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

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

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

The applicant was born in DATE and lives in GPE .

On DATE the prosecutor ’s office of the GPE district of GPE instituted criminal proceedings against the applicant upon an application lodged by his father on suspicion of fraudulent acquisition of property rights over a collection of works of art of the applicant ’s grandfather , a NORP graphic artist .

On DATE the proceedings were suspended since “ the person accused [ had ] not [ been ] identified ” .

On DATE the prosecutor quashed this decision , relying on the fact that criminal proceedings had been initiated against a specific person ( the applicant ) . It extended the investigation deadline until DATE and remitted the case for additional investigation .

On DATE the police for the first time questioned the applicant as an accused .

On DATE the proceedings were again suspended “ since the accused [ had ] not [ had ] a real opportunity to participate in the investigation ” . The police referred to the fact that the applicant could not be found at his home address over DATE ( DATE ) .

On DATE the proceedings were resumed and the investigation deadline was extended until DATE . On DATE charges were brought against the applicant and an undertaking not to leave his place of residence was imposed on him .

On DATE the case was sent for trial to ORG of GPE .

CARDINAL hearings were scheduled , CARDINAL of which were adjourned : CARDINAL times due to the fact that the judge was busy in unrelated proceedings ; CARDINAL times due to the failure to attend by the prosecution and the victim ( the applicant ’s father ) ; twice due to the failure of the applicant ’s lawyer to appear ; once due to the failure of both the applicant and his lawyer to appear ; once due to the change of prosecutor in the case ; and CARDINAL times due to requests , apparently lodged by both parties , to consult the case file . From DATE to DATE no hearings were held as an expert examination was being carried out . From DATE to DATE no hearings took place .

On DATE the ORG of GPE returned the applicant ’s criminal file to the prosecutor ’s office for additional investigation . It found that an additional investigation was needed to clarify certain points and that breaches of the rules of procedure had taken place during the investigation . In particular , the applicant had not been properly charged . Accordingly , the court remitted the case to the prosecution authorities with instructions to rectify this shortcoming and also to gather additional evidence .

The applicant appealed against this decision , but on DATE ORG refused to entertain the applicant ’s complaint , since the domestic law did not provide for the possibility of appeal against this kind of decision .

On DATE the prosecutor ’s office returned the file to the police for additional investigation and correction of the procedural defects .

On DATE the proceedings were suspended . This decision was later declared unfounded and unlawful by ORG of GPE , and on DATE the proceedings were resumed .

Following the additional investigation , the file was again submitted to the prosecutor ’s office , which on CARDINAL DATE once again sent it back to the police for additional investigation .

On DATE the investigative authorities terminated the criminal proceedings against the applicant because there was no indication of a criminal offence and informed him about his right to rehabilitation and compensation for damage . The undertaking not to leave his place of residence was lifted accordingly .


The applicant is a NORP national , born in DATE and living in GPE .

A.

I.

On DATE ORG ( Sąd Rejonowy ) dissolved the applicant 's marriage , awarded custody of the children , PERSON , born in DATE , and PERSON , born in DATE , to his wife , and granted the applicant access to the children . The ORG also decided that the applicant should pay maintenance .

On DATE ORG pronounced its new decision concerning access , partly allowing and partly dismissing the applicant 's claims . The court allowed the applicant to visit his DATE son P. on DATE from TIME on DATE to TIME on DATE and to take him out so that he could stay TIME with his father in PERSON ; to visit PERSON on other dates , for not DATE , from TIME of the first day until TIME of DATE and to take him home , upon DATE notice to his mother ; to take P. home DATE , for DATE and GPE , to spend DATE of the holidays with P. , and as from DATE , DATE of the holidays and to see his older son PERSON as ordered in the divorce judgment and , additionally , on the dates suggested by the applicant , if PERSON agreed to it in writing .

The court ordered the mother to respect these arrangements and dismissed the remainder of the applicant 's claims .

The applicant lodged an appeal against this judgment which was dismissed by ORG ( Sąd Wojewódzki ) on DATE .

II .

On DATE the applicant requested ORG to take enforcement measures against his former wife , in particular to impose a fine on her , complaining that she had been failing to comply with the access arrangements as set out in the decisions of DATE and DATE . The applicant submitted that his wife had been persistently hindering his access to children and that she had made it unfeasible . Inter alia , when he had come to see them on DATE , she had provoked a violent altercation in the course of which she had breached the applicant ’s bodily integrity and had refused permission for him to see PERSON applicant further emphasised that it had not been for the first time that she had provoked such a scene . Subsequently , the police had been called in , and following their intervention , she had allowed the applicant to take P. The applicant further submitted that she had not been respecting his right to have a say in the children ’s education , as shown by the fact that P. had ceased to attend a kindergarten , contrary to the applicant ’s opinion . Moreover , she had put PERSON in a boarding school in GPE , contrary to a previous arrangement to the effect that he would attend secondary school in GPE and that he would live with his father . The applicant maintained that PERSON did not have suitable living conditions in the boarding school and that he would have had a better situation if he lived in the applicant ’s apartment .

On DATE the applicant challenged judge LANGUAGE on the ground that she had been conducting CARDINAL sets of proceedings in which he had previously been involved and that , as a result , she lacked impartiality . He submitted in particular that the records of the hearings , as dictated by her , had completely distorted the actual statements of the parties .

On DATE ORG dismissed the applicant ’s challenge of judge R.S. The court considered that the challenge lacked statutory basis as it had not been shown that between the judge and the applicant there was a personal relationship of such nature as to cast doubt on her impartiality .

On DATE ORG dismissed the applicant ’s appeal against this decision , considering that the statutory requirements for a judge to step down were not satisfied .

On DATE the applicant lodged his pleadings with the court in which he asked that the police be requested to submit information concerning their intervention in his wife ’s apartment on DATE and , if possible , also on DATE . He also requested that a case - file of proceedings concerning division of marital property , pending before ORG , or , failing that , certain pages of this file , be submitted to the court and that certain evidence obtained in the latter case be examined by the court . He argued that these documents were relevant to the outcome of the proceedings concerned .

On DATE he complained to the President of ORG that the proceedings exceeded a reasonable time .

On DATE , the applicant requested the court to give a provisional order allowing PERSON to move to his apartment . He argued that the longer the lapse of time between the beginning of the proceedings and the decision to be given , the more his relationship with PERSON suffered . This , he claimed , was largely a result of his mother ’s animosity towards him , and of her incessant endeavours to hinder the effective exercise of his access rights . He argued that the fact that PERSON had been placed in the boarding school had contributed to a limitation of his contacts with him , and that PERSON did not have adequate living conditions there .

On DATE a hearing was held .

By a motion of DATE the applicant requested the court to rectify the record of the hearing held on DATE , arguing that it did not reflect the actual statements of the parties .

On DATE a next hearing was held .

On DATE the court in part upheld and in part dismissed the applicant ’s request for rectification of the record of the hearing held on DATE .

On DATE the applicant re - entered his motion for a provisional order submitted on DATE , and requested the court to oblige his former wife to cease any actions aimed at hindering the effective exercise of his access rights , on pain of withdrawal of parental rights . He requested the court to oblige her to permit him to see PERSON on each and every request made by him . The applicant submitted that since the last hearing , held on DATE , PERSON had not lived in the boarding school and that he had not been informed of this . This , in the applicant ’s opinion , showed the flagrant disregard of the mother for his parental rights , in particular in the light of her previous objections to PERSON 's moving to his apartment , the altercations which she had provoked , and the fact that she had requested the court to hear PERSON in the proceedings concerning access arrangements pending before the same court , which was not beneficial to the child ’s emotional stability and was stressful to him . The applicant further complained that she hindered his access rights also with regard to PERSON had refused that he could see P. on DATE and DATE . He further submitted that his contacts with P. were good , the boy was normally willing to see him and requested to be allowed to see his father for a longer time . The contacts with the applicant were beneficial to the boy ’s intellectual development . The applicant finally argued that the mother and her family had incessantly been making disparaging comments about him in the presence of the children , trying to negatively influence the children and to destroy the emotional links between them and their father .

On DATE ORG dismissed the applicant ’s request that a fine be imposed on the PERSON mother and also his request for a provisional order . The court observed that the applicant ’s access rights had been set out in the decision of DATE . It further noted that on DATE , when the applicant had come to the mother ’s apartment , he had demanded in writing that PERSON be allowed to see him and that PERSON should attend kindergarten . After he had been told that PERSON had been in the apartment but had not expressed a wish to see him , an altercation ensued between the parties . P. had started to cry and did not want to go with his father . The applicant had called the police . After CARDINAL policemen had come , there had again been an agitated exchange of views between the applicant and the mother . The applicant had eventually apologised and taken PERSON for a walk , as had been planned . PERSON had not met his father on DATE . In the court ’s view , it could not be said that the mother had acted with an intention to prevent the applicant from seeing P. It had rather been a result of the fight between the parties and of the police intervention that P. had to be calmed before he had agreed to go out with the applicant .

The court further established that in DATE before Easter P. had spent DATE with his father in GPE , and later , DATE from DATE . Only on CARDINAL and CARDINAL May had the mother refused the applicant permission to see PERSON since she had wished to spend DATE with the boy herself .

The court noted that the fact that P. had been attending a pre - school course in a kindergarten instead of a school , as the applicant wished , could not be regarded as disrespect for the applicant ’s parental rights . P. had good professional teaching here and achieved good results . The court had further regard to the questioning of PERSON in the access proceedings pending before the court . The court found that PERSON was a sensitive , intelligent , independent boy , strongly attached to both parents . PERSON had definitely refused to give his consent to moving to the applicant ’s apartment . The court considered that , as the applicant had categorically refused access to his apartment in GPE to his former wife , even if PERSON had lived there , the boy ’s position was understandable . The court also took into account PERSON ’s statement that if he was to be obliged to move to his father ’s apartment , he would leave the school in GPE and return to PERSON . In the ORG ’s view , this opinion should be respected .

The court considered that the fact that PERSON was in a boarding school , which could give him a good education , was in his best interest . The court further observed that there were no indications that the applicant was in any way prevented by his former wife from seeing PERSON who had been living in the same town as the applicant . The court concluded that there were no grounds on which to accept that the mother had been acting in defiance of the access arrangements , and refused to impose a fine on her .

The applicant lodged an appeal against this decision , arguing that the court had failed to establish the facts relevant for the determination of the case , that it had disregarded the flagrant contempt for his parental rights on the part of his former wife and that the decision under appeal had given countenance to her reprehensible and persistent refusal to respect his rights .

On DATE ORG dismissed the applicant ’s appeal , considering that the lower court had carefully assessed extensive evidence and had properly concluded that there were no grounds on which to find that the applicant ’s former wife had been acting in defiance of the access arrangements as set out in the judgment of DATE .

III .

On DATE the applicant lodged a request with ORG that custody of PERSON be awarded to him . He submitted that PERSON had been put in the boarding school without his knowledge and consent , that his living conditions there were inadequate since the building was old and in bad repair and as PERSON shared his room with CARDINAL other boys . He argued that this was contrary to PERSON ’s best interest and that his wife , without any sound reasons , had refused her consent to a change of PERSON ‘s residence . He alleged that the fact that PERSON was living in the boarding school facilitated the weakening of the emotional links between PERSON and him , in accordance with his wife ’s intention . He requested the court to order PERSON to move to his apartment and to rule that the contacts of his former wife with PERSON be limited to meetings at times decided by the applicant and outside his apartment in GPE .

On DATE the applicant challenged judge LANGUAGE on the ground that she had been conducting CARDINAL sets of proceedings in which he had previously been involved and that , as a result , she lacked impartiality . He submitted in particular that the records of court hearings in these proceedings , as dictated by her , had completely distorted the actual submissions of the parties .

On DATE ORG dismissed his request for the judge to step down , considering that the statutory condition , i.e. a personal relationship between her and the party , capable of casting doubt on her impartiality , was not satisfied .

On DATE the applicant lodged an appeal against this decision , arguing that judge ORG had been conducting other proceedings concerning custody and his access

rights and that she was biased against him , which should be construed as a personal relationship casting doubt on her impartiality within the meaning of LAW .

On DATE ORG dismissed the applicant ’s appeal , considering that the statutory requirements for a judge to step down , contrary to the applicant ’s submissions , were not met . His complaints could have been raised in the previous proceedings , but even if they had been upheld by an appellate court , it would not suffice in the present proceedings for a finding that the requirements for a judge to step down were satisfied and that she should therefore be prevented from examining the present case .

In a letter of DATE to the President of ORG the applicant complained about the length of both sets of proceedings . He submitted in particular that no hearings were scheduled in these proceedings , despite a significant lapse of time since they had been instituted , and that he had been prevented thereby from lodging motions for evidence to be taken by the court . He complained that the court had requested ORG to submit the case - file of the divorce proceedings , which would unduly prolong the proceedings . He also argued that the establishing of the facts of the cases would be more difficult due to this lapse of time . He finally submitted that the proceedings were not conducted in compliance with the requirements laid down by LAW as to a “ reasonable time ” .

On DATE the applicant requested the court to give a provisional order safeguarding his custody claims in that his son PERSON would be ordered to move to his apartment . He further requested the court to order his former wife to cease any actions that would negatively affect his son ’s relations with him . He further asked the court to request ORG to investigate , by way of an enquiry carried out by a court guardian , PERSON ’s living conditions in the boarding school and the conditions which he could have if he lived with the applicant in GPE . The applicant also objected to any evidence being taken or any investigations undertaken by experts of ORG at ORG as they had participated in the divorce proceedings and , as a result , were biased against him . He further argued that PERSON ’s marks at school had perceptibly deteriorated since he lived in the boarding school , and submitted a document showing the marks .

In a letter of CARDINAL DATE the applicant reiterated his request for a provisional order and requested the court to speed up its actions in respect of his request that an enquiry be made regarding PERSON ‘s living conditions in GPE .

On DATE the ORG dismissed the applicant ’s request for a provisional order .

In his pleading of CARDINAL DATE the applicant reiterated his request to be granted custody . He submitted that in the boarding school PERSON was deprived of parental care , and that , due to lack of adequate educational supervision by his teachers , he was exposed to negative influence of his environment , including such dangers as alcoholism , drugs and venereal diseases , such as , inter alia , AIDS . It was obvious that PERSON ’s arguments that he felt well in the boarding school were in part motivated by this freedom from parental supervision . The applicant further stressed that ORG ’s statements should not be decisive as they had been made under his mother ’s influence and dictated by his loyalty to her . Therefore the court should not PERSON regard his arguments as being sincere and credible . The applicant reiterated that the mother had strong links with her children and that she deliberately abused their feelings in order to destroy his relationship with them , as shown by the incident of DATE .

On DATE ORG dismissed the applicant ’s request for custody of PERSON The court had regard to the evidence gathered in the proceedings , which included the case - file of the divorce proceedings , the results of an enquiry made by the court guardian , a copy of the expert opinion prepared by ORG for the purposes of the previous access proceedings , the statements of the parties and the testimony of Z.

The court recalled that in the divorce judgment the court had taken the decision concerning custody and access rights , having regard to the fact that the children had stronger emotional links with their mother and had preferred to be under her care . At that time , PERSON ’s opinion about his father had been rather disapproving as the child had thought that he had been too strict , very rigorous , that he had not had understanding for his needs and that he had been attaching undue weight to his orders being carried out . The court considered that the circumstances relevant for the determination of the question of custody and access , which had obtained at the time when the divorce judgment had been given , had not changed . PERSON had refused to live with the applicant in GPE in view of his categorical refusal to allow him to have contacts with his mother in his apartment . As the relation that PERSON had with her mother was warm and affectionate , and since it was from her that he needed and obtained emotional support and understanding , his refusal had to be seen as justified . PERSON was DATE and therefore he was able to assess his own and his family situation reasonably and his wishes had to be taken into account .

The court went on to state that PERSON lived in the boarding school in the same town as the applicant , but , as the applicant himself had stated before the court , their contacts had become even less frequent than when he had still been living with his mother in PERSON . The court stressed that it fell to the applicant to ensure good and frequent contacts with the boy , to come to the boarding school and to show more interest in his problems and well - being . His attitude of criticising his son was not beneficial to their relationship . It would be conducive to developing a better relationship if the applicant ceased to communicate to PERSON his opinion that boarding school was dangerous to him and that it exposed him to all the evils of civilisation .

In conclusion , the court dismissed the request for the transfer of custody to the applicant .

The applicant lodged an appeal against this decision , complaining that the court had been biased in its interpretation of evidence . The applicant disputed the conclusions of the court , in particular as to his parenting skills and his attitude towards his son . He stressed that he could not visit PERSON more often in the school as there were no facilities therefor , and that the boarding school was located far from his apartment which , together with his professional obligations and PERSON ’s school duties , explained why the contacts between them were less frequent . He stressed that it was obvious that his former wife had been hindering his contacts with the children , having recourse to lengthy judicial proceedings and even to false testimony , and by lying and slandering him . He requested that the court upheld his claims in full .

On DATE ORG dismissed the appeal , considering that the lower court had taken extensive evidence , assessed it carefully and had drawn reasonable and well motivated conclusions .

B. Relevant domestic law and practice

Article CARDINAL of LAW Code of Civil Procedure provides that the court competent to deal with an action for divorce is also competent to issue any interim orders concerning the manner in which the care of the parties ' minor children should be carried out and about the access rights until the divorce judgment is pronounced . Either of the parties can file a request to have such an order made ; or the court gives a ruling acting ex officio .

Such an order can be appealed against to a second - instance court .

Under LAW , a final court decision as to parental rights and access arrangements can be changed at any time if the interests of the child so require , either upon a motion from either parent or by the court acting ex officio .

Pursuant to LAW , if both parents who are not married retain their parental rights in respect of their children , a court may award custody to one of them , limiting the exercise of other person ’s parental rights to certain obligations and rights specified in the court ’s decision .

If a parent who has been obliged by a court decision to respect the other parent 's access rights refuses to comply therewith , access decisions are liable to enforcement . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to the enforcement proceedings concerning judicial decisions on parental rights and access arrangements ( resolution of ORG of DATE , III CZP CARDINAL/CARDINAL , OSNCP CARDINAL/CARDINAL - CARDINAL ) .

Enforcement proceedings are instituted following a motion to this effect by an applicant , i.e. that parent to whom access rights have been granted , but are not respected by the other parent . The motion shall be accompanied by the decision concerned , certified as to its being executory . The motion is submitted to the bailiff who carries out the enforcement . The respondent is informed at the first enforcement measure that the enforcement proceedings have been instituted . He is also informed of the manner in which the enforcement is to be carried out ( LAW ORG ) .

Enforcement of decisions concerning access arrangements aims at compelling the parent who has custody of the child to comply with the access decision .

If the parent refuses to comply with the enforcement measures , a motion to have a fine imposed on him or her can be submitted to the court in whose district the enforcement is carried out . The court hears submissions of the parties and imposes a fine if the decision is not complied with within this time - limit . Further fines can be imposed if the creditor persists in his or her refusal ( Article CARDINAL of the ORG ) .

In pursuance of LAW , a judge steps down , upon the motion of one of the parties , if there exists a personal relationship between him or her and one of the parties which may cast doubt on his or her impartiality .


Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s neighbours , PERSON and PERSON , who lived on the second floor of a QUANTITY dwelling house , reconstructed their CARDINAL flats . As a result of this , the applicant ’s flat on the first floor of the same house and the property in it were flooded and damaged .

On DATE the applicant lodged a civil claim with ORG against PERSON and PERSON , by which she asked it to declare unlawful the reconstructions they had made , sought elimination of obstacles in using the house and claimed damages . Subsequently , the applicant lodged a similar claim against the local authorities , by which she also sought refutation of information published in a local newspaper concerning the applicant ’s alleged failure to pay for the utilities and claimed damages in this respect .

DATE and DATE the proceedings were suspended pending the outcome of the applicant ’s criminal complaint concerning the matter , which was eventually dismissed as unsubstantiated .

On DATE the court discontinued the proceedings in respect of PERSON because of his death .

Following CARDINAL reconsiderations of the case , on DATE the court allowed in part the applicant ’s claim , declared the reconstructions made by PERSON unlawful , obliged her to repair the house and the applicant ’s flat and ordered PERSON to pay the applicant certain amounts in compensation . The court rejected , as unsubstantiated , the applicant ’s claim against the local authorities .

On DATE and DATE , respectively , ORG and ORG ( the latter court acting as a court of cassation ) upheld the above judgment . On DATE the applicant was served with a copy of the decision of DATE .

According to the Government , in the course of the proceedings the applicant amended or specified her claims on CARDINAL occasions and on CARDINAL occasion she requested the courts to extend the time - limit for lodging her appeal . CARDINAL hearings were adjourned upon the applicant ’s request or due to her failure to attend them . CARDINAL hearings were adjourned mainly due to the CARDINAL parties’ failure to attend them and because of the absence of the judge . CARDINAL expert examinations were ordered in the course of the proceedings and lasted for DATE ( in DATE and in DATE ) .

NORP The applicant disagreed that she had been responsible for the adjournment of some of the hearings mentioned by the Government .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the Court by PERSON , PERSON and PERSON , lawyers practising in GPE .

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

By a judgment of CARDINAL DATE ORG of GPE pronounced the divorce between the applicant and his wife .

On DATE the wife of the applicant applied to ORG for the applicant to disclose , within DATE , in accordance with Sections CARDINALA and CARDINALB of PERSON CARDINAL/CARDINAL regulating property relations between spouses ( “ the LAW ” ) , as amended by LAW CARDINAL(CARDINAL)/CARDINAL , any assets in his possession on DATE .

On DATE the applicant lodged an objection to this application . As a result , ORG submitted to ORG a question of law reserved ( no.CARDINAL ) on whether LAW of the PERSON was compatible with the provisions of Articles CARDINAL § CARDINAL ( right to property ) and QUANTITY ( right to a fair trial ) of the LAW . In the meantime , as another question of law reserved ( no . CARDINAL ) , directly related to question no . CARDINAL , was submitted to ORG in another case , the latter decided to join the CARDINAL questions .

In its judgment of CARDINAL DATE , ORG found that Sections CARDINALA and CARDINAL of the PERSON were not contrary to these constitutional provisions . As regards LAW , ORG held that the obligation to disclose under LAW CARDINALA was imposed on both parties to the proceedings and established complete procedural equality between them . No party was disadvantaged vis - à - vis the other . Information concerning the assets of the parties constituted a precondition for the effectiveness of the substantive provisions of the LAW . Section CARDINALA aimed at establishing a factual situation , without which justice according to the provisions of the PERSON could not be done .

The proceedings before the family ORG were still pending at the time of the introduction of the application before the ORG .

The relevant provisions of the LAW read as follows :

“ Every person , alone or jointly with others , has the right to acquire , own , possess , enjoy or dispose of any movable or immovable property and has the right to respect for such a right ... ”

“ No person shall be denied access to the court assigned to him by or under LAW . The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited .

In the determination of his civil rights and obligations or of any criminal charge against him , every person is entitled to a fair and public hearing within a reasonable time by an independent , impartial and competent court established by law . Judgment shall be reasoned and pronounced in public session , but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interests of the security of the LOC or the constitutional order or public order or public safety or public morals , or where the interests of juveniles or the protection of the private life of the parties so require or , in special circumstances where , in the opinion of the court , publicity would prejudice the interests of justice .

Every person has the right

– to be informed of the reasons why he is required to appear before the court ;

– to present his case before the court and to have the time necessary for its preparation ;

– to adduce or cause to be adduced his evidence and to examine witnesses according to law ;

– to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law ;

– to have free assistance of an interpreter if he can not understand or speak the language used in court . ”

Sections CARDINALA and CARDINALB of LAW regulating property relations between spouses read as follows :

“ CARDINAL.A.-(CARDINAL ) For the purposes of the better implementation of section DATE , the ORG may on the application of any of the parties issue an order , by virtue of which the respondent will be obliged , within DATE from the issue of such order , or within any other period that the ORG may fix , to submit to the ORG an affidavit , in which he will describe completely , clearly and in a precise manner the property in respect of which he had any direct or indirect interest on the date of the interruption of the cohabitation or on any other date that the ORG may fix in the order .

( CARDINAL ) If the interest that the applicant had on the date fixed by the ORG in property or part of it , ceased to belong to him on the date of the examination of the petition for divorce or any other date fixed by the ORG , the respondent is obliged , on the application of any of the parties , to give complete , precise and convincing proof of the alienation or the disposal of the property or part of it by means of a supplementary affidavit , and if it is considered necessary the ORG may order the respondent to give instructions to a banking institution or financing organisation , with notice to the ORG , as regards the alienation , movement , transfer or restitution of the property or part of it , as the ORG may decide .

CARDINAL.-B(CARDINAL ) Any person who provides false , inaccurate or incomplete information in relation to a matter referred to in section CARDINAL A is guilty of an offence and in case of conviction he is liable to imprisonment for a period not exceeding CARDINAL years or to a fine not exceeding QUANTITY and or to both penalties .

( CARDINAL ) NORP person who refuses , omits or delays to comply with the order of the ORG issued under section CARDINAL A is guilty of an offence and , in case of conviction , is liable to be punished as provided in DATE of ORG of DATE for contempt of court . In a case where this person is the petitioner for the divorce , the ORG may in addition suspend further proceedings until this person complies with the ORG ’s order . ”


Violation of Art. 6-1 (length);No violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in FAC .

On DATE , at TIME officers of ORG ( PERSON ) arrested a certain PERSON , a NORP national of NORP origin , on suspicion of having stolen a car “ Mercedes CARDINAL ” in which he was travelling to GPE . The arrest took place after a routine control of his documents on the NORP - NORP border . The officers , having learnt that the car had been hired from the company “ Sixt - Budget ” in GPE , and having found that , according to their records , PERSON had previously several times crossed the NORP - NORP border driving different cars , asked ORG ( a check - point at the NORP border ) to inquire whether the car was being sought by the NORP police . It was soon confirmed that since DATE the NORP police had been looking for that car , which had been reported as having disappeared . PERSON was later taken into police custody and brought to ORG ( Komenda Rejonowa Policji ) .

On DATE , at TIME , the applicant and a certain LANGUAGE .- T. , a national of GPE , reported to ORG . They presented a copy of the contract concluded by LAW with the “ FAC ” company , from which it appeared that she had hired the car in question for the period from CARDINAL to DATE .

On DATE the applicant was arrested . Subsequently , PERSON , PERSON and the applicant were questioned by the police as suspects . PERSON was charged with aiding and abetting an unknown person to sell a stolen car . The applicant was charged with aiding and abetting a car theft . J.S .- T. was charged with attempted car theft .

A.I. did not confess . He stated that he took odd jobs as a driver at the GPE border station ( on the NORP - German border ) . He admitted that he had intended to bring the car to GPE but denied knowing anything about the theft of the car . He maintained that a woman , whose first name was “ Elżbieta ” and for whom he had already worked , had hired him to drive the car in question from ORG to GPE , i.e. to the GPE airport . He had been paid MONEY ( DM ) for that service . On DATE , at CARDINAL p.m. he had met “ Elżbieta ” in ORG . She had been accompanied by another woman resembling a NORP national . She had handed over to him the car , its documents and the keys .

NORP The applicant did not confess and stated that he had known J.S .– T. for DATE . He had met her in ORG on DATE . She had come in a “ Mercedes ” that had been hired . They had decided that they would drive the applicant ’s car in GPE and she had left the “ Mercedes ” in a guarded car park . On DATE PERSON had asked him to lend him his car . The applicant , having first asked LANGUAGE .- T. for her permission , had lent him the “ Mercedes ” hired by her . He had handed the car documents and keys to PERSON Later , he had driven J.S .- T. to her friend , TIME On DATE , at TIME , PERSON ’s father had come to the applicant ’s home and had told him that PERSON had been arrested when crossing the border since it was suspected that the car in question had been stolen . The applicant had informed J.S .– T. and TIME of what had happened and the CARDINAL of them had come to ORG to present the car documents and explain the situation .

J.S .- T. did not confess and stated that , together with TIME , she had flown to GPE am GPE from GPE on DATE . She had hired the car in question at GPE airport . She had crossed the NORP border in GPE ( “ Goerlitz ” in NORP ) and had met the applicant there , as had been arranged previously . The applicant , TIME and she had gone to ORG . They had arrived there at CARDINAL The applicant had taken the car and the car documents from her in order to park it in a safe place . On DATE at TIME she had learnt from the applicant that the car had been seized by the police as having been stolen and that they had to go to PERSON to explain the situation . J.S .- T. denied having given the applicant any permission to use or to lend the car . She maintained that she did not know either PERSON or a woman called “ LOC ” and that she had not been at the GPE border station .

A.I and the applicant were subsequently confronted with each other . PERSON maintained his version of events , refused to give any further evidence and asked the prosecution to hear evidence from the owners of the car . The applicant denied handing over the car to PERSON He explained that LAW had done it . She had been accompanied by an unknown woman and TIME He stated that DATE .- T. had asked him to find her a driver who could deliver the car to GPE or GPE . He had recommended PERSON to her and had helped her to contact him .

On DATE the applicant was remanded in custody until DATE . On DATE he was heard by the prosecutor . He did not confess . In contrast to what he had originally stated , he maintained that he had not known J.S .- T. before the events in question . He had previously known only P.M , who had called him from the GPE to tell him that he would be coming to GPE on a tourist tour . DATE had called him from FAC and they had fixed a meeting . Only then had the applicant met NORP for the first time . TIME and J.S .- T. had come in the “ Mercedes ” . They had asked the applicant to deliver the car to GPE or GPE . TIME had said that DATE .- T. had been the owner of the car . The applicant had told them that he could not deliver the car but promised to give them the name of a person who would do so . To this end , he had gone to PERSON ’s home and told him of their proposal . PERSON had provisionally agreed . He had arranged a meeting . They had met at a car park . TIME had come in company with PERSON and a woman called “ NORP ” or “ Ewa ” . The applicant had introduced PERSON to them . PERSON and the latter woman had gone to the car . The applicant had not , however , been present when they had been talking and when the keys and documents had been handed over to PERSON Nor had he known anything about the payment for PERSON He had learnt from PERSON ’s father that PERSON had been arrested . Subsequently , he had called TIME and complained to him of what had happened . He had reminded TIME and PERSON that they had claimed that the car had not been stolen and asked them to report to ORG and explain the situation . They had gone to PERSON on DATE . During the conversation with the police officers TIME had left in the applicant ’s partner ’s car .

On DATE the prosecutor ordered that LANGUAGE .- T. be detained on remand . She refused to testify .

On DATE PERSON testified before the prosecutor . He did not confess . He stated that on DATE the applicant had come to his father ’s home in FAC and had offered him payment for driving a car , hired by the applicant ’s acquaintance , to GPE . He had agreed . They had later met at the car park next to the railway station . The applicant had been in the company of QUANTITY women : a woman with , in his words , a “ foreigner ’s look ” and “ NORP ” , the woman that he had some time earlier met at the GPE border station . He had been given the car documents and keys . They had agreed to pay him DM CARDINAL . He had been assured by the applicant and PERSON that the car had been lawfully in their possession . On DATE , after obtaining PERSON ’s testimony , the prosecutor ordered that he be remanded in custody .

On DATE the applicant was released on bail .

On DATE J.S .- T. decided to testify in the presence of her lawyer and an interpreter . She confessed . She stated that she had flown to GPE am PERSON from the GPE together with her friend , TIME She had hired the car in question for the period from DATE . TIME had proposed a visit to GPE . She agreed . On DATE , at TIME they had arrived in FAC . When they had been parking the car , they had met the applicant . She had not known him before . TIME had introduced him as a friend of his . The applicant had come with them to TIME ’s home . He had proposed “ doing business ” , that is to say , taking the car to a former GPE country with the help of a “ trustworthy person ” in order to sell it and , afterwards , report a “ theft ” to the police . TIME had protested but she had agreed . The applicant had gone to find such a “ trustworthy person ” and had later rung her to inform her of a meeting place . She had gone there with TIME The applicant had waited with an unknown man . She had given the car , its documents and the keys to that man . On DATE the applicant had informed her that the driver had been arrested . He had said that they should “ save this man ” and asked her to go with him to explain that what had happened had been a “ mistake ” . TIME had gone with them to PERSON as an interpreter . J.S .- T. admitted that she had given false testimony on DATE . She stated that she regretted it .

On DATE the ORG released MONEY on bail . The prosecutor had regard , inter alia , to J.S .- T. ’s confession and the fact that all necessary evidence had already been obtained . On DATE PERSON left for GPE and , since then , her whereabouts have been unknown .

On DATE ORG appointed CARDINAL experts in psychiatry in order to establish whether the applicant could be held criminally responsible for his acts . On DATE ORG informed the prosecutor that the applicant had failed to appear for his examination . By a letter of CARDINAL DATE the applicant was informed by the prosecutor that his failure to undergo a psychiatric examination might be treated as an attempt to obstruct the proceedings . On an unspecified DATE the applicant underwent the examination in ORG . On DATE the psychiatric experts submitted their report to the prosecutor .

On DATE ORG laid additional charges against the applicant . On DATE the applicant and PERSON were summoned to give evidence . They refused to testify . On DATE the applicant was given access to the case file . On DATE the prosecutor terminated the investigation against the applicant , PERSON and PERSON

On DATE ORG ) filed a bill of indictment with ORG ( Sąd Wojewódzki ) . NORP was charged with attempted car theft . The charge was formulated in the following way :

“ ... that on DATE in ORG , acting together with [ the applicant ] and PERSON and with intent to appropriate a “ Mercedes- FAC ” car valued at CARDINAL [ old ] NORP zlotys , which was entrusted to her under a rental agreement concluded with the company “ FAC ” in GPE , instructed through [ the applicant ] PERSON to deliver [ that car ] to the C[ommonwealth of ] I[ndependent ] S[tates ] with a view to selling it but she did not complete the offence because , on DATE , PERSON was arrested on ... the NORP border when driving the car in question ... ”

NORP The applicant was charged with handling stolen goods of a significant value . The charge was formulated as follows :

“ ... that on DATE in ORG , acting together and in agreement with PERSON assisted NORP to sell a “ ORG CARDINALE ” car registered under number MUD DATE and valued at CARDINAL [ old ] NORP zlotys ... [ and , in particular ] knowing that the car had been obtained by crime , hired PERSON to deliver that car to the C[ommonwealth of ] I[ndependent ] S[tates ] ... ”

PERSON was charged with handling stolen goods of a significant value . The charge was phrased as follows :

“ ... that on DATE in ORG , acting together and in agreement with [ the applicant ] assisted MONEY T. to sell a “ ORG CARDINALE ” car registered under number MUD DATE and valued at CARDINAL [ old ] NORP zlotys ... [ and , in particular ] knowing that the car had been obtained by crime , took it over from [ the applicant ] in order to deliver it to the C[ommonwealth of ] I[ndependent ] S[tates ] ... ”

On DATE ORG severed the charge against ORG from the case and stayed the proceedings against her .

On DATE the trial began . PERSON was heard first . He pleaded not guilty and refused to testify before the court . He confirmed the statements he had made in the investigation but explained that it had been the applicant who had contacted him with LANGUAGE .- T. He added that he had met NORP for the first time at the car park where she had given him the car , its documents and the keys . She had been in the company of “ Elżbieta ” , for whom he had worked previously . PERSON further admitted that , when giving evidence for the first time , he had not revealed certain facts .

The applicant also pleaded not guilty and gave evidence . His testimony was consistent with that given on DATE . He confirmed the statements he had made during the confrontation with PERSON on DATE . However , he departed from the statements he had made during the first questioning on CARDINAL DATE .

On DATE ORG asked , apparently for the second time , ORG in GPE for information on whether LANGUAGE .- T. indeed lived at the address she had supplied to the prosecution . ORG emphasised the urgent nature of its enquiry . In its reply of DATE , ORG of the Embassy informed ORG that , according to their knowledge , PERSON was not at the time staying in GPE .

Later , ORG heard evidence from PERSON ’s father and PERSON , the officer who had arrested PERSON on the border . The applicant ’s partner was also called as a witness but she refused to testify .

ORG held hearings on DATE , CARDINAL DATE and DATE . On the latter date ORG acquitted the applicant and PERSON The reasoning for the verdict read , in so far as relevant :

“ In the course of the trial it was established that J.S .- T. was not residing in the territory of GPE ( see the letter of ORG , p. CARDINAL ) . For that reason , the statements that she had made in the investigation were read out as witness testimony .

Assessing the above - mentioned testimony as well as the remaining material before it , this court has found the following :

The whole structure of the bill of indictment was in principle based on J.S .- T. ’s confession that she had made in the investigation . On account of mistakes committed already at the investigative stage and having regard to general guarantees [ for a defendant ] laid down in LAW , it has to be considered that this evidence does not suffice to find the defendants guilty of the offences with which they were charged .

Even without questioning the prosecutor ’s decision to release PERSON ... which , in the context of the letter from ORG of ORG appears to have a dubious basis , it is impossible not to question the statement made in the reasoning for that decision , namely that the evidence collected was [ at that time ] complete . In passing , it should be noted that the inquiries were still under way and the investigation itself was terminated on DATE . Having regard to the material gathered up to that stage , including evidence given by [ J.S .- T. ] it was simply necessary to confront [ her ] with her co - suspects , in particular with [ the applicant ] .

That , however , was not done and , for all practical reasons , could not be done at the trial stage . Had it been done , it would have been possible to clarify a number of facts which , maybe even in DATE PERSON absence , would have enabled [ the court ] to determine properly the charges against the other defendants .

For procedural reasons , DATE .- T. ’s statements are to be considered as witness testimony and as such are to be assessed . Yet when assessing [ her statements ] , it must be taken into account that they do not have the quality of [ witness ] testimony given under pain [ of being criminally liable for perjury ] but are the statements of a suspect with all the consequences thereof , including the possibility that LOC , for the reasons only known to herself , did not tell the truth or the whole truth .

Moreover , this part of the evidence was not heard directly by the court and this , for obvious reasons , made it impossible for it to verify and assess fully [ her statements ] . Assessing this evidence from the point of view of its credibility , it can not be said to have the quality of consistency from the beginning of the proceedings .

In view of the foregoing , this court , finding it impossible for it to verify this evidence , can not rely on it to conclude that the GPE guilt has been proved beyond a reasonable doubt .

It must also be noted that this evidence concerns mainly [ the applicant ] . There is no direct indication that PERSON , when crossing the border ... , knew that the car had been obtained by crime . ...

The testimonies of both defendants can not be considered credible because they [ changed their statements ] , although in their final version presented at the trial they were closely consistent . ... However , the GPE and , in particular , PERSON ’s guilt is not obvious even on the basis of their testimonies . ...

Having regard to the foregoing and to the fact that there is no convincing and trustworthy evidence of the GPE guilt , this court has acquitted them . ... ”

ORG appealed on DATE , alleging in essence that the trial court had wrongly assessed the evidence of the defendants .

On DATE the ORG ( Sąd Apelacyjny ) quashed the acquittal and remitted the case to ORG . It ordered that a further investigation be carried out .

On DATE the applicant ’s defence counsel was notified that the applicant would be given access to the case file on CARDINAL DATE . On DATE the applicant requested ORG to give him access to the case file in another part of the country . The applicant did not appear before the prosecutor when summoned . On DATE the prosecutor decided to stay the investigation . On DATE the prosecutor ordered that the applicant be detained for a period of DATE in view of his failure to appear before the investigating authority . The prosecutor also issued a wanted notice in respect of the applicant . On DATE the applicant appealed against the detention order . On DATE he was arrested . On CARDINAL DATE the applicant was brought before ORG and was given access to the case file . He was released later on that DATE .

In the meantime , the applicant , on his own , tried to establish the whereabouts of NORP through the Consulate General of GPE in GPE . On DATE the Consul wrote to him a letter , which read , in its relevant part :

“ ... we should inform you that we can not help you because the supplied address of the person you search for does not exist in the GPE address directory ( on CARDINALth street there are no such low numbers and the postal code concerns another state ) . You are asked to check the address once again ; perhaps the correct address is in ORG possession . If the person that you search for has changed her address we will certainly not be able to find her because in GPE there are no registers of residents and no duty to register one ’s place of residence . ... ”

The charge against ORG had earlier been severed from the case and he had already been charged separately , although before the same court . On DATE ORG convicted PERSON of handling stolen goods and sentenced him to DATE of imprisonment and a fine . That judgment became final on an unspecified later date .

On DATE ORG filed a new bill of indictment against the applicant with ORG . The applicant was charged with handling stolen goods of a significant value . The charge was phrased as follows :

“ ... that on DATE in ORG , acting together and in agreement with PERSON assisted PERSON to sell a “ ORG CARDINALE ” car registered under number MUD DATE valued at CARDINAL [ old ] NORP zlotys ... [ and , in particular ] knowing that the car had been obtained by crime , hired PERSON to take that car abroad ... ”

The prosecution called the following witnesses : PERSON ( at that time detained on remand ) , GPE ( PERSON ’s father who had already been heard at the original trial ) , ORG ( the applicant ’s partner who had already refused to testify at the original trial ) , PERSON ( the officer of ORG who had stopped PERSON on the border and who had already been heard at the original trial ) , PERSON ( an officer of ORG ) , and PERSON , PERSON , GPE and GPE ( police officers from ORG ) .

On DATE ORG transmitted the case for examination by ORG . On DATE that latter court requested ORG that the case be transmitted back to ORG . On DATE ORG ruled that the case should be examined by ORG .

ORG held hearings on DATE and DATE . On DATE ORG gave judgment . It convicted the applicant as charged and sentenced him to CARDINAL months’ imprisonment suspended on probation for DATE and a fine of QUANTITY ( PLN ) .

The reasoning for the judgment read , in so far as relevant :

“ On DATE J.S .- T. , who had a permanent residence in GPE , hired a Mercedes CARDINAL E from ORG company in GPE . The car was hired for a period from DATE . The rental agreement included a ban on driving the car to the countries of LOC , GPE [ and ] GPE ( p. CARDINAL ) .

On DATE J.S .- T. accompanied by a DATE arrived at FAC in the hired car . In FAC they met the defendant PERSON , an acquaintance of TIME The defendant proposed to take the car abroad to former ORG , where it would be sold . He [ the defendant ] stated that he knew a person who was willing to drive the car . The amount received from the sale was to be shared .

On DATE the defendant put MONEY in contact with PERSON The meeting took place in the car park , where NORP handed the car documents to AI . AI left the car park in the “ Mercedes ” ( statements of ORG , pp.CARDINAL - CARDINAL ) .

On DATE at CARDINAL a.m. PERSON arrived at the LOC border check - point and attempted to cross the NORP - NORP border in the Mercedes CARDINAL E. During the border control the officers of ORG decided to check if the car was being searched for in GPE . They were alerted by the fact that PERSON declared that he was travelling as a tourist to GPE and GPE , but did not have any luggage . In addition , after having verified internal records , it was established that he [ PERSON ] had previously crossed the border driving a different car .

On DATE at TIME information was received from the Kołbaskowo border check - point that the car was appropriated to the detriment of the ORG rental company ( p.CARDINAL ) . The value of the Mercedes amounts to MONEY . It was returned to the company , which on DATE had notified that the car was appropriated .

By a final judgment of ORG of DATE ... PERSON was convicted of the offence specified in LAW , consisting in the fact that on DATE in ORG he had assisted MONEY T. in selling a “ ORG CARDINALE ” car registered under number MUD DATE valued not MONEY to the detriment of the company ORG , in that knowing that the car had been obtained by crime he took it with a view to driving it abroad and was sentenced to CARDINAL months’ imprisonment and a fine of ORG CARDINAL,CARDINAL ( case file no . III K CARDINAL/CARDINAL ) .

The defendant PERSON did not confess to the act with which he had been charged . He refused to give evidence before the court , and thus the court revealed his statements made during the investigation .

The court did not consider the applicant ’s statements credible . He was questioned on few occasions and [ each time ] he made differing statements . Those statements vary in essential respects : as to acquaintance with J.S .- T. , as to contacts with her and as to reasons for handing the car to PERSON If the applicant ’s evidence given at the [ original ] trial that he had had nothing to do with the attempted taking of the “ Mercedes ” abroad was to be considered credible , then the defendant would have had no reasons to provide , directly after his arrest , false information , [ which was ] different from the version [ of events ] which he had eventually presented .

The court , when determining the facts of the case , considered credible the statements made by DATE .- T , questioned as a suspect , on DATE . In those statements , MONEY T. had presented in detail her contacts with the defendant and PERSON Her statements are logical and convincing . She was questioned in the presence of an interpreter and her lawyer . She had unrestrained freedom to express herself . The facts stated by her do not only incriminate the defendant and PERSON , but they also confirm her guilt .

Those statements do not lose their credibility on account of the fact that they differ from DATE PERSON statements made directly after her arrest , namely that the defendant without her consent had lent the car to his friend . He [ the defendant ] had the car keys because he had parked the car in the car park . That version of events , although similar with the defendant ’s first statement , is not credible .

PERSON saw the rental agreement when taking the car . PERSON has lived in GPE for DATE and could not have any difficulties in understanding the clause in the agreement which forbade driving the car to the countries of LOC . DATE .- T. also knew the content of the rental agreement , and thus was aware of this ban . The next assertion of the defendant and PERSON that the latter was to drive the car to GPE or GPE on her [ LOC .- T. ’s ] instructions did not find any support in the evidence . PERSON at the time of his arrest on the border had stated that his destination was GPE or GPE , so completely different destinations [ from those previously referred to ] .

In the light of the evidence obtained in the case the applicant ’s guilt does not raise any doubts . It was the defendant who was the mastermind of the sale of the car abroad . The amount received from the sale was to be shared .

The defendant was fully aware that DATE .- T. was not the owner of the car . She resided permanently in GPE . She drove to ORG in the hired ORG which was registered in GPE . MONEY T. was a party to the rental agreement and she gave her consent to the sale of the car . She also handed over the documents and the car keys to PERSON to whom she had been directed and put in contact with by the defendant . PERSON was to drive the car abroad . At the moment of the handing of the car to PERSON it was appropriated to the detriment of ORG , the owner of the car .

The defendant ’s actions constituted [ the offence specified in ] LAW of LAW . The defendant , acting together and in agreement with PERSON assisted NORP in selling a “ ORG CARDINALE ” car registered under number M - UD DATE valued not MONEY ... [ and , in particular ] knowing that the car had been obtained by crime , hired PERSON to take that car abroad ... ”

NORP The applicant and the prosecutor appealed . The applicant alleged a breach of his defence rights and of a number of procedural provisions . He stressed that he had been deprived of any opportunity to challenge the statements of MONEY .- T. made before the prosecutor and to cross - examine her . He also maintained that the authorities had made no real attempt to secure the attendance of that witness before the court .

On DATE ORG upheld the conviction but partly altered the sentence imposed . It raised the fine originally imposed to PLN CARDINAL,CARDINAL . The reasoning for that judgment read , in so far as relevant :

“ ... The alleged breach of [ the applicant ’s ] procedural rights can not be upheld . The legal grounds for declining to hear J.S .- T. before the court are laid down in LAW . Under that provision , the court may – even if the parties object DATE decline to take measures to summon a witness and confine itself to reading out the records of statements previously given by him or her as a defendant or suspect . The application of that provision is an exception to the rule of the direct examination of witnesses and does diminish the accused person ’s defence rights , in particular in situations where there has been no prior confrontation between him and a witness whose testimony is later read out . It must however be stressed that LAW does not oblige the court to exhaust all possibilities of producing a witness from abroad at the trial , even if he or she resides in a neighbouring country . ... Of course , the trial court is empowered , apart from the application of the measure under LAW ... , to make efforts to ensure the direct examination of a witness from abroad . But those efforts make sense only if there are prospects of success . It is known – also to the author of the appeal – that the [ previous ] attempts made by the court in that respect were futile and that future ones would fail . As early as DATE ORG asked ORG for information as to whether NORP .- T. lived at the address that she had supplied . The reply was evasive and should be interpreted as a refusal to furnish any information on that matter . A further confirmation of the firmness of that position is found in the letter of the NORP diplomatic service ( see the letter of ORG in GPE , p. CARDINAL ) .

A pre - condition for securing an appearance of a witness from abroad is that the authority conducting the proceedings knows his or her address . Bearing in mind the obligation to observe all procedural rules attached to summoning a witness from a foreign country , a summons can not be sent if his or her address is unknown or if it is clear that the address is false . It that context , it should be recalled that the applicant ’s “ private ” enquiries were to no avail ( see ... the letter of DATE ... ) .

In conclusion and having regard to the grounds for the appeal , the [ trial ] court would not have been able to satisfy the requirement of the “ proper and effective summoning of the witness J.S .- T. for the trial ” . Consequently , this argument is ill - founded and , indeed , this court could have stopped at this point because the appellant ’s further arguments do not concern the court ’s actions but the actions of the investigative authorities and , also , the appellant does not challenge the logic of the conclusion reached by the trial court . Yet there is a need to make the following remarks .

First of all , J.S .- T. was released because she put up bail of PLN CARDINAL,CARDINAL . Until that time , that is to say , for DATE , she was in custody . The [ applicant ] was treated in the same way but on more favourable conditions : he was released after DATE and the security in question was PLN CARDINAL,CARDINAL .

Secondly , evidence obtained under LAW must be assessed with a particular thoroughness . The assessment of ORG testimony must be very careful , not least because she was charged with theft of the car in question and supplied a false address . ORG , did , however , manage the task . The best proof is the fact that the [ appellant ] does not even try to challenge the arguments relating to J.S .- T. ’s testimony , which are presented in the reasoning of the contested judgment . It can only be recalled that the trial court took notice of the circumstances surrounding the last questioning of NORP ( by the prosecutor and in the presence of her lawyer ) and of the importance of those statements for her criminal responsibility . The court of first instance did not overlook the fact that those statements differed from the previous ones . There is no material proof to conclude that her statements incriminating [ the applicant ] were made in consequence of her agreement with the investigating authority and , in particular , that they were the price for her release . If her release can be looked on from this angle , the price for her release DATE although lawful DATE was the security in question .

Apart from the above - mentioned arguments of the trial court , there is CARDINAL more reason to believe J.S .- T. and not to believe [ the applicant ] . His subsequent statements differ in respect to a number of principal points , points that were enumerated by the trial court . That court rightly noted that [ the applicant ] , when questioned for the first time , had no reason to present a version of events that differed from those later presented . That was decisive for the trial court when , in making a choice between [ the applicant ’s ] statements and the last version presented by PERSON , it rejected his testimony . She also changed her statements but she had an interest in concealing the truth . Yet , if [ the applicant ] was not in any criminal conspiracy with other persons involved in the case , he had no reason to conceal the true circumstances capable of showing that he was not involved in the activities of those persons .

The applicant ’s letter to the court dated DATE reinforces the conclusions reached by ORG rather than supporting his own credibility . A new circumstance emerges [ from that letter ] , namely that the car in question was to return from GPE ( so , it was to return to GPE and then to GPE am GPE , where it had been hired ) with medicines for TIME So , there was no car theft , and therefore no assistance in selling property obtained by crime . Multiplying different versions results in none of them being considered credible .

CARDINAL further , significant elements should be added to the arguments of the trial court .

ORG , when heard by the prosecutor on DATE , said , among other things , that “ ... [ the applicant ] came and offered me to get paid DATE he asked whether I would drive a “ Mercedes ” to GPE since his acquaintance was to deliver a hired car there . ” [ That ] witness both earlier and in the present case , in [ the applicant ’s ] presence , confirmed those statements and [ the applicant ] did not object . [ The applicant ] himself stated that he suggested PERSON as a driver because he had a NORP passport . Of course , [ the applicant ] knew of the arrival of the car on NORP licence plates . If CARDINAL combines all these facts which , given [ the applicant ’s ] more than average intelligence and the fact that his decisions are well considered ( see the psychologist ’s report , pp . CARDINAL - CARDINAL ) presented [ him ] with an exceptionally easy task , it must be concluded that [ the applicant ] had full knowledge and fulfilled all elements [ i.e. had the necessary actus reus and mens rea ] for the offence in question .

Since , for all the above reasons , the assessment made by the court of first instance was compatible with the [ principles laid down in ] LAW and consistent with the principles of logical thinking and common sense , no grounds for allowing the [ applicant ’s ] appeal have been found . ... ”

On DATE the applicant was served with the written grounds of the judgment of ORG . On DATE he filed a cassation appeal with ORG ( Sąd Najwyższy ) , alleging a breach of LAW ( d ) of the LAW in that he had been deprived of an opportunity to examine , or have examined , the principal witness against him .

On DATE the applicant wrote to ORG and asked for a hearing date to be fixed . On DATE ORG replied as follows :

“ ... acting on the President of the ORG ’s instruction , I should inform you that dates for hearings are fixed depending on the date on which a given cassation appeal has been lodged with ORG and that , at present , the [ average ] period between the date of the filing of a cassation appeal and the date of a hearing amounts to DATE and DATE . Given that your ... cassation appeal was received at ORG registry on DATE , it will be heard not DATE . ”

ORG examined the cassation appeal on DATE and dismissed it as being obviously groundless . It decided , pursuant to LAW , not to provide written grounds for its decision .

When the applicant was tried , the rules governing the assessment and admissibility of evidence were contained in LAW of DATE ( “ the DATE Code ” ) ( ORG postępowania karnego ) . The LAW is no longer in force . It was repealed and replaced by LAW ( commonly referred to as the “ LAW ” ) , which entered into force on DATE .

LAW DATE Code provided :

“ Judges shall rule on the basis of their conviction deriving from evidence obtained and founded on their free assessment of evidence [ and they shall ] draw on knowledge and life experience . ”

Article CARDINAL provided , in its relevant part :

“ CARDINAL . If a witness has groundlessly refused to testify , or has given testimony different from DATE , or has stated that he does not remember certain details , or if he is abroad , or a summons can not be served on him , or if he has not appeared on the ground of irremovable obstacles or if the president of the court has declined to summon him pursuant to LAW [ i.e. because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial ] , the records of his previous statements may be read out , [ regardless of whether they ] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law .

NORP In the circumstances referred to in paragraph CARDINAL , the records of evidence that a witness has given when heard as an accused may also be read out . ”


CBC-UNION, S. R. O. v. THE CZECH REPUBLIC

The applicant , ORG , ORG . , is a private company with its headquarters in ORG . It is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE the applicant company acquired a building under construction from ORG ) at an auction . The original lawful asking price , CZK MONEY ( EUR CARDINAL ) , was not reached and the bidding finally stopped at CARDINAL ( EUR CARDINAL ) . On DATE the applicant company concluded a purchase contract whereby the purchase price was fixed at CZK CARDINAL .

On DATE ORG issued a tax order against the applicant company ordering it to pay a gift tax of CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL ) , the base of assessment being fixed at CZK MONEY ( ORG CARDINAL,CARDINAL ) by virtue of LAW .

On DATE ORG , in reply to the applicant company ’s letter of DATE , explained that the basis of the taxation had been the difference between the asking price and the final bid .

On DATE , on the applicant company ’s appeal , ORG ( Finanční ředitelství ) reduced the tax due to CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) , taking into account a new expert assessment made of the taxation basis ( CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) ) .

On DATE the Ústí nad Labem Regional Court ( krajský soud ) dismissed the applicant ’s action against the tax order finding , in particular :

“ The transfer of the estate was effected in DATE , when [ LAW ] , as amended by Act no . DATE , was in force . If the real estate was transferred for a lower price than that established by the expert ... the tax liability is shared between the assignor and assignee . Under section CARDINAL the real estate - transfer tax base is the price of the estate legally established on the date of the acquisition of the whole real estate , or part of it if the transfer was effected partly free of charge . Gift tax under section CARDINAL ) of the [ LAW was payable on real estates acquired by an act in law other than the death of an owner , provided that the act in law was effected fully or partly free of charge . ...

Under section CARDINAL(CARDINAL ) of [ LAW ] , the base of the gift tax was the price of the estate minus the price which was paid if the act in law was effected partly free of charge . The [ LAW did not take into account the current value of the estate and only considered the legally established price . The first - instance authority ’s error in establishing the price and tax base was rectified by the [ ORG ] ... which requested that a new expert report be submitted on the price of the property at the date of its acquisition ; it informed [ the applicant company ] about the findings of the expert , and discussed [ the applicant company ’s ] comments with the expert , who issued another report , which was not challenged by [ the applicant company ] . ”

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) alleging , inter alia , a violation of LAW of LAW ( Listina základních práv a svobod ) .

On DATE ORG ( PERSON ) dismissed the applicant company ’s constitutional appeal , endorsing the reasons on which the lower administrative and judicial authorities had based their decisions .

Under LAW , persons liable to gift tax were those who had acquired property . Section CARDINAL(CARDINAL)(a ) provided that gift tax was payable on estates acquired by an act in law other than the death of an owner , provided that the act in law was effected fully or partly free of charge . Under LAW ) , the gift tax basis was the price of the taxable property minus the price paid if the property was acquired partly free of charge .

Section CARDINAL(CARDINAL)(a ) provided that persons liable to pay real estate - transfer tax were those who had assigned estates . Under section CARDINAL(CARDINAL ) real estate - transfer tax was payable on transfers of property rights to estates provided that the transfers were carried out fully or partly in return for payment . Section CARDINAL provided that the real estate - transfer tax base was the price of the estate established under the relevant legal provisions on DATE of its acquisition .

“ Real estate - transfer tax is assessed as a percentage of the price established in accordance with the law ... Parties to a purchase contract may , with reference to LAW no . CARDINAL , ... agree on a higher price or ... a lower price . However , tax is based on the price calculated under Decree no . CARDINAL/CARDINAL , as amended . The purchase price or price agreed between the parties is not decisive ... ”

Under LAW persons liable to gift tax are those who received estates . Section CARDINAL(CARDINAL)(a ) provides that gift tax is payable on estates acquired free of charge by an act in law other than the death of an owner . If the assignee acquired the estate partly free of charge , only the relevant part of the estate was taxable . Under LAW ) the gift tax base was the price of the taxable estate .

Section CARDINAL(CARDINAL)(a ) provided that persons liable to pay real estate - transfer tax are those who have assigned or sold estates . Under section CARDINAL(CARDINAL ) real estate - transfer tax is payable on the transfer of an estate carried out in return for payment . Section CARDINAL provides that the real estate - transfer tax base was the price established under the relevant legal provisions on DATE of the acquisition of the estate , even if the price agreed between the parties is lower than the legally established price ; the difference is not taxable under the provisions on gift tax . If the price agreed is higher than the legally established price , the price agreed constitutes the tax base .

Under LAW taxes and fees may be levied only on the basis of law .

Principle no . CARDINAL

“ Gift tax was payable on movable and immovable items , debts , securities and other property rights acquired by an act in law other than the death of a citizen , provided that the act in law was effected fully or partly free of charge . ... ”

Principle no . CARDINAL

“ The gift tax basis was the price of the acquired property ... ”

Principle no . CARDINAL

“ The real estate - transfer tax base is the price of the property . If the payment is lower than the price established under special regulations , the transfer is considered to be carried out up to the amount of the payment in return for payment , and the transfer corresponding to the difference between the payment and the price established under the special regulation as the transfer free of charge , which is subjected to the gift tax . ”

Section CARDINAL concerning the tax base provided that the real estate - transfer tax base is the price agreed , at least the price established under special regulations .

In cases relating to facts which had occurred prior to the amendment of LAW , which entered into force on DATE , the domestic courts generally held that real estate - transfer tax had to be paid on transfers of real estates , which were carried out in return for payment . The courts considered that if the purchase price was lower than the legally established price , the estate was transferred partly free of charge . The difference between the prices constituted the gift tax base .

In DATE certain appellate courts expressed a different legal view .


The applicant is a citizen of GPE , born in DATE and living in GPE in GPE . She was the wife of GPE

She is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE P.A. was killed in a terrorist bombing in GPE in GPE . The car used for the bombing was stolen in GPE , GPE on DATE .

The NORP authorities conducted extensive inquiries but were unable to bring charges against any person . The files remain open . ORG ( ORG ) in GPE has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results . However , there was no formal murder inquiry by the ORG .

On DATE ORG , a television station in GPE , broadcast a programme in which the adequacy of the ORG inquiry was discussed .


Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE in GPE and currently resides in the town of Petrozavodsk in GPE in GPE . According to both NORP and NORP authorities , the applicant is a citizen of GPE . According to the applicant , the only citizenship she obtained was that of the former GPE .

NORP In DATE the applicant moved from GPE to GPE .

On DATE the NORP police initiated criminal proceedings against the applicant on suspicion of large - scale fraud committed in DATE in the town of GPE . At the same time she was put on the list of fugitives from justice as her whereabouts were unknown .

On DATE the Ust - Kamenogorsk Town Prosecutor of GPE authorised the applicant ’s arrest .

On DATE ORG of GPE received a request for the applicant ’s extradition sent by ORG of GPE .

On DATE , pursuant to the arrest warrant issued by the Ust - Kamenogorsk Town Prosecutor , the applicant was arrested in Petrozavodsk with a view to her extradition to GPE . According to the applicant , the police officers failed to explain why she had been arrested and detained . According to the Government , on DATE the applicant signed the arrest warrant issued by ORG and was informed of the reasons for her arrest and of the charges against her . The Government provided the ORG with copies of the arrest warrant signed by the applicant on CARDINAL and CARDINAL DATE .

Upon the applicant ’s arrest she met with her lawyer , Mr PERSON .

On DATE ORG sent the extradition file to ORG of GPE for examination of the extradition request .

On DATE the applicant ’s lawyer lodged a complaint with the ORG contesting the grounds for his client ’s detention .

On DATE the ORG on the request lodged by ORG ordered the applicant ’s detention with a view to her extradition to GPE on the basis of LAW . ORG held that the applicant was charged with a criminal offence punishable by a prison term of DATE and that the extradition request was pending . ORG did not find it possible to apply a more lenient preventive measure , referring to ORG ( “ the DATE Minsk Convention ” ) and LAW . No time - limit for the applicant ’s detention was set . This decision was upheld on appeal on DATE by ORG of GPE .

Later on DATE the ORG examined and dismissed the applicant ’s lawyer ’s complaint about the applicant ’s detention lodged on DATE . Relying on Articles CARDINAL and CARDINAL of the DATE Minsk Convention , ORG found that the applicant ’s detention was lawful . The applicant appealed . On DATE ORG of PERSON upheld that decision .

On DATE the Deputy Prosecutor General of PERSON dismissed the applicant ’s request to change the measure of restraint , noting that ORG of PERSON was not authorised to examine this issue .

On DATE the ORG again dismissed the complaint about the unlawfulness of the applicant ’s detention . On DATE ORG of PERSON quashed that decision due to procedural flaws and ORG failure to give reasons for its decision to dismiss the complaint . The case was remitted for fresh examination .

In the meantime , on DATE ORG dismissed the applicant ’s request to inform her about the results of the examination of her extradition file .

On CARDINAL further occasions in DATE and DATE the applicant ’s lawyer complained about the unlawfulness of the applicant ’s detention to ORG . In his submissions Mr PERSON claimed that LAW prescribed a maximum of CARDINAL months’ detention pending trial without extension . As the detention period had not been extended following the expiry of that period on DATE , the applicant ’s subsequent detention was unlawful . On DATE and CARDINAL and DATE ORG dismissed these complaints . The prosecutor held that the period of the applicant ’s detention was not limited since the date and time for the applicant ’s extradition were fixed neither by the DATE Minsk Convention nor by LAW .

The applicant and her lawyer complained to the ORG about the unlawfulness of the applicant ’s detention and the refusal of ORG to authorise her release . They claimed , in particular , that the applicant was not a citizen of GPE , that she had moved to GPE over DATE and that she could thus not be extradited to GPE .

On DATE the ORG dismissed the complaint . That decision was upheld on appeal on DATE by ORG of GPE . The domestic courts found that the applicant ’s detention was in conformity with the provisions of the DATE Minsk Convention . The request for the applicant ’s extradition was under examination by ORG and no final decision was taken . The courts further held that the applicant was to be detained until the final decision on her extradition had been taken , as neither LAW , nor LAW set any time - limit for the examination of an extradition request . The Town and Supreme courts found accordingly that the applicant ’s detention and the actions of ORG were in accordance with law .

On DATE the ORG dismissed the applicant ’s complaint about the unlawfulness of her detention , relying on the same grounds as in its decision of DATE .

On DATE ORG of PERSON amended the decision of the Petrozavodsk Town Court of DATE and ordered the applicant ’s release . ORG found as follows :

“ According to LAW detention over DATE may be extended only in exceptional circumstances if the person is charged with a serious or particularly serious criminal offence . This extension is to be granted following a request filed by an investigator with the consent of ORG or his Deputy .

Taking into consideration LAW the issue of subsequent extension of detention may be decided by a court only in exceptional circumstances prescribed by law and on a request lodged by a prosecutor .

It appears from the material of the case - file that the prosecutor has not lodged such a request .

The offence of which the applicant has been accused does not relate to particularly serious offences ... ”

ORG concluded as follows :

“ The reasonable time for the applicant ’s detention ( DATE ) had expired ...

ORG referral to the fact that no time - limit was set , either by the DATE Minsk Convention or by LAW , for the examination of an extradition request was of no relevance to the rights and freedoms of the applicant , who had been held in detention without being charged and without any decision on her extradition for DATE . ”

According to the applicant , she was released on DATE . The Government did not comment on this issue .

On DATE ORG informed the Deputy Prosecutor General of GPE that it was not possible to grant the extradition request in respect of the applicant , since the time - limit for criminal prosecution for the offence ( DATE ) had expired .

On DATE the applicant and her son , a minor , sought refugee status and interim asylum at ORG of GPE . On DATE ORG dismissed the applicant ’s request as unsubstantiated . On DATE the applicant ’s appeal was rejected by the Head of ORG .

On DATE the ORG dismissed a complaint lodged by the applicant about the refusal to grant her refugee status and interim asylum .

Meanwhile the applicant asked the ORG to establish as a legal fact that she had lived on the territory of GPE since DATE . On DATE ORG dismissed the application , having found that establishing that fact would not have any effect on the applicant ’s rights and freedoms .

On DATE the Petrozavodsk police initiated criminal proceedings on suspicion of burglary .

On DATE the applicant , being detained pending extradition , confessed to the burglary and sent her self - incriminating statement to the police . She was subsequently questioned by the police in the presence of her lawyer .

On DATE the case investigator terminated the proceedings against the applicant for lack of corpus delicti . The investigator found that the applicant had confessed to the crime in order to hinder her extradition to GPE .

The LAW guarantees the right to liberty ( LAW ) :

“ CARDINAL . Everyone has the right to liberty and personal integrity .

Arrest , placement in custody and detention are only permitted on the basis of a judicial decision . Prior to a judicial decision , an individual may not be detained for longer than TIME . ”

ORG ( signed in GPE on DATE and amended on DATE , “ the DATE Minsk Convention ” ) , to which both GPE and GPE are parties , provides as follows :

“ CARDINAL . When executing a request for legal assistance , the requested authority applies the laws of its own ORG ... ”

“ CARDINAL . The Contracting Parties shall ... on each other ’s request extradite persons who ﬁnd themselves in their territory , for criminal prosecution or to serve a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”

“ CARDINAL . A request for extradition ( требование о выдаче ) shall include the following information :

( a ) NORP the title of the requesting and requested authorities ;

( b ) a description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;

( c ) the [ name ] of the person to be extradited , DATE of birth , citizenship , place of residence , and , if possible , a description of his appearance , his photograph , ﬁngerprints and other personal information ;

( d ) information concerning the damage caused by the offence .

A request for extradition for the purpose of criminal prosecution shall be accompanied by a certiﬁed copy of a detention order . ... ”

“ Upon the receipt of a request for extradition the requested ORG takes immediate measures aiming at detaining or arresting the person whose extradition is sought ... ”

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow .

NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .

In the event of [ the person ’s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”

“ CARDINAL . A person arrested pursuant to LAW ... shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest ... ”

LAW of DATE ( ORG no . CARDINAL ) , to which GPE is a party , provides as follows :

“ CARDINAL . Where there is urgency , the competent authorities of the requesting ORG may request the provisional arrest of the person sought . The competent authorities of the requested ORG shall decide the matter in accordance with its law .

Provisional arrest may be terminated if , within DATE after arrest , the requested ORG has not received the request for extradition and the documents mentioned in LAW . It shall not , in any event , exceed DATE from the date of such arrest . The possibility of provisional release at any time is not excluded , but the requested ORG shall take any measures which it considers necessary to prevent the escape of the person sought . ”

LAW ( “ Measures of restraint ” ) governs the application of measures of restraint , or preventive measures ( меры пресечения ) , which include , in particular , placement in custody . A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of , or charged with , a criminal offence punishable by DATE imprisonment ( LAW in custody ” ) . The time - limit for detention pending investigation is fixed at DATE ( Article CARDINAL “ ORG - limits for detention ” ) . A judge may extend that period DATE ( LAW ) . Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences ( LAW ) . No extension beyond DATE is permissible and the detainee must be released immediately ( LAW ) . A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within DATE of its issue ( Articles QUANTITY § CARDINAL and CARDINAL § CARDINAL ) . A custodial measure may be revoked or modified by a judicial decision if it is no longer considered necessary ( LAW or modifying the measure of restraint ” ) .

Chapter DATE ( “ Extradition of a person for criminal prosecution or execution of sentence ” ) regulates extradition procedures . Articles CARDINAL - CARDINAL state that a decision to extradite a person upon a request from another country is taken by ORG or his deputy . LAW states that a person ’s detention finishes when either ORG , or his deputy decides on the extradition request . Article CARDINAL governs application of measures of restraint with a view to extradition . Paragraph CARDINAL deals with the situation where a request for extradition is not accompanied by a detention or arrest order issued by a foreign court . In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “ in accordance with the procedure provided for in the present Code ” . Paragraph CARDINAL establishes that , if a foreign judicial decision on placement in custody is available , a prosecutor may place the person in detention or under house arrest . In that eventuality no confirmation of the foreign judicial decision by a NORP court is required . If a foreign court has authorised the person ’s arrest , the decision of the prosecutor does not need to be confirmed by a NORP court .

Article CARDINAL provides that extradition can not take place if the person whose extradition is sought is a NORP national or if he has refugee status .

Chapter CARDINAL ( “ Petitions ” ) provides that suspects , defendants , victims , experts , civil plaintiffs , civil defendants , and their representatives may petition officials to take procedural decisions that would secure the rights and legitimate interests of the petitioner ( LAW ) . LAW ( “ Complaints about acts and decisions by courts and officials involved in criminal proceedings ” ) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings ( LAW ) . The competent court is that which has jurisdiction for the place of the preliminary investigation ( ibid . ) .

NORP In the case of PERSON , concerning his detention with a view to extradition to GPE , ORG held as follows ( case no . DATE , DATE ) :

“ The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by LAW . In accordance with the requirements of [ the DATE Minsk Convention ] , the person arrested at the request of a foreign state , may be held in custody for DATE until a request for extradition has been received . Subsequent detention of the person is governed by the criminal law of the requesting party ( GPE in the instant case ) . ”

Verifying the compatibility of LAW with LAW , ORG reiterated its constant case - law that excessive or arbitrary detention , unlimited in time and without appropriate review , was incompatible with LAW in all cases , including extradition proceedings .

In the Constitutional Court ’s view , the absence of a specific regulation of detention matters in LAW did not create a legal lacuna incompatible with LAW . LAW ORG provided that , in executing a request for legal assistance , the requested party would apply its domestic law , that is , the procedure laid down in LAW . Such procedure comprised , in particular , LAW and the norms in its LAW ( “ Measures of restraint ” ) which , by virtue of their general character and position in Part I of the LAW ( “ General provisions ” ) , applied to all stages and forms of criminal proceedings , including proceedings for examination of extradition requests .

The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in LAW were fully applicable to detention with a view to extradition . Accordingly , LAW did not allow the authorities to apply a custodial measure without respecting the procedure established in LAW , or in excess of the time - limits fixed in the Code .

The Prosecutor General asked ORG for an official clarification of its decision in Mr PERSON ’s case ( see above ) , for the purpose in particular of elucidating the procedure for extending a person ’s detention with a view to extradition .

ORG dismissed the request , finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time - limits for holding a person in custody with a view to extradition . That matter was within the competence of courts of general jurisdiction .

Mr GPE , a GPE citizen , was arrested in GPE on DATE because his extradition was sought by GPE . Upon receipt of the formal extradition request , on DATE a NORP court ordered his detention sine die , pending extradition . PERSON complained to ORG that the provisions of LAW which permitted his detention without a judicial decision were incompatible with the LAW .

The Constitutional Court reiterated its constant case - law that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for NORP nationals . A foreign national or stateless person may not be detained in GPE for more than TIME without a judicial decision . That constitutional requirement served as a guarantee against excessively long detention beyond TIME , and also against arbitrary detention as such , in that it required a court to examine whether the arrest was lawful and justified .

ORG held that LAW , read in conjunction with LAW , could not be construed as permitting the detention of an individual for DATE , on the basis of a request for his or her extradition , without a decision by a NORP court . A custodial measure could be applied only in accordance with the procedure established in LAW and within the time - limits fixed in the Code .