Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Criminal offence);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and is currently serving a prison sentence .

In TIME CARDINAL DATE a minor , PERSON , was found dead in his apartment , with several knife wounds . On DATE the local prosecutor ’s office instituted criminal proceedings in connection with the murder .

The applicant ( DATE at that time ) was a school acquaintance of PERSON Before the incident , PERSON had invited the applicant to his home on many occasions .

At TIME on DATE the police visited the applicant ’s home . In the presence of his mother the applicant confessed and the police took him to the police station .

The police did not draw up arrest order and the applicant did not have his procedural rights explained to him on DATE , as required by Article CARDINAL of the Code of Criminal Procedure . According to the applicant , he was questioned about the incident and subjected to ill - treatment by the police .

At TIME on DATE the applicant was examined by a medical expert , who reported abrasions on the applicant ’s hand , back , waist and shoulder . The expert opined that the injuries were light and had been inflicted DATE before the examination . The applicant remained in police custody .

At TIME on CARDINAL May CARDINAL the applicant was given access to a lawyer he had chosen himself . His procedural rights were explained to him , including the right to remain silent and not to incriminate himself , to be informed of the charges against him , to have a meeting with a lawyer before being questioned , to seek to examine evidence , to seek withdrawal of an investigator , to participate in investigative actions , and to lodge complaints .

TIME and TIME DATE an investigator from the prosecutor ’s office questioned the applicant in the presence of the lawyer and a teacher . During that questioning the applicant stated that he had entered the victim ’s apartment , using a key he and a schoolmate had stolen from PERSON beforehand ; the applicant ’s plan was only to steal money , but when PERSON arrived unexpectedly and a fight broke out between them he grabbed a knife and stabbed him several times ; he then took money and left the apartment .

At TIME on CARDINAL May CARDINAL an investigator from the prosecutor ’s office drew up an arrest order in respect of the applicant , relying on Articles CARDINAL and CARDINAL of the Code of Criminal Procedure .

On CARDINAL DATE the applicant was questioned once again . In the presence of the lawyer the applicant confirmed his previous statements .

On DATE the local court remanded the applicant in custody as a preventive measure and noted , inter alia , that the applicant had been arrested as a suspect at TIME on DATE . At the court hearing the applicant was represented by the lawyer . They both submitted , inter alia , that the applicant had acknowledged guilt .

On DATE the applicant ’s father requested that criminal proceedings be instituted against the police officers , claiming that after arrest the applicant was subjected to ill - treatment , and that the lawyer was allowed in only TIME .

On DATE a forensic medical expert confirmed the conclusions of the medical expert of CARDINAL DATE .

On DATE the applicant was questioned once again in the presence of the lawyer . He was clear that it was PERSON who had initiated the fight and that all he could remember was when he found himself holding a knife and PERSON lying on the floor : he was really scared then . He further submitted that after he was arrested police officers had beaten him up , thus making him confess in detail .

On DATE the investigator of the local prosecutor ’s office refused to institute criminal proceedings into the alleged ill - treatment for lack of corpus delicti .

On DATE the applicant was further questioned in the presence of the lawyer . The applicant once again stated that he could not remember what happened during the fight with PERSON until the moment when the latter was lying dead on the floor .

Following the completion of the investigation the case was referred to court for the applicant to be tried .

On DATE ORG ( “ the trial court ” ) , having regard to the applicant ’s complaints of ill - treatment , ordered additional inquiries in relation to those allegations .

On DATE the local prosecutor once again refused to institute criminal proceedings into the alleged ill - treatment for lack of corpus delicti .

When questioned by the trial court , the applicant admitted that he had entered PERSON ’s apartment and stolen the money . He could not explain how the murder was committed , as he could not remember what had happened .

On DATE the trial court found the applicant guilty of aggravated murder and robbery and sentenced him to CARDINAL years’ imprisonment . The judgment was based on the self - incriminatory statements made by the applicant on CARDINAL May CARDINAL and later and other documentary , oral and material evidence . In the operative part of the judgment the trial court ordered that the term of imprisonment be counted from CARDINAL DATE .

The applicant and his representative appealed against that judgment , alleging , inter alia , that the applicant had committed the murder when mentally disturbed and in a fight with the victim . They further insisted that the applicant ’s procedural rights had been infringed , as he had been subjected to ill - treatment and his status as an arrested person had not been formalised straight after the arrest .

On DATE ORG held a hearing in the case and the applicant submitted that there had been an accomplice , PERSON , in PERSON ’s apartment who had committed the murder . He alleged that he had been afraid to tell the truth earlier because he had been threatened by the accomplice , who was much older than him .

ORG rejected the applicant ’s submissions , finding that the applicant ’s guilt had been well established by the evidence in the case file and there had been no indication that the applicant ’s rights had been violated in the course of the investigation . However , it changed the applicant ’s sentence for robbery , reclassifying it as theft .

On DATE the prosecutor ’s office instituted an investigation of the applicant ’s allegations concerning involvement of the accomplice A. in the crimes .

On DATE the investigation was terminated as no evidence of ORG ’s involvement had been obtained .

The relevant part of LAW reads as follows :

“ ... In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody . ...

Everyone who has been detained has the right to challenge his or her detention in court at any time . ... ”

The relevant provisions of the Code read as follows :

“ A person shall be considered a suspect if :

CARDINAL ) he / she has been arrested on suspicion of having committed a crime ;

CARDINAL ) NORP in his / her respect a preventive measure has been applied until a decision has been made to bring that person to the proceedings as an accused .

A suspect is entitled to know what he / she is suspected of ; to give evidence or refuse to give evidence and answer questions ; to have defence counsel and a meeting with him before the first questioning ; to challenge the lawfulness of his / her arrest before the court ...

It shall be stated in the arrest order or the decision to apply a preventive measure that the suspect has had his or her rights explained . ”

“ The participation of defence counsel during the inquiry and the preliminary investigation and during consideration of the criminal case in the first - instance court is obligatory :

CARDINAL ) NORP in the cases concerning a person who is suspected of or charged with a crime committed at the age of less than eighteen years , DATE from the moment when such a person is considered a suspect or when such a person has been charged with the crime ; ... ”

“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :

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

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

NORP if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .

If there is other information giving ground to suspect a person of a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .

For each case of a suspect ’s arrest , the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds , the motives , DATE , time , DATE , the place of arrest , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The arrest order shall be signed by the person who drew it up and by the detainee .

A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest shall be sent to him as well . ...

Within TIME of the arrest , the body of inquiry shall :

( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;

( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .

If the arrest is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE of receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .

The complaint shall be considered in accordance with the requirements of Article CARDINAL - CARDINAL of this Code . Following its examination , the judge shall give a ruling , either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful .

The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .

Preliminary detention of a suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up the order to that effect , and shall inform the official or body that carried out the arrest accordingly . ”

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

“ ... If a minor has not attained the age of DATE ... a pedagogue ... may be invited ... to be present during the introduction of charges against a minor and his questioning ... ”

The relevant provisions of LAW ( as worded at the relevant time ) can be found in the judgment of GPE v. GPE ( no . CARDINAL , § DATE , DATE ) .

The relevant extracts from the report read as follows :

“ CARDINAL . It appears from the information gathered during the DATE visit that the prompt and accurate recording of a person ’s detention ( i.e. from the moment he / she is obliged to remain with the ORG staff ) remains a considerable area of concern . The delegation ’s findings revealed that , in many instances , periods of detention ( from TIME DATE ) went unrecorded in the protocols of detention . At the same time , custody registers often contained incorrect data , and on occasion , misleading information . By way of illustration , the register of a district police station indicated that a person was detained there for TIME while it was subsequently established that the person in question was in fact held at the police station concerned for DATE . Resolute action is required on the part of the NORP authorities to put an end to this state of affairs .

The ORG recommends that steps be taken immediately to ensure that whenever a person is deprived of liberty by the ORG , for whatever reason , this fact is formally recorded without delay . Further , once a detained person has been placed in a cell , all instances of his / her subsequent removal from the cell should be recorded ; that record should state the date and time the detained person is removed from the cell , the location to which he / she is taken and the officers responsible for taking him / her , the purpose for which he / she has been removed from the cell , and the date and time of his / her return . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

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

On DATE the applicant lodged a claim for compensation with ORG ( Sąd Wojewódzki ) .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


CASE OF VELJANOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE she brought before ORG ( “ the first - instance court ” ) a compensation claim against ORG ( “ the hospital ” ) for pecuniary and non - pecuniary loss sustained as a result of an alleged medical negligence during a DATE surgery .

On DATE the first - instance court ordered the applicant to propose , within DATE , an expert so that to assess whether she had received proper care in the hospital .

On DATE the applicant made a proposal , while the hospital consented with PERSON . being the expert on DATE .

On DATE the first - instance court ordered the expert to produce his opinion , which he did on DATE . On DATE , the applicant increased the value of her claim .

On DATE the applicant requested additional expert examination . As on DATE the expert requested exclusion , the court ordered the applicant to propose a new expert within DATE . She proposed a new expert on DATE . The expert submitted his report only on DATE , while being ordered to do so on DATE .

After QUANTITY hearings being adjourned on the applicant ’s request and QUANTITY hearings on the hospital ’s request , the first - instance court ruled partly in favour of the applicant on CARDINAL DATE .

On DATE ORG upheld the parties’ appeals and remitted the case for a renewed consideration .

Hearings scheduled for DATE and CARDINAL DATE respectively , were adjourned due to the absence of witnesses .

On DATE the first - instance court requested an additional expert examination by PERSON .. On DATE the court withdrew this request due to the expert ’s repeated absence from hearings .

On DATE the first - instance court dismissed the applicant ’s claim . On CARDINAL DATE ORG upheld the applicant ’s appeal and referred the case back for a fresh consideration .

On DATE the first - instance court ordered ORG to draw up the third expert report .

On DATE ORG informed the court that the applicant had failed to attend medical examinations fixed for CARDINAL , DATE and DATE , respectively .

On DATE the first - instance court dismissed the applicant ’s claim relying , inter alia , on her failure to undergo medical examination . This decision was upheld by ORG ’s and ORG decisions of CARDINAL DATE and DATE , respectively . This latter decision was served on the applicant on DATE .


Preliminary objection dismissed (lack of jurisdiction);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 7;Preliminary objection joined to the merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Non-pecuniary damage - award

Alvina Gyulumyan;András Sajó;Antonella Mularoni;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Vitaliano Esposito;Vladimiro Zagrebelsky

The applicant was born in DATE and is at present imprisoned in GPE .

On DATE , after a fight with his CARDINAL sons , the applicant killed his wife and injured CARDINAL of his sons . He was arrested on DATE .

At the end of the preliminary investigation the GPE prosecution service asked for the applicant to be committed to stand trial for murder , attempted murder , ill - treatment of his family and unauthorised possession of a firearm

At a hearing on DATE before the GPE preliminary hearings judge ( giudice dell'udienza preliminare CARDINAL “ the ORG ” ) the applicant asked to be tried under the summary procedure , a simplified process which entailed a reduction of sentence in the event of conviction . In the version in force at that time LAW ( “ the ORG ” ) provided that , if the crime committed by the defendant was punishable by life imprisonment , the appropriate sentence should be DATE . ( see paragraph CARDINAL below ) .

The ORG agreed to follow the summary procedure . Further hearings were held on DATE and DATE . The last - mentioned hearing began at TIME

On DATE the ORG found the applicant guilty and noted that he was liable to a sentence of life imprisonment ; however , as the applicant had elected to stand trial under the summary procedure , the judge sentenced him to a term of DATE .

On DATE ORG at ORG appealed on points of law against ORG judgment of CARDINAL DATE . The prosecution argued that the ORG should have applied LAW no . CARDINAL of DATE , which entered into force on DATE when the applicant was convicted . After being amended by parliament , Legislative Decree no . CARDINAL was converted into PERSON no . CARDINAL of DATE .

NORP The prosecution contended in particular that LAW no . ORG had amended LAW ORG and now provided that , in the event of trial under the summary procedure , life imprisonment was to be substituted for life imprisonment with TIME isolation if there were “ cumulative offences ” ( concorso di reati ) or a “ continuous offence ” ( reato continuato DATE see paragraph CARDINAL below ) . The ORG 's failure to apply Legislative Decree no . CARDINAL amounted to “ a manifest error of law ” ( evidente errore di diritto ) .

On DATE and DATE the applicant appealed . His chief submission was that he should be acquitted on the ground that his conduct had not been intentional or that , at the time when the offences were committed , he was incapable of understanding the wrongful nature of his acts and of forming the intent to commit them ( incapacità de intendere e volere ) . In the alternative , he requested a reduction of his sentence .

As there were now CARDINAL appeals , at CARDINAL different levels of jurisdiction , ORG appeal on points of law was changed to an appeal on both facts and law and ORG was declared to have jurisdiction to hear the case ( LAW ORG ) .

The hearing in private before ORG was held on DATE . The applicant was not present and was tried in absentia . He alleged that , as he had difficulty in walking , he had asked to be taken to the courtroom by ambulance or some other suitably adapted vehicle but that , as the prison management had refused his request , he had been deprived of the possibility of participating in the appeal proceedings .

In a judgment of DATE , deposited with the registry on DATE , ORG sentenced the applicant to life imprisonment .

It observed that before the entry into force of Legislative Decree no . CARDINAL Article CARDINAL § CARDINAL of the ORG had been interpreted to mean that life imprisonment was to be replaced by a term of DATE , whether or not it was to be accompanied by daytime isolation on account of an accumulation of offences with the most serious one . In following that approach , the ORG had fixed the sentence in relation to the most serious offence , without considering whether to order the applicant 's TIME isolation on account of his conviction on the other charges against him .

NORP However , Legislative Decree no . CARDINAL of DATE had entered into force on DATE of the ORG 's decision . As its provisions were classed as procedural rules , it was applicable to pending proceedings , according to the tempus regit actum principle . ORG of Appeal further observed that under the terms of LAW no . CARDINAL the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure . As he had not done so , the first - instance decision ought to have taken account of the change in the rules on penalties which had taken place in the meantime .

On DATE the applicant appealed on points of law . He argued in the first place that the appeal proceedings should be declared null and void because he had not been able to participate , as defendant , in the appeal hearing on DATE . In his second and third grounds of appeal the applicant asserted that the trial courts had not given sufficient reasons either for ruling that he had intended to commit murder or for their finding that he knew what he was doing and had acted intentionally when committing the offences . Lastly , he contested the finding of an aggravating circumstance ( that he had acted for futile reasons ) and complained of the refusal to grant him extenuating circumstances .

On DATE the applicant submitted further grounds of appeal . He contended that a fresh expert opinion should have been produced on his mental state at the time when the offences were committed and presented new arguments on the question of aggravating and extenuating circumstances . Lastly , he submitted that the penalty deemed to be applicable in his case ( life imprisonment with isolation ) was excessive .

NORP In a judgment deposited with its registry on DATE , ORG dismissed the applicant 's appeal .

On DATE the applicant lodged an extraordinary appeal on the ground of a factual error ( Article CARDINALa of the ORG ) . He asserted in the first place that the domestic courts ' finding that he could have been taken to the appeal hearing by an ordinary means of transport and did not need an ambulance had been the result of an erroneous reading of the documents in the file . In addition , his absence , as the defendant , from that hearing had breached LAW . The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by LAW no . CARDINAL of DATE , and thus through a retrospective criminal - law provision , had breached LAW and the principles of fair trial . He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the ORG at the time when he made that choice . Lastly , he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to LAW .

In a judgment of CARDINAL DATE , deposited with its registry on DATE , ORG declared the applicant 's extraordinary appeal inadmissible . It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge ORG assessment on points of law .

The summary procedure is governed by ORG CARDINAL and CARDINAL to CARDINAL of the ORG . It is based on the assumption that the case can be decided as the file stands ( allo stato degli atti ) at the preliminary hearing . A request to be tried under the summary procedure may be made orally or in writing at any time before the parties have made their submissions at the preliminary hearing . If the summary procedure is followed , the hearing takes place in private and is given over to the parties ' oral submissions ; in principle , they must base their arguments on the documents included in the prosecution 's file , even though , exceptionally , oral evidence may be allowed . If the judge finds the defendant guilty , the sentence imposed is reduced by CARDINAL ( Article CARDINAL § CARDINAL ) . The relevant domestic provisions are described in the GPE v. GPE judgment ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL- ... ) .

The ORG also gave an overview of the provisions governing the summary procedure in its PERSON v. GPE judgment ( no . CARDINAL , DATE ) . At the time of the events which gave rise to the PERSON case the summary procedure was not available to persons accused of crimes punishable by life imprisonment . In judgment no . CARDINAL of DATE ORG had quashed the provision of LAW making that possibility available because it went beyond the powers parliament had delegated to the government with a view to the adoption of LAW ( “ the ORG ” ) .

By PERSON no . CARDINAL of DATE , which came into force on DATE , parliament reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to opt for the summary procedure . LAW provides :

Section CARDINAL

“ The following changes shall be made to LAW :

( b ) in paragraph CARDINAL , after the first sentence is added the following [ second and last sentence ] : ' life imprisonment shall be replaced by DATE imprisonment ' ” .

Legislative Decree no . CARDINAL of DATE , which came into force on DATE and was converted into PERSON no . CARDINAL of DATE , purported to give an authentic interpretation of the second sentence of paragraph CARDINAL of Article CARDINAL of the ORG and added a third sentence .

Legislative Decree no . CARDINAL included , under the chapter entitled “ Authentic interpretation of Article CARDINAL paragraph CARDINAL of LAW and provisions regarding the summary procedure in trials for offences punishable by life imprisonment ” , Articles CARDINAL and CARDINAL , which provide :

Article CARDINAL

“ CARDINAL . In Article CARDINAL , paragraph CARDINAL , [ second and ] last sentence , of LAW , the words ' life imprisonment ' should be taken to mean life imprisonment without daytime isolation .

In Article CARDINAL , paragraph CARDINAL , of LAW is added , in fine , the following sentence : “ Life imprisonment with daytime isolation , in the event of cumulative offences or a continuous offence , shall be replaced by life imprisonment . ”

Article CARDINAL

“ CARDINAL . NORP In criminal proceedings pending on the date of the entry into force of the present legislative decree , where the defendant is liable to or has been sentenced to life imprisonment with daytime isolation , and has opted for the summary procedure ... , he or she may withdraw his or her request within DATE of the date on which the legislation implementing the present legislative decree enters into force . In that case , the proceedings shall be resumed under the ordinary procedure at the stage they had reached when the request was made . Any investigative findings which may have been reached may be used within the limits laid down by LAW .

Where , on account of an appeal by the prosecution , it is possible to apply the provisions of LAW , the accused may withdraw the request referred to in paragraph CARDINAL within DATE of the time when he or she learns of the appeal by the prosecution or , if such an appeal was lodged before the entry into force of the legislation to implement the present legislative decree , within DATE of the latter date . The provisions of the second and third sentences of paragraph CARDINAL shall apply ... ”

Article CARDINAL of the CARDINAL Criminal Code , entitled “ Succession of criminal laws ” , reads as follows :

“ CARDINAL . No one may be punished for an act which , under the law in force at the time when it was committed , was not an offence .

No one may be punished for an act which , under a subsequent law , does not constitute an offence ; if the defendant has been sentenced , execution of his sentence and its criminal effects shall cease .

NORP If the law in force at the time when the offence was committed and later [ laws ] differ , the law to be applied is the one whose provisions are most favourable to the defendant , except where a final sentence has already been imposed .

The provisions of the [ CARDINAL ] preceding paragraphs shall not apply when the later laws are exceptional and temporary .

The provisions of the present article shall also apply where a legislative decree 's conversion into statute - law is time barred [ decadenza ] or does not take place , and where a legislative decree has been converted into statute - law with amendments . ”

Royal Decree no . CARDINAL of DATE provides that ORG ( Gazzetta ufficiale ) is published by ORG . LAW decree reads as follows :

“ Publication shall take place DATE during TIME ( nelle ore pomeridiane ) . ”

By judgment no . CARDINAL of CARDINAL DATE ORG ruled that publication of a law in ORG was the “ essential and decisive moment ” among the steps taken to promulgate a legislative text . Moreover , the expression “ publication in the Official Gazette ” presupposed that the latter was placed in circulation and therefore accessible to the public . ORG observed in particular : “ [ the terms ] publication of laws ' in the ' Official Gazette [ could ] only mean ... also publication ' of the ' Official Gazette ... : otherwise there would be a negation of the very procedure of publishing laws , which , historically speaking , was designed to create an objective situation effectively permitting every individual to be aware of the acts in question ( situazione oggettiva di effettiva conoscibilità , da parte di tutti , degli atti medesimi ) . ”

Article CARDINAL of LAW , adopted by ORG of ORG in Resolution CARDINAL A ( XXI ) of DATE , which entered into force on DATE , is worded as follows :

“ CARDINAL . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence , under national or international law , at the time when it was committed . Nor shall a heavier penalty be imposed than the CARDINAL that was applicable at the time when the criminal offence was committed . If , subsequent to the commission of the offence , provision is made by law for the imposition of a lighter penalty , the offender shall benefit thereby .

Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles of law recognized by the community of nations . ”

Article CARDINAL of LAW , which was adopted on DATE at ORG and came into force on DATE , reads as follows :

“ No one shall be convicted of any act or omission that did not constitute a criminal offense , under the applicable law , at the time it was committed . A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed . If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment , the guilty person shall benefit therefrom . ”

At the ORG meeting in GPE on DATE ORG , ORG and ORG proclaimed LAW . LAW , entitled “ Principles of legality and proportionality of criminal offences and penalties ” is worded as follows :

“ CARDINAL . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed . Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed . If , subsequent to the commission of a criminal offence , the law provides for a lighter penalty , that penalty shall be applicable .

This Article shall not prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles recognised by the community of nations .

The severity of penalties must not be disproportionate to the criminal offence . ”

In the case of ORG , ORG of ORG held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the member GPE ( see the judgment of CARDINAL DATE in joined cases C-CARDINAL/CARDINAL , C-CARDINAL/CARDINAL and C-CARDINAL/CARDINAL ) . The relevant passages of the judgment ( § § DATE ) read as follows :

“ CARDINAL . Setting aside the applicability of Article CARDINAL of ORG to the failure to publish DATE accounts , it should be noted that , under LAW , which sets out the principle that the more lenient penalty should be applied retroactively , the new ORG CARDINAL and CARDINAL of the NORP Civil Code ought to be applied even if they entered into force only after the commission of the acts underlying the prosecutions brought in the cases in the main proceedings .

It must be pointed out in this regard that , according to settled case - law , fundamental rights form an integral part of the general principles of law , the observance of which the ORG ensures . For that purpose , the ORG draws inspiration from the constitutional traditions common to the Member GPE and from the guidelines supplied by international treaties for the protection of human rights on which the Member GPE have collaborated or to which they are signatories ( see , inter alia , Case C CARDINAL/CARDINAL Schmidberger [ DATE ] ECR I DATE , paragraph CARDINAL and the case - law there cited , and Joined Cases C CARDINAL/CARDINAL and C CARDINAL/CARDINAL Booker Aquaculture and ORG [ DATE ] ECR I DATE , paragraph CARDINAL and the case - law there cited ) .

DATE . The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member GPE .

It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and , more particularly in the present cases , the directives on company law . ”

The principles affirmed by ORG were repeated in a judgment of ORG of ORG given on DATE ( dismissal of appeal no . DATE ) . The relevant passages of the judgment read as follows :

“ ... in any event the general principles of Community law take precedence over national law . In a judgment of CARDINAL DATE ORG of ORG observed that the principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the member GPE and it follows that the said principle must be considered one of the general principles of Community law which national courts must comply with when applying the national law adopted with a view to implementing Community law ( DATE and CARDINAL of the judgment of CARDINAL DATE ) . In the present case , consequently , it was in breach of that principle taking precedence over national law that ORG sentenced [ the accused ] on the basis of a national law adopted with a view to implementing Community law , having unlawfully disregarded the principle of the retroactive application of the more lenient penalty .

... LAW provides , without any exception , that where , subsequent to the commission of an offence , the law provides for the application of a more lenient penalty , the offender must be given the benefit thereof . That text takes precedence over NORP law by virtue of LAW . It follows that ORG could not disregard the new more lenient law on the sole ground that the later law had expressly excluded any retroactive effect in contravention of the principle laid down by the text referred to above . ... ”

NORP Under the terms of LAW ,

“ In the event of a change in the law applicable to a given case prior to a final judgement , the law more favourable to the person being investigated , prosecuted or convicted shall apply . ”

In a judgment of CARDINAL DATE , given in the PERSON case ( no . IT-CARDINAL - CARDINAL-A ) , ORG of the ORG held that the principle of the applicability of the more lenient criminal law ( lex mitior ) applied to its statute . The relevant parts of the judgment ( § § DATE ) read as follows :

“ CARDINAL . ORG first considered whether the principle of lex mitior had been applicable in the former GPE and whether it was part of the law of ORG and then addressed the question of whether the lex mitior principle was applicable in the present case .

NORP The contentious part of LAW is the finding of ORG that “ the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction ” and that , because this ORG exercises a different jurisdiction from the national jurisdiction in which the crimes were committed , the principle does not apply . ORG notes that the question of the applicability of the principle is not one of jurisdiction , but rather CARDINAL of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of ORG .

The principle of lex mitior is understood to mean that , if the law relevant to the offence of the accused has been amended , the less severe law should be applied . It is an inherent element of this principle that the relevant law must be binding upon the court . Accused persons can only benefit from the more lenient sentence if the law is binding , since they only have a protected legal position when the sentencing range must be applied to them . The principle of lex mitior is thus only applicable if a law that binds ORG is subsequently changed to a more favourable law by which ORG is also obliged to abide .

ORG is clearly bound by its own LAW , and thus to the sentencing range of a term up to and including the remainder of the convicted person 's life as provided for in LAW ) of the Rules and LAW . ORG notes that there has not been a change in the laws of ORG regarding sentencing ranges .

The sentencing range in the former GPE would be restricted to a fixed term of imprisonment . ORG notes that , since the establishment of ORG , an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment .

ORG , however , reiterates its finding that ORG , having primacy , is not bound by the law or sentencing practice of the former GPE . It has merely to take it into consideration . Allowing the principle of lex mitior to be applied to sentences of ORG on the basis of changes in the laws of the former GPE would mean that GPE former GPE have the power to undermine the sentencing discretion of ORG judges . In passing a national law setting low maximum penalties for the crimes mentioned in LAW to CARDINAL of ORG statute , GPE could then prevent their citizens from being properly sentenced by this ORG . This is not compatible with ORG primacy enshrined in Article CARDINAL ) of the ORG and its overall mandate .

In sum , properly understood , lex mitior applies to the Statute of the International Tribunal . Accordingly , if ever the sentencing powers conferred by the Statute were to be amended , ORG would have to apply the less severe penalty . So far as concerns the requirement of Article CARDINAL ) that “ the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former GPE ” , these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part . So construed , they refer to any pertinent laws of the former GPE which were in force at the time of commission of the crime in question ; subsequent changes in those laws are not imported .

For the foregoing reasons , the fifth ground of appeal is dismissed . ”


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants are NORP nationals and live in GPE .

They are owners of a real estate in GPE . On DATE the ORG ordered the applicants to pay a contribution amounting to ORG CARDINAL,CARDINAL.CARDINAL ( CARDINAL € ) for the construction of a street adjacent to their land . The contribution was based on the LOC ’s decree on contributions for the construction of local public infrastructure ( Erschließungsbeitragssatzung ) . The GPE repeatedly amended this decree ( in DATE , DATE and DATE respectively ) .

On DATE the applicants lodged an administrative appeal ( Widerspruch ) . They contested the amount to be paid and alleged that the street had not been duly constructed . The GPE should have requested the company which had been commissioned to construct the street to reduce the price on account of the defective construction . Furthermore the applicants referred to LAW ( Baugesetzbuch ) pursuant to which the contribution for a local public infrastructure facility was only due after its final construction ( endgültige ORG ) . The street had not been finally constructed because it did not meet the conditions for the final construction of a facility as laid down in the GPE ’s decree on contributions for the construction of local public infrastructure .

The applicants moreover accused the employees of the LOC of having acted for their own unjustified enrichment as they commissioned a firm which had evidently offered its service for speculative prices ( Spekulationspreise ) . These allegations led to criminal investigations of ORG during which CARDINAL expert opinions were furnished concerning the construction of the impugned road . The criminal investigations , instituted in DATE , were discontinued in DATE and DATE .

On DATE the applicants requested that the execution of the order be stayed ( NORP der Vollziehung ) . The GPE rejected their motion on DATE . On DATE the applicants filed a motion for an interim injunction to stay the execution . On DATE ORG ordered the stay of the execution . On DATE ORG rejected the GPE ’s appeal .

On DATE the applicants lodged a complaint for failure to act ( Untätigkeitsklage ) with ORG pursuant to LAW ( Verwaltungsgerichtsordnung – see “ Relevant domestic law ” LAW below ) because the Municipality had not yet decided upon their administrative appeal of DATE . ORG asked ORG to submit the CARDINAL expert opinions prepared in the course of the criminal investigations against the employees of the Municipality . In DATE at the latest ORG submitted the expert opinions to ORG .

In DATE the GPE instituted proceedings to preserve evidence ( GPE ) before ORG . On DATE the court ordered an expert opinion on the defects of the road construction . Upon the inquiry of ORG on DATE ORG announced that the expert opinion was to be furnished at DATE . On DATE the expert opinion dated DATE was submitted to ORG .

On DATE ORG quashed the order of the GPE dated DATE inter alia because the street had not been constructed in conformity with the GPE ’s decree . The ORG based its decision on CARDINAL of the expert opinions prepared in the course of the criminal investigations , on the expert opinion prepared in the proceedings before ORG and on CARDINAL expert opinions prepared in the context of the proceedings before it . The court also heard CARDINAL of the experts as expert witnesses .

On the LOC ’s appeal , ORG quashed the judgment on DATE , rejected the ORG complaint and refused leave to appeal on points of law ( ORG der Revision ) . At the oral hearing on the appeal , the applicants filed CARDINAL requests for the taking of evidence .

On DATE ORG granted the ORG request for leave to appeal , quashed the decision of ORG and remitted the matter to it , without deciding separately upon the admissibility of the appeal on points of law in order to expedite the proceedings . It held that ORG had not provided sufficient reasons for its decision , in particular it had failed to expose why it had not considered the applicants’ submissions .

On DATE ORG rejected the applicants’ appeal without holding a hearing .

On DATE ORG quashed this decision and remitted the case again to ORG . It held inter alia that the latter had not sufficiently justified why it had not examined the applicants’ offers of proof , even it might have been troublesome to deal with each of the offers of proof ( “ auch wenn es mühselig ist ( ... ) , sich mit jedem PERSON auseinanderzusetzen ” ) . It observed moreover that the decision of ORG not to hold a hearing without informing the parties was not in conformity with the procedural requirements .

On DATE a hearing was held in the resumed proceedings before ORG during which the applicants filed CARDINAL requests for the taking of evidence . The GPE reduced the amount to be paid by the applicants to ORG ORG and the parties declared the case settled in respect of the amount in excess ( ORG ) . On DATE ORG discontinued the proceedings as to the amount exceeding DEM CARDINAL,CARDINAL.CARDINAL and dismissed the ORG complaint as to the remainder .

On DATE ORG rejected the ORG request for leave to appeal on points of law .

On DATE the applicants lodged a constitutional complaint and argued inter alia that the length of proceedings had been excessive .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the constitutional complaint without giving any reasons . The decision was served on the ORG representative on DATE .

Section CARDINAL of the Code of Administrative Court Procedures ( Verwaltungsgerichtsordnung ) provides inter alia that an application to set aside an order ( ORG ) can be lodged with ORG if the administrative authorities fail without sufficient justification to decide upon the administrative appeal against this order within a reasonable time - limit , in general DATE .

LAW ( Baugesetzbuch ) establishes inter alia that infrastructure development shall be the task of the Municipality ( Section CARDINAL ) but that the latter may assign the infrastructure development to a third party by agreement ( Section CARDINAL ) . Furthermore , the GPE shall charge an infrastructure contribution to cover the costs for the infrastructure facilities not otherwise covered ( Section CARDINAL ) but it shall assume CARDINAL % of the infrastructure expenditures subject to contribution ( Section CARDINAL ) .


Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

S. is a mason and lives in GPE .

In DATE a protest movement broke out in the town of GPE ( GPE of GPE ) directed against the sale of nuclear power stations to a NORP country then under a military regime . It continued in DATE in the form of demonstrations against the holding of an international arms fair , and writing graffiti and occupying buildings as a protest against the housing shortage . In DATE and DATE there was a series of cases of arson and attacks using explosives , causing damage to several public and private buildings including the house of PERSON , who was then a ORG Minister ( Bundesrat ) and head of ORG and Police .

On DATE the GPE police set up a special unit with the task of co - ordinating the hunt for those responsible for these crimes . It shadowed the members , tapped the telephones and regularly emptied the dustbins of a commune which was thought to be sheltering the criminals .

On DATE , the police arrested CARDINAL persons and seized numerous documents at the same time . CARDINAL of these persons were released again on DATE . The others were detained in solitary confinement , without being able to correspond freely with their lawyers , and each was the subject of a separate procedure .

S. was suspected of being involved in the above - mentioned crimes . He was arrested at his home in GPE on DATE but succeeded in escaping . He was arrested again on DATE and charged with the use of explosives in connection with the attack on PERSON house .

On DATE ORG ( Bundesanwalt ) sent the GPE authorities various documents implicating the applicant . On DATE he was questioned by members of ORG on the accusations against him , but exercised his right to silence .

The investigation became the responsibility of the GPE ORG ( PERSON ) on CARDINAL DATE , and PERSON was taken to GPE prison .

After questioning him on DATE the District Attorney ( GPE ) accused him of having caused an explosion at Mr PERSON ’s house and started a fire at a civil defence centre . He again remanded him in custody on the grounds of the risk of flight and of collusion with his co - accused . On DATE he further accused him of arson at CARDINAL rifle ranges , flooding business LOC and criminal damage to property by means of graffiti . According to S. ’s lawyer all these charges were based on graphological reports which had been drawn up on the basis of documents seized by the police on DATE ( see paragraph CARDINAL above ) .

On DATE the GPE authorities sent the GPE ORG the results of their investigations .

In DATE the applicant had asked his mother to ask PERSON , the lawyer representing CARDINAL of the other accused , PERSON , to take on his defence too . Mr PERSON declined to do this and on CARDINAL DATE S. instructed PERSON . On DATE the President of ORG ( Anklagekammer ) of ORG ( ORG ) designated him as court - appointed defence counsel with retrospective effect from DATE

On DATE , while still in custody in GPE , the applicant had been able to confer freely with PERSON for TIME . From CARDINAL May , on the other hand , visits took place under the supervision of a police official . CARDINAL of the applicant ’s letters to his lawyer , dated CARDINAL , DATE and DATE May , were intercepted and were later used for the purpose of graphological reports .

After being transferred to GPE prison PERSON continued to be subject to surveillance of his correspondence and his lawyer ’s visits . He was , however , able on DATE to have a meeting with no witness present with PERSON , a lawyer who had been approached by his mother to undertake his defence .

On DATE the applicant spoke with PERSON in the presence of a policeman who took notes and stopped the interview after TIME , on the grounds that they were no longer speaking about the case and he had other business to see to .

In a letter of CARDINAL DATE the GPE District Attorney informed ORG ( Staatsanwalt ) that he considered these measures necessary in view of the risk that the applicant ’s lawyer might collude with other lawyers or other co - accused . He relied on the second paragraph of LAW ( Strafprozessordnung ) , according to which :

" An accused who is held in custody shall be permitted written and oral contact with defence counsel , in so far as the purpose of the investigation is not jeopardised .

Once his detention has exceeded DATE , an accused must not be refused permission to consult defence counsel freely and without supervision , unless there are special reasons , in particular a danger of collusion . After the close of the investigation , an accused shall have this right without restriction .

ORG of ORG gave PERSON ’s lawyer permission on DATE to examine CARDINAL police reports and several transcripts of statements by the co - accused at the registry of the Court , but not to take copies of them . From that date until DATE ( see paragraph CARDINAL below ) Mr Garbade did not have access to any other documents in the case - file .

There were numerous disputes between the lawyer and those carrying out the surveillance , notably on DATE when the lawyer wanted to give his client several decisions and letters from the District Attorney and a copy of the memorial for the public - law appeal of CARDINAL DATE ( see paragraph CARDINAL below ) . The latter document was seized by the officer and sent to the District Attorney .

On application by the GPE ORG the President of ORG of ORG extended the applicant ’s detention on remand until DATE , in order to prevent him colluding with his co - accused , who had meanwhile been released , and tampering with evidence .

In DATE PERSON saw some extracts from the final police report of CARDINAL DATE , but he did not have access to the case - file until DATE .

On DATE the applicant appealed to ORG of ORG , complaining of the surveillance of the interview of DATE ( see paragraph CARDINAL above ) , and supplemented the appeal on DATE following other visits on CARDINAL and DATE .

ORG dismissed PERSON ’s appeal on DATE . It pointed out that he was suspected of having committed the crimes in question and said that in view of the complexity and extent of the authorities’ investigation there was a serious risk of collusion ; because the accused had refused to make a statement , it would have been easy for him to tamper with the evidence , as his co - accused had been released , apart from W. He had also kept in close contact with them , and was accused of serious offences which had constituted attacks on public and social order . There was also a risk of unintentional collusion on the part of PERSON in view of his contacts with the lawyers representing the other accused , especially counsel for PERSON As for the conduct of the policeman responsible for surveillance of the interview of CARDINAL DATE ( see paragraph CARDINAL above ) , this could be justified .

The applicant appealed against this decision to ORG of ORG ; on DATE that court upheld the decision . The court found that a danger that the applicant would collude with his co - accused followed from his refusal to make a statement , and it could be supposed that he would use every effort to make their respective statements agree with each other ( abstimmen ) . PERSON had indeed been able to confer freely with him , but ORG did not find credible Mr PERSON ’s assertions that his contacts with the lawyers representing the other accused were no closer than PERSON ; further , counsel for PERSON had advised LOC Office that the lawyers had all agreed to co - ordinate their strategy .

The court added :

" Acting in such a way is not inadmissible , but it must , however , be compatible with the duty to ascertain the material truth ( ORG der materiellen GPE ) . As the accused represented by PERSON and Mr PERSON are exercising their right to refuse to make any statements , one can not ignore the risk that defence counsel will not only co - ordinate their tactical and legal way of proceeding but may also , intentionally or not , adversely affect the ascertainment of the material truth . In these circumstances , precisely in the case of offences of this type which must be regarded as attacks on public and social order , there are sufficient indications pointing to a danger of collusion in the person of defence counsel . "

On DATE the applicant had also challenged a decision by the President of ORG extending his detention on remand . He complained that he had not been able to examine all the documents in the case - file , and that the proceedings had been entirely written . On DATE ORG dismissed the appeal and confirmed the further remand until DATE , on the grounds that there was still a danger of collusion and flight .

S. then brought CARDINAL public - law appeals before ORG on DATE .

In the first appeal , which was directed against the decision of DATE ( see paragraph CARDINAL above ) , he relied on Article CARDINAL para . CARDINAL ( b ) in conjunction with LAW CARDINAL ( article CARDINAL - CARDINAL-b , article DATE ) of the Convention . He alleged that the surveillance of the interviews made his right to take proceedings within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) illusory , and that his right to a fair hearing was deprived of substance as regards the review of the lawfulness of his detention on remand ; in particular , the aforesaid surveillance prevented any confidential conversation with his lawyer aimed at refuting the evidence collected during the investigation . Further , he did not have access to the case - file and his lawyer was unable to take a copy of it .

The second appeal challenged the decisions of DATE and CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) and put forward essentially the same complaints .

On DATE ORG dismissed the appeal of DATE ( see paragraph CARDINAL above ) . It found inter alia that PERSON , whose task it was to draw up the application for release from detention , had had access to the case file , so that the applicant ’s rights in the proceedings on the extention of his pre - trial detention had not been infringed . The court added that counsel would , at the preparation for trial at the latest , have the right to a copy of the case - file for his client if he asked for this .

The appeal of CARDINAL DATE ( see paragraph CARDINAL above ) suffered the same fate on DATE . ORG held that only LAW CARDINAL para . CARDINAL ( c ) ( article DATE ) of the Convention ( as interpreted by ORG ) were relevant , and not Article CARDINAL para . CARDINAL ( b ) ( article CARDINAL - CARDINAL-b ) , as the surveillance had not prejudiced preparation for the trial .

The authorities had not been arbitrary in describing the offences in question as systematic attacks on public and social order . The accused appeared to be extremely dangerous and it was reasonable to suppose that they would have resorted to illegal methods even during the judicial proceedings . Consequently , regardless of Mr Garbade ’s personal qualities , surveillance of his contacts with his client was in accordance with the LAW and LAW .

In the event of irregular actions on the part of a lawyer , it was in the first place up to the disciplinary authorities to impose penalties on him . A lawyer could intentionally or unintentionally become the accomplice of an accused . This was the case in particular with PERSON , who was in close contact with Mr PERSON , whose client PERSON had been allowed to communicate freely with him . However , the applicant could not claim to be the victim of discrimination , as PERSON had been in custody for much longer and was accused of additional offences .

The surveillance had not been relaxed in the meantime . The police officer in charge of it had drawn up reports on DATE , DATE , DATE and DATE ; these were subsequently added to the case - file . It was apparent from the first report that PERSON had had to show him the documents he was studying with his client .

In a letter of CARDINAL DATE the GPE ORG had informed ORG that the surveillance was aimed at eliminating all risk of collusion ; he considered , however , that it was unlikely that a conversation listened to could be used in evidence against S. in any way .

On DATE the GPE District Attorney notified PERSON that he would end the surveillance as soon as he had heard the applicant ’s statement on the accusations brought against him . Mr PERSON replied that PERSON would refuse to make any statement as long as the surveillance continued .

The surveillance of visits and correspondence was ended on DATE following an interrogation lasting DATE . On that occasion the District Attorney asked the applicant to make a statement , but he exercised his right to silence . After this he was able to confer with his counsel in the prison library with no glass screen or any other restriction .

On DATE the applicant had brought an appeal inter alia against the surveillance of visits and the fact that he was not allowed to consult the case - file .

On DATE ORG of ORG had adjourned a decision on the first point , on the grounds that LOC ORG was about to discontinue the surveillance . On the second point the court had found that PERSON was still suspected of the offences in question and the length of the investigation was caused by his insistence on remaining silent .

On DATE the court found that the complaint on which it had adjourned a decision on DATE was no longer a live issue now that the surveillance measures had ended ( see paragraph CARDINAL above ) . In order to decide whether the applicant was liable for costs or was entitled to damages , it assessed what chances of success the appeal would have had if the surveillance had continued . It noted that the circumstances referred to in ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) had not changed by DATE , the date of the appeal , and the restrictions on free communication between the applicant and his lawyer thus remained justified ; it therefore did not award him any pecuniary compensation .

S. appealed against this decision to ORG of ORG , which upheld the decision on DATE , again on the grounds that the appeal of DATE would probably have failed .

S. finally brought a public - law appeal on CARDINAL DATE . ORG dismissed it on CARDINAL DATE . Restricting itself to examining whether the refusal to award compensation was tainted by arbitrariness , it found that there had been a danger of collusion and in essence approved the findings of ORG ( see paragraph CARDINAL above ) .

In a report drawn up for the GPE ORG on CARDINAL DATE , the GPE police had expressed the opinion that some of the anonymous letters which had been sent shortly after the offences in question undoubtedly came from the applicant .

The final interrogation took place on DATE . According to the record , PERSON refused to answer the accusations brought against him , and his lawyer attributed those accusations to the fact that his client was thought to have anarchist opinions .

The GPE ORG ’s final report ( ORG ) of CARDINAL DATE , comprising CARDINAL pages , accused the applicant of CARDINAL offences and attempted offences of arson , participation in CARDINAL attacks with explosives , various thefts and offences of criminal damage , including damage to a railway line ; the damage amounted to MONEY . The report was forwarded to ORG .

On DATE , DATE and CARDINAL DATE the applicant made unsuccessful requests to ORG to reopen the investigation . He applied again on DATE .

In accordance with paragraph CARDINAL ( c ) of LAW a of FAC he left it to ORG to decide which court would try him . The ORG decided to commit him for trial by ORG rather than ORG ( Geschworenengericht ) , as it considered that his interests would be better protected in that way , especially with regard to his youth .

The trial was due to start on DATE but the applicant did not appear . ORG therefore adjourned the hearing .

A fresh hearing took place on DATE , in the absence , for which no reason had been given , of S. who had been provisionally released on DATE . ORG found him guilty inter alia of manufacturing explosives , arson , theft and criminal damage and sentenced him to DATE imprisonment - DATE spent in custody on remand being deducted - and to payment of costs and expenses .

The applicant appealed . A new trial took place on DATE , again in his absence . After hearing his counsel and the representative of ORG , ORG upheld its judgment of DATE . He appealed to ORG of the GPE of GPE , and enforcement of the judgment was suspended by the appeal .


Violation of Art. 5-4;Not necessary to examine under Art. 13

The applicant was born in GPE , GPE , in DATE . He currently resides in PERSON , the LOC .

In DATE the applicant was convicted of attempted rape . However , he was exempted from serving his sentence on the grounds of diminished responsibility and underwent compulsory medical treatment in a psychiatric hospital from DATE .

On DATE the applicant again attempted to commit rape .

On DATE the Zheleznodorozhny ORG of PERSON ( the “ PERSON Court ” ) ordered the applicant to undergo compulsory medical treatment in a psychiatric hospital under close supervision . This decision was not appealed and became final . He was detained in ORG .

On DATE the psychiatric commission recommended that the applicant be transferred to a hospital with strict supervision ( a higher level than the previous one ) .

On DATE the Krasnogvardejsky ORG of Dnepropetrovsk allowed the petition lodged by the chief psychiatrist of ORG . It quashed the decision of CARDINAL DATE , but decided that the applicant should continue to undergo compulsory medical treatment under close supervision . This resolution was not appealed and became final .

From DATE to DATE the applicant remained in detention in ORG under close supervision .

From DATE until DATE the applicant was under compulsory medical treatment with close supervision in ORG ( the “ CRPH ” ) .

On DATE the CRPH lodged a request with ORG that the applicant ’s regime be reduced to ordinary supervision .

On DATE ORG decided that the applicant should be placed under ordinary supervision in the psychiatric hospital since his behaviour had improved .

On DATE the ORG refused an application by the Chief Psychiatrist of ORG ( the “ Chief Psychiatrist ” ) , based on a medical report dated DATE , to terminate the applicant ’s compulsory medical treatment since his state of health had improved . In particular , it referred to the gravity of the offence committed by the applicant .

On DATE the applicant ’s lawyer lodged a cassation appeal with ORG . On DATE this court upheld the decision of CARDINAL DATE . In particular , it ruled that the requests for release were unsubstantiated as the applicant had not fully recovered from his mental illness .

On DATE ORG rejected a further application by the Chief Psychiatrist lodged on the basis of the conclusions of the applicant ’s medical examination on DATE , as being unsubstantiated .

On DATE , the applicant ’s lawyer lodged an appeal in cassation with ORG . On DATE the court upheld the decision .

On DATE the Chief Psychiatrist lodged another application with ORG of PERSON ( the “ ORG ” ) seeking to quash the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision . On DATE ORG rejected this application for lack of substantiation and , on DATE , ORG of the LOC upheld that decision .

On DATE the psychiatrist of the CRPH lodged an application with the ORG seeking to quash the compulsory medical treatment imposed on the applicant . He also requested that the court order the applicant ’s transfer to an ordinary supervisory regime . On DATE ORG rejected this application as unsubstantiated . In particular , it noted the gravity of the crime committed by the applicant and the fact that he was a repetitive offender . The court further held that the conclusions of the medical commission were insufficient to quash the compulsory treatment measure .

On DATE the Head of ORG lodged an application with ORG , seeking to end the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision .

On DATE ORG allowed the application and decided that treatment could be given to the applicant under ordinary supervision , since his state of health had improved . The resolution of DATE was not appealed and became final .

The applicant was released from the psychiatric hospital on DATE .

The relevant provisions of LAW read as follows :

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

“ ... CARDINAL . NORP A person , who , during the commission of an act generally deemed to be dangerous by the present Code , was not criminally responsible , that is , not able to account for himself or his own actions ( omissions ) as a consequence of chronic mental illness , temporary disturbance of mental activity , feeble - mindedness , or other mental disorder , shall not be liable to criminal sanctions . ... ”

“ CARDINAL . A person deemed by a court to be of diminished responsibility , so that , at the time of committing an offence , he was not fully capable of accounting for and controlling his own actions ( or omissions ) as a consequence of a mental disorder ... , shall be subject to criminal sanctions .

NORP The fact that a person has been held to be of diminished responsibility shall be taken into account by a court when deciding on the imposition of a penalty and may be a ground for the application of compulsory measures of a medical character . ”

“ CARDINAL . A person who has committed a crime shall be exempted from criminal responsibility in the instances provided for by the present Code , and also on the basis of an amnesty law ... or a pardon .

Exemption from criminal responsibility in the instances provided for by the present Code shall be ordered exclusively by a court . The procedure for exemption from criminal responsibility shall be established by law . ”

“ Compulsory measures of a medical character shall be : the provision of outpatient psychiatric assistance ; the placement of a person who has committed a socially dangerous act , falling within the scope of the Special Part of the present Code , in a specialised institution for the purpose of compulsory treatment , and the prevention of the commission of socially dangerous acts by a person . ”

“ Compulsory measures of a medical character may be applied by a court to persons who have

... ( CARDINAL ) committed offences in a state of diminished responsibility ; ... ”

“ CARDINAL . Depending on the character and gravity of the illness , the gravity of the act committed , and taking into account the degree of danger a mentally ill person presents to himself or to other persons , a court may apply the following measures of a medical character :

( CARDINAL ) NORP compulsory provision of outpatient psychiatric assistance ;

( CARDINAL ) hospitalisation in a psychiatric institution under ordinary observation ;

( CARDINAL ) hospitalisation in a psychiatric institution under close observation ;

( CARDINAL ) hospitalisation in a psychiatric institution under strict observation .

Compulsory provision of outpatient psychiatric assistance may be ordered by a court with respect to a person suffering from a mental disorder who has committed a socially dangerous act if the person , by reason of his mental state , does not require confinement in a psychiatric institution .

Hospitalisation in a psychiatric institution under ordinary observation may be ordered by a court with respect to a mentally ill person who , on account of his mental state and the nature of the socially dangerous act committed , requires confinement and compulsory treatment .

Hospitalisation in a psychiatric institution under close observation may be ordered by a court with respect to a mentally ill person who committed a socially dangerous act not connected with an attempt on the life of other persons and who , on account of his mental state , does not represent a threat to society but requires confinement in a psychiatric institution and treatment under conditions of close observation .

Hospitalisation in a psychiatric institution under strict observation may be ordered by a court with respect to a mentally ill person who has committed a socially dangerous act connected with an attempt on the life of other persons , and also with respect to a mentally ill person who , on account of his mental state and the nature of the socially dangerous acts committed , represents a special danger to society and requires confinement in a psychiatric institution and treatment under conditions of strict observation .

If the application of compulsory measures of a medical character to a mentally ill person is not deemed to be necessary , and , likewise , in the event of the termination of the application of such measures , a court may place him in the care of relatives or guardians under compulsory medical observation . ”

“ CARDINAL . The extension , modification or termination of the application of compulsory measures of a medical character shall be ordered by a court upon an application by a representative of the institution ( or a psychiatrist ) providing the treatment , to which application shall be appended the opinion of a commission of psychiatrists substantiating the need to extend , modify or terminate the application of such compulsory measures .

Persons subject to compulsory measures of a medical character shall be examined by a commission of psychiatrists not less than once DATE in order to decide whether there are grounds for applying to a court to terminate or modify the application of such measures . If there are no grounds for terminating or modifying the application of a compulsory measure of a medical character , the representative of the institution ( or the psychiatrist ) rendering psychiatric assistance to the person shall send to the court an application , to which shall be appended the opinion of the commission of psychiatrists substantiating the need to extend the compulsory measures . If it is necessary to extend the application of a compulsory measure of a medical character for DATE , the representative of the [ competent ] institution ( or the psychiatrist ) ... must apply to the court in the place where the institution is located for that extension . To the application shall be appended the opinion of the commission of psychiatrists substantiating the need to continue the provision of psychiatric assistance to the person . Thereafter , the application of a compulsory measure of a medical character shall be extended each time for a term which may not exceed DATE .

NORP If the application of compulsory measures of a medical character is terminated because of an improvement in the person ’s mental state , a court may transfer him to the care of relatives or guardians under compulsory medical observation . ”

“ CARDINAL . Compulsory treatment may be ordered by a court irrespective of the sentence given to persons who have committed crimes and suffer from an illness representing a danger to the health of other persons .

NORP If the sentence takes the form of a deprivation or limitation of liberty , compulsory medical treatment shall be provided at the place where the sentence is being served . If other types of penalties are imposed , compulsory treatment shall be provided in specialised institutions . ”

The prolongation or termination of the compulsory medical treatment of internees in mental hospitals , in the period from DATE to DATE , were regulated by the NORP legislation in force at the material time ( the Decree of the Verkhovna Rada of GPE of CARDINAL DATE “ on the temporary operation of certain legislative acts of the GPE in the territory of GPE ” ) .

Under LAW DATE of the ORG of ORG GPE that approved the Regulation “ on the conditions and procedure for providing psychiatric medical assistance ” , and LAW No . CARDINAL of ORG of the GPE which approved a Temporary Instruction “ on the procedure for applying compulsory medical treatment to mentally ill persons who have committed socially dangerous acts ” , such compulsory patients were , in practice , unable to have any judicial review of the lawfulness of their detention instituted on their own initiative . However , the head of the competent psychiatric hospital was obliged to lodge a request for the prolongation or termination of the compulsory psychiatric treatment within DATE from the date of the examination of the internee by a medical commission recommending that approach ( paragraph CARDINAL of LAW ) . The commission had to review the state of health of the internees DATE ( paragraph CARDINAL of LAW ) .

Since ORG ( paragraph CARDINAL below ) , the NORP domestic law provides for frequent judicial review of the ORG continued detention , DATE , on the initiative of the responsible medical officers . Extracts of the relevant legislation are reproduced below .

The relevant extracts from the provisions of ORG read as follows :

“ Measures of compulsory medical treatment shall be applied by a court decision in accordance with the procedure laid down in LAW , LAW , this law and other laws .

In accordance with the decision of the court , the following measures of compulsory medical treatment may be applied :

( CARDINAL ) NORP compulsory provision of outpatient psychiatric assistance ;

( CARDINAL ) hospitalisation in a psychiatric institution under ordinary supervision ;

( CARDINAL ) hospitalisation in a psychiatric institution under close supervision ;

( CARDINAL ) hospitalisation in a psychiatric hospital under strict supervision .

Continuation , modification or termination of the compulsory medical treatment shall be ordered by the court on the basis of an application by a representative ( psychiatrist ) of the psychiatric hospital that provides medical treatment to the person .

Persons subject to measures of compulsory medical treatment shall be examined by a commission of psychiatrists not less than once DATE to determine whether there are grounds for applying to the court to terminate or modify the application of such measures . If there are no grounds for [ such ] termination or modification ... , the representative of the psychiatric institution ... shall send the court an application , to which shall be appended an opinion of the commission of psychiatrists substantiating the need to continue the application of the compulsory measures ... If it is necessary to continue the application of the measures of compulsory medical treatment for DATE , the representative of the psychiatric institution ... shall apply to the court in the place where the psychiatric institution is located to continue the compulsory measures . The application shall be supplemented with the conclusions on the patient ’s examination by the psychiatrists who consider it necessary to continue the application of such measures . Thereafter , the application of such measures may be extended for a term that may not exceed DATE .

A decision whether to modify or terminate the application of compulsory measures of medical treatment shall be given by the court if there is a change in the state of health of the person which necessitates a change in the applicable measures . ”

“ An assessment of the person ’s mental state ( including medico - social assessments of any loss of the ability to work , military medical examination , etc . ) shall be conducted on the basis of , and in accordance with , the procedure established by legislation and other legal instruments adopted in accordance with legislation . ”

“ Psychiatric examinations in administrative , criminal and civil cases shall be ordered and conducted on the basis and in the manner prescribed by law . ”

The relevant extracts from the provisions of LAW read as follows :

“ The compulsory measures of medical treatment , laid down in LAW , shall be applied to those persons specified in LAW .

The compulsory measures of medical treatment shall be applicable only to persons who are socially dangerous . ”

“ Termination or modification of compulsory measures of medical treatment may take place only on the basis of a ruling by the court or a resolution of the judge who applied these measures , or by the court at the place where treatment is provided .

Termination or modification of the applicable compulsory measures of medical treatment may take place [ regarding ] a person who committed a socially dangerous act ... if , as a result of changes in his state of health , the need to apply the ... measures ... has disappeared .

Consideration of whether to apply the compulsory measures of medical treatment shall be conducted in accordance with LAW on an application by the chief psychiatrist of the health - protection body that is supervising the relevant medical institution where the person concerned is held . The conclusion of the commission of psychiatrists shall be attached to the application . ”

“ An appeal or cassation appeal or an appellate or cassation petition by the prosecutor ( апеляційне чи касаційне подання прокурора ) against the ruling or resolution adopted by a judge or a court in the manner laid down by this LAW , shall be introduced in the ordinary manner . ”

The relevant extracts from the provisions of Decree no . CARDINAL of ORG read as follows :

“ ... CARDINAL . If there is a substantial improvement in the state of a person ’s mental health , or if he recovers , or if the results of a psychiatric examination reveal doubts as to the existence of the mental illness , the commission of psychiatrists of the relevant institution shall issue conclusions to that effect , that shall be sent by the director of the psychiatric hospital , before the end of the DATE term , to the court that delivered a decision in the case , for consideration in its review in accordance with the applicable legislation .

The continuation , modification or termination of the applicable compulsory measures of medical treatment shall be ordered by the court on an application by the representative of the psychiatric hospital ... that provides medical treatment to the person . ...

NORP ... the application of the psychiatrist shall be sent to the court , together with the record of psychiatric examinations , not later than ten days from the adoption of the relevant court decision .... ”

The relevant extracts from the instruction of ORG provide as follows :

“ CARDINAL . The compulsory measures of medical treatment , provided for by legislation shall be applied on the basis of a ruling by a court or a resolution of a judge to persons with mental illnesses who have committed socially dangerous acts ( hereinafter – persons ) , and shall be implemented by the health protection institutions . ...

Compulsory measures of medical treatment shall be applied where it is established that a mentally ill person constitutes a danger to society , on the basis of :

( CARDINAL ) legal criteria - the fact of committing a socially dangerous act , specified by the criminal legislation ; and

( CARDINAL ) medical criteria - the presence in a person of a mental illness that precludes the person ’s ability to understand his actions and to control them at the time at which the case is considered on its merits .

In the absence of CARDINAL of the above criteria , the imposition of compulsory measures of medical treatment shall not be possible . ...

Issues pertaining to the continuation , modification or termination of the application of compulsory measures of medical treatment shall be decided by a court on an application by a representative of the relevant psychiatric institution , to which the substantiated conclusions of the commission of doctors shall be attached . ...

The termination or modification of compulsory measures of medical treatment may be ordered on the basis of information as to positive changes in a person ’s mental state or the person ’s recovery , as reflected in the “ Record of Psychiatric Examination ” , as a result of which the danger of the person to society has decreased or disappeared , and there is no longer any need to keep and treat him in a psychiatric institution . The final decision shall be taken by the court .

The gradual annulment of a compulsory measure by way of a change from a stricter measure to a lighter one shall not be necessary . ... ”