPE extended the maximum period of the applicant ’s detention to DATE .

On DATE the investigations were completed and the applicant , together with his lawyer , was given access to the case file . On DATE they completed their study of the case file .

On DATE the case was referred to ORG .

On DATE the Deputy Prosecutor of the Chernivtsi Region withdrew the case from the court and resumed the investigations .

On DATE the applicant was informed that the investigations were complete and that he was charged with concealment of crime .

On DATE the applicant and his lawyer were given access to the case file . On DATE they completed consulting the case file .

On DATE the case was referred to ORG .

On DATE the court received the case file .

On DATE the court remitted the case for additional investigation . The applicant was ordered to remain in detention .

On DATE the applicant was informed that the investigations were complete , and was given a copy of the indictment , in which he was charged with aggravated murder and robbery . DATE and DATE the applicant and his lawyer consulted the case file .

On DATE the case was referred to ORG . On DATE the court received the case file .

On DATE the prosecutors withdrew the case and resumed the investigations . On DATE they issued an indictment , containing the same charges and based on the same facts as the indictment of DATE .

On DATE the applicant was informed that the investigations were complete and he was given a copy of the indictment of DATE . On DATE the applicant was provided with another lawyer , Mr B. , whom the prosecutors gave access to the case file .

According to the applicant , he had agreed to have another lawyer , as the prosecutors told him that Mr Shelepa had not been able to participate in the proceedings due to his illness . From DATE to CARDINAL DATE Mr PERSON was having medical treatment in a hospital in GPE . The latter was not informed that the investigations were complete on DATE .

On DATE the applicant and his new lawyer finished consulting the case file and on CARDINAL DATE the case was referred to ORG , the latter having received it on DATE .

On DATE Mr PERSON was again admitted to participate in the proceedings .

NORP In the course of the investigations , in particular on DATE and DATE , and DATE the applicant ’s lawyer made CARDINAL requests to the prosecutors that the proceedings against the applicant be discontinued for absence of elements of a crime in his actions . The requests were dismissed as unfounded by the ORG decisions of DATE and DATE and DATE .

In the course of the trial , the applicant and his lawyer argued that some of the evidence submitted by the prosecutors had been collected after the expiry of the statutory terms of the investigation and the applicant ’s detention and therefore should not be admitted by the court .

On DATE the court found the applicant and PERSON guilty of aggravated murder and sentenced the applicant to DATE imprisonment . It rejected the applicant ’s and his lawyer ’s argument concerning the admissibility of evidence , holding in particular that the maximum statutory terms of the investigation and pre - trial detention envisaged by LAW had not expired in the case , and that those terms had ceased to run during the periods when the applicant and his lawyer were studying the case file , when it had been referred to the court , and when the lawyer ’s petitions had been considered by the prosecutors . The court , relying on LAW and CARDINAL of the same Code , also noted that the terms of the investigation and detention had actually been extended DATE , as the case had been remitted for additional investigation on CARDINAL occasions .

In his appeal in cassation , the applicant complained about the wrongful assessment of the facts and a violation of his procedural rights in the course of the investigation and trial .

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

The relevant provisions of the LAW read as follows :

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ... ”

“ ... CARDINAL . The existing procedure for the arrest , custody and detention of persons suspected of committing an offence , and the procedure for carrying out an inspection and search of a person ’s home and other property , shall be retained for DATE after the entry into force of the present LAW ... ”

The relevant provisions of the LAW , as worded at the material time , read as follows :

“ An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code . ”

“ Pre - trial investigation in criminal cases shall be completed within DATE . The [ running of this ] term shall commence from the moment the criminal proceedings are initiated up to the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment , or until the proceedings are suspended or discontinued . If it is impossible to complete the investigation , this term may be extended to DATE by district , city prosecutor , military prosecutor of the army , fleet , military districts ( commands ) , garrisons , and prosecutors of equal rank . The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre - trial investigation .

In especially complicated cases the term of pre - trial investigation set by part CARDINAL of this Article may be extended to DATE by ORG , prosecutors of regions , the prosecutor of GPE , military prosecutors of the military district ( command ) , navy and prosecutors of equal rank or their deputies on the basis of a reasoned resolution of the investigator .

Further extension of the term of pre - trial investigation may only be enacted by ORG GPE or by his deputies .

Where the case has been remitted for additional investigation , or if the discontinued proceedings have resumed , the term of additional investigation shall be established by the prosecutor who supervises the investigation , and shall not exceed DATE from the moment when the investigation is resumed . Further extension of this term shall be enacted on general grounds .

The rules set in this Article shall not be applicable to criminal proceedings where the person having committed the crime has not been identified . The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified . ”

“ If there are sufficient grounds to consider that the accused , if at liberty , will abscond from the investigation or trial , or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities , and if it is necessary to ensure the execution of a sentence , the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by LAW ...

In exceptional cases a preventive measure may be applied in respect of a person suspected of having committed a crime before the charges are brought against that person . In such a case the charges shall be brought [ against the suspect ] within DATE of the application of the preventive measure ... ”

“ The preventive measures shall be as follows :

( CARDINAL ) a written undertaking not to abscond ;

( CARDINAL ) personal surety ;

( CARDINAL ) the surety of a non - governmental organisation or labour collective ;

( DATE ) NORP bail ;

( CARDINAL ) placement in custody ;

( CARDINAL ) NORP supervision by the command of a military unit . ”

“ Placement in custody as a preventive measure shall be applied in cases concerning criminal offences for which the law envisages a punishment of DATE imprisonment . In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law envisages a punishment of DATE imprisonment ... ”

“ Pre - trial detention during the investigation of criminal offences in criminal cases shall not DATE . This term may be extended to DATE by district , city prosecutors , military prosecutors of the army , fleet , military districts ( commands ) , garrisons , and prosecutors of equal rank , if it is not possible to complete the criminal investigation and there are no grounds for changing the preventive measure . Further extension of this term to DATE from the moment of the arrest may only be enacted if the case is exceptionally complex by ORG , prosecutors of regions , the prosecutor of GPE , military prosecutors of the military district ( command ) , navy and prosecutors of equal rank .

The DATE term of pre - trial detention may be extended to DATE by the Deputy Prosecutor General of GPE and to DATE by ORG .

No further extension of the term of pre - trial detention is allowed ; an accused held in detention must be immediately released .

If it is impossible to complete the investigation within the terms set by the law for pre - trial detention and there are no grounds for changing the preventive measure , ORG or his Deputy shall have the power to approve the referral of the case to the court in the part relating to proven charges . The part of the case relating to criminal offences , the investigation of which has not been completed , shall be disjoined from the proceedings and completed in accordance with the general rules .

The accused and his defence shall be provided , not DATE before the expiry of the term of pre - trial detention set by part CARDINAL of the LAW , with the materials of the part of the criminal case in respect of which the investigation has been completed , so that they can familiarise themselves with [ those materials ] .

The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account in the calculation of the term of pre - trial detention .

If the court remits the case for a new investigation , and where the term of pre - trial detention has ended , and the preventive measure of pre - trial detention may not be changed , an extension , for DATE following the receipt of the case , of the term of pre - trial detention shall be enacted by the prosecutor supervising investigation . Further extension of this term shall be enacted according to the procedure envisaged by DATE , CARDINAL and CARDINAL of the LAW , taking into account the period the accused has been held in detention . ”

“ Pre - trial detention during pre - trial investigation shall not last DATE .

When it is impossible to complete the investigation within the period provided for in part CARDINAL of the LAW and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure , [ the term of pre - trial detention ] may be extended :

( CARDINAL ) DATE upon a request approved by the prosecutor supervising the compliance with the laws by the bodies of inquiry and investigation , or at the same prosecutor ’s [ own request ] , by a judge of the court , which adopted a resolution on the application of the preventive measure ;

( CARDINAL ) DATE upon a request approved by ORG , ORG , prosecutors of regions , prosecutors of GPE and PERSON , and prosecutors of equal rank , or at the same prosecutor ’s [ own request ] in cases concerning serious and particularly serious crimes , by a judge of a court of appeal ;

( CARDINAL ) DATE - upon a request approved by ORG and his Deputy , or at the same prosecutor ’s [ own request ] in particularly complex cases concerning particularly serious crimes , by a judge of ORG of GPE ;

In each case , when it is impossible to complete the investigation within the terms specified in parts CARDINAL or CARDINAL of the Article and there are no grounds for changing the preventive measure , the prosecutor supervising the compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges . In such an event , the part of the case relating to criminal offences or episodes of criminal activities , the investigation of which has not been completed , shall be disjoined from the proceedings pursuant to the requirements of LAW and completed in accordance with the general rules .

The term of pre - trial detention shall be calculated from the moment when the person was placed in custody , or , if his placement in custody was preceded by his arrest [ within the meaning of LAW ] , from the moment of the arrest . The term of pre - trial detention shall include the time during which the person underwent in - patient expert examination at a psychiatric medical institution of any type . If the person is repeatedly placed in custody in the framework of the same proceedings ... or if new charges are brought against him , the time the person has spent in detention before this shall be taken into account when calculating the term of pre - trial detention .

The term of pre - trial detention shall end on DATE the court receives the case file ; however , the time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account when calculating the term of pre - trial detention as a preventive measure . If the case is withdrawn by the prosecutor from the court pursuant to LAW , the running of the term shall resume from DATE on which the prosecutor receives the case .

If the case is returned by the court to the prosecutor for additional investigation , the term of pre - trial detention shall be calculated from the moment the case is received by the prosecutor and shall not exceed DATE . Further extension of that term shall be enacted in accordance with the procedure envisaged by part CARDINAL of the LAW and the time the accused was held in detention before the referral of the case to the court shall be taken into account .

If the term of pre - trial detention ... envisaged by parts CARDINAL and CARDINAL of the LAW has ended and if this term was not extended in accordance with the procedure envisaged by the LAW , the body of inquiry , investigator , or prosecutor shall immediately release the person from detention .

Governors of pre - trial detention centres shall immediately release from detention any accused in whose respect no court resolution extending the term of pre - trial detention has been received on DATE of expiry of the terms of pre - trial detention envisaged by parts CARDINAL , CARDINAL , and CARDINAL of the Article . They shall notify accordingly the person or authority before whom the case is pending and the prosecutor supervising the investigation . ”

“ Having found the collected evidence to be sufficient for formulating charges and having satisfied the requirements of LAW , the investigator shall notify the accursed of the completion of the investigation in his case and of his right to familiarise himself , personally or with the assistance of defence , with the materials of the case ...

The accused and his defence shall not be limited in the time which they require to familiarise themselves with the materials of the case file . However , if the accused and his defence are obviously trying to delay the completion of the case , the investigator shall have the right to set , by a reasoned resolution , a certain time - limit for study of the case file . Such a resolution shall be approved by the prosecutor . ”

The relevant extracts from the Reservation contained in the instrument of ratification deposited by GPE on DATE ( period covering DATE ) provide as follows :

“ ... CARDINAL . NORP The provisions of LAW of DATE shall apply in the part that does not contravene paragraph CARDINAL of LAW of the Transitional Provisions of the LAW of GPE and ORG CARDINAL and CARDINAL of the Code of Criminal Procedure of GPE concerning the detention of a person and the issue of an arrest warrant by a public prosecutor .

Such reservations shall be in force until appropriate amendments to LAW are introduced or until the adoption of LAW , but not DATE ...

The provisions of LAW of DATE shall apply in the part that does not contravene Articles DATE , CARDINAL DATE of LAW concerning the imposition of arrest as a disciplinary sanction . ”

The relevant extracts from LAW , the LANGUAGE translation of which was provided in the appendix to the reservation of GPE , read as follows :

“ A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed , subject to the existence of CARDINAL of the following grounds :

NORP if the person is discovered whilst committing an offence or immediately after committing one ;

NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;

NORP if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home .

If there are other data which constitute grounds for suspecting the person of committing an offence , he may be detained only if he attempts to escape , or if he has no permanent place of residence , or if the identity of the suspect has not been established .

For each case of detention of a person suspected of committing an offence , the body of inquiry shall be required to draw up a record setting out the grounds , the reasons , DATE , time , DATE , the place of detention , the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time , in accordance with the procedure provided for in Part CARDINAL of Article CARDINAL of the present Code . The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within TIME and , at his request , give him the documents constituting the grounds for detention . The record of detention shall be signed by the person who drew it up and by the detained person . Within TIME of receipt of the notification of detention , the public prosecutor shall authorise the person detained to be taken into custody or order his release .

The body of inquiry shall inform the suspected person ’s family of his detention if his place of residence is known . ”

The relevant extracts from LAW , which set out the specific duties of a public prosecutor when issuing a warrant for arrest , provide as follows :

“ The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law . When deciding whether to issue a warrant for arrest the public prosecutor shall be required to study conscientiously all the relevant documents and , where necessary , question the suspect or accused personally . In the case of a suspect or accused who has not attained the age of majority , such questioning shall be mandatory .

The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of GPE , the public prosecutors of GPE , the regional prosecutors , the prosecutors of the cities of GPE and PERSON , and other equal - ranking prosecutors . The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding CARDINAL , unless otherwise stipulated in a special order of ORG . ”