The applicant , ORG , is a NORP citizen , born in DATE , and living in GPE ) . He is represented before the ORG by Mr M. Ziegler , a lawyer practising in GPE . The respondent Government are represented by their agent , PERSON , Head of ORG of ORG .

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

The applicant worked as a sales representative for a fashion company . DATE he enabled a GPE supplier to transfer funds to GPE . The supplier eventually informed the applicant ’s superiors of the transfers , whereupon , on DATE , the company filed a criminal report ( PERSON ) against the applicant on account of disloyal business conduct ( ungetreue PERSON ) .

On DATE ORG ( Verhöramt ) of ORG issued a warrant of arrest against the applicant . He was suspected in particular of having induced his company to purchase merchandise from the GPE supplier from which , in return , he had requested and obtained up to MONEY .

On DATE the applicant was remanded in custody . According to the order of arrest , there was a danger that he would collude with other persons during the investigations .

In the ensuing proceedings the applicant was represented by a lawyer , though he was not permitted freely to communicate with his lawyer until DATE . It furthermore appears that , after his arrest , his bank accounts were blocked .

During the applicant ’s detention , he had the possibility of taking a DATE walk around the town of Schwyz . During this walk he had to wear handcuffs .

On DATE the applicant was questioned by ORG in the presence of his lawyer . On DATE the applicant ’s lawyer transmitted via fax a complaint about the detention on remand to the President of ORG ( PERSON ) of ORG . On DATE the applicant ’s lawyer was informed in reply that a legal statement transmitted via fax lacked the necessary personal signature . The lawyer then forwarded a signed statement which reached the President on DATE . The latter fixed a hearing for DATE . Also on DATE the applicant filed a further complaint about the delay in fixing the hearing , as he had filed his complaint on DATE .

On DATE the applicant was heard by ORG in the presence of his lawyer .

On DATE the President of ORG heard the applicant , his lawyer and the investigating judge . The President also visited the applicant ’s prison cell . On DATE , the President dismissed the request of DATE , the decision being served on the applicant on DATE .

In his decision the President found that the delay in dealing with the applicant ’s complaint resulted from the applicant ’s failure personally to sign that document . Insofar as the applicant complained that he was unable to consult the case - file , the President noted that the applicant had seen certain annexes to the criminal report of DATE ; TIME of the applicant ’s interrogations on DATE ; a letter of the GPE firm of DATE ; and part of TIME of the interrogation of a certain PERSON . NORP To the extent that the applicant criticised that he was not able freely to communicate with his lawyer and was denied free legal aid , the President found that pursuant to LAW ) the applicant should have filed a complaint with ORG and , subsequently , with ORG , rather than with its President .

In his decision , the President then examined , and confirmed , that there was an urgent suspicion that the applicant had committed the offence at issue . Finally , the President dismissed the applicant ’s grievances about the conditions of imprisonment , namely the complaints that he lacked mineral water ; that the food consisted of too much meat ; and that there was insufficient light in the cell . To the extent that the applicant complained that upon his arrest he had not been able to consult a doctor about a suspected skin cancer , the President found that the applicant had meanwhile been examined by a prison doctor . The President also ordered that the applicant be issued a lamp and cleaning materials .

On DATE the applicant filed a public law appeal ( staatsrechtliche Beschwerde ) with ORG ( PERSON ) .

In his public law appeal the applicant complained , inter alia , of breaches of LAW and CARDINAL of the Convention . He submitted that the President of ORG had had the entire case - file at his disposal , whereas he had been refused access thereto . It did not suffice if , as the President stated , he , the applicant , had seen all relevant documents , since the President ’s decision could also have been influenced by other documents . For instance , his decision of DATE mentioned the date of the criminal report originally filed against him , a document which the applicant had never seen . The applicant further complained of the conditions of detention , namely in respect of the meals and of the doctor provided , who had been a general practitioner and not a skin cancer specialist .

ORG transmitted the applicant ’s public law appeal for observations to ORG and ORG of ORG .

On DATE the applicant filed a request for consultation of the case - file . The request was refused by ORG on DATE .

Also on DATE , the President of ORG of ORG dismissed the applicant ’s further request for release from detention , though he ordered the prison administration to allow the applicant to take a DATE walk of TIME without handcuffs . The decision considered that having to take walks with handcuffs was unacceptable from the point of view of human dignity , and that there was no danger that the applicant would abscond .

Another request filed by the applicant with ORG for consultation of the case - file was dismissed by that court on DATE , though the applicant was forwarded a copy of the observations of ORG and ORG .

On DATE the applicant filed with ORG his reply to the observations of ORG and ORG , as well as further submissions . He complained , inter alia , that he had not been permitted to communicate with his lawyer until DATE ; that he had been refused an officially appointed lawyer ; and that , contrary to LAW , he had been publicly led around in handcuffs and had been chained publicly together with a suspected violent criminal .

The applicant ’s public law appeal was dismissed by ORG on DATE , the decision being served on DATE

In its decision , ORG found that ORG fulfilled the requirements under LAW . It held that ORG was independent in that it was not effectively supervised by ORG . Insofar as the President of ORG had only heard the applicant belatedly , on DATE , the court noted that the applicant was himself responsible for the delay as he had not personally signed his request . To the extent that the applicant complained about insufficient consultation of the case - file , the court considered that the applicant had been able to consult all documents upon which the decision of the President of ORG of DATE had been based .

ORG furthermore considered that the applicant could no longer claim a practical interest in his complaint about the conditions of detention , as the latter had meanwhile been ameliorated . To the extent that he requested free legal aid and an officially appointed lawyer , the court considered that he was at most lacking funds temporarily .

Meanwhile , the applicant ’s lawyer telephoned ORG about the applicant ’s continuing walks in handcuffs . On DATE ORG sent a fax to the prison administration according to which the “ applicant ’s lawyer had withdrawn his agreement to a walk in handcuffs outside the village , for which reason the operation is cancelled . The measures so far ordered for a walk without handcuffs shall apply again . ” By a letter of CARDINAL DATE , the applicant ’s lawyer pointed out to ORG that , when previously speaking with that ORG , he had in fact referred to the decision of the President of ORG DATE according to which there should no longer be any handcuffs . The lawyer requested compliance with this decision .

Following further requests for release from detention , the applicant was released on DATE .

The Code of Criminal Procedure of ORG lists in Section CARDINAL the grounds for detention on remand and in LAW provides , inter alia , that the investigating judge shall be competent to impose such detention . LAW envisages the possibility of a complaint in proceedings before ORG to ORG and subsequently to ORG , though this remedy does not apply if other remedies are available . In this respect , LAW provides for an appeal to the President of ORG against the warrant of arrest ; the conditions of detention ; and the refusal of release from detention .

Section CARDINAL of LAW ( GPE ) of ORG provides that ORG of ORG shall elect the investigating judges , and LAW states that ORG shall supervise ORG . Section CARDINAL § CARDINAL states that ORG shall be competent for conducting the investigations . According to LAW , ORG will raise the charges at the trial before the court .

According to ORG case - law , a complaint about unlawfulness of detention may no longer be filed after release from detention . However , subsequent complaints may be raised in an action for compensation before ORG ( see ORG fédéral [ ORG ] CARDINAL ORG ; CARDINAL Ia CARDINAL ; CARDINAL I a CARDINAL ) .


Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE , the applicant pleaded guilty to manslaughter on the ground of diminished responsibility in respect of the death of his DATE landlady whom he had battered with an axe . He was sentenced to life imprisonment . The court acted on medical evidence that the applicant had a gross personality disorder to such a degree that he was amoral . The consultant psychiatrist said in his report at the trial that :

“ ... although [ the applicant ’s ] instability might get DATE as he matured , should he be sent to prison , his eventual release should be approached with great caution . ”

The applicant was initially sent to a Category A prison due to concerns about his dangerousness and risk of escape . He was involved in work to address his offending and other problems . He successfully completed an ORG in ORG in or DATE and his conduct was noted as significantly improving from that point . In DATE , he was transferred to a Category B prison .

The applicant ’s tariff period of DATE expired on DATE ( this was the minimum period fixed by the Secretary of ORG concerning the requirements of retribution and deterrence ) . ORG in DATE agreed to the transfer of the applicant from a Category B to Category C prison . The Secretary of ORG deferred a decision until after the Discretionary Lifer Panel ( DLP ) of ORG had conducted a hearing on the matter under the new provisions of LAW DATE ( “ the DATE LAW ) .

On DATE , after a hearing held pursuant to section CARDINAL of the CARDINAL Act , the ORG decided it would not be safe to release the applicant but recommended transfer to Category D ( open prison ) , or Category C with a review after DATE instead of the usual DATE . On DATE , the Secretary of ORG decided to transfer the applicant to Category C with a review after DATE .

NORP In DATE , the applicant failed to obtain leave to apply for judicial review of the decision of the ORG and the decision of the Secretary of ORG . In DATE , ORG refused leave to apply for judicial review .

Following a positive drugs test , the applicant agreed to follow and successfully completed in DATE a drugs awareness course .

On DATE , the applicant ’s case came before another ORG . Reports noted that he had made considerable progress over DATE but would need phased re - introduction into society . A psychiatric report dated DATE stated that the applicant had much greater control over his behaviour , that personal and maturational developments had taken place and that he was not the same person that he was when he entered prison . It was concluded that the applicant , who had shown a reclusiveness and narrowness of interests , needed however to test and increase his social interaction in order to be able to cope with living outside prison . A psychiatric report issued about the same time stated that the applicant ’s personality , described as psychopathic , had shown some capacity for change and that , although he was not considered a serious risk to the public , any release on licence would have to be carefully planned , as problems were likely to arise following a long period of institutionalisation and a lack of family support . The ORG did not recommend release but transfer to a Category D prison . In paragraph CARDINAL of the decision letter the ORG said :

“ The panel were satisfied that what was advanced at the hearing as ‘ exceptional ORG , namely a good release plan , the fact that [ the applicant is ] DATE beyond tariff , the fact that [ the applicant has ] completed a pre - release course in GPE , the fact that [ the applicant had ] previously been recommended for Category D status and the prospect of employment , did not amount to exceptional circumstances and that [ the applicant ’s ] release without progress through open conditions posed an unacceptable risk . ”

On DATE , the Secretary of ORG rejected the recommendation of transfer to an open prison , but directed an early review of the applicant ’s case , namely after DATE had expired from DATE . The Secretary of ORG was not persuaded that the applicant ’s behavioural problems had been satisfactorily addressed while in closed conditions , nor that the benefits of open conditions were sufficiently worthwhile at that stage when balanced against the scale of the outstanding offence , related work needed in the applicant ’s case and his potential risk to the public .

The applicant applied for leave to apply for judicial review of both decisions , alleging inter alia that the ORG had wrongly applied an “ exceptional circumstances ” test . Leave was refused on DATE .

On DATE , the applicant re - applied for leave for judicial review . Mr Justice PERSON refused leave against the ORG ’s recommendation . He found that the ORG had correctly applied the statutory test concerning a risk to the public . He granted leave to apply in respect of the decision of the Secretary of ORG . Mr Justice PERSON stated :

“ ... a prisoner who has spent TIME in custody should be tested in open conditions before being released into the community : satisfactory completion of such testing is an indication that a prisoner is able to cope with the stresses of life outside prison and is therefore a cogent factor to take into account against all the other available material in deciding whether or not a prisoner can safely be released . Such an approach is undoubtedly sensible …

I think it is arguable that the Secretary of ORG ’s decision not to recategorise this applicant as a Category D prisoner was irrational and one that no reasonable Home Secretary could reasonably have reached . ”

In the light of this grant of leave , at the end of the hearing , the Secretary of ORG indicated that he would reconsider his decision of DATE .

On DATE , the Secretary of ORG informed the applicant that he had reconsidered the case but decided not to change his conclusion that the applicant should not be transferred to open conditions .

On DATE , the ORG again considered the applicant ’s case . Reports continued to note his progress , including the expression of genuine remorse for his offending . It was considered in a case officer report dated DATE that he had taken advantage of treatment programmes and that all offending work had been completed . He had a “ settled and fulfilling release plan ” which involved him continuing the legal studies that he had commenced in prison and receiving support from a circle of friends that he had built up through contacts outside prison . Conversely , a psychiatric report dated DATE considered inter alia that the applicant might benefit from further work on developing methods of dealing with interpersonal difficulties and increasing relationship skills .

NORP By letter dated DATE , the ORG declined to recommend release but did recommend transfer to a Category D ( open ) prison .

“ CARDINAL . In reaching the decision that you are not yet suitable for release , the panel took into account the nature of the index offence , your violent disruptive early prison career ( while recognising also the absence of any violence since DATE ) , the fact that you are still seen as having a psychopathic personality … and the remaining areas of concern identified by [ PERSON , a higher psychologist ] … These areas of concern are egocentricity , a disregard for the points of view of other people and a limited ability to solve interpersonal frustrations and problems . The panel also considered that the sexual ambivalence referred to by [ Dr G ] merited further investigation , particularly in light of evidence that emerged at the panel hearing that you had been sexually abused in your youth . The panel also accepted [ PERSON ] evidence that a personality assessment was necessary to identify the manner in which the outstanding offence - related work should be carried out ; and that the reasons underlying the index offence still require further investigation . In all these circumstances , the panel considered that you still presented too great a risk to the public to justify your release .

NORP Moreover , you have been in custody for DATE and although your release plan is being developed , it is not complete . At present you would have no fixed accommodation . Based on these factors and the impression the panel formed of you at the hearing , the panel considered that you would be unable to cope in the community , were you to be released directly or via a pre - release employment scheme .

NORP The panel did recommend that you be transferred to open conditions . In coming to this conclusion , the panel took into account the length of time you have spent in custody , the opinion of the majority of the report writers and witnesses that the risk you present to the public could be safely managed in open conditions and the fact that the assessment and further work referred to above can be done in open conditions . The panel also took into account that [ Mrs B ] could not say within what period the assessment could be carried out , and the danger of counter - productive stagnation and frustration on your part should you have to spend a further protracted period in category ‘ C’ conditions .

To allow time for assessment and the necessary offence - related work and for your gradual reintegration into the community , the panel considered that your next review should begin in DATE time . ”

NORP By letter dated DATE , the Secretary of ORG rejected the ORG ’s recommendation . He stated that he accepted the psychologist ’s view that further work needed to be done in respect of the applicant ’s attitude to his original offence , his egocentricity , his intolerance of others , his inability to deal adequately with problems and his lack of responsibility for his actions . He agreed that a full personality assessment was required of the applicant who was still seen as having a psychopathic personality . The Secretary of ORG did not agree that these matters could be safely addressed in open prison conditions . He noted that the applicant had failed to attend further courses in anger management , social skills and communications , as arranged after the Secretary of ORG ’s decision of DATE . He also had regard to an intervening incident which had occurred on DATE when the applicant was being escorted to court by a female officer . After she had refused to allow him to smoke in the vehicle , he had slammed the van door against her , causing her to fall and hurt her arm . He had sworn at her , threatening to kill her , adding that he had already killed CARDINAL woman . The applicant was found guilty under LAW of assault and using threatening , abusive or insulting words . The Secretary of ORG considered that this disclosed impulsive violent behaviour towards a woman over a trivial incident , which had clear similarities with his original offence . He remained an unacceptable risk and was advised that until he co - operated with staff in addressing the areas of concern , the Secretary of ORG saw no justification in allowing him to progress further towards release . It was however agreed that his next review should take place in DATE .

On DATE , the applicant ’s renewed application for leave to judicially review the ORG ’s decision of DATE , which had been dormant since DATE , was listed for hearing before ORG . The applicant ’s request to amend his grounds of application to add complaints about a lack of independence was refused . ORG rejected his application for leave to apply for judicial review .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her Majesty ’s pleasure have a ‘ LOC set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change , most notably , following the coming into force on DATE of LAW DATE ( “ the DATE LAW ) , which was in force at the relevant time . The provisions of the DATE Act were replaced by ORG “ the DATE LAW ) from DATE .

Pursuant to section DATE ( CARDINAL ) of the DATE Act , ORG had a duty to advise the Secretary of ORG with respect to any matter referred to it by him which was connected with the early release or recall of prisoners .

ORG Chairman appointed CARDINAL members of ORG to consider discretionary life cases . They comprised the ORG . Pursuant to ORG DATE which came into force on DATE , a discretionary life prisoner was entitled to , amongst other things , an oral hearing , disclosure of evidence before ORG and legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who had written reports about him . A reasoned decision by the ORG was delivered within DATE of the hearing . Prior to DATE , the duty to release discretionary life prisoners was dealt with by LAW , which provided that where a discretionary life prisoner had served his tariff and ORG had directed his release , it was the duty of the Secretary of ORG to release him on licence .

Section CARDINAL(CARDINAL ) of the DATE Act provided :

“ The ORG shall not give a direction ... unless –

( a ) NORP the Secretary of ORG has referred the prisoner ’s case to the ORG ;

( b ) ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . ”

When deciding on release or recall of prisoners , the ORG often gave guidance as to the timing of the next review . It normally recommended a further review in DATE but an earlier date could be given in an appropriate case , with reasons . Where no guidance was given , the Secretary of ORG decided the date of the next review . Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date , the date of the review could be brought forward .

A discretionary life prisoner may require the Secretary of ORG to refer his case to ORG , after the end of the period of DATE beginning with the disposal of a previous reference to ORG ( section CARDINAL ( CARDINAL ) ( b ) of the DATE Act , now LAW ( CARDINAL ) ( b ) of LAW ) . The Government stated that in practice it is not necessary to invoke this provision since , as a matter of policy , the Secretary of ORG refers each case back to the ORG for the second anniversary of the previous reference .

Section CARDINAL of the CARDINAL Act has now been replaced , and largely reproduced , by LAW .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant company , CARDINAL Hit FM ORG , is a limited liability company with its registered office in GPE . It was represented by Mr C. Ebert , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE ORG ( Regionalradio- und GPE , DATE “ the ORG ” ) decided to award a licence for a local radio station for the GPE no . CARDINAL area ( CARDINAL out of a total of CARDINAL licences for the GPE area ) under ORG ( Regionalradiogesetz – “ the RRBA ” ) . The licence was awarded to the applicant company , then called KCARDINAL Privatradio GmbH , and was issued for DATE , starting on DATE and terminating on DATE . At that time the applicant company was owned by CARDINAL shareholders , each owning PERCENT of the shares . At the same time the ORG dismissed applications for the same licence from CARDINAL competitors of the applicant company . This decision was served on all parties and contained the information that a complaint could be filed against the decision with ORG within DATE after the decision had been served .

By DATE of the applicant company 's fellow applicants for the licence had filed complaints with ORG . They argued , inter alia , that the granting of the licence to the applicant company was in breach of LAW , and asked for a review of the provisions on the establishment of the ORG , arguing that those rules were unconstitutional . They also applied for their complaints to have suspensive effect

On an unspecified date the applicant company , assisted by counsel , commented on the complaints and opposed the request for suspensive effect .

On DATE ORG refused to grant suspensive effect .

On DATE the applicant company started to broadcast its radio programmes .

On an unspecified date ORG opened proceedings for review of the constitutionality of LAW RRBA .

In DATE , following an amendment of the PERSON dated DATE , the applicant company 's licence was extended to a total duration of DATE , that is , until DATE .

On DATE the ORG quashed section CARDINAL PERSON , on which the establishment of the ORG was based . It held that the ORG was a special type of administrative authority , namely one whose members included a judge , which rendered all its members independent and not subject to instructions ( weisungsfreie FAC richterlichem PERSON ) . Only in exceptional circumstances , in particular if the authority was an instance of appeal , could authorities of this kind be held to be constitutional . Since the ORG was the only instance to decide on the granting of the licence and no complaint to the administrative courts was allowed by the PERSON , there was insufficient review of the lawfulness of its decisions . Accordingly , section CARDINAL PERSON was unconstitutional .

Subsequently , on DATE , ORG also quashed the ORG 's decision of DATE on the grounds that it had been rendered by an unconstitutional authority .

In the meantime , on DATE , the PERSON had been amended and ORG ( Privatrundfunkbehörde – “ the ORG ” ) , a provisional authority set up to replace the ORG , was established .

On DATE the ORG granted the applicant company a provisional licence for DATE , in order to give it the opportunity to continue broadcasting while fresh proceedings for the award of a broadcasting licence were conducted .

The PERSON was replaced by the new LAW ( Privatradiogesetz – “ the PRA ” ) on DATE ; on DATE the LAW establishing the Communications Authority GPE ( PERSON – “ the LOC ” ) was adopted .

On DATE ORG GPE ( GPE – “ the ORG ” ) , which had replaced the former ORG , granted the licence for a local radio station for the GPE no . CARDINAL area to company NORP and dismissed the licence applications of the other CARDINAL participants , including the applicant company . The ORG examined the company structure and proposed programme content of each of the participants . It found that company NORP provided a coherent package of radio programmes for an older audience , focusing on local news and Schlager music ( NORP - language easy - listening music ) . Since this age group was underrepresented in the current radio landscape the application was given precedence . The granting of the licence to this broadcaster was therefore in the interests of plurality of the media landscape .

As regards the other applicants for the licence , the ORG noted that the shareholder structure of the applicant company had changed fundamentally since its first application for the radio broadcasting licence at issue , as it was now owned by CARDINAL company and CARDINAL foundation , both belonging to the PERSON media group . The PERSON media group , besides owning several print media , was a shareholder in companies holding radio broadcasting licences . The PERSON media group operated , under the name ORG , GPE 's first nationwide private radio station , consisting of CARDINAL local broadcasters and covering an area of CARDINAL inhabitants . As regards the GPE area , CARDINAL company belonging to that group already operated another radio station in GPE and it was not in the interests of plurality for the same area to be covered by CARDINAL radio broadcasting stations belonging to the same media group .

In comparison to the applicant company , company NORP was more independent , because none of its shareholders was active in the radio or print industry in GPE and it could therefore better contribute to plurality of opinion . Furthermore , company NORP provided for a larger number of self - produced programmes , although it would have to purchase world news from another provider at the beginning . Although the applicant company produced its own news , it would still provide fewer self - produced programmes .

The applicant company stopped broadcasting and operating DATE .

On DATE the applicant company appealed . It argued that the authority had incorrectly calculated the percentage of its shares held directly and indirectly by the various companies belonging to the PERSON media group . It had also incorrectly applied the law because section CARDINAL(CARDINAL ) PRA , which stated that the authority should “ take into account whether CARDINAL of the applicants has already made use of the licence to be granted ” should have priority over any other criterion for granting a radio broadcasting licence . CARDINAL other unsuccessful applicants for the licence also appealed .

On DATE ORG ( PERSON – “ the ORG ” ) dismissed all the appeals . It found that the ORG had described in detail the organisational set - up of the different applicants for the licence , their respective owners in the case of shareholder - owned companies and their previous experience in the field of broadcasting . The ORG had concluded that a group of participants including the applicant company met the basic professional , organisational and financial requirements of the PRA as regards their structure and the proposed programme content . Therefore the ORG had had to decide which participant out of this group was the best suited on the basis of the criteria set out under section CARDINAL PRA . This had been the CARDINAL which , within the licence area , would best fulfil the requirements of plurality of opinion through its range of programmes and which offered a greater number of self - produced programmes ( GPE ) . CARDINAL further element which had to be taken into account was whether an applicant for a licence had used a licence previously granted in accordance with the law . The ORG had taken this element sufficiently into account .

On DATE the applicant company filed a complaint with ORG in which it complained about breaches of the principle of equality , of its right to peaceful enjoyment of its possessions and of its right to freedom of expression . It submitted in particular that the NORP authorities had grossly misinterpreted section CARDINAL(CARDINAL ) of the PRA as , in the applicant 's view , the fact that a company had already held a broadcasting licence should be taken as the decisive criterion when issuing a further licence .

On DATE ORG dismissed the applicant company 's complaint and , ' at its request , transferred the case to ORG . It found , inter alia , that the criteria set forth in section CARDINAL of the PRA were sufficiently precise and therefore were not in contradiction with the principle of legality . Moreover , the decision taken by the authority had not been arbitrary . If the competent authority could only grant CARDINAL licence and therefore had to make a choice between several applicants , all of which satisfied the basic criteria , it had to explain in detail the reasons for its choice . The competent authority had done so properly and without making a mistake sufficiently serious to raise an issue under constitutional law ( ein in die GPE reichender PERSON ) .

On DATE the applicant company supplemented its complaint to ORG .

ORG dismissed the complaint on DATE . It held that section CARDINAL(CARDINAL ) of the PRA did not oblige the authority to grant the licence to the previous holder , but that the provision in question was just CARDINAL element amongst others in the decision - making process . The authority 's decision to put more emphasis on protecting diversity of opinion than on protecting the economic interests of previous licence holders was therefore in conformity with the law . In the interests of media diversity it was not in accordance with the aim and wording of the PRA , where there was a choice between several suitable applicants , for the licence to be awarded to CARDINAL which had already broadcast in the licence area as part of a media group ( GPE ) .

Section CARDINAL of ORG , published in ORG ( ORG ) DATE ( GPE ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) ORG shall be established within ORG as a CARDINAL - member collegiate body comprising the members appointed in accordance with paragraph CARDINAL plus one judge . The members shall be experts in the field , with DATE proven experience in the media or administrative sectors .

( CARDINAL ) In accordance with LAW , the members of ORG shall not be subject to any instructions or directions in the performance of their duties .

( CARDINAL ) The members of the ORG appointed in accordance with paragraph CARDINAL , and the judge member , shall be appointed by the Federal President on a proposal from ORG . Their term of office shall be DATE .

( CARDINAL ) ORG shall rule at last instance . Its decisions may not be set aside or varied in administrative proceedings . ”

Section CARDINAL of ORG was amended on DATE and ORG ( PERSON ) was established . This provision , in so far as relevant , reads as follows :

( CARDINAL ) The members of ORG appointed in accordance with paragraph CARDINAL , and the judge member , shall be appointed by the Federal President on a proposal from ORG . Their term of office shall be DATE .

( CARDINAL ) ORG shall rule at last instance . Its decisions may not be set aside or varied in administrative proceedings . An appeal shall lie to ORG against the decisions of ORG . ”

Section CARDINAL of the Private Radio Act ( Privatradiogesetz ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) If several applicants meeting the legal requirements ( section CARDINAL ) and ( CARDINAL ) ) apply for a licence , the regulating authority shall give priority to the applicant who seems to be the best suited on the basis of the submitted documents and the results of the procedure to guarantee compliance with the objectives of this LAW , especially by guaranteeing that he / she will ensure greater plurality of opinion overall , and who can be expected to produce autonomous programmes which also take into account listeners ' interests in the transmission area or , in the case of special programmes , whose planned programme content can be expected , in the light of the existing overall range of programmes broadcast under this federal law , to render a special contribution to the plurality of opinion in the target area , and who can be expected to produce a range of programmes with the highest share of individually - produced contributions .

( CARDINAL ) The ORG shall also take into account whether one of the applicants has already made use of the licence to be granted in accordance with the law . ”

LAW establishing ORG GPE ( ORG ) and ORG ( ORG ) , published in ORG , reads , in so far as relevant , as follows :

“ ( CARDINAL ) ORG GPE ( “ NORP ” ) shall be established with administrative responsibility for regulating the broadcasting sector .

( CARDINAL ) ORG shall be established to oversee the regulation of the broadcasting sector and supervise the lawfulness of the activities of ORG .

“ ( CARDINAL ) The administrative responsibility referred to in LAW ) shall encompass the tasks entrusted to ORG on the basis of separate federal legislation , including :

the award of broadcasting licences

“ ( CARDINAL ) KommAustria shall comprise the head of the ORG and as many staff members as are required .

( CARDINAL ) The head of the ORG and his or her deputy shall be officially appointed following an open competition procedure in accordance with section CARDINAL of LAW DATE .

( CARDINAL ) KommAustria shall come under the direct authority of the Federal Chancellor . It shall act as an independent authority in its dealings with third parties . All the ORG 's dealings shall be conducted under the name of ORG GPE ( “ NORP ” ) .

( CARDINAL ) KommAustria shall have its headquarters in GPE . ”

“ ( CARDINAL ) ORG shall be established within ORG to oversee the decisions of ORG and supervise the lawfulness of the activities of ORG .

NORP on appeal against decisions of KommAustria , with the exception of appeals in criminal administrative proceedings

( CARDINAL ) The decisions of ORG may not be set aside or varied in administrative proceedings . An appeal shall lie to ORG against the decisions of ORG . ”

“ ( CARDINAL ) ORG shall comprise CARDINAL members , CARDINAL of whom must be members of the judiciary . The members of ORG shall be independent in the exercise of their functions and shall not be subject to any instructions or directions . The Panel shall elect a ORG and Vice - Chair from among the members belonging to the judiciary .

( CARDINAL ) NORP The members of ORG shall be appointed by ORG on a proposal from ORG for a term of office of DATE . A substitute member shall be appointed in respect of each member , to sit in his or her absence . ”

In a decision of DATE ORG examined the constitutionality of LAW of ORG DATE and held , in particular , as follows :

“ The requirements of the constitutionally established rule of law are not satisfied where the acts of the administrative authorities are subject to the law but no review of the lawfulness of those acts is possible .

It is therefore in breach of the LAW for the legislature to entrust to a single authority acting at first and last instance responsibility both for administrative management and for overseeing that management . The LAW requires the administrative authorities to be subordinated to the supreme administrative bodies . ORG does not satisfy that requirement .

ORG responsibility for reviewing the decisions of the administrative authorities , entrusted to it by constitutional law , is thereby rendered meaningless . A regulation can be compatible with the LAW and in accordance with the principle of the rule of law only if ORG can conduct a comprehensive review of all ORG administrative acts .

This is not the case in relation to ORG .

From a rule - of - law perspective , the duty of the administrative authorities to comply strictly with the law within the meaning of LAW , and not just to respect fundamental rights , must be guaranteed .

These considerations apply in any event to LAW in the version in force on DATE , the date of the impugned decision .

The relevant provision of ORG is therefore unconstitutional and must be repealed . ”

Article CARDINAL of LAW ( Bundes - Verfassungsgesetz ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) The Constitutional Court shall hear complaints against decisions of the administrative authorities , including those of independent administrative tribunals , where the applicant claims that the decision has infringed a right secured by the LAW or that his or her rights have been violated by the enforcement of a regulation contrary to the law , an LAW contrary to the LAW or an international treaty incompatible with NORP law . A complaint may only be lodged once all other remedies have been exhausted .

( CARDINAL ) Up to the time of the hearing ORG may , by means of a decision , decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The ORG may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . ”

Section CARDINAL(CARDINAL ) of LAW ( GPE - gesetz ) reads as follows :

“ Appeals shall only lie under LAW once administrative remedies have been exhausted and within DATE of the decision taken at last instance being served on the plaintiff . ”


Violation of Art. 5-3;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE he was arrested on suspicion of murdering his common - law wife .

On DATE ORG ( Prokurator Rejonowy ) charged the applicant with homicide and remanded him in custody until DATE in connection with the investigation against him . The prosecutor considered that , given the serious nature of the offence in question , keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course . On DATE the prosecutor ordered an autopsy .

On DATE the applicant appealed and requested his release .

On DATE and DATE the prosecutor ordered expert opinions . On DATE the prosecutor ordered a reconstitution of the events which had taken place on DATE of the death .

On DATE ORG PERSON ) dismissed the applicant ’s appeal of DATE . It found the same justification for the applicant ’s detention : the reasonable suspicion against him , the serious nature of the offence in question and the fear that the applicant might tamper with the evidence .

On DATE the ORG prolonged the applicant ’s detention until DATE .

On DATE ORG ordered that CARDINAL psychiatric reports be obtained in order to establish the applicant ’s criminal responsibility .

On DATE and CARDINAL DATE the prosecutor ordered that CARDINAL other medical reports be obtained .

On DATE ORG prolonged the applicant ’s detention on remand until DATE , relying on the existence of a reasonable suspicion that he had committed the offence in question . The court referred also to the fact that CARDINAL expert reports had to be prepared . They were submitted to the court on DATE and DATE .

On DATE the applicant obtained access to the case - file .

On DATE ORG submitted the bill of indictment to ORG . The prosecutor asked the court to hear evidence from CARDINAL witnesses .

The trial court held hearings on DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE , as well as on DATE .

On DATE the ORG gave judgment . The court convicted the applicant as charged , and sentenced him to CARDINAL years’ imprisonment .

On DATE the applicant appealed .

On DATE ORG ( Sąd Apelacyjny ) quashed the first - instance judgment and remitted the case for re - examination . It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification .

In the course of the retrial , ORG held hearings on DATE , DATE , DATE , DATE , DATE , CARDINAL May and DATE , as well as on DATE . The hearing scheduled for CARDINAL DATE was adjourned .

At the hearings of DATE , DATE and CARDINAL DATE the applicant ’s counsel applied for his release , but to no avail .

On DATE the court prolonged the applicant ’s detention until CARDINAL DATE . It made reference to the reasonableness of the suspicion that he had committed the offence in question . The court stressed the serious nature of that offence and the necessity to consider further evidence .

On DATE the applicant ’s lawyer appealed against that decision . He contested the reasonableness of the charge against his client , maintaining that it was solely based on presumptive evidence . He also submitted that the applicant ’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts .

On DATE ORG dismissed both appeals . It pointed out that the principle referred to by the applicant , whereby detention exceeding DATE could be prolonged only by ORG , did not apply to his case . The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment , even if the judgment was subsequently quashed by the appellate court .

On DATE the applicant appealed against this decision .

On DATE ORG informed the applicant that no appeal lay against a decision given by an appellate court .

On DATE ORG gave judgment . It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment . The court deducted from the sentence the period spent by the applicant in detention .

On CARDINAL DATE the applicant ’s lawyer appealed .

On DATE ORG prolonged the applicant ’s detention on remand until DATE in view of the applicant ’s conviction and sentence DATE .

On DATE the applicant challenged that decision before a court which did not have the necessary jurisdiction . Accordingly , on CARDINAL DATE the matter was transferred to ORG , which on DATE dismissed both of his appeals .

On DATE the applicant ’s lawyer lodged a cassation appeal with ORG concerning the conviction and sentence .

On DATE ORG dismissed that appeal .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE “ Code of Criminal Procedure ” ( ORG postępowania karnego ) ( “ the Code ” ) entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE . The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

Article CARDINAL set out the general grounds justifying the imposition of preventive measures , as follows :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined the grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided as follows :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society ... ”

On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL provided :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The Code envisaged a margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .

DATE . On DATE an amendment to LAW entered into force , according to which time - limits for detention on remand were introduced .

From that date onwards , LAW read , in so far as relevant , as follows :

” CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning ordinary offences . In cases concerning serious offences this period may not exceed DATE .

In particularly justified cases , ORG may , upon the request of the court competent to deal with the case ... prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time - limits referred to in paragraph CARDINAL . ”

Article CARDINAL of the DATE Code provides , in so far as relevant :

“ CARDINAL . The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed DATE .

Detention on remand may be prolonged for a fixed period exceeding the periods provided for in DATE and QUANTITY only by ORG at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings , the prolonged psychiatric observation of an accused , the prolonged preparation of an expert opinion , the collection of evidence in a particularly complicated case or abroad , a delay in the proceedings caused by an accused , as well as other obstacles which could not be overcome . ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

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

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

On DATE the applicant had a quarrel with a certain PERSON , which led to a fight . On DATE the applicant complained to the police that P. had beaten her up . On DATE the latter lodged a similar complaint against the applicant . On DATE the Rovenky Town Police ( “ the Rovenky police ” ) refused to institute criminal proceedings against the applicant for lack of corpus delicti found in her actions .

On DATE the Deputy Chief of the Rovenky police informed the applicant of the above ruling , but confused the case reference with the applicant 's own complaint . Therefore , being convinced that the police had refused to open criminal proceedings against P. , the applicant challenged it before ORG .

On DATE the police joined the CARDINAL criminal claims for common investigation .

On DATE ORG quashed the DATE ruling and remitted the case to the police , who in DATE questioned the witnesses to the events of DATE . On CARDINAL DATE it held a confrontation between the applicant and P. On DATE a forensic medical examination of P. was carried out , reaching the conclusion that she had sustained injuries of medium gravity in DATE .

On DATE formal charges of deliberate infliction of medium bodily harm were brought against the applicant , who by now had legal representation . At the same time , she was placed under an undertaking not to abscond .

On DATE and CARDINAL DATE she requested the investigator to carry out a reconstruction of the circumstances of the events and to arrange a confrontation with P. On DATE and CARDINAL DATE respectively her requests were rejected .

On DATE the applicant 's lawyer requested that the investigations be stayed because of the applicant 's illness .

On DATE the investigator ordered a medical examination of the applicant in connection with her allegation that she had been beaten up by P. He also reported to ORG that the applicant had refused to undergo this medical examination or to participate in any investigative activities , referring to her poor health .

On DATE an on - site reconstruction of the events was carried out with the applicant 's participation . She requested the investigation not to carry out any further confrontations between her and P.

On DATE the medical report was drawn up . It found that the applicant had sustained light bodily injuries possibly originating from her fight with P.

On DATE the investigator decided to open a new investigation into the applicant 's allegation that she had been beaten up by P. , referring to the finding in the medical report .

On DATE the NORP Region Deputy Prosecutor informed the applicant that disciplinary measures had been applied to the investigator in charge of the case for delays in its examination .

On DATE the investigator issued a warrant for compulsory appearance of the applicant , as the latter had twice failed to answer the summonses without any valid reasons . The police officers reported that the applicant was not at her regular residence address .

On DATE the investigator requested to be replaced , stating that he had been insulted by the applicant .

On DATE the Rovenky police issued a ruling on refusal to open criminal investigations against P. on the basis of the applicant 's complaint of CARDINAL DATE .

By a decision of DATE the investigation was stayed because of the applicant 's illness . On DATE ORG quashed this decision as not based on any documentary evidence .

On DATE ORG ( “ the GPE ” ) rejected the investigator 's request to order the applicant 's detention pending trial .

On DATE the applicant confirmed in writing that she would appear before the investigator on CARDINAL DATE .

On DATE the investigation was stayed , the applicant 's whereabouts being unknown , but was resumed on DATE . On DATE the Rovenky police established a special investigation group , referring to a particular complexity of the case .

On DATE the applicant was newly charged with deliberately inflicting medium bodily harm on P. On DATE a forensic psychiatric examination was scheduled , but the applicant failed to appear , referring to her health problems . The investigator therefore requested the court to order the applicant 's admission to a psychiatric hospital as an inpatient . On DATE the court dismissed the request as unsubstantiated .

On DATE ORG approved a bill of indictment against the applicant and sent the case for trial to the court .

On DATE the Rovenky court held a preliminary hearing .

CARDINAL hearings followed , but there were CARDINAL adjournments for a total of DATE because of the applicant 's absence or because she had requested adjournments . CARDINAL of the hearings were adjourned for a total of DATE because of the witnesses ' or other participants ' failure to appear or following their requests for adjournment . CARDINAL hearings had to be adjourned for a total of DATE due to the prosecutor 's absence , on the court 's requests to the police for additional documents , and because of the judge 's illness .

In DATE and DATE , DATE and DATE the court requested from the police ( apparently unsuccessfully ) the results of the examination of the applicant 's complaint against P. , which had been singled out in a separate investigation .

On DATE the court ruled that the case should be returned to ORG for an additional investigation . The prosecutor and PERSON appealed .

On DATE ORG allowed those appeals , finding that remittal of the case for additional investigation had not been justified , as the first - instance court could clarify the issues , which it believed remained unaddressed , in the course of the trial .

In DATE the Rovenky court issued a ruling that the investigation into the applicant 's complaint against P. had been excessively lengthy . It also noted that the investigation officials had infringed the applicant 's rights as an accused , having unlawfully turned down her request to carry out the confrontation and other investigative acts , having unjustifiably requested her admission to a psychiatric hospital , and having committed some procedural errors . These findings were to be brought to the attention of ORG Chief so that adequate measures could be taken .

In a judgment of DATE the court found the applicant guilty of deliberately inflicting medium bodily harm on P. It sentenced her to a fine of CARDINAL NORP hryvnias ( ORG ) and ordered her to pay ORG CARDINAL to P. in compensation for non - pecuniary damage .

On CARDINAL and DATE and CARDINAL and DATE the applicant studied the case file .

On DATE the court considered the applicant 's remarks on the record of the hearings and accepted most of them .

The applicant , her lawyer and PERSON appealed against the judgment . On DATE ORG dismissed the appeals as unfounded .

On DATE ORG rejected the applicant 's request for leave to appeal in cassation as unsubstantiated . However , on DATE , it reconsidered its decision and requested the criminal case file from the Rovenky court . On DATE it dismissed appeals in cassation by the applicant and her lawyer as unsubstantiated .

The applicant made a new cassation appeal , which was found inadmissible by ORG on DATE .

Pursuant to LAW , a victim of a criminal offence may lodge a civil claim either in the framework of criminal proceedings or under a separate civil procedure .

Article CARDINAL concerning duration of pre - trial investigation is set out in the judgment of GPE v. GPE , no . CARDINAL , DATE .

Provisions as regards the duties of witnesses during pre - trial investigation and trial are summarised in the case of GPE v. GPE , no . GPE , § DATE , DATE .

Article CARDINAL concerning remittal of a case for additional investigation is set out in the judgment of DATE in the case of PERSON v. GPE , no . CARDINAL , § DATE , DATE .


Preliminary objection rejected (victim);Violation of Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

NORP The applicant company , “ ORG . ” , is an NORP company , established by decision no . DATE of ORG on DATE , with the object of investing in the construction business .

GPE sold the applicant company QUANTITY of land in a residential area in GPE by decision no . CARDINAL dated DATE .

By decision no . CARDINAL of DATE , GPE granted the applicant company planning permission to build CARDINAL flats . A building permit was also required before the project could start , but the GPE failed to decide the matter for a considerable length of time , thus preventing the building works from getting under way .

After the Municipality had refused to grant a building permit , the applicant company brought proceedings in LOC seeking compensation of CARDINAL leks ( ALL ) for its loss . Its claim was dismissed by judgment no . PERSON of DATE .

On appeal , ORG quashed the first - instance judgment and ordered the GPE to pay the applicant ALL CARDINAL ( decision no . CARDINAL of DATE ) .

In the absence of an appeal by the Municipality to ORG , ORG judgment became final and enforceable .

On DATE the President of ORG , in a document addressed to the Municipality , stated that , after the entry into force of LAW , he no longer had the right to initiate a supervisory review of the legality of lower court decisions .

On DATE the applicant company requested ORG to issue a warrant for the execution of the compensation award .

On DATE ORG rejected a request by the Municipality to review the merits of decision no . DATE of DATE , there being no basis in either law or fact for it to do so .

On DATE , in a document no . CARDINAL dated DATE , ORG notified the Municipality that it should execute the ORG decision by paying the applicant company ALL CARDINAL . However , the Municipality repeatedly refused to comply , arguing that it had no budget for the execution of judicial decisions .

At the same time , ORG requested ORG of ORG ( the ultimate financial institution responsible for such payments ) to comply with the decision by providing the necessary funding ( Article CARDINAL , paragraph CARDINAL , of LAW ) .

By documents nos . CARDINAL of DATE , ORG of DATE , and CARDINAL of DATE , ORG rejected the requests of ORG , arguing that either LAW was not applicable , or that central funding was not possible under LAW . It added that the GPE should contact the “ District of Tirana Branch of the ORG ” , specifying the fund from which the debt should be paid and the part of the GPE ’s budget to which it should be allocated .

As the judgment was not executed , the applicant company brought proceedings in ORG , claiming that local governmental institutions were obliged to guarantee the enforcement of final judicial decisions , not to impede them .

ORG rejected the applicant company ’s complaint , stating that the “ complaint [ could ] not be taken into consideration because the enforcement of court decisions is outside the jurisdiction of the Constitutional Court ” .

NORP The relevant parts of the Albanian Constitution read as follows :

“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ State bodies shall comply with judicial decisions . ”

“ The Constitutional Court shall decide : ...

( f ) in a ruling that shall be final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

According to LAW for damage caused by delay in the payment of a specific sum of money shall take the form of interest which shall accrue from DATE the debtor falls into arrears in the official currency of the country where payment is to be made . The rate of interest shall be prescribed by law . ”

No legislation prescribing the statutory rate of interest has yet been passed .

NORP The relevant part of this Instruction reads as follows :

“ Payments deriving from judicial decisions relating to the normal activity of budgetary institutions shall be authorised by the Head of ORG . At the same time , where the damage for which the ORG is liable is the consequence of public officers acting ultra vires or failing to act in accordance with their powers , the Head of the Central Institution shall take administrative measures and institute civil proceedings against them according to the degree of their responsibility . ”

The relevant part of the ORG provides :

“ ORG , through funds allocated to it in the annual budget , shall comply with judicial decisions directly related to the ORG ’s budgetary obligations but not to the obligations of budgetary institutions . Such decisions shall include : ...

( e ) Judicial decisions expressly determining the liability of the ORG for other reasons provided for by law . ”

Article CARDINAL of LAW provides :

“ Commercial companies registered before the entry into force of this LAW whose registered particulars and forms do not comply herewith shall re - register DATE after the entry into force of this LAW . Any such company that fails to request the re - registration or to present the requisite documents shall be automatically unregistered from that date on . They may apply for a DATE extension of time in which to comply with this obligation . Re - registered companies shall retain all the rights they enjoyed before re - registration . ”


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

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

The applicant is a surgeon employed by the Government .

An official advertisement for a post of consultant surgeon with an interest in vascular surgery in a public hospital was published in ORG of DATE .

The applicant applied for the post , considering that he satisfied all the conditions laid down in the advertisement . The Government qualified this statement to read that the applicant satisfied the conditions necessary to apply for the post of consultant surgeon .

According to paragraph CARDINAL ( c ) of the call for applications , applicants were required to have the following qualifications :

“ be in possession of a recognised higher postgraduate qualification in surgery ( ORG or equivalent qualification recognised as such in ORG or the GPE ) and DATE post registration experience in vascular surgery of which DATE must be at Senior Registrar or Higher Surgical Trainee equivalent level . ”

The applicant alleged that he was the only person eligible for the post but that other persons , not having the required qualifications , were interviewed . Eventually X , another surgeon , was appointed by the Prime Minister on the recommendations of ORG ( “ ORG ” ) . Under NORP law , this body is immune from legal proceedings .

The Government contested the allegation that the other persons interviewed for the post did not possess the required qualifications . According to the Government , the applicant argued that the other candidates did not possess the experience required , since the period to be taken into consideration should have been calculated from the date when the candidates had officially been appointed to the post of Senior Registrar and not from a prior date when they had de facto started performing such duties .

The Government explained that there were CARDINAL applicants for the said post . After having interviewed all the applicants , ORG ( appointed by the ORG ) , made up of CARDINAL senior members of the public medical service and a senior official from the management and personnel office , found that all the candidates interviewed possessed both the academic qualifications and the experience required . However , they found the applicant to be unsuitable for the post whilst finding the other CARDINAL candidates suitable . The ORG recommended the candidate with the highest mark as decided by ORG .

On DATE , DATE after the said interview , the applicant complained about the decision and the composition of ORG to the ORG Chairman .

On DATE the ORG informed the applicant that on examining the selection process , the eligibility of the applicants as determined by ORG had been correct and that none of his other allegations had been well - founded .

On DATE the applicant reiterated his position to the ORG . On DATE the ORG informed the applicant that given that the selection process had been completed and the appointment made , representations to the ORG had to be made in accordance with the provisions of the PERSON ( “ code of management of the public service ” ) which provided for the right to file a petition with the Prime Minister ( “ TIME ” ) in respect of a selection process .

On DATE the applicant petitioned the PM . This petition was suspended since in the meantime the applicant had lodged judicial proceedings and proceedings before ORG , which had the power to investigate allegations of corruption .

On DATE the applicant lodged a judicial protest against the PM and the Chairman of the ORG .

On DATE the applicant requested ORG ( FAC ) to issue an injunction against the above authorities to restrain them from proceeding with the appointment of the selected candidate . On DATE ORG refused this request .

On DATE the applicant filed a claim with ORG ( FAC ) against the PM . He alleged a violation of LAW by reason of the fact that in selecting the candidates for the post of consultant surgeon , the PM had failed to adhere to the notice announcing the call for applications . The applicant furthermore considered that , in setting up the board for the interviews , there had been a breach of the PERSON rules , which regulated the civil service and the manner in which applicants to it were recruited .

The applicant requested that the appointment of X be declared null and void and that his own application be considered the only CARDINAL valid for the post .

The PM objected , stating that the applicant ’s action was incompatible with LAW , since the action was intended to inquire into the interpretation of a call for applications made by the ORG , whereas the conduct of the ORG in such matters could not be questioned .

In a preliminary judgment of DATE ORG dismissed the TIME ’s objection and ordered that the case be continued . It observed that the ORG was not a defendant in the case and that it was too early to come to the conclusion that the applicant ’s claims might amount to an investigation into the actions of the ORG . The applicant should know that if his action pursued such a line it would be dismissed . However , it was still open to the applicant to prove his complaint without questioning the workings of the Commission .

The applicant ’s action had rightly been introduced against the PM who was not obliged to act according to the recommendation made to him by the ORG . Moreover , when TIME was taking a decision relating to the appointment of a civil servant , he was not merely giving formal effect to the wishes of the ORG . Although ORG role was not to inquire whether TIME had acted or not on the recommendation , its task was to determine whether his actions were in conformity with the law .

The Government challenged ORG preliminary judgment , before both ORG and ORG . On DATE the appeal to ORG was withdrawn by agreement of both parties . It was agreed that the merits of the appeal should be examined by ORG .

In a judgment of DATE , ORG found against the applicant . It accepted the ORG ’s plea of immunity and dismissed the applicant ’s action .

ORG held that the TIME ’s actions “ in many fields ” could be examined by the domestic tribunals . However , according to LAW case - law , when the PM was required to perform any function in accordance with the recommendation of any person or authority , judicial examination was excluded , unless there was an allegation of a violation of fundamental human rights .

Furthermore , it resulted from LAW ) and ( CARDINAL ) of the LAW that when the PM was required to exercise any function after consultation with any person or authority , he was not obliged to follow the advice given to him , although when the functions were exercised on the recommendation of any person or authority , he should act in accordance with that recommendation . Therefore , when the ORG made a recommendation on an appointment to a post within the public service , TIME was bound to appoint the person indicated . What were referred to in the LAW as recommendations were in fact binding decisions and the only possibility enjoyed by the PM was to use his power to refer the recommendation back , once , for reconsideration .

In the present case , the only allegation against the TIME was that he had acted in accordance with the decision of the ORG . In ORG opinion , the applicant was trying to circumvent LAW , which granted immunity to the ORG .

Article CARDINAL ) of the LAW of GPE states :

“ Subject to the provisions of this LAW , power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister , acting on the recommendation of ORG ... ”

The functions of the TIME in this regard are regulated according to LAW , which , in so far as relevant , reads as follows :

“ ( CARDINAL ) Where by LAW the Prime Minister is required to exercise any function on the recommendation of any person or authority he shall exercise that function in accordance with such recommendation :

Provided that –

( a ) before he acts in accordance therewith he may once refer that recommendation back for reconsideration by the person or authority concerned ; and

( b ) if that person or authority , having reconsidered the original recommendation under the preceding paragraph , substitutes therefor a different recommendation , the provisions of this sub - article shall apply to that different recommendation as they apply to the original recommendation .

( CARDINAL ) Where by this LAW the Prime Minister is required to perform any function after consultation with any person or authority , he shall not be obliged to perform that function in accordance with the advice of that person or authority .

( CARDINAL ) Where by this LAW the Prime Minister is required to perform any function in accordance with the recommendation of , or after consultation with , any person or authority , the question whether he has in any case received , or acted in accordance with such recommendation or whether he has consulted with such person or authority shall not be inquired into in any court . ”

The ORG is immune from proceedings regarding its functions pursuant to LAW . This provision reads as follows :

“ The question whether -

( a ) ORG has validly performed any function vested in it by or LAW ;

( b ) any member of ORG or any public officer or other authority has validly performed any function delegated to such member , public officer or authority in pursuance of the provisions of subarticle ( CARDINAL ) of LAW ; or

( c ) any member of ORG or any public officer or other authority has validly performed any other function in relation to the work of the ORG or in relation to any such function as is referred to in the preceding paragraph , shall not be inquired into in any court . ”

In so far as relevant , LAW ( “ COCP ” ) relating to ORG , reads as follows :

“ ( CARDINAL ) ORG as is otherwise provided by law , the courts of justice of civil jurisdiction may inquire into the validity of any administrative act or declare such act null , invalid or without effect only in the following cases :

( a ) where the administrative act is in violation of the LAW ;

( b ) when the administrative act is ultra vires on any of the following grounds :

( i ) when such act emanates from a public authority that is not authorised to perform it ; or

( ii ) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon ; or

( iii ) when the administrative act constitutes an abuse of the public authority ’s power in that it is done for improper purposes or on the basis of irrelevant considerations ; or

( iv ) when the administrative act is otherwise contrary to law . ”


CASE OF ZVOLSKÝ AND ZVOLSKÁ v. THE CZECH REPUBLIC

Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

On DATE the applicants executed a deed of sale and gift ( kupní a darovací smlouva ) under which ORG , as vendor , agreed to sell them a farmhouse in GPE and to transfer the adjoining agricultural land to them without consideration . At the time , the system for transferring agricultural holdings was by a sale of the house and gift of the adjoining land that was farmed by a socialist cooperative . The approval of the cooperative and the agreement of the competent national committee were required before the deed of sale and gift could be executed . Purchasers of land were required to give an undertaking that they would work for the cooperative .

According to the applicants , PERSON wished to secure his release from his obligation to work for the socialist cooperative and could only do so by transferring the land . It was he who had proposed the arrangement , as he wanted to sort out his domestic affairs . Under the statutory provisions then in force , the applicants were obliged , as a condition for purchasing the house , to give an undertaking to work for the cooperative as a replacement for PERSON They paid him CARDINAL NORP korunas on top of the purchase price of the house , as compensation for the value of the transferred land .

In DATE ORG signed a declaration that he had transferred the land of his own free will . In the applicants ' submission , that declaration constituted a rider to the deed confirming ORG 's consent .

NORP However on DATE ORG brought a civil action against the applicants seeking , inter alia , rescission under section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) of the part of the agreement that concerned the transfer of the agricultural land .

NORP In a judgment of DATE , ORG ( okresní soud ) found in favour of GPE , holding , inter alia :

“ [ The applicants ] have invited the ORG to dismiss PERSON 's actions on the ground that he transferred his land of his own free will to sort out his domestic affairs and that in consideration [ for that transfer ] they had assumed his obligation to work for the agricultural cooperative . ...

Section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) provides that if a landowner has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building and at DATE this LAW entered into force the land was still in that person 's possession , the court shall , on application by a person with standing , either ( a ) order rescission of that part of the sale agreement by which the land was donated or transferred without consideration , or ( b ) order the current owner to reimburse the price of the land . ...

The Court ... finds that the aforementioned conditions were satisfied in the present case and therefore finds in favour of [ ORG ] . It has been established that [ ORG ] is the person with standing within the meaning of PERSON no . CARDINAL/CARDINAL , that is to say the person who gave [ the applicants ] – the obligees within the meaning of that LAW – the agricultural land in connection with the sale of the building ... It has also been established that [ the applicants ] are currently in possession of the land . Consequently , the ORG ... rescinds the section of the deed of sale and gift executed by the parties on DATE that provides for the transfer of ownership of the land in question without consideration . ... It does not consider that the ' minuted rider to the deed ' dated DATE constitutes a valid rider to the deed of sale and gift . The statement in which [ ORG ] expressly confirmed that he had sold his immovable property voluntarily and at the agreed price has no ... value in law , as it was made before the amendment to the legislation on land law that enabled him to seek restitution was passed . In fact , [ ORG ] denies that he intended to sell the land [ to the applicants ] and the intentions of both parties are set out in the notary 's minutes ... The ORG finds that the [ applicants ' ] argument that a decision in favour of [ GPE ] would entail a violation of LAW is unfounded , as the latter was obliged to transfer ownership of the agricultural land used by the agricultural cooperative without consideration . ”

In a judgment of CARDINAL DATE , the ORG Králové ORG ( krajský soud ) upheld ORG judgment rescinding the relevant part of the deed of sale and gift . It found that PERSON had given , and thus de facto transferred without consideration , the agricultural land to the applicants as part of the agreement for the sale of the adjoining house . ORG also noted that the terms “ donate ” and “ transfer without consideration ” were identical . At the same time , it dismissed an application by the applicants for leave to appeal on points of law ( dovolání ) , holding that the request for a ruling on the construction of the words “ transfer without consideration ” in section CARDINAL ) of LAW did not raise a question of crucial legal importance ( rozhodnutí po právní stránce zásadního významu ) .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that leave to appeal on points of law will be granted if the court hearing the appeal on points of law ( dovolací soud ) considers that the impugned decision gives rise to a question of crucial legal importance . In reliance on that provision , the applicants appealed to ORG on DATE , alleging that the ordinary courts had construed LAW erroneously by confusing CARDINAL incompatible concepts : “ donations ” and “ transfers without consideration ” .

In a judgment of DATE , ORG ( PERSON ) refused the applicants leave to appeal on points of law , holding that ORG judgment did not give rise to a question of crucial legal importance . It noted that it had considered the question of the definition of the terms “ donations ” and “ transfers without consideration ” in a number of previous decisions in which it had construed the LAW as not requiring duress to have been used if the agricultural land had been transferred without consideration . ORG judgment was served on the applicants at the earliest on DATE .

On DATE the applicants lodged a constitutional appeal ( ústavní stížnost ) in which they alleged that the domestic courts ' decisions had violated the constitutional guarantees embodied in Articles CARDINAL , QUANTITY of LAW ( Listina základních práv a svobod ) , namely equality of rights for citizens and protection of property . They also sought an order abrogating section CARDINAL(CARDINAL ) of LAW .

On DATE ORG ( Ústavní soud ) declared their appeal inadmissible as being out of time . It held , inter alia :

“ ORG considers that litigants are not entitled to bring proceedings in ORG that do not qualify for leave under the statutory rules or to make an application in such proceedings for an order quashing decisions of the ordinary courts , unless a refusal to hear [ the appeal on points of law ] would constitute a denial of justice and , consequently , a breach of the right to a fair trial . The [ ORG ] judgment does not constitute a decision on the final statutory remedy for the protection of rights ... The constitutional appeal could only be brought against the appeal court 's decision , which became enforceable on DATE . Since it was not lodged until DATE , it fails to satisfy the condition set out in section CARDINAL ) of LAW . For this reason , ORG has no alternative but to declare the appeal inadmissible , as it was lodged after the expiry of the statutory time - limit . ”

Article CARDINAL of the LAW of GPE ( as worded at the material time ) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on GPE had immediate mandatory effect and prevailed over statute .

Article QUANTITY provide , inter alia , that everyone has the right to property . It is for the legislature to identify property that is necessary for society 's needs , the development of the national economy or the public interest that may be owned only by the ORG , local authorities or such legal entities as the legislature may designate . It may also provide that certain property may be owned solely by citizens or legal entities domiciled in the NORP and GPE . LAW prohibits any abuse of property that infringes the rights of others or conflicts with the general interest protected by law . The right to property must not be exercised in such a way as to cause an unlawful interference with human health , nature or the environment .

Article CARDINAL § CARDINAL of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court , or in specified cases , another authority .

Article CARDINAL § CARDINAL lays down that an appeal on points of law ( dovolání ) shall lie only against decisions ( rozhodnutí ) that have become enforceable , and solely as provided by law .

Article CARDINAL § CARDINAL provides that an appeal court that has upheld a decision of the court below must grant leave to appeal on points of law if it considers that its decision gives rise to a question of crucial legal importance justifying such leave ( rozhodnutí po právní stránce zásadního významu ) . It may grant such leave on its own initiative .

Article CARDINAL § CARDINAL provides that if an appeal court refuses to grant an application for leave to appeal on points of law made by CARDINAL of the parties before the decision upholding the decision at first instance was adopted , leave may only be obtained if ORG itself considers that the appeal court 's decision gives rise to a question of crucial legal importance .

Section CARDINAL(CARDINAL ) provides that anyone claiming to be a victim of a violation by a “ public authority ” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of LAW shall have standing to bring a constitutional appeal .

Under section CARDINAL(CARDINAL ) , constitutional appeals must be lodged within DATE after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights .

Section CARDINAL(CARDINAL ) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies , other than an application to reopen proceedings . Section CARDINAL(CARDINAL)(a ) gives ORG a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant 's personal interest and the appeal was lodged within DATE after the impugned decision or event .

Section CARDINAL(CARDINAL ) ( formerly section ORG ) ) confers on a person who has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building the right ( provided that at the date the LAW came into force the land was still in that person 's possession ) to apply to the court , which must either ( a ) order rescission of the part of the contract by which the land was donated or transferred without consideration to a private individual , or ( b ) order the owner ( or his or her estate ) to pay the value of the land thus acquired , such value to be assessed by reference to the price regulations in force at DATE .

If the owner of the land does not agree to pay the price in accordance with ( b ) above , the court will order rescission of the agreement in accordance with ( a ) .

In its decision no . I ÚS CARDINAL/CARDINAL of CARDINAL DATE , ORG considered , inter alia , the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time - limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law . ORG held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted , he must lodge a constitutional appeal at the same time , in order to ensure that it is brought within the statutory time - limit .

In its decision no . CARDINAL of CARDINAL DATE , ORG dismissed an application by CARDINAL members of ORG for an order abrogating section CARDINAL(CARDINAL ) of LAW . In its reasons , it stated that section CARDINAL(CARDINAL ) allowed private individuals ' land to be expropriated lawfully and restrictions to be imposed on the manner in which they exercised their right of property without payment of compensation , adding that the rule applied not only to rights of property that had been acquired by taking advantage of the socialist system but also to those acquired in good faith . It noted the legitimate aim pursued by LAW and the priority given to restoring land to original owners who had been deprived of it without compensation DATE . In the circumstances , it was both feasible and fair to ask those who had received property without consideration to return it without compensation to the original owner , who had been forced to donate it to them .

In its decision no . PERSON of DATE , ORG said that notwithstanding the fact that appeals on points of law had no suspensive effect and did not affect the enforceability of appeal court decisions , the initial target of a constitutional appeal had to be ORG decision . If the constitutional appeal was directed only against the appeal court 's judgment , ORG decision would remain valid , so that the principle of legal certainty would be violated in the event of a conflict .

In its decision no . I ÚS CARDINAL/CARDINAL of DATE , ORG said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted , then , in order to avoid being out of time with his constitutional appeal , he should lodge it at the same time , without waiting for the decision on the application for leave , since , if leave was refused , the final decision in his case would be the appeal court decision .

In its decision no . II ÚS CARDINAL/CARDINAL of DATE , ORG held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to ORG under Article CARDINAL § CARDINAL of the Code of Civil Procedure . Unless he does so , he will not have exhausted the statutory remedies provided to protect his rights .

In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG found , inter alia , that , even though the applicants had been refused leave to appeal on points of law by the appeal court , they were still entitled to seek leave under LAW , as they satisfied the necessary conditions . Since they had not made use of that available remedy , their constitutional appeal could not be declared admissible .

In its decision no . IV ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible for failure to exhaust statutory remedies , on the ground that the appellant had failed to exercise his right to lodge an appeal on points of law under LAW .

In its reasoning in decision no . III ÚS DATE of DATE , ORG stated , inter alia , that if a party to the proceedings is refused leave by the appeal court to appeal on points of law , he must apply to ORG for leave under LAW , otherwise his constitutional appeal will be inadmissible .

Decision no . IV ÚS DATE , which was adopted after the entry into force of an amendment to LAW on DATE extending the right of appeal on points of law , makes it clear that an appellant may only be regarded as having exhausted available statutory remedies once ORG has delivered its decision . Any other solution would give rise to an undesirable situation with the coexistence of CARDINAL sets proceedings . In such cases , time for lodging a constitutional appeal will , therefore , only start to run after ORG decision has been served on the appellant .

In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible on the ground that if a party 's application to the appeal court for leave to appeal on points of law was dismissed , he would still be regarded as having failed to exhaust statutory remedies unless he applied to ORG for leave , despite the fact that it was his application to the appeal court that had made the application to ORG necessary .

Furthermore , applications nos . CARDINAL/CARDINAL and ORG ( PERSON , GPE v. GPE and PERSON v. GPE , respectively ) , which have been lodged with the ORG and communicated to the respondent Government , show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical . In these cases , the applicants lodged both forms of appeal at the same time , but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies , as their appeals to ORG . They subsequently lodged fresh appeals with ORG , once ORG had refused them leave to appeal . However , their constitutional appeals were again declared inadmissible , this time on the ground that they were out of time .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in DATE and lives in GPE .

On DATE the Brzeg ORG ( Sąd Rejonowy ) issued a “ wanted ” notice in respect of the applicant and several other men in connection with an investigation into allegations made by CARDINAL women , some of whom were minors , that a group of several men had raped them , threatened them , beaten them and forced them to take drugs . The warrant for arrest was issued after the prosecution service had established that the applicant had gone into hiding and the police had unsuccessfully attempted to arrest him .

On DATE the police attempted to arrest the applicant . However he managed to escape trying in the process to run over police officers while driving away . CARDINAL other men sought under the arrest warrant issued in connection with the same investigation were apprehended and arrested .

On DATE the applicant was arrested by the police . At the time of arrest he was in possession of a firearm and a forged identification document . On CARDINAL DATE the Opole ORG ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the following offences : repeated group rape with aggravated cruelty while acting in an organised criminal gang ; leading an organised gang ; supplying minor victims with drugs ; forging an identification document ; and destroying a police car . The court also found that , given that he had absconded in the past , there was a risk that the applicant might go into hiding again and try to influence the victims .

The applicant appealed against the decision ordering his detention on remand but his appeal was dismissed on DATE by the Opole ORG ( PERSON ) .

On DATE the ORG prolonged the applicant 's detention relying on the reasonable suspicion of his having committed the offences and on the complexity of the investigation which had not yet been terminated by the prosecutor .

On DATE the court decided that the applicant 's detention should be prolonged . It considered that , in addition to the strong suspicion against the applicant , the severity of the sentence that might be imposed and the risk of his tampering with evidence and influencing witnesses justified holding him in custody . In addition , the court relied on the risk that , given that he had absconded in the past , he might go into hiding again . The court also observed that only detention on remand would secure the applicant 's appearance at the trial .

On DATE the applicant was indicted before the Opole ORG . It appears that the first hearing was held on DATE . In DATE the trial court held in total CARDINAL hearings .

Subsequently , the applicant 's detention was prolonged by decisions of CARDINAL June and CARDINAL DATE and DATE . The decisions were based on the reasons given for his detention on previous occasions .

Afterwards , as the length of the applicant 's detention had reached the statutory timelimit of DATE laid down in LAW of LAW ( Kodeks postępowania karnego ) , ORG applied to ORG ( Sąd Apelacyjny ) asking for the applicant 's detention to be prolonged beyond that term . On DATE ORG allowed the application and prolonged his pretrial detention . ORG based its decision on the reasonable suspicion that the applicant had committed serious offences and on the risk that he might interfere with the course of justice . The court further considered that the complexity of the case constituted a special circumstance justifying his remaining in custody .

On DATE ORG again decided to prolong the pre - trial detention of the applicant , finding that the initial reasons for the detention were still valid . Furthermore , the court examined the course of the proceedings before the Opole ORG and agreed that the case was particularly complex and time - consuming , given the number of accused and the considerable amount of evidence which had to be examined . It considered that the trial court had acted diligently as it had taken evidence from CARDINAL witnesses during the last QUANTITY hearings .

On DATE the Court of Appeal prolonged the applicant 's detention until DATE

Nevertheless , the trial court again applied to prolong the applicant 's detention . On DATE ORG granted the application . However , it criticised ORG for the delay in the case and requested the trial court “ to take adequate and more intensive action to finish the trial ” . The court further took into account that the accused were partly responsible for the length of the proceedings because they had lodged vexatious applications for new evidence to be heard and had not complied with time - limits for filing new submissions .

The applicant 's numerous applications for release and appeals against decisions prolonging his detention were to no avail .

The Opole Regional Court held CARDINAL hearings in DATE and CARDINAL hearings in DATE . On DATE the ORG gave a judgment in which it found the applicant guilty of several counts of repeated group rape with aggravated cruelty and false imprisonment committed while acting in an organised criminal gang . The applicant was also convicted of administering an unknown psychotropic substance to some of the victims and use of a forged identity document . The court acquitted the applicant of being the leader of the organised criminal gang . The applicant was sentenced to DATE imprisonment . The applicant and other coaccused appealed .

On DATE ORG gave a judgment . It amended the first - instance judgment with respect to the applicant reducing his prison sentence to DATE . The applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed the cassation appeal as manifestly ill - founded .

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