André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently serving a sentence of life imprisonment in PERSON prison , GPE - Palatinate . He was represented before the ORG by PERSON , a lawyer practising in GPE , in cooperation with Mr O. Lagodny , a professor at ORG .

NORP The applicant was arrested in TIME DATE while trespassing on a residential estate in a GPE suburb where he was suspected of having engaged in voyeuristic activities . The arrest occurred within the scope of police surveillance measures carried out following the killing of QUANTITY women , mother and daughter , in TIME CARDINAL DATE in a nearby housing area in GPE . On TIME DATE before the killings a man had been noticed in the garden of the GPE house at TIME while observing the daughter through her bedroom window . There were thus grounds for suspecting that the QUANTITY women had been killed by the said voyeur .

NORP In the course of police interrogations carried out during DATE following his arrest , the applicant first confessed having engaged in voyeuristic activities on several occasions in the past , then admitted to having assaulted a girl on CARDINAL occasions in DATE and , finally , he confessed to the killing of the CARDINAL women in TIME CARDINAL DATE . On the occasion of subsequent interrogations and interviews during his pre - trial detention , the applicant - while maintaining his confession that he had engaged in voyeuristic activities in the past - repeatedly withdrew and renewed his confessions regarding the sexual assaults in DATE and the killings in DATE . His description of the order and the way in which the killings had been committed differed from the account given on the occasion of his first confession .

On CARDINAL DATE the applicant - now represented by counsel - finally revoked all previous confessions regarding the assault and killings and has protested his innocence ever since .

According to the bill of indictment submitted by ORG to ORG on DATE , it was likely that the applicant had first killed the daughter and subsequently the mother in order to cover up the daughter ’s murder .

In the course of the applicant ’s subsequent trial it was established that during the period from DATE to DATE the applicant had been active as a voyeur on numerous occasions . He had approached the homes of several girls or young women in the dark in order to observe them from outside . On most occasions he had further tried to draw his GPE attention to himself , asked them to have sexual intercourse and masturbated in front of their windows . His attempts to enter the women ’s homes by force were generally to no avail . However , on CARDINAL occasions in DATE the applicant managed to enter the home of an unsuspecting young woman through an open window and knocked her down when she rejected his sexual advances . As regards the killings of the CARDINAL women in DATE , the court found it established that during the period from DATE to DATE the applicant had repeatedly observed the DATE daughter at TIME through the window of her bedroom in her parent ’s house in GPE . In TIME CARDINAL DATE the applicant broke into the family ’s home with a view to having sexual intercourse with the girl . He first killed the mother who had woken up when he had entered the house with a knife he carried along . He then went to the daughter ’s bedroom . When the latter rejected his sexual advances , the applicant - out of anger and sexual frustration - hit and stabbed the girl in the head and throat with his knife so that she bled to death .

In its judgment of DATE ( file no . CARDINAL Ks CARDINAL/CARDINAL ) ORG held that the applicant had killed both women out of base motives . ORG based its findings in particular on the applicant ’s detailed description of the crime scene in the course of the preliminary proceedings as well as on his account of the events given on the occasion of his first confession of the killings in DATE .

Referring to the opinions of CARDINAL psychiatric experts , ORG considered that the applicant was suffering from a sexual deviation that had reached addictive dimensions and could considerably restrict his ability to control his acts in a sexual context . However , his sexual deviation did not amount to a mental illness that would exclude his criminal responsibility . In view of the particular gravity of the offences and the applicant ’s guilt ORG also saw no reason to mitigate the applicant ’s sentence .

Consequently , ORG found the applicant guilty on CARDINAL counts of murder and sentenced him to life imprisonment in each case in accordance with LAW .

On DATE ORG , after hearing the applicant and ORG ( ORG ) rejected the applicant ’s appeal on points of law as ill - founded .

By a decision of CARDINAL DATE , confirmed on appeal , ORG dismissed the applicant ’s request for a reopening of the proceedings as inadmissible .

On DATE ORG , having heard the applicant , the PERSON prison authorities as well as the GPE public prosecution authorities , concluded that in the case at hand the particular gravity of the applicant ’s guilt justified the continuation of his detention for more than the minimum period of DATE envisaged for murder . However , ORG specified that such finding did as a rule not exclude the suspension of the remainder of a life sentence at a later stage , for instance after a period of CARDINAL , DATE .

In DATE various psychiatric and psychologist expert opinions were obtained by the PERSON prison authorities on the question whether the applicant could be granted relaxations of his detention ( PERSON ) and whether his future release on probation was conceivable .

For instance , a psychiatric expert stated in an opinion rendered on DATE that the applicant ’s perversion had developed progressively and had finally escalated in destructive behaviour . The expert further found that the applicant ’s insistence on his innocence had meanwhile reached a pathological quality in itself and prevented him from accepting therapeutic help . It was thus impossible from a psychiatric point of view to assess whether the applicant had actually committed the crimes or to give a reliable criminal prognosis for the future . Having regard to , inter alia , the applicant ’s unobtrusive behaviour during detention , the expert saw no acute risk of recidivism and proposed to test the applicant ’s capacity to cope with life outside prison on the occasion of relaxations of his detention . He nevertheless specified that a theoretical risk that the applicant would commit further crimes could not be excluded .

In a statement of CARDINAL DATE the resident psychologist at ORG prison pointed out that the applicant still had problems in establishing interpersonal relations and trivialised his voyeurism . Thus , a potential danger that the applicant ’s sexual perversion would resurge in the event of his release on probation could not be excluded .

NORP However , in a statement of CARDINAL DATE a GPE psychotherapist who had provided regular outpatient psychological treatment to the applicant since DATE found that , having regard to the therapy carried out so far , there was “ no compelling reason to assume ” that the applicant had been intellectually capable of organising and committing the crimes . Consequently , it was also not to be expected that he would be capable of committing similar crimes in the future .

The applicant was granted first relaxations of his detention from DATE . However these relaxations were later revoked as a consequence of an expert opinion by a professor of ORG rendered in DATE . This expert stated that as a consequence of inappropriate therapy measures during his detention the applicant had taken to insist on his innocence and had become resistant to any further therapy attempts . The expert was of the opinion that irrespective of the fact that relaxations of the applicant ’s detention in the past had not given cause for complaints , there was a high risk that he would reoffend if confronted with conflict situations similar to the one that had been at the origin of the murders . In this expert ’s opinion the danger the applicant posed to society was not lower than at the time he had committed the crimes .

A further psychiatrist opinion of CARDINAL DATE considered that the applicant had made considerable progress as regards his ability to establish interpersonal relationships and had learned to constructively deal with his sexuality . The expert further pointed out that the applicant had not abused previous relaxations of his detention and had not shown aggressive or sexually deviating behaviour in the course of his meanwhile DATE of detention . He therefore suggested that relaxations of his detention be reinstated with a view to testing whether a conditional suspension of his life sentence could be considered in the future .

Consequently , in DATE , the applicant was transferred to open prison facilities , allowed to take up employment outside prison and to make his journeys to and back from work without supervision . He was further granted prison leave that he spent in an apartment rented by him for this purpose .

The same psychiatric expert who had rendered the opinion in DATE addressed the possibility of the applicant ’s conditional release on probation in a further opinion of CARDINAL DATE commissioned by ORG ( GPE ) . The expert noted that the applicant had made further progress with a view to his social integration and that his conduct during relaxations of his detention had been unobjectionable . He therefore confirmed his previous finding that the applicant ’s criminal prognosis was rather positive . He pointed out that , however , the applicant still lacked experience in establishing and maintaining sexual relations . While the risk of recidivism could be further reduced by accompanying therapeutic treatment , it was impossible to assess the likelihood that the applicant would commit further serious crimes if confronted with a situation of conflict in a sexual context .

In a statement of CARDINAL DATE the GPE psychologist who had attended to the applicant since DATE ( see § CARDINAL above ) expressed the view that as a result of specific therapeutic measures implemented since DATE the applicant had gained in social competence and made progress regarding a possible social integration . He had learned to control his actions and therefore further relaxations of his detention should be considered .

By a decision of DATE ORG held that the particular gravity of the applicant ’s guilt had been compensated by the execution of his sentence for meanwhile over DATE and thus did no longer require the continued execution of his life sentence . In line with the proposal of the public prosecution authorities , the court , after having heard the applicant on DATE , nevertheless refused the latter ’s first request to suspend his detention on probation on the ground that there remained a risk that he would commit similar offences if released .

NORP The applicant ’s related appeal was dismissed by ORG on DATE . ORG noted that if , as in the case at hand , the offence at issue qualified as murder , the safety interest of the public was of particular importance . A release on probation could not be considered if there remained an even remote risk that the convict would commit further serious crimes if released . While the findings in the numerous psychological and psychiatric expert opinions established over DATE had been to some extent contradictory , they had nevertheless all confirmed that a risk that the applicant would commit further serious crimes threatening the life of others could not be excluded . The court specified that the statement of the applicant ’s long - time therapist of CARDINAL DATE ( see § DATE above ) which was at variance with the experts’ findings did not lead to a different conclusion since this therapist was lacking the required distance and impartiality .

On DATE the applicant again requested that he be released on probation and submitted that his continued detention for meanwhile DATE violated his human dignity .

On DATE ORG commissioned an additional expert opinion on the likelihood that the applicant would commit further serious crimes if released . It was rendered by a deputy medical director ( ORG ) of the GPE psychiatric university clinic on DATE . This expert pointed out that the applicant ’s irreproachable behaviour during the relaxations of his detention over DATE constituted a positive criterion for his criminal prognosis . He nevertheless shared the view of previous experts that the applicant ’s persevering denial of the crimes prevented him from appreciating and analysing the specific circumstances and motives which had led to the murders . It was thus difficult to assess the remaining risk of recidivism and it could not be excluded that the applicant still posed a threat to society .

By a decision of CARDINAL DATE ORG , after hearing the said psychiatric expert as well as the applicant and referring to written statements from the GPE public prosecution authorities as well as the PERSON prison authorities , again ordered that the execution of the applicant ’s detention be continued . In its decision - making the court took into account that the PERSON prison authorities had given a favourable opinion on the applicant ’s possible release on probation in view of the fact that he had never abused relaxations of his detention which had been implemented for meanwhile DATE . ORG , relying in particular on the assessment by the said psychiatric expert , nevertheless held that the applicant ’s criminal prognosis was still uncertain . This assessment was further supported by the resident psychologist at ORG prison . In a written statement of CARDINAL DATE he had stated that the applicant ’s lack of insight into his deed did not even allow for a positive criminal prognosis in the long term .

The applicant appealed the decision by written submissions of CARDINAL DATE and DATE . He maintained , inter alia , that contrary to the ORG ’s criminal prognosis , were bound by the statement and assessment of facts as established in ORG judgment of DATE .

On DATE ORG , endorsing ORG reasoning , dismissed the appeal as ill - founded .

ORG held that , contrary to the applicant ’s submissions , it had to be assumed that the offences had been committed as established in the first instance judgment of DATE . This finding was in line with the wording of LAW ( see relevant domestic law below ) stipulating that in their assessment whether a life sentence was to be suspended on probation the courts , shall , inter alia , take into account the circumstances of the convict ’s crime . These circumstances of a case could only be established in the proceedings leading to the conviction . It was not the task of the court dealing with issues in relation to the subsequent execution of the convict ’s sentence to reassess the facts . The only appropriate remedy for a convict alleging that new evidence had occurred following his conviction would be a request for a reopening of the proceedings .

The ORG further noted that it followed from the experts’ opinions that the likelihood that the applicant would commit similar offences if released could not be assessed in a reliable way . Even the opinions established in DATE by the expert who had given a rather positive criminal prognosis for the applicant , based on his unobtrusive conduct during the execution and relaxations of his sentence , had concluded that it was unpredictable how the applicant would react if confronted with a situation of conflict within a sexual context . Subsequent psychological statements and opinions had also come to the conclusion that a risk of his reoffending could not be excluded even if the applicant was to be monitored closely . ORG therefore considered that the applicant was a “ ticking bomb ” and that the risk that he would commit a serious violent crime was not merely theoretical irrespective of his irreproachable conduct during detention . While taking into account the applicant ’s increasing interest to be released in view of his detention for meanwhile DATE , ORG concluded that in view of the gravity of the offences committed , the applicant ’s denial of the deeds and the resulting doubts in respect of a positive criminal prognosis , the safety interest of the public still prevailed over the applicant ’s interest to be released on probation . The continued execution of his life sentence was thus proportionate .

On DATE the applicant complained about a violation of his right to be heard ( Anhörungsrüge ) and challenged the presiding judge at ORG for bias . He alleged in particular , that ORG had ignored his argument that the facts as stated in ORG judgment of DATE were not binding on the psychological experts . Furthermore , it had not addressed his concerns whether the indefinite execution of a life sentence was in compliance with the German Basic Law ( Grundgesetz ) . His applications were rejected by ORG on DATE and DATE , respectively .

On DATE the applicant lodged a constitutional complaint against the decisions of ORG of DATE and ORG dated DATE . On DATE , he extended his constitutional complaint to the decisions of ORG dated DATE and DATE .

On DATE ORG , by a leading decision ( file no . CARDINAL BvR CARDINAL/CARDINAL ) running to some CARDINAL pages , rejected the applicant ’s complaint as ill - founded to the extent he had challenged the refusal of the domestic courts to suspend his detention on probation .

ORG found that the execution of a life sentence beyond the period warranted by the particular gravity of a convict ’s guilt on the ground that the latter still presented a threat to society did not as such violate his or her constitutionally guaranteed right to respect of human dignity or right to liberty . However , the protection of human dignity and the principle of the rule of law required that a detained person had a concrete and realistically attainable chance to regain his freedom at some later point in time . Such prospect of release was guaranteed by means of a strict scrutiny by the domestic courts whether an ongoing detention was still proportionate . The longer a detention lasted , the stricter the scrutiny of whether it was still proportionate had to be . A detainee ’s ever increasing interest to be released in the course of a lengthy detention on the one hand was restricted by the ORG ’s mandate to protect the rights of others and the safety interest of the public on the other . Where criminal offences such as murder were to be expected in the event of a potential recidivism , the safety interest of the public required particular protection . A release on probation could only be envisaged if the remaining risk for the safety interest of the public was justifiable . However , even in the event a convict had committed serious violent or sexual crimes , a release on probation could not be refused by the domestic courts simply on the ground that there existed a mere theoretical risk of recidivism ( which in view of the limited possibilities of any kind of prognosis could in any event never be excluded ) . It rather had to be based on concrete factual circumstances establishing that such risk was unjustifiable having regard to the safety interest of the public .

The Federal Constitutional Court further pointed out that a convict ’s interest in being released also had an impact on the procedural requirements to be observed by the courts when deciding on a possible suspension of a sentence of life imprisonment . In view of the indefinite duration of a life sentence , domestic law provided for a judicial examination of a request for a release on probation which could be lodged by the public prosecution authorities as well as the convict at any point in time . Furthermore , the conditions for a possible release had to be assessed by the authorities at an early stage in order to enable them to take appropriate measures to prepare a convict ’s possible release . In this connection relaxations of detention were of particular importance since they offered the judge a broader and sounder basis for an assessment of the detainee ’s criminal prognosis with respect to a life in liberty . When assessing the likelihood that a convict would commit further serious crimes if released , the courts were under an obligation to obtain the best possible clarification of the circumstances of a case and had to base their prognosis on a sufficiently substantiated and recent expert opinion . Finally , any court decisions on the continuation of a lengthy detention had to be carefully reasoned and disclose the basis of the judge ’s assessment . In the event the continued detention was primarily justified by the safety interest of the public , it had to be considered whether the particular burden of a long - lasting deprivation of liberty could be countered by granting the convict certain privileges in DATE prison routine , thus allowing him to retain some quality of life .

ORG found that the impugned decisions of ORG and ORG had complied with the aforementioned constitutional requirements . The domestic courts had struck a fair balance between the applicant ’s right to be released and the safety interest of the public . ORG , in its appeal decisions of CARDINAL DATE and DATE , had not only taken into consideration the considerable length of the applicant ’s detention of meanwhile DATE but also his good conduct . It had further made a thorough assessment of the various expert opinions on the applicant ’s criminal prognosis and provided arguments why it shared the evaluation of the external expert opinion of DATE confirming that a risk of recidivism could not be excluded . On the basis of the expert ’s assessment ORG had concluded that such risk was not merely theoretical and had demonstrated that under certain conditions the applicant ’s ability to control his actions was reduced to an extent that made it possible that he would commit similar serious offences even if he was to be closely monitored following a possible release . ORG , while noting that a more convincing reasoning of the NORP decisions would have been desirable , conceded that the lack of clarification of the specific circumstances leading to the murders resulted from the applicant ’s failure to reflect on the crimes . Under these circumstances , ORG assessment that the likelihood of the applicant committing further serious crimes such as murder was of a degree that the safety interest of the public had to prevail over his interest to be released , had nevertheless been reasonable .

Finally , ORG pointed out that in view of the fact that no review of the applicant ’s detention had occurred since the impugned decision of DATE , the public prosecution authorities were under an obligation to investigate ex officio why the applicant had not submitted a related request .

ORG decision was served on the applicant on DATE .

Following ORG decision of DATE in the proceedings at issue , the PERSON prison authorities ordered in DATE that the applicant ’s cell and his apartment outside prison be searched . There had further been evidence that in DATE and DATE the applicant had extended his journeys to and back from work on several occasions . On the occasion of the search of his apartment the PERSON prison authorities seized , inter alia , binoculars , numerous magazines , photographs and video cassettes of a pornographic nature , ropes and adhesive tapes , as well as women ’s underwear .

Consequently , the ORG prison authorities ordered that all relaxations of the applicant ’s detention be removed on the ground that the outcome of the search had shown that there was a risk that he would abuse releases from prison in order to commit further serious crimes .

The resident psychologist at ORG prison , in a statement of CARDINAL July CARDINAL , pointed out that the applicant had stood the test of previous relaxations of detention and that the removal of his privileges implied the loss of his apartment , employment , personal environment outside prison and of all existing social perspectives . However , while the fact that the applicant had abused his journeys to work and the materials found in his flat did not constitute a clear indication for an acute risk of recidivism , the recent developments had made a reliable positive prognosis for the applicant even more difficult .

On DATE , ORG rejected the applicant ’s request to have the relaxations of his detention reinstated . The ORG found that the prison authorities’ decision to remove the applicant ’s privileges had been justified for the protection of the safety interest of the public . Considering the expert opinions rendered in the course of the applicant ’s lengthy detention and taking into account that a significant amount of pornographic material had been seized in the applicant ’s flat , the court was of the opinion that there remained a considerable risk that the applicant may reoffend .

The applicant ’s appeal against ORG decision was rejected by ORG on DATE as inadmissible . On DATE the applicant lodged a constitutional complaint . No further information was submitted to the ORG in relation to the proceedings before ORG in this respect .

A subsequent request for reinstatement of relaxations of the applicant ’s detention of CARDINAL DATE was rejected by the PERSON prison authorities on DATE . The prison authorities conceded that the applicant ’s conduct since the removal of previous relaxations of his detention in DATE had been irreproachable . He had worked in the prison ’s locksmith ’s shop and maintained extensive contacts with the outside world like , inter alia , with his former employer and colleagues as well as his former therapist . The fact that he had also stood the test of DATE of relaxations of his detention DATE , the long duration of his imprisonment as well as his advanced age also were arguments in favour of granting him the right to unsupervised releases from prison . However , the applicant ’s unaltered denial of his deeds and the fact that he trivialised his sexual deviation prevented any perspective of therapeutic progress . In this context the prison authorities also referred to an expert opinion obtained on CARDINAL DATE stating that in view of the high remaining risk of recidivism relaxations of the applicant ’s detention were only justifiable if combined with continuous and close monitoring . Accordingly , the prison authorities concluded that the protection of the rights at stake outweighed the applicant ’s interest in social reintegration .

Ever since the applicant was only granted occasional supervised releases from prison .

By written submissions of CARDINAL DATE the applicant again requested that the remainder of his life sentence be suspended on probation and asked ORG to obtain an expert opinion on the likelihood that he would commit further serious offences if released . In a statement of CARDINAL DATE , the PERSON prison authorities opposed the applicant ’s release on probation since he still did not show any insight into the crimes .

By a decision of CARDINAL DATE ORG commissioned the expert opinion and appointed an expert proposed by the applicant . The expert opinion was rendered on DATE . The expert pointed out that leading forensic psychiatrists had established that the risk of recidivism following release did not depend on the offender ’s insight into the offence committed . The expert therefore concluded that the fact that the applicant insisted on his innocence could not have a negative impact on his legal prognosis . However , there was nothing to establish that the applicant ’s character had matured since he had committed the crimes or that any therapeutic progress had been made . It therefore remained impossible to assess the potential risk of recidivism , in particular in the long term , and it was unlikely that future expert opinions would come to a different assessment . The expert held that relaxations of the applicant ’s detention , such as unsupervised releases from prison could be reinstated with a view to preparing the applicant ’s placement in supervised accommodation ( PERSON ) . Even if integrated in such supervised accommodation it would be necessary to closely monitor the applicant and provide counselling as regards his sexual behaviour .

On DATE ORG , after hearing the applicant as well as the expert and having regard to the prison authorities’ statement of DATE , again rejected the applicant ’s request that his life sentence be suspended on probation and held that a further similar request would be inadmissible if made within DATE .

ORG , referring to the principles set out in ORG decision of DATE with respect to the proportionality of the continued execution of a life sentence , concluded that the applicant ’s continued detention was still justified . In its assessment ORG referred in detail to the various expert opinions rendered over DATE , in particular the expert opinion of DATE . While taking into account the significant duration of the applicant ’s detention for meanwhile DATE and his good conduct on the one hand , the court also considered the particular brutality characterising the crimes and the fact that the applicant did not show any insight into the deeds and his sexual deviation . The court nevertheless pointed out that the principle of proportionality required granting the applicant an opportunity to show that he was able to stand the test of relaxations of his detention and to improve his criminal prognosis . It therefore supported the expert ’s proposal that closely monitored relaxations of the applicant ’s detention be granted and held that prior to a possible placement of the applicant in supervised accommodation he would have to prove during DATE that he was capable of dealing with situations of conflict in a sexual context outside prison with a view to preparing a possible release on probation .

It appears that since DATE the applicant has been granted the right to unsupervised releases from prison DATE .

Article CARDINAL § CARDINAL of the German Basic Law ( Grundgesetz ) provides that human dignity shall be inviolable and that to respect and protect it shall be the duty of all ORG authority . LAW stipulates that the freedom of a person shall be inviolable and may be interfered with only on a statutory basis .

Pursuant to LAW ) , the intentional killing of a person is to be classified as murder if certain aggravating elements are present . A murderer under this provision is any person who kills another person for pleasure , for sexual gratification , out of greed or otherwise base motives , by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence .

Murder is punishable by life imprisonment . A declaration by the sentencing court that the defendant ’s guilt is of a particular gravity may , inter alia , have a bearing on a subsequent decision regarding suspension of the latter part of the defendant ’s prison sentence on probation .

Article CARDINAL(a ) § CARDINAL in conjunction with LAW stipulates that the court is to suspend the remainder of a life sentence on probation if the convicted person has served DATE of his sentence , the particular gravity of the defendant ’s guilt does not warrant the continued execution of the sentence and provided that a suspension on probation can be justified while considering the safety interest of the public . In its assessment whether probation shall be ordered the courts shall take into account the personality of the convicted person , his past life , the circumstances of his crime , the extent to which the legal interest would be threatened in the event of recidivism , the conduct of the convicted person while serving his sentence , his living conditions and the expected effects the suspension of the sentence could have on him .

Following expiry of the minimum term of DATE , the courts decide on the suspension of the remainder of a convict ’s life sentence ex officio . Furthermore they are under an obligation to decide on related requests by the applicant , his counsel or the prosecution authorities which may be lodged at any time in the course of an ongoing detention .

Article CARDINAL § CARDINAL of LAW ( Strafprozessordnung ) provides that the decision whether execution of the remainder of a prison sentence is to be suspended on probation ( sections CARDINAL of LAW ) , as well as the decision that prior to expiry of a certain time limit an application by the convicted person to this effect shall be inadmissible , shall be given by court order . The public prosecution office , the convicted person and the penal institution shall be heard . According to paragraph CARDINAL of this provision the court shall obtain the opinion of an expert concerning the convicted person if it considers suspending execution of the remainder of a sentence of life imprisonment . The opinion shall , in particular , express a view as to whether there remains a risk that the convicted person is still posing the danger apparent from the offence of which he was convicted .


CASE OF PETIKON OY AND PARVIAINEN v. FINLAND

Violation of Article 6 - Right to a fair trial;No violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

NORP The applicant company , which is wholly owned and administered by the second applicant , bought shares in a housing corporation on DATE . Later the applicants found out that the same shares had been given as security by company X. which had been declared bankrupt . They also found out that the whole of the real estate had been placed under an interdiction against sale or dispersal .

On DATE the applicant company initiated an action for damages in ORG ( käräjäoikeus , tingsrätten ) against the bank and the bank director responsible for selling the shares , claiming compensation for the loss of the shares . On DATE ORG dismissed the claim as premature without considering the merits .

On DATE the applicant company initiated , together with the other share holders , a new action for damages against the bank as the rules on civil procedure had changed in the meantime . The company claimed that the damage had been caused by a bank manager and that the bank as employer was liable for its employees . Allegedly , the bank manager had given incorrect information , had not acted diligently but in breach of good banking practice and was guilty of criminal conduct . The company claimed that the bank was obliged to compensate , inter alia , by reimbursing the purchase price of the shares , the condominium charges paid to the housing corporation and the company ’s legal expenses incurred in the criminal case .

The case was postponed pending the outcome of other civil proceedings related to the present case . The final judgment in those proceedings was rendered on DATE .

After the conclusion of the above - mentioned civil proceedings , the present case was postponed once more pending the outcome of criminal proceedings which had been brought against the representatives of the bank and which concerned the same sale of shares . The ORG judgment in the criminal proceedings was issued on DATE .

In letters dated DATE and DATE and addressed to ORG , the applicant company requested that , despite the pending appeal against the judgment in the criminal case , the consideration of the present case be resumed .

On DATE the applicant company also informed ORG that the shares in the housing corporation had been declared part of the bankruptcy estate of company X. pursuant to the above - mentioned final judgment of DATE . The shares were thus worthless since the housing company was de facto bankrupt .

On DATE the defendant bank requested that the proceedings remain adjourned pending the outcome of criminal proceedings since the proceedings were still pending on appeal .

On DATE ORG held a preparatory meeting . On DATE it decided to adjourn the proceedings pending the final outcome of the criminal proceedings . According to the court , it was important to await that outcome as the question of criminal liability formed the basis of the civil proceedings and the cases partly overlapped .

On DATE the applicant company lodged an appeal with ORG ( hovioikeus , hovrätten ) , requesting that the ORG decision of DATE be annulled and that the civil proceedings be immediately resumed . It claimed that , due to the adjournment , the proceedings would necessarily last over DATE and that , as a result , the excessive length of the proceedings would violate its rights under LAW . It requested that the proceedings in ORG be examined urgently .

On DATE ORG found that the applicant company ’s appeal did not give reason to take any action .

By an appeal dated DATE the applicant company appealed against this decision to ORG ( korkein oikeus , högsta domstolen ) , which refused leave to appeal on DATE .

The applicant company filed a written statement dated DATE informing ORG that the criminal proceedings had been terminated by a final judgment given on DATE and requesting the resumption of the civil proceedings .

On DATE the second applicant lodged a request to intervene in his own name in the proceedings before ORG and claimed compensation . The applicants presented as written evidence a deed of sale with which the second applicant had purchased the said shares of the housing corporation from the applicant company on DATE and with which the claim for compensation had been transferred to the second applicant .

The court held an oral hearing in the case on CARDINAL and DATE .

By a judgment of DATE , ORG first rejected the second applicant ’s request to intervene and found that the first applicant was the correct plaintiff . The court rejected the remainder of the complaints and considered that the circumstances of the sale of the shares and the documents relating to it were so obscure that the risk involved in the purchase had been apparent . Moreover , the court found no causal link between the acts of the defendant bank and the damage suffered by the first applicant .

By an appeal dated DATE , the applicants appealed to ORG , requesting that ORG judgment be quashed . By a letter dated DATE , the applicants asked the appellate court to accelerate the proceedings .

On DATE ORG found that the rightful owner of the shares was the second applicant and that , consequently , only the second applicant could claim damages . The court noted , however , that the defendant bank had already paid compensation and interest due from DATE onwards . Since the second applicant had claimed damages in his own name only on DATE , he no longer had any claims against the bank . ORG thus rejected the ORG appeal .

On DATE the defendant bank appealed to ORG , complaining about the partial rejection by ORG of its claim for costs and expenses . On DATE ORG refused leave to appeal .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE the applicant , a NORP national and therefore , at the time of the events in question , a national of a ORG outside ORG , commenced employment with a GPE company as a lorry driver . The contract was governed by GPE law and the lorry was registered in the GPE . The applicant was in possession of an employment certificate ( PERSON ) issued by ORG ( ORG ) which stated that his employer covered the transport risks and expenses and that the applicant was legally employed . He did not reside in the GPE , worked exclusively outside the GPE and , at the relevant time , had not ( yet ) been issued with a GPE work permit .

On DATE and DATE , on his way from GPE to GPE and GPE to GPE , he was subjected to checks by the NORP police . After both events criminal proceedings were instituted against the applicant .

On DATE the NORP ORG convicted him of remaining in the country illegally in both cases and sentenced him to an overall fine of MONEY ( equivalent to MONEY ( EUR ) ) . The decision was based on sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW , see “ Relevant domestic law ” below ) . The court found that the exception to the requirement to hold a residence permit provided for in section CARDINAL , subsection CARDINAL ) of the Order implementing LAW ( Durchführungsverordnung zum Ausländergesetz , see “ Relevant domestic law ” below ) did not apply as the applicant ’s journeys from GPE and GPE to GPE did not have a direct connection with the GPE , the ORG Member State where the company was established . That , however , the court pointed out , was an implicit condition of the provision in question , as demonstrated by its genesis and its aim of preventing bogus companies being set up and as further confirmed in a statement by ORG addressed to the applicant ’s legal counsel on DATE . On that ground the court found that the question whether the applicant was legally employed in the GPE was not decisive . It further established DATE referring also to the fact that information to that effect had been circulated by the authorities – that the applicant at least could have known that his actions were illegal .

On DATE the GPE employment agency ( Arbeidsvoorziening ) issued the applicant with a work permit ( Tewerkstellingsvergunning ) allowing him to load and unload goods in the GPE . Thereafter the applicant also transported goods from and to the GPE .

On DATE the ORG , after hearing evidence from the executive director of the company which employed the applicant and obtaining a translation of the documents in NORP , quashed his conviction as regards the first offence on the ground that the applicant could not have known that his stay was illegal given that he had been subjected to checks before without any consequences . However , it upheld his conviction as regards the second offence and reduced the fine to LAW . As regards the second conviction it found that the exception to the requirement to hold a residence permit , provided for in section CARDINAL , subsection CARDINAL ) of the Order implementing LAW , did not apply as at the time of the events in question the applicant had not been in possession of a GPE work permit ( it found that the employment certificate could not be equated with a work permit , as it merely stated that the applicant ’s employer covered the transport risks and expenses and that the applicant was legally employed ) and had been working exclusively outside the GPE . In this latter respect it pointed out , referring also to a statement by ORG , that section CARDINAL , subsection CARDINAL ) of the Order implementing LAW was clearly aimed at benefiting only those employees whose ( legal ) residence and employment were actually in the Community Member State where the company was established and not those who , like the applicant , worked exclusively outside that Member ORG .

On DATE ORG rejected the applicant ’s appeal on points of law . It upheld the finding that , at the relevant time , the applicant had not been in possession of a GPE work permit . In this respect it also pointed out that only from DATE had he been entitled to work as a lorry driver in the GPE . Furthermore , it found that the applicant ’s case could not be compared to the case of PERSON ( ECJ , see below ) as , unlike Mr PERSON , the applicant was not in possession of a work permit issued by the ORG where the company was established .

On DATE ORG refused to admit the constitutional complaint , without indicating any reasons .

Relevant domestic law

Section CARDINAL(CARDINAL ) of LAW provides :

“ Any person entering or remaining in GPE must have a residence permit . In order to facilitate the residence of non - nationals in GPE ORG , with the consent of the GPE , shall issue an order providing for exemptions . ”

Section CARDINAL(CARDINAL ) of LAW reads as follows :

“ Any person who , contrary to section CARDINAL(CARDINAL ) , remains in GPE without a residence permit ... shall be liable to imprisonment for not more than one year or to payment of a fine . ”

Section CARDINAL , subsection CARDINAL ) of the Order implementing LAW provides for an exception to the requirement to hold a residence permit if a person employed by a company from another ORG and resident in that ORG does not remain in GPE for DATE in DATE , if he or she :

“ works in cross - border passenger or goods traffic , if the company employing him or her is established in a Member State of the ORG , if the vehicle is registered in that country and if the employee has the residence and work permits required in that country . ”

Judgment of the ECJ of DATE , PERSON v. Office des Migrations internationales , Case C-CARDINAL/CARDINAL

In this judgment the ECJ ruled that under ORG a Member ORG was precluded from requiring undertakings established in another Member ORG , and entering the first Member ORG in order to provide services , to obtain further work permits in the ORG where the services were to be carried out for those employees who were nationals of a non - member country but who had been issued with work permits in the Member ORG where the undertaking was established .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On an unspecified date the GPE police received an anonymous telephone message which concerned the applicant .

On CARDINAL DATE the GPE police received another phone call from the same person stating that the applicant was in the house of a certain LOC , brother of the applicant ’s fiancée .

According to the house search and seizure report drafted on DATE at TIME , the LOC police conducted a drug - related operation targeting ORG house , under the supervision of the GPE public prosecutor . The report stated that the applicant had given a false name and resisted the police when the officers showed him their search warrant . According to the report , the applicant physically attacked and injured CARDINAL officers . He then fell and hit his head on the door . CARDINAL officers handcuffed him by pinning him to the floor by the arms and shoulders . During the search , the officers found ecstasy pills in the house . They also found a weapon hidden under a sofa . The report was signed by QUANTITY police officers , the applicant and the applicant ’s fiancée , PERSON The applicant was subsequently arrested and placed in police custody .

At TIME on DATE the applicant was examined by a doctor at ORG , who observed a QUANTITY - long laceration on the scalp with an oedema around it on the left parietal region , a bruise on the front of his neck ( under the chin ) , a minor erythema on his right cheek , and pain and another slight erythema in the right lumbar region .

On DATE , QUANTITY police officers from the team that had effected the applicant ’s arrest , were also examined by the same doctor . The doctor observed an erythema in the abdominal region , QUANTITY bruises and erythemas on the right of the back , and erythemas on both arms of A.T.E. ’s body . As regards PERSON , the doctor noted an erythema of QUANTITY on the left arm and a bruise of QUANTITY on the left side of the abdominal region .

At TIME on DATE A.T.E. and ORG gave statements to police officers in their capacity as complainants and victims . They submitted that the applicant had resisted arrest and had insulted and physically attacked them . According to the officers , the applicant had fallen and hit his head on the door and had then been arrested . At TIME the applicant gave statements to the police and alleged that he had been beaten by police officers and injured during his arrest .

On DATE the applicant was once again examined by a doctor , who noted a red lesion measuring QUANTITY on his right upper arm and a complaint of intense pain in the right part of his back .

On DATE the applicant was brought before ORG . The judge informed him that he was charged with insulting and resisting the police officers as well as causing them injuries . The applicant denied the allegation that he had insulted and resisted the police officers . He maintained that he had been hit on the head by police officers with a weapon and beaten with truncheons and guns during the house search . The judge subsequently ordered the applicant ’s pre - trial detention .

On DATE the GPE public prosecutor filed a bill of indictment with ORG against the applicant charging him with resisting the police , insulting public officials and possession of firearms without a licence .

During the trial , ORG took statements from the QUANTITY police officers who had affected the applicant ’s arrest , the applicant and other police officers who had arrested him . The police officers maintained before the court that they had been kicked and punched by the applicant , who had resisted arrest , and that they had obtained medical reports in support of their allegations . They further maintained that the applicant had insulted them in NORP and in NORP . The applicant claimed that he had not resisted arrest or insulted the officers and that in any case he had been unable to resist arrest on account of the number of arresting officers .

On DATE ORG convicted the applicant of the aforementioned offences and sentenced him to a total of DATE and QUANTITY months’ imprisonment . The court found it established DATE on the basis of the arrest and search report , medical reports , the expert assessments of the firearm , and the statements of the complainants , the applicant and witnesses DATE that the applicant had insulted and resisted the police officers and had been in possession of an unlicensed firearm .

On DATE ORG quashed the judgment of DATE , holding that the first - instance court should have examined whether it was appropriate to suspend the delivery of the judgment ( hükmün açıklanmasının geri bırakılması ) .

On DATE the first - instance court once again convicted the applicant of the same offences and sentenced him to a total of DATE and QUANTITY months’ imprisonment and a fine of MONEY .

According to the information obtained by ORG from the website of ORG , on CARDINAL DATE ORG upheld the judgment of DATE .

In the meantime , on DATE the applicant applied to the LOC public prosecutor ’s office requesting that the police officers who had arrested him be punished for injuring him by using excessive force during his arrest .

On DATE the GPE public prosecutor issued a decision not to bring criminal proceedings against the arresting police officers as he found it established that the applicant had insulted and physically attacked the officers and resisted arrest . The public prosecutor noted that the applicant , A.T.E. and PERSON had fallen during the struggle and sustained injuries . According to the public prosecutor , the police officers had handcuffed the applicant by using force when he was on the floor . He found that there was no concrete evidence other than the complainant ’s allegations that the members of the security forces had illtreated him . The public prosecutor considered that the force employed by the police had not been excessive and that the officers had acted within the scope of their duties . The public prosecutor did not question the applicant , the accused police officers or any other witnesses before giving his decision .

On DATE the applicant objected to the decision of CARDINAL DATE .

On DATE ORG dismissed the objection .

On an unspecified date , an investigator initiated a disciplinary investigation in respect of A.T.E. and PERSON Within the context of this investigation , DATE and DATE the investigator took statements from the applicant , his fiancée , PERSON , A.T.E. and PERSON and CARDINAL other police officers who had effected the applicant ’s arrest . The applicant and his fiancée stated that the applicant had been beaten by the police officers . The applicant stated that he had not insulted or attacked the arresting officers and that he had been hit with sticks and firearms . The police officers , on the other hand , maintained that the applicant had insulted them , had chanted slogans , had kicked and punched A.T.E. and PERSON and had fallen and hit his head on the door during the struggle .

On DATE ORG attached to the GPE governor ’s office held that there was no reason to subject A.T.E. and GPE to disciplinary sanctions and considered that they had acted within the scope of their duties during the arrest .


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

The applicant and a co - accused were charged with conspiracy to rob a post office on DATE . CARDINAL masked men had broken into the post office through the wall of an adjoining , unoccupied shop . When the post office staff arrived for work in TIME , CARDINAL of them had their hands cuffed or taped behind their backs , CARDINAL were also blindfolded , and the Post Master had a knife held against his throat and threats made to himself and his family . The CARDINAL robbers took GBP CARDINAL . CARDINAL of the men was able to escape with the money by car , but the applicant was caught close to the post office by police officers who had chased him from the scene . At the time of his arrest he was wearing clothing seen by officers on CARDINAL of the men running from the post office , and forensic evidence later found particles of rubble from the hole in the wall in his clothes . The co - accused was also arrested shortly after the robbery . When questioned by the police , neither suspect made any comment .

The applicant and his co - accused were released on bail and granted legal aid . They were arraigned in DATE ; both defendants pleaded not guilty , requested a large number of prosecution witnesses to attend the trial and were again released on bail . The trial was listed to begin on DATE but was adjourned at the request of the defence . DATE each defendant breached his bail conditions by failing to report DATE at his local police station . On the date fixed for the start of the trial , DATE , the applicant and his co - accused did not surrender . A warrant was issued for their arrest and the case was relisted for CARDINAL DATE . They had not been arrested by that date and the judge , Judge PERSON , adjourned for DATE then held a hearing to decide whether the trial should commence in the absence of the defendants .

Defence counsel informed the judge that the applicant ’s solicitors and those representing the co - accused had withdrawn from the case in the absence of instructions from their client and that , as a matter of professional conduct , he considered that he was unable to continue to represent the applicant . Counsel for the ORG asked the judge to exercise his discretion to allow the trial to proceed in the absence of the defendants . The judge ruled as follows :

“ There are before me CARDINAL competing positions . Both defendants are still absent and neither their solicitors or their counsel have felt it appropriate for them to remain with this case in the absence of their clients . ...

So I am faced with a situation DATE where counsel on behalf of the prosecution is inviting me , notwithstanding the absence of the defendants and counsel and solicitors , for this case to proceed primarily because these CARDINAL defendants have quite voluntarily absented themselves for DATE of any contact with the court , knowing full well that they face very serious allegations .

There are CARDINAL live witnesses due to give evidence DATE , some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed , masked men and this robbery took place . Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion . Some of the prosecution witnesses have already been dispensed with because of that concern that they have about continual delay .

The information I am led to believe suggests , although there is nothing concrete about this , that the CARDINAL men are in GPE . CARDINAL of the men ’s families has also left his normal home . There is no concrete evidence , as I say , to suggest that they are in GPE so that any extradition proceedings could commence , that is just the intelligence that the officers have . ”

The judge observed that he was not aware of any legal authority which dealt with the question whether it was possible to commence a trial in the absence , from the outset , of the accused , although there were reported cases where trials had been continued when the defendant became unable to attend part of the way through . He continued :

“ In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial , and particularly one as serious as this , in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf .

But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are CARDINAL witnesses outside court who have come here for the second time DATE and who are anxiously awaiting the prospect of having to give evidence and in view of the GPE deliberate absenting of themselves the trauma that some of them experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty , which is obviously not their intention , or indeed the trial taking place and a jury coming to a decision .

Having , as I indicated earlier , given very anxious consideration to what is a novel point in my view and having sought the assistance both from ORG and also from colleagues who have considered the matter with me over lunch I have come to the conclusion that the proper way of exercising my discretion in this most unusual case is for me to allow the case to proceed in the absence of both defendants .

I am conscious that the consequence of that is likely to be that the defendants are likely to be found guilty by the jury because of the absence of the defendants and the absence of representation but this is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded .

I also have to bear in mind the convenience and consideration of a very large number of witnesses , many of whom , as I have indicated , have no doubt anxiously waited for DATE ’s date to come and are frustrated at the prospect that they would have to wait DATE if we were to wait for these defendants to be found somewhere else in the world and brought back to this country . I can not in all conscience feel it is appropriate that those witnesses should be made to wait for what could be DATE , DATE , DATE , DATE or some other period of time well into the future by which time some may not be willing to give evidence , some may have passed on , some may have gone to another part of the world , emigrated , all sorts of problems can arise which would then be to the advantage of these absent defendants .

At DATE , as I say , I have come after anxious consideration to the decision that this is a case that , unusually , should proceed in the absence of both defendants and their counsel and solicitors .

I have also given consideration as to what I ought to say to the jury when they come into court and are sworn and realise that there is nobody here , either the defendants themselves or their representatives , and all I can do is to make sure that anything I say in no way prejudices the position of the defendants at all .

As I have discussed with [ the prosecution counsel ] already , the way in which this case has to proceed is in accordance with the law , irrespective of the fact that the defendants are absent and there is no counsel here to defend either CARDINAL of them .

Precisely the same process will be gone through and both [ counsel ] and myself will give anxious consideration to any matter that we think that might have had some advantage as far as the defendants are concerned and to make sure that this is highlighted during the currency of the evidence . In that way if there is any material that assists either defendant we will make sure that it is properly put before the jury in a fair manner so that the jury can come to a decision on the facts available to them . ”

At the close of the prosecution case the judge directed the jury that they should not draw any inference of guilt from the GPE failure to answer police questions or to appear for trial . He also instructed them to consider whether the forensic evidence , which strongly suggested that the accused had made the hole in the ORG wall and/or clambered through it , had been planted by the police or tampered with in any way and pointed out that there was no fingerprint or DNA evidence incriminating the CARDINAL defendants .

The applicant and the co - accused were convicted and sentenced to DATE imprisonment . The applicant was arrested DATE and sentenced to an additional concurrent term of DATE for breach of bail .

The applicant , represented by solicitors and counsel , was granted leave to appeal out of time against conviction and sentence . In DATE ORG gave joint judgment in his case with CARDINAL other appellants who had also been convicted in their absence ( NORP v. GPE ; NORP v. PERSON ; NORP v. PERSON [ DATE ] PERSON ) .

Lord Justice PERSON , giving the judgment of ORG , held that , in the light of domestic and NORP case - law , the principles which should guide the NORP courts in relation to the trial of a defendant in his absence were as follows :

“ ( CARDINAL ) A defendant has , in general , a right to be present at his trial and a right to be legally represented .

( CARDINAL ) Those rights can be waived , separately or together , wholly or in part , by the defendant himself . They may be wholly waived if , knowing , or having the means of knowledge as to , when and where his trial is to take place , he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him . They may be waived in part if , being present and represented at the outset , the defendant , during the course of the trial , behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him .

( CARDINAL ) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives .

( CARDINAL ) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing , particularly if the defendant is unrepresented .

( CARDINAL ) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant , he must ensure that the trial is as fair as the circumstances permit . He must , in particular , take reasonable steps , both during the giving of evidence and ion the summing up , to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits . In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case . ”

Lord Justice PERSON added that he saw no necessity for a defendant who was released on bail to be expressly warned that , if he absconded , he might be tried in his absence , “ for that has been the LANGUAGE common law for over a century ” .

He reviewed the facts of the applicant ’s case in the light of the above general principles and concluded that the trial judge had exercised his discretion entirely properly . At the hearing on DATE it had been conceded by the applicant ’s counsel that the applicant ’s failure to surrender for trial had been deliberate and that he had been aware of his obligation to attend and of the possible consequences of his non - attendance . Lord Justice PERSON held that the applicant had clearly and expressly , through his conduct , waived his right to be present and legally represented at trial , and that the trial had been as fair as was possible given that the defendant had waived these rights . Although the defendant had been present and represented during the appeal proceedings , he had made no application to bring fresh evidence and no submission had been made on his behalf to suggest that the forensic evidence linking him to the robbery was unreliable or that , if he had been present and/or represented at trial any innocent explanation could have been brought forward for the contamination of his clothing , his presence in the vicinity of the robbery or fleeing from the police , or that he was unconnected with a walkie - talkie found near the scene . In conclusion , ORG found no reason to hold that the conviction was unsafe or that the trial had been unfair . It did , however , reduce the applicant ’s sentence from DATE imprisonment .

The applicant appealed for leave to appeal to ORG , and ORG duly certified a question as being one of general public importance , namely : “ Can ORG conduct a trial in the absence , from its commencement , of the defendant ? ” ORG gave judgment on DATE ( NORP v. PERSON ( PERSON ) [ DATE ] ORG CARDINAL ) . Although ORG judges were unanimous in agreeing that the appeal should be dismissed , they gave different reasons for this conclusion .

Lord PERSON of GPE , with whom ORG and ORG agreed , observed that ORG finding that the applicant had waived his right to trial in his presence had not been challenged and was tenable : while there was no direct evidence to show that the applicant knew what the consequences of his absconding would be , nor was there evidence to suggest a belief on his part that the trial would not go ahead in his absence or that , although absent , he would continue to be represented . The applicant ’s “ decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver ” . Lord PERSON added , however , that : “ If , contrary to my opinion , ORG were wrong to make the finding of waiver , and I am wrong to accept it , I would none the less hold that the appellant enjoyed his Convention right to a fair trial , for all the reasons given by my noble and learned friend Lord PERSON of NORP ” .

Lords PERSON and PERSON of PERSON , however , disagreed that the applicant could be said to have waived his rights . In the words of Lord PERSON :

“ [ The ] facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place . That does not , in itself , justify the conclusion that he had waived his right to be present or represented at any trial of the charges against him . Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent , but also knew that it could take place even though he was not there and even though he was not represented . ... In the circumstances of this case , ... neither inference can readily be drawn .

So far as the first is concerned , it is sufficient perhaps to notice that the initial reaction of the very experienced judge , Judge PERSON , was that no trial could take place in the absence of the defendants . He had never heard of such a thing and neither had the colleagues with whom he consulted . An official at ORG thought it might be possible - but he could not put his finger on a case . It would , I believe , be rash to attribute to the applicant greater knowledge of the arcana of LANGUAGE legal procedure than Judge PERSON and his colleagues actually possessed . Doubtless , the appellant would have been aware that , if eventually brought to justice , he would be punished for absconding to avoid trial . But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence . I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his right to be present at any trial .

The inference that he had waived his right to representation at any trial of the charge against him is even more difficult . One would have to infer that the appellant knew that , if the court decided to proceed to try him in his absence , it would do so in a situation where no counsel or solicitor was there to represent him on the very serious charge of conspiracy to rob . In fact , at the hearing on DATE , the appellant was unrepresented from the outset , while the counsel and solicitor for his co - defendant withdrew from acting at the hearing . We were told that , in certain other cases , when a trial has proceeded in the absence of the defendant counsel have agreed to remain in court and to act , even in a limited way , on behalf of the defendant . ORG ... indeed envisaged that this might happen in future cases and that the presence or absence of representation would be a factor to be considered by the judge in deciding whether the trial should proceed in the absence of the defendant ... . There is nothing in ORG narrative of the facts to show whether the appellant knew that no counsel or solicitor would appear on his behalf at the hearing on DATE or that the trial judge was likely to exercise his discretion by going on with the trial without the appellant being represented . In these circumstances I am again unable to conclude that , merely by deliberately absconding , the appellant had unequivocally waived his right under LAW ) of LAW to be represented by counsel at any trial of the charges against him .

For these reasons I prefer to deal with the case on the basis that the appellant had not unequivocally waived his right to be present or to be represented under LAW ORG ) . His absence simply meant that he was not in a position to exercise either of these rights when the judge decided to proceed with the trial . The question then comes to be whether there has been a breach of the appellant ’s rights under LAW . As [ counsel for the ORG ] submitted , that question falls to be determined on a consideration of the whole of the proceedings , including those in ORG . ”

His Lordship then examined the entirety of the proceedings against the applicant . He observed that the exercise of the trial judge ’s discretion to try the applicant in his absence had been exceptional and had taken account of the applicant ’s deliberate decision to abscond and the needs and interests of the victims , witnesses and the wider public , as well as those of the accused . In ORG the applicant had been present , legally aided and represented . The evidence against him had been strong and the applicant had not availed himself of the opportunity open to him during the appeal proceedings to bring fresh evidence to counter the merits of his conviction . The proceedings taken as a whole had therefore been fair .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) , as amended by LAW DATE ( “ the DATE LAW ) , provides a single , composite right of appeal against a criminal conviction . It states that ORG :

“ ( a ) shall allow an appeal against conviction if they think that the conviction is unsafe ; and

( b ) shall dismiss an appeal in any other case . ”

The broad intention behind this provision was summarised by the then Lord Chief Justice , Lord PERSON , in NORP v. PERSON and Others ( [ DATE ] vol . ORG p. CARDINAL [ ORG ] ) , when he said :

“ This new provision ... is plainly intended to concentrate attention on CARDINAL question : whether , in the light of any arguments raised or evidence adduced on appeal , ORG considers a conviction unsafe . If the ORG is satisfied , despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence , that the conviction is safe , the ORG will dismiss the appeal . But if , for whatever reason , the court concludes that the appellant was wrongly convicted of the offence charged , or is left in doubt whether the appellant was rightly convicted of that offence or not , then it must of necessity consider the conviction unsafe . The ORG is then subject to a binding duty to allow the appeal . ”

The scope of the “ safety test ” was discussed by Lord PERSON in his judgment in NORP v. ORG , ex parte Pearson [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ( ORG ) ( after the hearing of the applicant ’s appeal ) , where he stated :

This passage was subsequently cited by ORG in the case of NORP v. PERSON , PERSON and PERSON [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL , where Lord Justice PERSON , delivering the judgment of the court , stated that :

“ The following is not intended to be an exhaustive statement of the principles involved . We simply extract the following . The ORG is concerned with the safety of the conviction . A conviction can never be safe if there is doubt about guilt . However , the converse is not true . A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘ vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the ORG to apply the test ... which , as adapted by [ counsel for the ORG ] , might read :

‘ Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error , would the only reasonable and proper verdict have been CARDINAL of guilty?’ . ”

Later in his judgment , Lord Justice PERSON stated that :

“ We are satisfied that [ the questions of ‘ fairness’ and ‘ ORG ] must be kept separate and apart . The ORG is charged with inquiring into whether there has been a breach of a Convention right . This court is concerned with the safety of the conviction . That the first question may intrude upon the second is obvious . To what extent it does so will depend upon the circumstances of the particular case . We reject , therefore , [ counsel for PERSON ] ’s contention that a finding of a breach of LAW ) by the ORG leads inexorably to the quashing of the conviction . Nor do we think it helpful to deal in presumptions . The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree . ”

Section CARDINAL of LAW DATE provides , in so far as relevant , as follows :

“ ( CARDINAL ) For the purposes of this part of this LAW , ORG may , if they think it necessary or expedient in the interests of justice –

( a ) order the production of documents , exhibits or other thing connected to the proceedings , the production of which appears necessary for the determination of the case ;

( b ) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the ORG whether or not he was called in active proceedings ; and

( c ) receive any evidence which was not adduced in the proceedings from which the appeal lies .

( CARDINAL ) ORG shall , in considering whether to receive any evidence have regard in particular to :

( a ) whether the evidence appears to the ORG to be capable of belief ;

( b ) whether it appears to the ORG that the evidence may afford any ground for allowing the appeal ;

( c ) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal ;

( d ) whether there is reasonable explanation for the failure to adduce the evidence in these proceedings .

( CARDINAL ) For the purposes of this part of the LAW , ORG may , if they think it necessary or expedient in the interests of justice , order the examination of any witness where attendance might be required under sub - section CARDINAL(b ) above to be conducted in a manner provided by the rules of the ORG , before any judge or officer of the ORG or other person appointed by ORG for the purpose , and allow the admission of any deposition so taken as evidence before the ORG . ”


Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Six month period);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - finding of violation sufficient

ORG Mr PERSON , a NORP national of NORP origin , is currently in custody at FAC in GPE .

ORG On DATE , while attempting to escape from ORG , the applicant and a fellow prisoner of NORP nationality , Mr PERSON , knocked out a warder , who died DATE as a result of the blows he had received .

ORG The CARDINAL prisoners were charged with intentional homicide for the purpose of facilitating , preparing or executing the offences of escape and attempted escape . In a judgment of CARDINAL DATE ORG of ORG committed them for trial at ORG . On DATE ORG dismissed an appeal on points of law that Mr PERSON had lodged against the decision to commit him for trial .

ORG The trial at ORG took place on CARDINAL , CARDINAL and DATE . On DATE , when the sitting began , the members of the jury and CARDINAL additional jurors were drawn by lot . The defendants challenged CARDINAL of them , the legal maximum , and the prosecution CARDINAL of them . The jury was subsequently finally empanelled and the hearing of witnesses began .

ORG On DATE , at CARDINAL , as the sitting resumed , counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by CARDINAL of the jurors on DATE , before the hearing began , which had been overheard by a third person , PERSON , and to append her written statement , together with their submissions , to the record of the trial .

PERSON statement of DATE read as follows :

" I , the undersigned PERSON , declare on my honour that I witnessed the following facts :

I was at the door of the court at TIME , next to a group of people . From their conversation , I chanced to overhear that they were members of the jury drawn by lot in the Merdji [ and ] PERSON against Pahon case .

CARDINAL of them then let slip the following remark : ‘ What ’s more , I ’m a racist.’

I do not know that person ’s name , but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge ’s left .

Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital , but being at the court ’s disposal if it proves essential to call me as a witness , I have drawn up this statement to be used for the appropriate legal purposes . "

ORG The court , composed in this instance solely of the judges , withdrew to deliberate and then delivered the following judgment :

According to the handwritten statement of a Mrs [ M. ] of DATE , CARDINAL of the members of the jury in the present case said ‘ What ’s more , I ’m a ORG at the door of the court at TIME

According to this statement and the written submissions , these words were spoken before DATE first hearing in the instant case and not in the presence of the judges of the ORG .

The ORG is thus not able to take formal note of events alleged to have occurred out of its presence .

For these reasons ,

it Refuses the application made to it for formal note to be taken ;

Holds that the ORG written submissions and the statement of PERSON are to be appended to the record of the trial ;

ORG On DATE ORG sentenced Mr PERSON to life imprisonment and PERSON to a DATE term , for CARDINAL of which he would not be liable to any form of release .

Mr PERSON appealed on points of law . He argued mainly that ORG had made a mistake of law and had disregarded Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW in holding that it was " not able to take formal note of events alleged to have occurred out of its presence " when it had power to do so .

ORG In a judgment of CARDINAL DATE ORG dismissed the appeal . It gave the following reason in particular :

" ORG rightly refused to take formal note of events which , assuming they were established , had taken place outside the hearing , such that it could not have been in a position to note them . "

ORG Procedure in ORG is governed by ORG CARDINAL to CARDINAL of LAW ( " ORG " ) .

ORG consists of the court properly speaking - the presiding judge and , normally , CARDINAL other judges - and the jury , composed of citizens who satisfy the conditions of eligibility laid down by law . It tries mainly serious criminal cases sent to it by ORG and related or inseparable lesser offences . No reasons are given in its judgments , which are appealable only on points of law .

ORG For each case on ORG list a jury is empanelled at the beginning of the trial . It contains CARDINAL jurors , drawn by lot from a session list . This list contains CARDINAL names drawn by lot DATE from an DATE list , itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register .

CARDINAL or more additional jurors are also drawn by lot and attend the trial in order that they may , if necessary , replace any juror who is unable to sit .

The jury is constituted at the point when the names of CARDINAL jurors who have not been challenged and the names of the additional jurors have all been drawn by lot .

ORG As the names of the jurors are being drawn , the defendant or defendants are entitled to challenge CARDINAL of them and the prosecution up to CARDINAL . Their grounds for doing so can not be given .

Article CARDINAL ORG provides :

" Any judge may be challenged on any of the following grounds :

Where the judge or his spouse is a blood relative or a relative by marriage of CARDINAL of the parties or of a party ’s spouse , up to the degree of second cousin inclusive . The challenge may be made against the judge even in the event of divorce from his spouse or the latter ’s death where the spouse was a relative by marriage of CARDINAL of the parties , up to the second degree inclusive ;

Where the judge or his spouse , or a person in respect of whom either acts as guardian ( tuteur ) , supervisory guardian ( subrogé tuteur ) or court - appointed administrator , or a company or association in whose management or supervision either takes part has an interest in the dispute ;

Where the judge or his spouse is a blood relative or relative by marriage , to the degree indicated above , of the guardian , supervisory guardian or court - appointed administrator of CARDINAL of the parties or of a director or manager of a company that is a party to the proceedings ;

Where the judge or his spouse is dependent on CARDINAL of the parties ;

Where the judge has dealt with the case as a judge , arbitrator or legal adviser , or where he has given evidence as a witness relating to the facts of the case ;

Where there has been litigation between the judge , his spouse or their lineal blood relatives or relatives by marriage and CARDINAL of the parties , his spouse or his lineal blood relatives or relatives by marriage ;

Where the judge or his spouse is litigating in a court of which CARDINAL of the parties is a judge ;

Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties ;

Where there have been any disagreements between the judge or his spouse and CARDINAL of the parties sufficiently serious to cast doubt on his impartiality . "

Article CARDINAL ORG provides :

" A charged person , accused or any party to the proceedings who wishes to challenge an investigating judge , a judge of the police court or one or more or all of the judges of ORG , ORG or ORG must , if the challenge is to be valid , make an application to the President of ORG .

Members of ORG can not be challenged .

The application must mention by name the judge or judges being challenged and set out the grounds relied on , together with all the supporting evidence .

A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since , where they are such as to constitute a ground for challenge . "

In the case of ORG these provisions apply only to the judges and not to the jurors .

ORG The members of the jury , standing bareheaded , are addressed by the presiding judge as follows :

" You swear and promise to consider the charges that will be brought against X ... with the greatest care ; not to betray either the interests of the accused or those of society , which is accusing him / her ; not to communicate with anyone until you have returned your verdict ; not to be swayed by hatred or spitefulness or by fear or affection ; to reach your verdict in the light of the charges and the defence , according to your conscience and your innermost conviction , with the impartiality and firmness that befit a free man of integrity ; and to preserve the secrecy of the deliberations , even after you have discharged your office . "

Each of the jurors is individually called upon by the presiding judge and replies , raising his hand : " I swear . "

ORG Where an event likely to infringe the rights of CARDINAL of the parties occurs during the trial , the party concerned may ask ORG - composed in this instance of only the judges - to " take formal note " of it . This is the party ’s only means of having it recorded . ORG can not entertain complaints that have been raised if no application was made to ORG to take formal note of them and they were not entered in the record of the trial ( Court of Cassation , ORG , DATE , ORG . crim . ) no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; DATE , PERSON DATE , p. CARDINAL )

ORG may refuse to take formal note of events that are alleged to have occurred outside the hearing . It also has an unfettered discretion to decide whether evidence should be taken to verify them ( Court of Cassation , Criminal Division , CARDINAL DATE , Bull . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , GPE ; DATE , NORP ) .

Interlocutory decisions on such matters can be challenged by means of an appeal on points of law , but only at the same time as the judgment on the merits ( LAW .

ORG Article CARDINAL ORG provides :

" In matters within the jurisdiction of ORG , ORG or the police court , ORG may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank , either where the court that would normally have jurisdiction can not be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias .

An application for transfer may be made either by ORG attached to ORG or by the prosecutor attached to the court dealing with the case , or by the person charged , or by a civil party to the proceedings .

The lodging of an application shall not have any suspensive effect unless ORG orders otherwise .

ORG has unfettered discretion to determine whether such a ground is made out on the alleged facts ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) . An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question .

This procedure can be used only in respect of a whole court and not against CARDINAL or more members of a collegiate court ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON criminelle et de droit pénal comparé DATE , p. CARDINAL , comments by PERSON ) .


MASOKOMBINÁT PŘÍBRAM, A. S. v. THE CZECH REPUBLIC

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicant , ORG , a.s . , is a joint stock company incorporated under NORP law . It is represented before the ORG by PERSON D. Šachta , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON , from ORG .

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

In a purchase contract concluded in writing on DATE , PERSON and Ms PERSON sold CARDINAL plots of land defined in a geometrical plan to ORG ( Středočeský průmysl masný ) . The contract became valid and effective on DATE . A purchase price amounting to CARDINAL NORP korunas ( PERSON ) was paid to the sellers .

On DATE Mr PERSON died . In inheritance proceedings concerning his estate , ORG declared , on DATE , that PERSON inherited her late husband ’s estate , including the relevant part of the plots of land concerned .

On DATE ORG divided ORG . ORG , s.p . , a state - owned enterprise and the applicant company ’s predecessor , emerged as one of its legal successors .

On DATE the purchase contract of CARDINAL DATE was entered into the land register , on the basis of the geometrical plans of CARDINAL DATE and CARDINAL DATE . On DATE it was registered with the ORG ( středisko geodézie ) . At the date of CARDINAL DATE the land register showed ORG , s. p. as the owner of the plots of land in issue . On DATE certain parts of the state enterprise including the plots of land concerned were transferred to the ORG ( Fond národního majetku ) under a privatisation project ( privatizační projekt ) of DATE and , subsequently , to the applicant company which had been created by ORG for these purposes in DATE . The privatisation project expressly noted that the ownership certificate ( list vlastnictví ) of the plots of land was kept on the name of the former owner , PERSON , and that the new owner upon the purchase contract was not yet entered into the certificate . The purchase contract of DATE was part of the privatisation project . The applicant company came into being on CARDINAL DATE upon its entry into the companies register .

On DATE PERSON died . In inheritance proceedings concerning her estate , ORG ( okresní soud ) decided , on DATE , that her estate , including the plots of land at issue , was inherited by her daughters , PERSON and PERSON .

In a judgment of DATE , ORG , upon an action of PERSON filed on DATE , declared the purchase contract of CARDINAL DATE null and void ab initio for lack of factualness and accuracy , as it was not clear what plots of land had been sold . Although their size was specified , a geometrical plan showing the boundaries of the land was not joined to the contract . The court admitted that the DATE time - limit of possession of property in good faith necessary for acquiring ownership of the plots of land by the applicant company by means of positive prescription had lapsed . However , in its view , the company had not acquired ownership , as the amendment to LAW . no . CARDINAL/CARDINAL ) required that possession in good faith existed at the entry into force of the LAW , on DATE . Given that in DATE the predecessor of the applicant company was negotiating with PERSON over the sale of the land , it could not be regarded as being in good faith as the owner of the land since then .

The applicant company as the defendant in the proceedings did not appeal , and the judgment became final on DATE .

On DATE ORG issued a declaration that the plots of land at issue were included in the privatisation project and as such transferred to the applicant company in DATE .

On DATE answering to a letter of the applicant company the ORG noted that in DATE the plots of land had been transferred to the applicant company and that the ORG had considered itself an owner of the land at the time of the transfer based on the then valid purchase contract of DATE . Moreover , the ORG noted that the subsequent decision of the NORP District Court DATE was a new fact and that the applicant company should address ORG for possible compensation .

In a judgment of DATE ORG dismissed the applicant company ’s action against PERSON and PERSON . seeking to determine its ownership over the plots of land concerned .

On DATE ORG ( krajský soud ) quashed this judgment for procedural shortcomings and remitted the case to the ORG which , on DATE , again dismissed the applicant company ’s action .

That judgment was upheld by ORG on DATE , which held that the purchase contract was uncertain and void . As regard the assertion of positive prescription , the court found that no time - limit had ever been triggered by the applicant company which , if acting with reasonable due diligence , must have been aware that land may have been transferred with other dimensions than those recorded in the land register only if the purchase contract embodied a geometrical plan . This was , however , not done here . Any examination of the alleged negotiations between the predecessor of the applicant company and PERSON was thus superfluous .

On DATE ORG ( PERSON ) rejected an applicant company ’s appeal on points of law ( dovolání ) .

On DATE ORG ( PERSON ) dismissed a constitutional appeal by the applicant company .

As the applicant company needed the plots of land at issue for continuing to run its business activities , it concluded with the successors to the former owners , on DATE , a purchase contract on the basis of which it bought the estates against payment of CZK MONEY ( EUR CARDINAL ) .

On DATE the applicant company brought an action against ORG for payment of CZK MONEY ( EUR CARDINAL ) as compensation corresponding to the purchase price plus CARDINAL separate amounts of CZK MONEY ( ORG CARDINAL ) and CARDINAL ( ORG CARDINAL,CARDINAL ) . Later , the applicant company withdrew its claim of CZK CARDINAL,CARDINAL .

In a judgment of DATE ORG granted the applicant company ’s action in respect of the original price of the land when it was transferred to the applicant company in DATE ( CZK MONEY ) and dismissed it in respect of the rest .

On DATE ORG upheld the judgment .

On DATE ORG dismissed the applicant company ’s appeal on points of law .

On DATE ORG rejected its constitutional appeal as manifestly ill - founded .

Article CARDINAL § CARDINAL provides that a legal act must be undertaken freely , seriously , with certainty and comprehensibility .

Article CARDINAL stipulates that a legal act whose subject - matter or object contravenes or circumvents law , or is contra ORG mores , is null and void .

LAW provides that a holder who is according to all circumstances in good faith is a rightful holder .

Under LAW a rightful holder becomes an owner of real estate if he or she retains it in his or her continuous possession for DATE .

According to LAW the period of time during which a given thing was possessed by a legal predecessor is to be figured into the time - limit stipulated in paragraph CARDINAL thereof .