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

A.

On DATE , while driving a car , the applicant was stopped by the police for an alcohol test . A breath test taken from him disclosed an alcohol level of QUANTITY . As this was QUANTITY μg / l , the statutory maximum level , the police confiscated ( invordering ) his driving licence .

On DATE , the applicant was informed by the public prosecutor at ORG ( Arrondissementsrechtbank ) that his driving licence would remain confiscated for DATE . On DATE , the applicant filed an objection ( bezwaarschrift ) with ORG against the public prosecutor ’s decision to confiscate his driving licence . In this objection , the applicant mentioned having paid a fine in DATE for drunken driving and explained that he needed his driving licence for professional reasons . He further explained that , on DATE , he had consumed more alcohol than legally allowed for driving as he had been under a great emotional stress caused by private circumstances . In his opinion , to deprive him of his driving licence for such a lengthy period was disproportionate in that it would not only affect his own professional activities , but also those of the persons working for him .

By summons of DATE , the applicant was ordered to appear on CARDINAL DATE before the Magistrate ( politierechter ) of ORG on charges of drunken driving . On DATE , the Magistrate convicted the applicant of drunken driving . The applicant was sentenced to payment of a fine of NLG . CARDINAL and disqualification for driving for DATE ( ontzegging rijbevoegdheid ) . The disqualification for driving was suspended pending a probation period of DATE . The applicant did not file an appeal against this judgment .

Also on DATE , ORG determined the applicant ’s objection of DATE . It held that , although the public prosecutor ’s decision of DATE could not be regarded as unreasonable , the applicant ’s written and oral submissions disclosed reasons for ordering that the confiscated driving licence be returned to the applicant and , consequently , issued an order to this effect .

By letter of CARDINAL DATE the applicant was informed that , following information provided by the police on DATE , the Minister of Transport , Public Works and Water Management ( Minister PERSON en Waterstaat ; hereinafter “ the Minister ” ) had decided that the applicant should be subjected to an Educational Measure Alcohol and Traffic ( Educatieve Maatregel Alcohol en Verkeer ; hereinafter “ EMA ” ) . He was further informed that the costs of this measure , i.e. NLG . CARDINAL , were to be paid by himself . He was warned that a failure to co - operate in respect of the ORG would result in declaring his driving licence invalid .

The applicant ’s objection ( bezwaar ) against the decision of DATE was rejected by the Minister . The applicant was informed of this by letter of DATE . The applicant filed an appeal against this rejection with ORG , which was rejected by the President of this court by judgment of DATE .

The applicant filed an appeal against the judgment of DATE with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . Relying on LAW under its criminal head , he argued that the imposition of the ORG constituted a double punishment or punitive measure since the criminal court had already dealt with his case . He further complained that , as his driving licence had already been returned to him , the imposition of the ORG constituted undue hardship . He further complained of unequal treatment as persons in whom a higher alcohol percentage is found are not subject to an ORG imposition , but are subjected to a medical examination .

In its decision of DATE , the President of ORG rejected the applicant ’s appeal . Insofar as relevant , the President of ORG held :

< Translation >

“ The President [ of ORG ] has justly considered that , with the fact that the appellant was found to have an alcohol level of QUANTITY , the requirements set out in the relevant rules for imposing the Educational Measure have been fulfilled .

The circumstance that the criminal court , at the time of the imposition of the Educational Measure , had already taken a decision as to the confiscation of the appellant ’s driving licence does not alter this , as the confiscation under criminal law of the driving licence on grounds of LAW ( ORG ) concerns a wholly different procedure than the administrative law measure of imposing the obligation to comply with an Educational Measure . The legislator does not exclude that , in addition to dealing with an offence involving alcohol under criminal law , an administrative law measure is imposed like the obligation to comply with an Educational Measure . ... A connection between the criminal and administrative procedures in FAC , as the appellant apparently wants to make , has not been intended by the legislator . The circumstance that the criminal procedure apparently has ended prior to the administrative law procedure , therefore , has no consequences for the imposition of the Educational Measure .

The President shares the opinion of the president < of ORG > that imposing on the appellant the obligation to subject himself to an Educational Measure can not be regarded as a “ criminal charge ” within the meaning of LAW . The qualification given by the legislator to the measure , the aim the measure pursues , the nature and seriousness of the measure and the lacking of a punitive character of the measure make that it does not concern a punishment or sanction as argued by the appellant .

As to the appellant ’s argument that the regulation results in an unequal treatment of motorised vehicle drivers having consumed alcohol , the President subscribes in the first place to the finding of the president < of ORG > that it does not concern similar cases . Motorised vehicle drivers , with whom at the time when they are stopped < by the police > a breath alcohol level higher than CARDINAL μg / l is found are not in a similar situation that drivers with whom an alcohol level QUANTITY . Like the president < of ORG > , the President finds no basis for the correctness of the appellant ’s contention that persons having driven a car with a considerable higher alcohol percentage receive a less severe treatment that persons like him . In this connection , the President points to the possibility , as mentioned by the president [ of ORG ] , of suspending the validity of the driving licence of persons falling in the “ heavier category ” . Furthermore , unlike persons falling in the “ heavier category ” , the applicant will not be confronted with an examination of his driving ability or suitability with , as a possible result , a declaration of invalidity of his driving licence . ”

B. Relevant domestic law and practice

Where suspicion arises as to the driving ability or the physical or mental suitability to drive of a holder of a driving licence , the police or other public officials as designated by an Order in Council ( Algemene Maatregel van Bestuur ) are obliged , under LAW Road and Traffic Act ( ORG ) , to report this in writing to ORG ( “ the Minister ” ) .

Under LAW DATE Roads and GPE , the Minister may order , in case the information transmitted gives reason for doing so , that the driving licence holder concerned must be subjected to an investigation of his or her driving ability or suitability . In case the results of such an investigation are unsatisfactory , the Minister may declare the driving licence of the person concerned invalid .

Under LAW , the Minister may decide , where the Minister finds that the information transmitted does not disclose a need for an investigation of the driving ability or suitability , to subject the driving licence holder concerned to an Educational Measure .

Pursuant to LAW , the person in respect of whom it has been decided to impose an Educational Measure is obliged to co - operate in the execution of the Educational Measure . According to LAW the Minister , in case of failure of co - operation of the person concerned , shall immediately decide to declare invalid ( ongeldigheidsverklaring ) the driving licence held by that person .

LAW and CARDINAL of the Regulation measures driving ability and suitability ( PERSON maatregelen rijvaardigheid en geschiktheid ) , published in ORG ) DATE , nr . CARDINAL , provides that the Minister shall impose an Educational Measure Alcohol and Traffic ( “ ORG ” ) where :

- it has been found that the person concerned had a breath or blood alcohol level higher than , respectively , QUANTITY DATE and not higher than , respectively , QUANTITY / l or CARDINAL ; or

- it has been found that the person concerned had a breath or blood alcohol level higher than , respectively , QUANTITY / l or CARDINAL.CARDINAL‰ whereas the person concerned , within DATE has been stopped < by the police > on suspicion of driving under the influence of alcohol or another substance of which the person concerns knows or should know that it affects the ability to drive .

According to LAW driving ability and aptitude , the costs of an Educational Measure are to be borne by the person concerned .

An ORG consists of teaching sessions , given by a teacher of ORG , about the risks of driving under influence . The total duration of an ORG is DATE ( DATE ) and it is finished by an individual evaluation lasting TIME on DATE . The teacher will transmit a report to the Minister on his or her findings as to the participation of the person concerned in the ORG . On the basis of these findings , the Minister will decide whether or not the driving licence of the person concerned is to be declared invalid .

A person subjected to an Educational Measure may file an objection with the Minister against that decision . An appeal against the Minister ’s decision on such an objection lies with ORG of ORG .

Only the Minister is competent to order the imposition of an ORG . Consequently , it can not be imposed by a criminal court judge as part of a sentence in cases where a person has been convicted of a traffic offence . Under LAW , a criminal court may - after having convicted a driver of , inter alia , drunken driving - impose as a secondary penalty ( bijkomende straf ) disqualification for driving for a maximum period of DATE . In case the conviction of , inter alia , drunken driving is the second one during a period of DATE , the disqualification can be ordered for a maximum period of DATE .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG . The applicant is represented by PERSON ORG , a lawyer practising in GPE .

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

The application concerns civil proceedings for damages instituted by the applicant against an enterprise running a coal mine . The applicant claimed that as a result of the operation of the mine the technical condition of a building he owned had deteriorated badly .

On DATE by a judgment of ORG the applicant ’s action was dismissed . The applicant appealed .

On DATE ORG upheld the judgment . On DATE the court ’s judgment together with its written grounds were served on the applicant .

On DATE the applicant lodged a request to have a legal - aid lawyer appointed for the purposes of lodging a cassation appeal .

On DATE ORG decided to appoint a legal - aid lawyer for the applicant .

By a decision of DATE the NORP Regional Bar appointed GPE as the applicant ’s legal - aid lawyer for the cassation proceedings .

On DATE the lawyer lodged a request to have the judgment of DATE together with its written grounds served on him .

On DATE he lodged a cassation appeal with ORG , which was competent to carry out a preliminary examination as to the compliance of the appeal with formal requirements provided for by law .

On DATE ORG rejected the applicant ’s lawyer ’s cassation appeal as having been lodged outside the prescribed DATE time - limit .

On DATE the applicant ’s lawyer appealed against the decision to reject the cassation appeal . At the same time he requested leave to appeal out of time against the judgment of the appellate court .

On DATE his request for leave to appeal out of time was rejected by ORG for noncompliance with a timelimit .

On DATE ORG rejected his appeal against a refusal of leave to appeal out of time , considering that no appeal lay against the contested decision .

On DATE ORG quashed the decision of ORG by which the cassation appeal had been rejected , finding that that court had failed to examine sufficiently the circumstances of the lawyer ’s failure to comply with the time - limit for the lodging of the appeal .

On DATE ORG examined the applicant ’s cassation appeal and dismissed it as being manifestly illfounded .


Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Just satisfaction dismissed (out of time)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

On DATE the police arrested the applicant . He was accused of planning a robbery and remanded in custody on that date .

Several decisions extending the applicant ’s detention were made . In particular , on DATE ORG extended his detention in the context of the preliminary proceedings until DATE .

On DATE the public prosecutor indicted the applicant and several others before ORG .

The applicant requested to be released , arguing that ORG had not extended his detention after the expiry of the period indicated in the ORG decision of DATE .

On DATE ORG ordered the applicant ’s release . Upon a complaint lodged by the public prosecutor ORG decided on DATE that the applicant should remain remanded in custody . On DATE the applicant complained to ORG that his detention after DATE was unlawful .

In the meantime , on DATE , ORG extended the applicant ’s detention until DATE . On DATE the applicant lodged a constitutional complaint alleging a violation of LAW as a result of that decision .

NORP On DATE the applicant was released .

In judgment III . ÚS CARDINAL/CARDINAL of CARDINAL DATE ORG found that by the above decision of CARDINAL DATE ORG had breached the applicant ’s right under LAW . ORG referred to its judgments ORG CARDINAL/CARDINAL and I. ÚS CARDINAL/CARDINAL ( see paragraphs CARDINAL below ) and held that there existed no justification for the absence of any judicial decision extending the applicant ’s detention after DATE .

ORG ordered ORG to reimburse the applicant ’s costs in the constitutional proceedings . It dismissed his claim for just satisfaction , holding that ( i ) the finding of a violation of LAW provided appropriate redress for the applicant and ( ii ) ORG decision of CARDINAL DATE was based on that court ’s practice , which , however , was not in accordance with practice under the Convention .

In a different judgment delivered on DATE ( IV . ÚS CARDINAL/CARDINAL ) ORG found that by the above decision of DATE ORG had violated the applicant ’s right under LAW . In particular , with reference to the reasons for its judgment of DATE ORG was of the view that ORG should have remedied the situation resulting from the applicant ’s unlawful detention by ordering his release .

ORG granted the equivalent of MONEY ( ORG ) to the applicant as just satisfaction and ordered ORG to reimburse the applicant ’s costs .

The following provisions of LAW ( Law no . CARDINAL/CARDINAL Coll . , in force until DATE ) are relevant in the present case .

Pursuant to LAW , a person ’s detention in the context of both pre - trial proceedings and during proceedings before a trial court can only last as long as necessary . Where detention in the context of pre - trial proceedings is to exceed DATE , it can be extended at a public prosecutor ’s request up to DATE by a judge or to a maximum of DATE by a court ’s chamber .

Article CARDINAL § CARDINAL provides that a person ’s detention in the context of both pre - trial proceedings and during a trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and in cases of particularly serious offences DATE . Under paragraph CARDINAL of Article CARDINAL a proposal for extension of a person ’s detention is to be submitted by a public prosecutor in the pre - trial proceedings and by the president of the court ’s chamber during the trial .

Article CARDINAL § CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person ’s detention persist . In pre - trial proceedings a judge is obliged to do so only when deciding on a public prosecutor ’s proposal to extend detention or to modify the reasons for it , or when deciding on an accused person ’s application for release . Where a reason for an accused person ’s detention no longer exists , the accused must be released immediately .

Article CARDINAL § CARDINAL entitles the accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she must submit it immediately to the court . The decision on an application for release must be taken without delay . If an application is dismissed , the accused may only renew it DATE after the decision has become final unless he or she gives other reasons to justify his or her release .

Pursuant to LAW , where the court carries out a preliminary examination of the indictment of a person who is detained , it shall also decide whether that person is to remain in custody .

In accordance with ORG practice , the time - limits mentioned in LAW concerned exclusively situations where a decision on a public prosecutor ’s proposal was to be made in the context of pre - trial proceedings . However , where an indictment had been filed within a shorter time than the DATE period mentioned in LAW , the law did not require that a request for continued detention of the accused be made or that a separate decision should be made on their continued detention , with the exception of cases where the indictment had been filed DATE before the expiry of the DATE maximum period of detention .

Pursuant to a DATE ORG ruling ( Rt CARDINAL/CARDINAL ) , LAW requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment . Accordingly , where the presiding judge concludes on the basis of the file that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful , there is no need for a separate decision of the court on continued detention of the accused . However , where the accused applies for release , such application must be decided upon without delay in accordance with LAW .

In judgment ORG CARDINAL/CARDINAL ORG noted that LAW did not explicitly require that a decision on extension of an accused person ’s detention be given in cases where an indictment had been filed and where the detention , both at the pre - trial stage and during the trial , had not exceeded DATE .

It held , however , that the filing of an indictment alone did not as such justify a person ’s continued detention . The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre - trial proceedings .

In its judgment ORG referred in particular to the guarantees laid down in LAW and the ORG ’s judgment in PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE , § § CARDINAL ) .

In that case ORG found no breach of LAW as the ordinary court involved , both in the context of a preliminary examination of the indictment and in reaction to the accused person ’s request for release , decided that the reasons for the latter ’s detention persisted . That decision had the same effect as a decision to extend the accused person ’s detention .

In the above case , which concerned one of the present applicant ’s co - accused , the detention in the context of pre - trial proceedings had been extended until DATE . Prior to its expiry , on DATE , the accused was indicted . In its judgment ORG found that ORG had breached the plaintiff ’s right under LAW , in that there had been no judicial decision extending his detention after DATE and there existed no justification for that situation . It was irrelevant that courts at CARDINAL levels had dismissed the accused person ’s application for release , as those decisions related to detention in the context of pre - trial proceedings , that is prior to the filing of an indictment . In those circumstances , any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted .

With reference to its judgment ORG CARDINAL/CARDINAL of DATE ORG held that for a detention to be lawful it must always rely on a court decision .

In the above CARDINAL judgments given in the case of a different co - accused of the applicant , ORG found a breach of LAW , in that there had been no judicial decision extending the accused person ’s detention after the filing of the indictment . In the latter judgment it held , in particular :

“ In ORG view , the jurisdiction of the court involved at the pre - trial stage ended with the filing of the indictment on DATE . The indictment as such is not a ground for continued detention of a person , as it does not explicitly follow from the law , and it is inadmissible to extend the possibilities of restricting a person ’s liberty by extensive interpretation of several provisions of LAW .

However , a court ’s decision on detention of a person at the pre - trial stage can constitute a ground for such person ’s detention during a short period following the indictment . Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed . In the circumstances , a ground for the plaintiff ’s detention existed until DATE . The detention should have been extended by a decision not later than on DATE if it was to last after that date . In the absence of any such decision , the restriction of the plaintiff ’s liberty after DATE was unlawful .

The unlawfulness of the plaintiff ’s deprivation of liberty after DATE can not be vindicated retrospectively , not even by a judicial decision . Subsequent judicial decisions could not have extended the plaintiff ’s detention as it had ended on DATE . The only existing possibility was to remand the plaintiff in custody again . As this was not the case , his subsequent deprivation of liberty had no legal ground . ”

In judgment PERSON CARDINAL/CARDINAL the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful . The court dealing with the criminal case following the indictment is required to take a decision on the accused person ’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre - trial proceedings . ORG found a breach of the accused person ’s right under LAW and ordered his immediate release .

The new Code of Criminal Procedure ( Law no . QUANTITY . ) entered into force on DATE .

Article CARDINAL § CARDINAL provides , inter alia , that a court is obliged to decide on further detention of the accused within DATE of his or her indictment ( or submission for approval of an agreement between the prosecution and the accused on guilt and punishment ) unless it has already decided on detention of the accused under provisions which govern the examination of indictments .

The explanatory report to the draft Code of Criminal Procedure of DATE indicates that the above provision accentuates the judicial control of a person ’s detention following his or her indictment and that the amendment is also in reaction to ORG judgment ORG CARDINAL/CARDINAL of DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

Ján Šikuta;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE and lives in Rožňava .

On DATE an individual ( “ the claimant ” ) filed a petition with a judicial enforcement officer ( “ JEO ” ) for the enforcement of the equivalent of CARDINAL euros ( ORG ) worth of an adjudicated claim against the applicant .

On DATE the ORG requested authorisation to carry out the enforcement under file no . Ex CARDINAL/CARDINAL . The authorisation was granted by ORG ( “ the ORG ” ) on DATE under the file no . CARDINALEr CARDINAL/CARDINAL .

On DATE the ORG issued a notice of enforcement ( upovedomenie o začatí exekúcie ) , by which he notified the applicant that enforcement proceedings had commenced against him . The notice specified that amounts to be enforced comprised the above - mentioned principal amount , the equivalents of some EUR CARDINAL in court fees , LAW in the ORG ’s remuneration and LAW in the ORG ’s expenses .

On DATE the applicant challenged the notice of enforcement by way of a protest ( námietky ) to ORG arguing that the principal amount had already been paid and disputing the claim for compensation in respect of the ORG ’s remuneration and expenses .

On DATE the claimant filed his observations in reply to the applicant ’s protest and , on CARDINAL DATE , the ORG transmitted these observations to ORG for determination of the protest .

On DATE ORG allowed the protest in part which concerned the principal amount and dismissed its remainder . That decision became final and binding on DATE , following which DATE on DATE ORG discontinued the enforcement proceedings in so far as the principal amount was concerned . The latter decision became final and binding on DATE .

On DATE the applicant lodged a petition that the remainder of the enforcement be discontinued too , which ORG dismissed on DATE by a decision that became final and binding on DATE .

On DATE , upon ultimate termination of the outstanding part of the enforcement proceedings , the ORG returned the authorisation deed to ORG .

On DATE the applicant filed a complaint under LAW to ORG . Relying on LAW , he contended that the length of the enforcement proceedings against him had been excessive .

On DATE ORG declared the complaint inadmissible on the ground that , prior to his constitutional complaint , the applicant had failed to exhaust ordinary remedies , in particular the complaint to the President of ORG .

ORG decision was served on the applicant on DATE .


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

Criminal proceedings had been pending since DATE against the applicant , who had absconded . On DATE he was arrested by the police and remanded in custody by ORG ( Okresní soud ) .

By a judgment of CARDINAL March CARDINAL , ORG ( PERSON ) convicted the applicant on several counts , including theft , trespass and illegal possession of weapons , and sentenced him to DATE imprisonment . It also imposed a fine and disqualified him from driving for DATE . The judgment also concerned a number of co - defendants , including ORG senior and ORG junior .

The applicant and the prosecutor lodged appeals before ORG ( Vrchní soud ) .

On DATE , PERSON , a judge at ORG , was allowed to withdraw from the criminal case ORG and Others on the ground that he was acquainted with ORG 's family .

Mr Chmelíř 's appeal was subsequently severed from those of his co - defendants . According to the Government , the severance was necessary because of the applicant 's numerous obstruction tactics . The applicant disputed that allegation in his observations , contending that his case had been severed no later than at the second hearing in DATE , the first having taken place at the end of DATE .

Appeals by the applicant 's co - defendants were dismissed by ORG on DATE .

On DATE the ORG division , in which Judge PERSON was sitting , dismissed the applicant 's appeal as ill - founded .

On DATE Mr Chmelíř lodged a constitutional appeal against the decisions of the lower courts . He complained in particular of the lack of impartiality of CARDINAL of the High Court judges , observing that CARDINAL of them knew the family of CARDINAL of his co - defendants – and had , on that ground , been ordered to stand down from hearing the appeal lodged by the co - defendants , but not the applicant 's severed appeal – and that the other was the defendant in an action he had brought for the protection of personality rights .

On DATE ORG dismissed the applicant 's appeal as manifestly ill - founded , as it had found no indication that the applicant 's guaranteed rights had been violated .

On DATE the applicant was released on licence .

On DATE the applicant applied for the withdrawal of PERSON , President of the ORG division to which his appeal had been referred , alleging that they had had an intimate relationship in DATE .

On DATE ORG decided at a private sitting not to require PERSON to stand down from the applicant 's case . Noting that PERSON had stated on DATE that he had not been acquainted with the applicant before the criminal case against the latter was referred to him , the court considered that the applicant was simply using dilatory tactics .

On DATE Mr Chmelíř appealed against that decision through counsel , contending that ORG had failed to bring together the requisite documents . In his view , even if the objection of bias was lacking in justification , its subject matter was so serious that Judge PERSON should objectively have been excluded from hearing the case .

On DATE the applicant 's appeal was dismissed by ORG ( PERSON ) as ill - founded .

By a decision of CARDINAL DATE given by the President of the ORG division ( ORG ) under LAW , the applicant was fined CARDINAL NORP korunas ( CZK ) ( MONEY ) for contempt of court , on the grounds that he had made false allegations in his application of DATE and that those allegations represented an insolent and unprecedented attack on ORG and were intended to delay the proceedings . The applicant was warned that another similar attack could in the future be classified as a criminal offence .

On DATE the applicant 's appeal was declared inadmissible by ORG , which considered that the impugned decision had been rendered at second instance .

On DATE the applicant submitted a fresh application for the withdrawal of PERSON from the case , on the ground that he had brought an action against the judge for the protection of personality rights . He considered that this action in itself cast doubt on PERSON 's impartiality .

At ORG hearing on DATE , the applicant learnt that his application for the judge 's withdrawal had been rejected at a private sitting of that court on DATE . The division presided over by ORG considered that the applicant 's request simply represented a provocative obstruction and a fresh attack on the judge 's moral integrity . In the decision of DATE , the court stated that , in reaching its finding , it had referred to the content of the application for the judge 's withdrawal , to the statement made by ORG on DATE ( during the proceedings concerning the first application for withdrawal ) and to the applicant 's previous attempts to obstruct the criminal proceedings .

Mr Chmelíř appealed against that decision to ORG and also lodged a constitutional appeal in which he relied on his right to a fair hearing .

On DATE ORG ( PERSON ) dismissed that appeal , without examining it on the merits , considering that it was premature .

On DATE , ORG declared the applicant 's appeal inadmissible , finding that the impugned decision had been rendered at second instance ( by an appeal court ) and that it was therefore unappealable .

On DATE the applicant brought an action for the protection of personality rights before the GPE CARDINAL ORG ( Obvodní soud ) against Judge PERSON in his capacity as president of the division to which his appeal had been referred . He alleged that he had suffered non - pecuniary damage because PERSON had obliged him to attend a hearing on DATE even though the judge had been informed of an anonymous threat concerning the presence of explosives on the court LOC .

On DATE the applicant was requested to submit further particulars of his claims , failing which the proceedings would be discontinued . He complied with the request on DATE .

On DATE the court discontinued the proceedings on the ground that the submissions lacked precision .

The applicant appealed on DATE .

On DATE ORG ( PERSON ) set aside the decision of DATE , finding that cases concerning the protection of personality rights should be heard by the regional courts ( or , in GPE , ORG ) .

On DATE the High Court of Prague settled the dispute as to jurisdiction by referring the case to ORG .

On DATE ORG judge requested the applicant to submit more precise claims .

On DATE the applicant 's case was dismissed because he had failed to provide sufficient particulars of his claims .

On DATE ORG , to which the applicant had appealed , set aside the judgment of CARDINAL DATE and decided that it was necessary to proceed with the examination of that part of the action which concerned redress for non - pecuniary damage ( evaluated by the applicant at CZK MONEY ) .

On DATE ORG rejected that part of the application . The applicant intended to appeal .

The relevant provisions of LAW as applicable at the material time are as follows :

“ No judge , prosecutor , investigator or police representative may act in criminal proceedings if there is any doubt as to their impartiality , whether because they have a connection with the case concerned , with the persons involved therein , or with the lawyers , statutory representatives or agents of such persons , or because they have a connection with another prosecuting authority . No measure taken by a disqualified person may form the basis of any decision arising from the criminal proceedings . ”

“ A decision requiring a judge to stand down for the reasons provided for in LAW shall be taken , even proprio motu , by the authority concerned . With respect to a judge sitting in a particular division , the decision shall be taken by that division . Such decisions shall be appealable and the matter shall be settled by the higher authority . ”

“ Anyone who ignores a warning and continues to obstruct the course of the proceedings , or who behaves in an insulting manner towards the court , the prosecutor , the investigator or the police representative , or who fails to comply with an order or formal notice issued under the present law , may be ordered by the president of the division or , during preparatory proceedings , by the prosecutor , investigator or police representative , to pay a disciplinary fine of CARDINAL NORP korunas . ”


Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by the police on suspicion of having committed several burglaries .

On DATE the Ząbkowice Śląskie ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the offences in question . It further considered that there was a fear that he would induce witnesses to give false testimony or would otherwise obstruct the proper course of the proceedings . It also stressed that a heavy penalty might be imposed on him .

On DATE , following an appeal by the applicant , ORG ( PERSON ) upheld that decision .

His further appeals against decisions extending his detention and all his subsequent , repeated applications for release were also unsuccessful . In his applications and appeals , he maintained that , given his bad health , detention was putting a severe strain on him . He also relied on his family 's situation .

On DATE the Ząbkowice Śląskie District Prosecutor ( Prokurator Rejonowy ) refused the applicant 's motion for release as unsubstantiated . His appeal against the decision was to no avail .

On DATE the applicant was indicted before GPE . He was charged with CARDINAL counts of attempted or actual burglary and CARDINAL counts of receiving stolen goods . The bill of indictment concerned CARDINAL defendants . In all , CARDINAL charges were brought against them . The prosecution asked the court to hear evidence from TIME witnesses .

On DATE the applicant lodged with GPE an application for release . He relied on his family situation .

NORP On DATE the Ząbkowice Śląskie ORG refused the applicant 's application . The court stated that the reasons for his detention were still valid and that there was a fear that the applicant would attempt to influence witnesses or co - defendants . It referred to the likelihood that a severe penalty would be imposed on the applicant , as he had been charged with an offence attracting a statutory maximum sentence of DATE imprisonment . The court did not accept the applicant 's argument that since the date of his arrest his children had been living below the poverty line . It observed that the applicant 's wife had a job and a steady income .

On DATE the Ząbkowice Śląskie ORG asked the director of the detention centre where the applicant was being held for an opinion concerning the applicant 's state of health .

On DATE the applicant lodged a motion to hear evidence from CARDINAL witnesses .

On DATE the authorities of ORG stated that the applicant could be held in detention and that his detention did not impose any threat to his health .

On DATE the Ząbkowice Śląskie ORG extended the applicant 's detention until DATE . The court gave the following reasons for its decision :

“ The reasons for his [ the applicant 's ] detention are still valid . There is still a fear that he will attempt to influence [ witnesses or co - defendants ] ; in addition there is a likelihood that a severe penalty will be imposed on the [ applicant ] , because he has been charged with an offence for which he may be liable to a statutory maximum sentence of DATE imprisonment . Special reasons to the contrary , as referred to in LAW ORG [ Code of Criminal Procedure ] , have not been found in the case . The possibility of applying another preventive measure could be reconsidered when information from ORG on his [ the applicant 's ] health has been obtained ” .

On DATE the ORG , upon the applicant 's appeal , upheld the decision of DATE . It repeated the grounds previously given for the applicant 's detention . It stated that according to the information obtained from the Deputy Director of ORG the applicant had been examined by a doctor and would be examined in the near future by a urologist . It further pointed out that the applicant 's health was not an impediment to his continued detention .

During the court proceedings the authorities extended the applicant 's detention on many occasions .

The relevant decisions were given on the following dates .

“ The reasons for his [ the applicant 's ] detention are still valid ; at the present stage of the criminal proceedings , and taking into account the attitude of [ the applicant ] and the evidence obtained , there still exists a justified fear that [ the applicant ] may , in view of the likelihood that a severe penalty will be imposed on him , attempt to obstruct the proper course of proceedings by unlawful means , inter alia , by attempts to induce [ witnesses or co - defendants ] to give false testimony ; taking into consideration that none of the grounds for release , as referred to in LAW ORG [ Code of Criminal Procedure ] , are present in the case and that any other less severe preventive measure will not guarantee the proper conduct of the proceedings , the court has decided as above . ”

A subsequent decision was taken by GPE on DATE . It extended the applicant 's detention until DATE . On DATE his detention was extended until DATE . The next decision was given on DATE , extending the applicant 's detention until DATE . It was followed by a decision of DATE whereby GPE extended his detention until DATE . In all those decisions , GPE relied on the grounds previously given for the applicant 's detention and repeated the wording of its decision given on DATE .

It appears that during the first - instance proceedings GPE held CARDINAL hearings , CARDINAL of which had to be cancelled because of the absence of a defence lawyer and witnesses . At the hearing held on DATE the court heard evidence from CARDINAL witnesses .

All the applicant 's appeals and applications for release lodged in the meantime were to no avail .

In the meantime , on DATE ORG , having regard to a medical certificate dated DATE , dismissed the applicant 's appeal against the decision of GPE of DATE . The court repeated the grounds given in the decision of the first - instance court . It also stated that the applicant had access to appropriate medical care in detention .

On DATE , ORG dismissed the applicant 's request for release on health grounds , finding his complaints about his deteriorating health to be unsubstantiated . It stated that his medical records had been examined and his allegations did not find any support in the information contained therein .

On DATE the Ząbkowice Śląskie ORG again dismissed the applicant 's request for release on health grounds . It emphasised that on numerous occasions the applicant 's health had been examined and it was found to be compatible with his continued detention .

On DATE the Ząbkowice Śląskie ORG gave judgment . The applicant was convicted as charged . He was sentenced to DATE imprisonment . The applicant appealed . His detention was subsequently extended on CARDINAL occasions .

On DATE the Ząbkowice Śląskie ORG extended the applicant 's detention until DATE . It relied on the grounds previously given .

On DATE the ORG extended the applicant 's detention until DATE .

On DATE the ORG quashed the firstinstance judgment and remitted the case .

On DATE the Ząbkowice Śląskie ORG decided to extend the applicant 's detention until DATE . It relied on the grounds previously given and the need to re - examine the evidence .

On DATE and DATE GPE held hearings .

On DATE the Ząbkowice Śląskie ORG convicted the applicant as charged . He was sentenced to DATE imprisonment . The applicant appealed .

On DATE the Ząbkowice Śląskie ORG further extended the applicant 's detention until DATE . The next decision was given on DATE whereby the court extended his detention until DATE . The court reiterated the grounds originally given for his detention .

On DATE the ORG heard the appeal , quashed the first - instance judgment and remitted the case .

On DATE the ORG released the applicant from detention .

On DATE , DATE and DATE the Ząbkowice Śląskie ORG held hearings .

On CARDINAL DATE the GPE Śląskie ORG gave judgment . It again convicted the applicant as originally charged and sentenced him to CARDINAL DATE ' imprisonment .

On DATE the applicant appealed .

On DATE and CARDINAL DATE ORG held hearings on the applicant 's appeal .

On DATE the ORG gave judgment and reduced his sentence to DATE imprisonment .

The applicant did not lodge a cassation appeal .

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


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

The applicant 's wife died on CARDINAL DATE . On DATE ORG ( Sąd Rejonowy ) declared that the applicant , his stepdaughter - PERSON - and her CARDINAL grandsons were to inherit the estate .

On DATE M.F. , one of the grandsons , filed an application for distribution of the estate of the applicant 's wife with ORG . He also applied to the court for dissolution of the joint matrimonial property of the applicant and his late wife .

On DATE the court held the first hearing .

NORP In a letter of CARDINAL DATE the applicant requested the President of ORG of ORG to expedite the proceedings .

On DATE and DATE the trial court held hearings .

On DATE the ORG gave a final decision . The applicant appealed . On DATE ORG ( Sąd Wojewódzki ) set aside the first - instance decision and remitted the case .

On DATE and CARDINAL DATE the court held hearings . At a hearing held on DATE the court ordered that expert evidence be obtained .

On DATE the applicant complained to the President of ORG about the slow conduct of the proceedings . On DATE the President of ORG informed the applicant that his complaint about the delays in the proceedings was justified .

On DATE the court held a hearing .

On DATE the ORG gave a decision . On DATE the applicant lodged an appeal with ORG .

On DATE and DATE ORG held hearings . On DATE ORG set aside the impugned decision and remitted the case .

On DATE the court held a hearing . On DATE the applicant again requested the President of ORG to expedite the proceedings .

At the hearing held on DATE the parties settled their claims in respect of a number of movables . Subsequently , the court discontinued the proceedings in that respect .

On DATE the applicant complained about the length of the proceedings to the Minister of ORG .

On DATE the court held a hearing and ordered that expert evidence be obtained .

On DATE the ORG gave a partial decision ( postanowienie częściowe ) . On DATE ORG held a hearing .

On DATE the Minister of Justice informed the applicant that the President of ORG would supervise the proceedings . ORG held further hearings on DATE , CARDINAL and CARDINAL DATE . On DATE an expert submitted his report to the court .

At the hearing held on DATE ORG gave a decision . On DATE the applicant lodged an appeal with ORG . On DATE the applicant complained to the Minister of ORG about a delay in the proceedings and the fact that his appeal of DATE had not been transmitted to ORG .

On DATE ORG held a hearing . The hearings listed for CARDINAL and DATE were adjourned .

On DATE ORG upheld the firstinstance decision . On DATE the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) . The proceedings were terminated by a decision of ORG of DATE .


Remainder inadmissible;Violation of Art. 6-1+6-3-c

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

The applicant was born in DATE and is serving a prison sentence in correctional colony YuK-CARDINAL/CARDINAL in LOC .

On DATE the applicant was arrested on suspicion of aggravated concerted robbery and taken to the LOC police station of the GPE town police department . He refused legal assistance , signed a record confirming his refusal and denied the accusations made . He was released on DATE .

On DATE the applicant was again remanded in custody . He was charged with aggravated robbery and questioned after he had refused legal assistance . Police officers allegedly threatened and humiliated him with a view to extracting a confession from him . The applicant did not confess . DATE he was released on a written undertaking not to leave the town .

On DATE the local bar association appointed counsel PERSON to represent the applicant in the criminal proceedings . It appears that PERSON was appointed to represent the applicant as legal - aid counsel .

On DATE ORG of PERSON started examining the applicant 's criminal case . On DATE the applicant lodged a written request with the trial court , by which he declined the services of PERSON and sought leave to represent himself . He explained that it was a voluntary decision and had not been caused by financial difficulties . PERSON submitted to the court that he agreed with the applicant 's request . Having discussed the issue , the court allowed the applicant 's request and granted him leave to represent himself .

By a judgment of DATE , ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . It established that the applicant , together with his CARDINAL co - defendants , had attacked , robbed and severely beaten up the victim . The applicant 's role , previously agreed upon by the co - defendants , consisted , among other things , in threatening the victim with a knife . The court based its findings on partial confessions by the applicant 's co - defendants , statements by victims and witnesses and material evidence . It was finally stated in the judgment that it could be appealed against to ORG within DATE of its pronouncement or , for the detained defendants , within DATE after receipt of its copy . It was also stated that if the remanded convicts were submitting an appeal statement , they had a “ right to request to participate in the examination of the criminal case by the appellate court ” .

On DATE the applicant appealed against his conviction to ORG ( “ the ORG ” ) . He did not dispute that he had taken the money from the victim but disagreed with the way the trial court had established the relevant facts , the distribution of roles between him and his co - defendants and the classification of his own acts . He submitted , in particular , that the trial court had disregarded his testimony and statements by witnesses which supported it , in particular , regarding the trial court 's findings about the distribution of responsibility between him and his co - defendants and the classification of his acts as a premeditated robbery . In his appeal statement the applicant neither requested ORG to secure his presence at the appeal hearing nor sought legal representation . According to the Government , the applicant 's co - defendants who also appealed against the conviction expressly requested the appellate court to secure their presence at the appeal hearing .

According to the Government , on DATE a notification about the appeal hearing was sent to the remand centre where the applicant was being held .

On DATE ORG examined the appeals lodged by the applicant and his co - defendants and upheld the judgment . The applicant was absent from the appeal hearing and was not represented before it , while his co - defendants , as well as the prosecutor , attended the hearing and made submissions .

By a judgment of DATE , ORG dismissed the applicant 's appeal and upheld the conviction .

Under LAW , which entered into force on DATE ( “ the ORG ” ) , the appeal court verifies the legality , validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal . The appeal court is empowered to reduce the sentence imposed on the convicted person or to apply the law of a lesser offence . It has no power to impose a more severe penalty , apply a law on a more serious offence or quash an acquittal , unless it considers that the conviction was unfair or that the interests of the parties to the proceedings were violated .

A conviction is deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence , the personality of the convicted person , or if that sentence , although within the limits of the relevant LAW , is unfair in its chosen type or extent , being either disproportionately lenient or disproportionately severe A conviction may be reversed when it is necessary to impose a more severe penalty where the penalty imposed by the trial court is deemed unfair as being disproportionately lenient - only when it is requested by the pubic prosecutor , the victim or the private prosecution ( Article CARDINAL ) .

Under Article QUANTITY and CARDINAL of the ORG , the appeal instance may directly examine evidence , including additional material submitted by parties .

Under LAW , if a convicted person wishes to participate in an appeal hearing he or she should indicate that wish in the statement of appeal .

Article CARDINAL of the Code provides that upon receipt of the criminal case and the statements of appeal , the judge fixes the date , time and place for a hearing . The parties shall be notified of the date , time and place of the hearing no later than DATE before the scheduled hearing . The court determines whether the remanded convict should be summoned to the hearing . If the remanded convict has expressed the wish to be present at the examination of his appeal , he has the right to participate in person or to state his case via video link . The manner of his participation in the hearing is to be determined by the court . A defendant who has appeared before the court shall always be entitled to take part in the hearing . The failure of persons timely notified about the date , time and venue of the hearing to appear does not preclude the court from taking on the examination of the case .

Under LAW , the presiding judge opens the hearing by announcing which criminal case is to be examined and on whose appeal . He then announces the composition of the court , the names of persons who are parties to the proceedings and are present at the hearing and hears the statements of those who had lodged the appeals and of the opposing parties . The appeal court is entitled , at the party 's request , to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party .

The ORG provides as follows :

“ CARDINAL . Participation of legal counsel in the criminal proceedings is mandatory if :

CARDINAL ) the suspect or the accused has not waived legal representation in accordance with LAW ;

CARDINAL ) the suspect or the accused is a minor ;

CARDINAL ) the suspect or the accused can not exercise his right of defence by himself owing to a physical or mental handicap ;

CARDINAL ) the court proceedings are to be conducted [ in the absence of the accused ] in accordance with LAW of this Code ;

CARDINAL ) the suspect or the accused does not speak the language in which the proceedings are conducted ;

CARDINAL ) the suspect or the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty ;

CARDINAL ) the criminal case falls to be examined by a jury trial ;

CARDINAL ) the accused has filed a request for the proceedings to be conducted [ without a hearing ] under LAW of this Code ;

In the circumstances provided for by paragraph CARDINAL above , unless counsel is retained by the suspect or the accused , or his lawful representative , or other persons on request , or with consent , of the suspect or the accused , it is incumbent on the investigator , prosecutor or the court to ensure participation of legal counsel in the proceedings . ”

“ CARDINAL . The suspect or the accused may refuse legal assistance at any stage of criminal proceedings . Such a waiver may only be accepted if made on the own initiative of the suspect or the accused . The waiver must be filed in writing and must be recorded in TIME of the relevant procedural act .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict 's right to legal assistance in such proceedings may be restricted . ”

NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in LAW . It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings .

NORP In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented .


The first applicant ( “ the applicant mother ” ) was born in DATE . She is the mother of both the second applicant , PERSON , born in DATE , and the third applicant , PERSON , born in DATE . The applicants , all NORP citizens , reside in PERSON . Before the ORG they are represented by Ms. PERSON of ORG ( Perheen Suojelun Keskusliitto ORG r.y . ) . The respondent Government were represented by their Agents , Mr PERSON , then Director - General for ORG in ORG , and Mr PERSON , Director in the same Ministry .

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

In DATE the applicant mother was accepted as a family day carer . She was caring for her own and a few other children , including mentally disabled ones , in her home under the supervision of the local day care authority . In DATE a third child , PERSON , was born to her and diagnosed as suffering from PERSON ’s syndrome . At DATE he also began to suffer from repeated aggravated ear infections .

In DATE the applicant mother sought therapy at ORG of PERSON in order to cope with the upbringing of PERSON

In DATE PERSON ’s father and the applicant mother divorced , she remaining PERSON ’s sole custodian . In DATE she gave up her post as a family day carer as PERSON had become difficult to care for and had begun to suffer from behavioural disturbances . It had also been discovered that his hearing was severely impaired .

Afterwards the applicant mother remained unemployed for a while and the family was evicted from their flat . She started to abuse alcohol .

On CARDINAL occasions from DATE the applicant mother voluntarily placed ORG in ORG Disabled at PERSON . The duration of his stays varied from DATE to DATE . Some of the stays were caused by the applicant mother ’s experiences of burn - out and some stays were necessary for examination and therapy purposes .

In DATE the applicant mother requested that PERSON be placed in voluntary foster care so as to enable her to resolve her financial and drinking problems . Following the approval by ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON was , on DATE , placed in a foster home QUANTITY away . The family had CARDINAL children from before , CARDINAL of whom being baby midgets demanding particular care .

Meanwhile , the applicant mother underwent treatment in order to reduce her alcohol consumption . She re - educated herself , qualifying to become a caretaker of hospital equipment . Soon she began to feel that her co - operation with the foster parents was not satisfactory . For instance , PERSON would visit her in dirty and ragged clothes . His foot hygiene would be neglected , although his feet were suffering from bacteria demanding particular care . He would tell her that he had been spanked by the foster parents .

In DATE PERSON was equipped with a hearing device as a result of which his behavioural disturbances apparently diminished .

In DATE the applicant mother informed ORG that she would take PERSON home . ORG objected and on DATE it placed him in compulsory public care , considering , inter alia , that the applicant mother was unable to provide him with adequate care and sufficiently secure growth conditions . All other support measures had proved insufficient , as the applicant mother had withdrawn her consent to PERSON ’s placement in the foster home . It was in PERSON ’s interest to remain in that home , where he had become used to “ a regular life rhythm , certain boundaries , security as well as people whom he could trust ” .

The applicant mother had been heard in ORG on DATE , whereas all applicants had been heard at ORG meeting on DATE .

In her appeal to ORG ( lääninoikeus , länsrätten ) of ORG the applicant mother objected to the care order , considering that her conditions had improved to the necessary extent . The other applicants , by now living on their own QUANTITY away from her , stated that they would assist in caring for PERSON applicant mother also invoked an opinion of CARDINAL DATE submitted by Ms. PERSON and Dr. PERSON of ORG and concluding that she had managed better than the average as a custodian and mother . She further requested , inter alia , that PERSON himself be heard in a manner which would ensure that the opinion expressed by him was genuinely his own .

On DATE ORG refused the request for an oral hearing and dismissed the appeal . It considered , inter alia , that LAW had been sufficiently heard by a social welfare official on CARDINAL occasion while he had been transported back to the foster home from a school providing therapy .

Meanwhile , according to a memorandum of a social welfare official dated DATE , PERSON would be permitted to stay with the applicant mother for DATE during the period DATE and for DATE in DATE . The foster parents would write to the applicant mother once DATE . She and other relatives would be able to visit PERSON in the foster home provided they gave advance notice .

In her appeal to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) dated DATE the applicant mother underlined that the ORG request for joint custody of PERSON was pending before ORG ( käräjäoikeus , tingsrätten ) of GPE . She requested to be allowed to supplement her appeal by adducing the ORG judgment , or that the case be remitted to ORG should the applicants’ request for shared custody be granted .

ORG obtained written observations from ORG . ORG recalled , inter alia , that the applicant mother herself had terminated her contract as a family day carer , “ perhaps already then realising her problems ” . ORG adduced new material consisting of an affidavit signed by her former family day care superior on DATE ; an affidavit signed by PERSON ’s special teacher on DATE , a report on ORG ’s mental development dated DATE and submitted by Ms. PERSON , a psychologist of ORG .

In her rejoinder to ORG the applicant mother invoked an affidavit signed by the second and the third applicant on DATE ; an affidavit signed by the psychologist who , in DATE , had recommended her to give up her post as a family day carer ; an affidavit signed by a parish deacon concerning the care which the applicant mother had provided to other mentally handicapped children ; and an affidavit signed by a further person concerning PERSON ’s unwillingness to return to the substitute home after his stays with the applicant mother . The applicant mother argued that no weight should be given to her former employer ’s affidavit unless the ORG were to hear that person as a witness under oath .

On DATE ORG granted the applicants’ request for shared custody of PERSON It noted , however , that the enforcement thereof would also require taking into account any orders relating to his public care .

On DATE ORG upheld ORG decision of DATE .

On DATE the social welfare officials drew up a public care plan according to which PERSON would be able to stay with the applicant mother during the autumn , DATE , DATE and DATE .

On DATE the applicants requested that both the care order and the access restriction be revoked with a view to reuniting PERSON with them . In support of their request they proposed a plan for gradually increasing his contacts with them , starting with CARDINAL visit DATE .

On DATE an official of ORG restricted the ORG access to LOC along the terms of the care plan of DATE . The restriction was to remain in force until DATE , when PERSON would reach the age of majority . The ORG relied , inter alia , on an opinion of CARDINAL DATE submitted by a specialist in psychiatry and mental disability who was responsible for the public care provided by foster parents within the relevant area . ORG further relied on an expert opinion of DATE . Both opinions proposed that the number of visits should not be increased .

On DATE ORG refused the ORG request for a revocation of PERSON ’s public care and the access restriction . ORG accepted that the conditions in the applicant mother ’s home were good but nevertheless considered that PERSON was in need of “ a well - focused and consistent upbringing ” .

The applicants appealed to ORG inter alia on the grounds that they had not been properly heard by ORG . They also requested an oral hearing for the purpose of hearing witnesses .

On DATE ORG decided to revoke PERSON ’s public care of its own motion because the services of his foster home were no longer available to ORG . On DATE he was returned to the applicant mother . On DATE an official of ORG terminated the public care .

On DATE ORG found that PERSON had not been heard prior to the decision of DATE . It had not been shown that his state of development justified the lack of such a hearing . However , as his public care had already been revoked by ORG of its own motion , the ORG found no reason to amend the decision under appeal .

The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , No . CARDINAL/CARDINAL , § § CARDINAL , ORG CARDINAL-VII ) . Those provisions of particular relevance to the present case are described below .

The right of the mentally disabled to special care is governed by LAW Disabled ( laki kehitysvammaisten erityishuollosta , lagen ang . specialomsorger om utvecklingsstörda CARDINAL/CARDINAL ) . The various forms of assistance guaranteed under this legislation shall normally be provided through an agreement with the custodians . If they refuse necessary assistance to a child , custody may be transferred to someone willing to accept such services . If a conflict of interests arises between the child and his or her custodian , a trustee or guardian may be appointed for the child .

In extreme situations where the overall care and upbringing of a mentally disabled child is at stake the child shall be placed in public care . According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) .

The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party , inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .

According to section CARDINAL of LAW ( sosiaalihuoltolaki , socialvårdslag PERSON ) , a decision made by ORG is enforceable regardless of an appeal ( a ) if the decision requires immediate implementation ; ( b ) if , for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; or ( c ) when ORG has ordered the decision to be enforced at once .

According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .

According to section CARDINAL of LAW and section CARDINAL of LAW , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .

The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .


The applicant was born in DATE and lives in GPE .

At the material time , the applicant was the owner and editor of a local newspaper published in GPE , the PERSON ( “ LOC ” ) .

On DATE the applicant was taken into police custody on suspicion of membership of an illegal organisation .

On DATE he was brought before a judge who ordered his detention on remand .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , along with CARDINAL other persons . The applicant was accused of membership of an illegal organisation , the DHKP - C ( ORG ) . According to the indictment , following his arrest , the applicant 's house was searched by police officers who found illegal periodicals , newspapers , books and a bullet . The public prosecutor also alleged that the applicant had published a newspaper containing propaganda in support of the DHKP - C , participated in illegal demonstrations , put up posters , distributed leaflets supporting the DHKP - C and carried out activities in ORG for the recruitment of new members for the illegal organisation .

On DATE the applicant was transferred to the GPE special type prison .

On different dates in DATE , CARDINAL other criminal proceedings were brought against the applicant before various courts , with charges of disseminating separatist propaganda and incitement to hatred and hostility through the medium of his newspaper .

The cases against the applicant and his co - accused were subsequently joined before ORG .

Following promulgation of the Law no . CARDINAL , which abolished ORG and established ORG , in DATE ORG acquired jurisdiction over the case and the case - file was sent to it .

On DATE the ORG convicted the applicant under LAW of LAW of membership of an illegal organisation , namely FAC The court found that CARDINAL articles published in PERSON on DATE and DATE contained separatist propaganda and incitement to hatred . It further found it established that the applicant had participated in illegal demonstrations , put up posters , distributed leaflets supporting the DHKP - C and carried out activities in the PERSON University for the recruitment of new members for the illegal organisation . The court sentenced the applicant to DATE and DATE imprisonment .

On DATE ORG upheld the judgment of CARDINAL DATE in respect of the applicant .

On CARDINAL DATE the applicant was conditionally released from prison .

The relevant domestic law and practice in force at the material time are outlined in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

By PERSON no . CARDINAL of DATE , published in the official journal on DATE , ORG were abolished .


CASE OF VAN DER SLUIJS, ZUIDERVELD AND KLAPPE v. THE NETHERLANDS

Preliminary objection rejected (victim);Violation of Art. 5-3;Non-pecuniary damage - financial award

ORG Mr. PERSON , Mr. PERSON and Mr. PERSON , who were born in DATE , DATE and DATE respectively , reside in the GPE . In DATE , after being forcibly drafted as conscript soldiers in ORG , they each refused , on account of their beliefs as conscientious objectors , to obey specific orders deriving from their obligation to perform military service . They were placed in detention by the competent military officers for suspected offences against LAW ( Wetboek van Militair Strafrecht ) . They were kept in custody and referred for trial before a military court .

Exemption may be obtained from compulsory military service on the ground of conscientious objection , both before and after active military service has begun . The procedure for requesting such exemption is laid down in ORG ( Wet Gewetensbezwaren Militaire ORG ) and a Ministerial Decree of DATE . In particular , where military criminal proceedings are in progress against a conscript serviceman who has applied for the status of conscientious objector , they may be stayed before , and must be stayed once , ORG on Conscientious Objectors has commenced its enquiries ( section CARDINAL sub - section CARDINAL of the Act ) . After ORG has stated its opinion , the Minister of Defence may grant recognition as a conscientious objector ( section CARDINAL ) . The entitlement to conduct criminal proceedings for failure to obey orders or military regulations or for failure to report for enlistment lapses automatically upon recognition of the accused ’s conscientious objection ( section CARDINAL ) .

In the present case , Mr. PERSON requested to be granted the status of conscientious objector only in the final stages of his appeal before ORG ( see paragraph CARDINAL below ) , whereas Mr. PERSON and Mr. PERSON never at any moment did so ( see paragraphs CARDINAL below ) .

Criminal procedure for the military land and air forces , including in particular the matter of arrest and detention on remand , is governed by the ORG and Air Force Code of Procedure ( Rechtspleging bij de Land - en Luchtmacht - " LAW " ) , as last amended on DATE . Offences under military criminal law , which applies equally to conscript servicemen such as the applicants and to volunteers , are tried at first instance before a Military Court ( PERSON ) . There may be an appeal to ORG ( PERSON ) and ultimately a ( cassation ) appeal on points of law to ORG ( PERSON ) of the GPE .

ORG Every officer and non - commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty ( LAW ) . The resultant detention is not to exceed TIME ( Article CARDINAL ) .

The commanding officer may order a suspected serviceman to be placed or kept in custody on remand if ( a ) there is a serious risk of absconding or ( b ) there are important reasons of public safety requiring immediate deprivation of liberty or ( c ) this is necessary in connection with the maintenance of military discipline among other servicemen ( DATE paragraph ) . Such a detention order may be made against a serviceman suspected of any offence set out in LAW or any offence in respect of which detention on remand is permitted under LAW , with the exception of those offences of which ORG takes no cognisance ( DATE paragraph ) . An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom , or is likely to be given a sentence of shorter duration than that of the detention on remand ( ibid . ) . Detention must be terminated once the grounds for it cease to exist ( LAW paragraph ) . All cases of detention exceeding DATE shall be reported by the commanding officer to the commanding general ( LAW paragraph ) .

Where detention has lasted DATE , the suspected serviceman may petition the competent ORG to fix a term ( liable to extension ) within which the commanding general must either decide whether the case is to be referred to a ORG or else terminate the detention . ORG has to rule on the petition without delay , after hearing the authority empowered to refer the case , the auditeur - militair ( see paragraph CARDINAL below ) and the suspected serviceman , who may have the assistance of an adviser ( LAW ) .

ORG If , after receiving the advice of the auditeur - militair and , " if possible " ( " zo mogelijk " ) , after the suspected serviceman has been heard , the commanding general or a senior officer ( hoofd officier ) designated by him to act on his behalf considers that the case should be tried by ORG , the serviceman shall be referred for trial before that ORG ( LAW ) . On the other hand , the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter ( LAW Regulation No . CARDINAL of ORG explained the effect of these provisions as follows ( translation from the NORP ) :

" In military penal procedure , as distinct from civilian procedure , the decision to prosecute in a case is not taken separately by the prosecuting authority , the auditeur - militair , but by a military authority . That authority is the commanding general or the senior officer he has appointed to act on his behalf , i.e. the referring officer ... Thus , the auditeur - militair is merely an advisory body at this stage , although the obtaining of his advice and the giving of that advice by him are mandatory . "

Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody ; the grounds for detention set out in the second and fourth paragraphs of LAW ( see paragraph CARDINAL above ) apply pari passu ( Article CARDINAL ) . If , against the advice of the auditeur - militair , the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial , the auditeur - militair may take the matter to ORG ( Article CARDINAL ) . No appeal is provided for in the contrary case .

According to the Government , it has now become standard procedure to apply the above provisions of LAW in the following manner . Where detention on remand has been ordered , the suspected serviceman is always heard by the auditeur - militair and any referral to ORG takes place shortly thereafter , on DATE after the arrest . In view of the requirements of LAW , the auditeur - militair ’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in LAW fulfilled . Thus , the standard written form used by the auditeur - militair for the purposes of transmitting his advice to the referring officer contains , inter alia , a paragraph as to whether the suspect should " be released or be placed or kept in custody " . Practice has evolved to the point where the advice of the auditeur - militair is invariably followed and generally regarded as binding .

Detention maintained or ordered in the decision referring the serviceman for trial may not exceed DATE unless extended , by terms of DATE , by ORG at the request of the auditeur - militair ( DATE ) . Every accused detained by virtue of the referral decision must be heard by the officier - commissaris ( see paragraph CARDINAL below ) as speedily as possible and in any event within DATE of referral ; in this connection , the accused may be assisted by an adviser ( Article CARDINAL , first paragraph ) . Before extending detention , ORG must give the accused or his adviser the opportunity to submit argument ( Article CARDINAL , second paragraph ) .

As soon as the grounds for the detention cease to exist , release must be ordered ( LAW , first paragraph ) . In the period between referral and commencement of the trial , power to order release is exercisable by the auditeur - militair , or by ORG at the request of either the officier - commissaris or the detained serviceman himself ( Article CARDINAL , second paragraph ) . ORG , in deciding on such requests , will hear the auditeur - militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time ( DATE paragraph ) .

ORG If the accused is in custody at the first hearing , ORG will decide , after being addressed by the auditeur - militair , whether or not the nature and circumstances of the case require his continued detention during the trial ( LAW . The ORG may direct the accused ’s release from detention on remand at any later stage in the proceedings , either of its own motion or at the request of the auditeur - militair or the accused himself ( Article CARDINAL ) .

ORG A serviceman in custody may request release or suspension of his detention under LAW in proceedings before ORG pending the decision on his appeal , and under LAW ) in proceedings before ORG pending the decision on his appeal on points of law .

ORG The auditeur - militair has the function of prosecuting authority before ORG ( Article CARDINAL , first paragraph ) . No serving member of the armed forces may appear as auditeur - militair or substitute auditeur - militair ( LAW paragraph ) . The auditeur - militair and his substitute may be replaced by an acting auditeur - militair ( plaatsvervanger - LAW paragraph ) who may be a military officer , but such replacement was said by the Government to occur only in exceptional circumstances . Auditeurs - militair ( including substitutes and acting ones ) are appointed , and dismissed , by the Crown on a joint proposal from the Ministers of Justice and Defence ; they must possess a law degree ( LAW paragraphs ) . Under the terms of LAW , second paragraph , of LAW , they are obliged to comply with instructions given to them in their official capacity by the Minister of ORG . However , according to the Government , this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and , at least in DATE , no Minister of ORG has acted or interfered in a concrete case on the basis of LAW .

The auditeur - militair is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) . He must attend the hearings of ORG ( Article CARDINAL ) but he does not take part in the ORG ’s deliberations . He is under a general duty to assist ORG , as well as the commanding general , with reports , observations and advice in relation to military justice when required to do so ( Article CARDINAL ) . He is not under the supervision of ORG or ORG in the discharge of his duties , save that ORG has the power to reprimand him should he fail strictly to observe statutory time - limits ( Article CARDINAL ) .

Attached to each Military Court is CARDINAL officier - commissaris who is in charge of the preliminary investigation of cases ( DATE ) . An officier - commissaris is an officer or former officer of the armed forces with the rank of captain or higher and is appointed for a fixed term of DATE by the commanding general ( ibid . ) . While he may at the same time be a member of ORG , this is not usually the case . His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary ( Articles CARDINAL , CARDINAL and DATE ) . A hearing by the officier - commissaris has the same force as a hearing by ORG ( Article CARDINAL ) . During his enquiries , he is under a duty to apply himself equally to discovering the accused ’s innocence and to obtaining proof or admission of guilt ( Article CARDINAL ) . Like the auditeur - militair , he is bound by his oath to act honestly and impartially ( Articles CARDINAL and CARDINAL ) .

ORG Following his failure to register in due time as a conscript serviceman , Mr. PERSON was arrested on DATE and transferred to a military house of detention . Upon his arrival , he refused to put on a military uniform and to take receipt of a weapon . He persisted in his refusal although his hierarchical superior pointed out to him that in doing so he committed the criminal offence of insubordination ( LAW ) . The commanding officer then confirmed the arrest , the grounds relied on being a serious risk of his absconding and the need to maintain discipline among other servicemen ( LAW - see paragraph CARDINAL above ) .

On DATE , he appeared before the auditeur - militair . On DATE , in accordance with the advice of the auditeur - militair , the designated senior officer referred the applicant for trial before ORG , while deciding that he should be kept in custody on the same grounds as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG On DATE , the auditeur - militair addressed a request to ORG that the applicant be kept in detention upon expiry on DATE of the DATE maximum period allowed for under the law ( LAW - see paragraph CARDINAL above ) as the grounds prevailing on DATE were still valid in his view .

On DATE , the applicant was heard by the officier - commissaris ( Article CARDINAL , first paragraph , of the Military Code - ibid . ) .

On DATE , he appeared before ORG . Counsel for Mr. PERSON submitted that his client ’s detention was unlawful since the requirements of LAW ( LAW ) of the LAW had not been complied with , in particular because the officier - commissaris was not vested with autonomous power to decide on the accused ’s detention . ORG rejected the applicant ’s arguments and prolonged the detention by a DATE term . Thereafter his detention was regularly prolonged by ORG .

ORG The trial took place before ORG on DATE On DATE , the applicant was convicted of acts of insubordination and sentenced to CARDINAL months’ imprisonment , the time spent in custody on remand to be deducted therefrom .

ORG Mr. PERSON then appealed to ORG . Pending his appeal , he sought suspension of his sentence for DATE for personal reasons ( LAW - see paragraph CARDINAL above ) . ORG rejected that request on DATE .

On DATE , he requested ORG to suspend criminal proceedings and order his release in view of his application to be recognised as a conscientious objector ( section CARDINAL of ORG - see paragraph CARDINAL above ) . Such an application was in fact introduced with ORG on DATE . On DATE , he was heard by ORG , which , DATE , suspended criminal proceedings and , conditionally , the detention . Subsequently , upon recognition by the Minister of Defence of his conscientious objection , criminal proceedings lapsed and his release became final ( section CARDINAL of the above - mentioned LAW . ) .

ORG Mr. PERSON was arrested on DATE on a charge of failing to register in due time as a conscript serviceman ( LAW ) and was transferred to a military house of detention . On DATE , he refused to put on a military uniform and to take receipt of a weapon . He persisted in his refusal although his hierarchical superior pointed out to him that he was thereby committing the criminal offence of insubordination ( LAW ) . The commanding officer then confirmed the arrest , the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen ( LAW - see paragraph CARDINAL above ) .

On DATE , the applicant was heard by the auditeur - militair . DATE , in accordance with the advice of the auditeur - militair , the designated senior officer referred him for trial before ORG , while deciding that he should be kept in custody on the same grounds as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG On DATE , he was heard by the officier - commissaris ( Article CARDINAL , first paragraph , of LAW - see paragraph CARDINAL above ) .

On DATE , on request by the auditeur - militair , ORG prolonged the applicant ’s detention by DATE upon expiry on DATE of the DATE maximum period allowed for under the law ( LAW . ) . Neither Mr. PERSON nor his lawyer availed himself of the opportunity to submit argument ( LAW , second paragraph - ibid . ) .

On DATE , ORG examined a further request by the auditeur - militair for prolongation of the detention . At this hearing , counsel for Mr. PERSON submitted that his client ’s detention was unlawful since the requirements of LAW ( LAW ) of the LAW had not been complied with , in particular because the officier - commissaris was not vested with autonomous power to decide officier - commissaris was not vested with the autonomous power to decide on the accused ’s detention . ORG rejected the applicant ’s arguments and prolonged the detention by a further DATE term .

ORG Trial hearings took place before ORG on DATE and DATE The applicant once more submitted , inter alia , that his detention was unlawful for failure to comply with LAW ( LAW ) of the LAW . The ORG , on DATE , rejected his arguments and maintained his detention .

On DATE , Mr. PERSON was acquitted of the charge of failure to register for military service but convicted of acts of insubordination . He was sentenced to DATE months’ imprisonment , the time spent on remand to be deducted therefrom .

ORG The applicant then appealed to ORG .

On DATE , ORG quashed , for a procedural defect , ORG decision of CARDINAL May prolonging the detention . Holding that the detention had accordingly been unlawful from DATE , ORG ordered Mr. PERSON ’s release .

On DATE , the Minister of Defence suspended the remainder of the sentence .

On DATE , ORG reversed the judgment of the lower court with reference to its reasoning ; ORG also found the applicant guilty , but reduced the sentence to CARDINAL of CARDINAL months’ imprisonment , the time spent in custody on remand between DATE and DATE to be deducted therefrom .

ORG The applicant entered an appeal on points of law with ORG . On DATE , ORG set aside the sentence of ORG and referred the case back to that ORG ( PERSON , DATE , no . CARDINAL ) .

On DATE , ORG sentenced Mr. PERSON to CARDINAL days’ imprisonment , the time spent in custody on remand , which also totalled DATE , to be deducted therefrom .

ORG Mr. PERSON was arrested on DATE on a charge of failing to register in due time as a conscript serviceman ( LAW ) and transferred to a military house of detention . On DATE , he refused to put on a military uniform and to take receipt of a weapon . He persisted in his refusal although his hierarchical superior pointed out to him that in doing so he committed the criminal offence of insubordination ( LAW ) . The commanding officer then confirmed the arrest , the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen ( LAW - see paragraph CARDINAL above ) .

On DATE , the applicant appeared before the auditeur - militair . DATE , the designated senior officer referred him for trial before ORG , while deciding that he should be kept in custody on the same grounds as before ( Articles CARDINAL , DATE and DATE , second paragraph , of LAW - see paragraph CARDINAL above ) .

ORG The applicant was also heard by the officier - commissaris on DATE ( Article CARDINAL , first paragraph , of LAW - see paragraph CARDINAL above ) .

On DATE , following a request by the auditeur - militair for extension of the detention ( LAW . ) , the applicant appeared before ORG . Counsel for Mr. PERSON submitted that his client ’s detention was unlawful since the requirements of LAW ( LAW ) of the LAW had not been complied with , in particular because the officier - commissaris could not be regarded as a judicial officer for the purposes of that provision . ORG rejected the applicant ’s arguments and prolonged the detention by a DATE term .

On a further request by the auditeur - militair , this decision was renewed by ORG on DATE .

ORG The trial took place before ORG on DATE . On DATE , the applicant was convicted of insubordination and failure to register for military service and sentenced to CARDINAL months’ imprisonment , the time spent in custody on remand to be deducted therefrom .

ORG The applicant appealed to ORG . On DATE , he requested the suspension of his sentence for DATE in order to address a political meeting on DATE ( Article CARDINAL of the Military Code - see paragraph CARDINAL above ) . ORG acceded to this request on DATE .

At a hearing on DATE , the applicant once more requested his release , invoking LAW ( LAW ) of the Convention .

ORG delivered judgment on DATE . It rejected the applicant ’s request for release , holding that a decision on the alleged breach of LAW ( LAW ) of the LAW was not within its competence . On the other hand , ORG reversed the judgment of the lower court with reference to its reasoning , but , also finding the applicant guilty , imposed an identical sentence of CARDINAL months’ imprisonment subject to deduction of the time spent in custody on remand .