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

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in the parish of GPE in GPE .

On DATE the executive director of the municipality where the applicant resided , ORG , lodged with ORG an application for a private prosecution against the applicant and her husband for offences which at the relevant time were proscribed by sections CARDINAL and CARDINAL of the Criminal Law ( defamation and bringing into disrepute ) . The complaint appears to have been based on CARDINAL letters that the applicant had sent to the council of the local municipality in which it had been alleged that ORG had given false testimony in courts to the applicant ’s detriment , that ORG was a liar who did not deserve to be working in an official position , and that ORG had hidden the will left by the applicant ’s sister - in - law .

On DATE , having considered V.D ’s complaint , a judge of ORG decided to initiate criminal proceedings against the applicant for defamation of a representative of public authority ( section CARDINAL of LAW as in force at the relevant time ) . Offences under section CARDINAL of the Criminal Law were subject to public prosecution .

On DATE an out - patient psychiatric assessment was carried out on the applicant in a psychiatric hospital located in GPE . The assessment was carried out by a commission composed of several medical professionals . The commission was unable to arrive at a definite conclusion concerning the applicant ’s psychiatric condition .

According to the Government , on DATE the applicant was officially charged with defamation of V.D. No documents have been provided in that connection by either of the parties . On DATE an authorisation ( orderis ) was issued to sworn attorney PERSON According to the authorisation , PERSON was authorised to “ participate in the pre - trial investigation ” to assist the applicant . The applicant claims that she never appointed PERSON to represent her interests . Nothing in the copy of the authorisation submitted by the Government indicates that the applicant was made aware of its existence or of PERSON ’s role in the proceedings .

On DATE a prosecutor of ORG requested ORG to order a residential psychiatric - psychological assessment of the applicant to be carried out in a psychiatric hospital in GPE . The prosecutor indicated that there were grounds to believe that the applicant had not been capable of understanding the consequences of writing the letters in issue . The prosecutor also stated that during the out - patient psychiatric assessment of DATE it had been impossible to establish the applicant ’s psychiatric condition with certainty .

On DATE a single judge of ORG issued a decision authorising the applicant ’s placement in a psychiatric hospital . The decision noted that the judge had heard statements from the prosecutor and from PERSON The decision also stated that the applicant had refused to report for a residential examination voluntarily , but no details were given . The Government have not suggested that the applicant was ever requested to report voluntarily for a residential assessment . Lastly , the decision noted that it could be appealed against to ORG but that the lodging of such an appeal did not suspend the execution of the decision . The decision also ordered the LOC police to transport the applicant to a psychiatric hospital in Rīga and guard her during the course of the examination .

According to the applicant , on DATE CARDINAL police officers arrived at her home and announced to her that she had TIME to get ready to leave . She was taken to a psychiatric hospital in Rīga and was told only after arriving there of the existence of the ORG judge ’s decision of DATE . She had not received a copy of that decision . The Government did not dispute this account .

The applicant submits that the conditions in the hospital were unbearable : she was placed together with people who were mentally ill , drug addicts and people with sexually transmitted diseases , and the toilets in the hospital were flooded and impossible to use . She also submits that prior to CARDINAL DATE – when , according to her , she was first seen by a psychiatrist – she was questioned by another doctor in a “ political ” manner . She also submits that her brain was scanned and that she was injected with unknown substances against her will .

At DATE ( probably on DATE ) the applicant submitted an appeal against the decision of ORG . The applicant pointed out that she had not been informed that a hearing concerning her placement in a psychiatric hospital would take place , and had not participated in that hearing ; she accordingly requested that the decision of the first - instance court be quashed .

On DATE ORG adopted a decision whereby it dismissed the applicant ’s appeal . At the hearing the court heard submissions from the lawyer , PERSON , and a public prosecutor . PERSON supported the applicant ’s appeal and alleged that the decision of the first - instance court had been unlawful . The prosecutor considered that the decision had been adopted lawfully and was justified by the applicant ’s persistent refusal to respond to any summonses sent to her or to sign the statement of charges brought against her . He furthermore informed the court that the applicant ’s assessment would be completed within DATE of the date of the hearing in the appeal court . The appeal court considered that the first - instance court had adopted its decision in full conformity with the requirements of section CARDINAL of LAW ( see below , paragraph CARDINAL ) , under which the presence of the suspected or accused person at the court hearing concerning that person ’s placement in a psychiatric hospital was not mandatory . The court considered that the actual implementation of the decision of ORG had not been sufficiently considerate , since the applicant had been forced to leave her household and domestic animals without any supervision . Nevertheless , the court took into account that ORG had taken certain steps to ensure that the applicant ’s property would be looked after during her stay at the psychiatric hospital , and it therefore considered that it was not “ expedient ” to terminate the assessment of the applicant ’s psychiatric health .

On DATE the applicant sent a request to ORG . She asked him to lodge a complaint against ORG decision of CARDINAL DATE and ORG decision of DATE . On DATE a prosecutor from ORG replied to the applicant , indicating that the decision of CARDINAL DATE was final and therefore no appeal lay against it .

On DATE the applicant was released from the hospital upon completion of her psychiatric assessment .

On DATE a commission consisting of CARDINAL certified psychiatrists and CARDINAL certified psychologist issued a report concerning the applicant ’s psychiatric health and psychological state . The principal conclusion of the experts was that the applicant suffered from persistent delusions about being persecuted by communists and various other persons , including officials of her local municipality . They also found that the applicant was egocentric and her ability to objectively and adequately assess reality and her own behaviour was impaired . The overall conclusion was that the applicant “ was unable to take account of her actions and to control them and [ was to be ] considered to have been in a state of mental incapacity ( nepieskaitāma ) with regard to the offence she was accused of ” . It was recommended that the applicant should undergo out - patient psychiatric treatment .

On DATE a public prosecutor of ORG adopted a decision to discontinue the criminal proceedings against the applicant . The decision indicated that the applicant “ had committed ” the criminal offence mentioned in section CARDINAL of LAW and that her guilt had been proved by all the materials obtained during the pre - trial investigation . However , taking into account the applicant ’s mental incapacity and the fact that there was no need to order her compulsory treatment in a psychiatric hospital , the criminal proceedings were terminated .

On DATE the applicant submitted a civil - law complaint to the Rīga City Ziemeļu District Court . She complained about being held in the psychiatric hospital and indicated that it was still unclear to her why she had been held there . The complaint was directed against the hospital and contained a request for CARDINAL NORP lati ( ORG ) in compensation for restriction of the applicant ’s liberty and for harm done to her honour and reputation .

On DATE the applicant submitted an additional complaint about , inter alia , the conditions in the hospital . She also named as additional defendants the CARDINAL doctors who had observed her . The applicant further noted that while detained she had “ had no possibility to appeal against the decisions of the [ judge of ORG ] or the public prosecutor , which [ she ] had not received ” and that she had not been allocated a lawyer , in contravention of the law . In another complaint dated CARDINAL DATE the applicant complained , inter alia , that she had not been summoned to the hearing of ORG , had had no possibility to defend herself and had not been sent a copy of the decision . The amount of compensation requested was increased to ORG .

The first - instance court rejected the applicant ’s claim by a judgment on the merits which was adopted on DATE . The court pointed out that the applicant ’s liberty had been restricted in accordance with decisions of a public prosecutor and a court and accordingly the deprivation of liberty had not been unlawful . It was further noted that since the psychiatric hospital where the applicant had been held had received a certificate which attested to its compatibility with the standards set forth in NORP legislation , the applicant ’s complaints regarding the conditions in the hospital were ill - founded . The applicant ’s complaint about the alleged impossibility of appealing against the decisions of the public prosecutor and ORG was not addressed in the judgment .

On DATE the applicant lodged an appeal against the judgment of the first - instance court . On DATE she supplemented her appeal . She complained , inter alia , about having been held in a psychiatric hospital for an excessive length of time despite having been “ completely healthy ” . The applicant also reiterated her complaint that she had been unable to appeal against the decision to place her in a psychiatric hospital because she had not been informed of that decision , and that she had not been summoned to the relevant court hearing .

On DATE ORG rejected the applicant ’s appeal . That court held that the applicant ’s constitutional right to liberty had not been violated because she had been placed in the psychiatric hospital in accordance with the law . It also held that the applicant ’s placement in the hospital had been “ proportionate ” ( “ samērīgs ” ) with the aim to determine whether she had “ realised and understood the nature and consequences of her actions ” . The applicant ’s complaint about her purported inability to appeal against the court order requiring her placement in the psychiatric hospital was not addressed .

On DATE the ORG of ORG , in a preparatory meeting ( rīcības sēde ) , rejected the applicant ’s appeal on points of law . The ORG pointed out that the applicant had failed to indicate any violations of material or procedural norms .

At the relevant time the placing of suspects or accused persons in medical institutions was governed by LAW of LAW ( in force until DATE ) , which provided as follows :

“ If during the performance of a ... forensic psychiatric assessment there arises a necessity to observe and test the suspect or accused person , the public prosecutor can adopt a reasoned decision and place him in an appropriate medical institution . If the suspect or the accused person is not in detention , he may only be placed in a medical institution on the basis of a decision by a judge or by a court . ... ”

Pursuant to Article CARDINAL of the Code of Criminal Procedure , the participation of defense counsel was compulsory during a trial before the first - instance court , as well as during a pre - trial investigation in cases concerning , inter alia , persons “ unable to exercise their rights to defence because of mental defects ” . If the person in question had not chosen a legal representative , the prosecutor or the court had an obligation to ensure the participation of defence counsel .

Article CARDINAL obliged defence counsel to use “ all legal means and methods ” to provide the necessary legal assistance to their clients . To that end counsel had a right to meet with their client alone , to take part in various procedural actions , to lodge complaints and requests , and to submit evidence .

Article CARDINAL provided as follows :

“ The suspect , the accused person or their representative may appeal against a decision of a judge concerning ... placement in a medical institution ...

Such appeal may be lodged within DATE of the time when the person in question has become aware ... of the placement in a medical institution ...

Such appeal ... shall be heard by a higher court , which shall adopt a decision to quash the judge ’s decision or to leave it unchanged . A decision shall be adopted DATE after a complaint ... has been received at the court , in the presence of the person who has lodged the appeal ... and the prosecutor . The decision of the court shall be final and not subject to appeal . ”

In a judgment of CARDINAL DATE ORG declared section CARDINAL of LAW , under which the applicant had been indicted , unconstitutional as being inconsistent with freedom of speech . In accordance with that judgment , section CARDINAL became invalid on DATE .

Section CARDINAL of the Civil PERSON provides : “ If someone unlawfully deprives another person of their personal liberty , they shall restore the liberty and shall , at the discretion of a court , give full compensation thereof , including compensation for non - pecuniary damage ” .


Violation of Article 2 - Right to life (Procedural aspect)

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in PERSON .

On CARDINAL DATE an unidentified individual broke the skull of GPE , the applicant 's son , in the corridor of a dormitory at ORG .

On DATE the Prydniprovsky district police department of ORG initiated criminal proceedings into a suspected offence of inflicting grievous bodily harm .

On DATE I.D. died without regaining consciousness . Subsequently the investigation amended the characterisation of the suspected offence to inflicting grievous bodily harm resulting in death .

On DATE and CARDINAL DATE the PERSON district prosecutor 's office advised the investigation as to various procedural steps to be taken .

As no leads concerning the perpetrator had been picked up by DATE , the police suspended the investigation .

On DATE , following complaints by the applicant 's family , the PERSON district prosecutor 's office annulled the decision to suspend the proceedings , finding that the police had not fully complied with the requirements of the applicable procedural law and had also failed to comply with the instructions issued by the prosecutor 's office on DATE and DATE .

On DATE the applicant was granted leave to join the proceedings as an injured party and a civil claimant .

On DATE the NORP regional prosecutor 's office acknowledged to the applicant 's family that the investigation had been beset by unnecessary delays for which it could not provide a plausible explanation . Moreover , the investigator in charge of the case had been subjected to disciplinary action on account of serious procedural omissions . The prosecutor 's office also informed the applicant 's family that progress in the case had twice been discussed at recent staff meetings and assured her that the investigation would be closely monitored .

On DATE and DATE the applicant 's family received further similar acknowledgments from the NORP regional prosecutors ' office and ORG .

By a letter of DATE ORG acknowledged to the applicant 's family that the investigation into the circumstances leading to ORG 's death had been perfunctory as the instructions given by the prosecutor 's office had not been carried out in full . They further informed the applicant 's family that they had instructed the NORP regional prosecutor 's office as to the specific steps to be taken and had advised that the case should be transferred to an experienced investigator .

On DATE the case was transferred for investigation to the NORP regional police department .

On several occasions ( on DATE and DATE , CARDINAL DATE and DATE ) the investigation was suspended on account of a failure to pick up any leads as to the perpetrator 's identity .

These decisions were annulled by the supervising prosecutors ( on CARDINAL DATE and DATE , DATE and CARDINAL DATE respectively ) , with reference to the inadequacy of the measures taken .

On several occasions ( in particular , on DATE and DATE and DATE ) the prosecutor 's office and ORG acknowledged to the applicant 's family that the investigative work aimed at identifying the person responsible for ORG 's wounding had been inadequate . In DATE the PERSON district prosecutor 's office further proposed that the police department carry out an official internal investigation into the reasons for the inadequate performance . No information regarding the outcome of this internal investigation has been provided by the parties .

On DATE and DATE ORG of ORG studied the case - file and gave additional instructions to the investigative authorities . On DATE the Prosecutor of the Prydniprovskyy District of Cherkasy quashed the investigator 's order of DATE to suspend the investigation and formal proceedings were resumed .

Overall , in the course of the investigation the law - enforcement authorities carried out CARDINAL interviews , CARDINAL confrontation and CARDINAL line - ups . They further ordered CARDINAL medical expert assessments .

The criminal proceedings are currently pending .

On DATE the applicant 's family instituted civil proceedings in the Prydniprovsky District Court of Cherkasy seeking damages from ORG for failure to ensure security in its dormitory , thus leading to ORG 's wounding and death .

On DATE ORG dismissed this claim , having found that ORG had been injured through no fault of ORG . On DATE and CARDINAL DATE ORG and ORG of GPE respectively upheld this judgment .

The relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in PERSON .

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

The applicant worked as a carpet maker for ORG , a company registered in PERSON ( “ the employer ” ) . On DATE she was declared to be a person with second degree disabilities by a specialised medical commission , which recommended that the applicant should stop working as a carpet maker as her working conditions were damaging her health .

Having submitted the relevant certificate to her employer , on DATE the applicant was dismissed from her job on the grounds that she was no longer able to work as a result of her invalidity . She disagreed with the reason for her dismissal , claiming that this was not a valid legal reason . She asked her employer to issue her with a record of employment ( carnet de muncă ) giving a different reason for her dismissal , a document which she would have to produce if she applied for another job . On DATE the employer issued her with a record of employment , which she claims was in the old format , contrary to the law .

On DATE the applicant initiated court proceedings against the employer , asking for a modification of the reason for her dismissal , the issuing of a new record of employment and the payment of her salary and compensation for the entire period during which she had not been issued with a new record of employment .

On DATE ORG left her action without examination . On DATE the ORG quashed that decision and ordered the examination of her action .

On DATE the ORG found against the applicant . On DATE the ORG quashed that judgment and adopted a new one , partly admitting the applicant 's claims and awarding her compensation . On DATE ORG quashed the judgments of the lower courts and ordered a full re - trial of the case .

On DATE the ORG found for the applicant and awarded her compensation . On DATE ORG partly quashed that judgment and adopted a new one , ordering the employer to issue the applicant with a new record of employment , and in addition to pay her compensation in the amount of CARDINAL NORP lei ( MDL ) ( QUANTITY ( ORG ) at the time ) .

On DATE the employer lodged an appeal in cassation , asking the court to reject the applicant 's claims . It also requested the court to accept its right to lodge the appeal despite having missed the CARDINAL-day time - limit established by law , because it had not participated at the court hearing of CARDINAL DATE and had only been informed of the judgment by mail on DATE .

On DATE ORG accepted the employer 's appeal and quashed the lower courts ' judgments , rejecting all of the applicant 's claims . The court found that there was clear evidence of the applicant 's refusal to take her record of employment on DATE of her dismissal ( DATE ) , as well as of the fact that on DATE she had taken her record of employment . The employer had therefore not been responsible for any delay in issuing her record of employment .

The relevant provisions of the new Code of Civil Procedure read :

( CARDINAL ) ORG actions shall be examined by the first - instance court within a reasonable time . The criteria for determining the reasonable length of the proceedings include : the complexity of the case , the conduct of the parties to the proceedings and the conduct of the court . The observance of the reasonable time requirement in examining cases shall be ensured by the court . In examining a specific case , the observance of the reasonable time requirement shall be verified by the higher courts when examining the case in the relevant form of appeal .

( CARDINAL ) ORG actions regarding ... work related claims ... shall be examined urgently and on a priority basis . ”

An appeal in cassation may be lodged within DATE from DATE when the judgment was adopted or , in case of subsequent drafting of the text , from the date when the parties have been informed in writing about the signing of the drafted judgment . An appeal in cassation lodged within DATE from the date of adoption of the judgment or of informing the parties about it shall be considered as lodged within the time - limit . ”

Article CARDINAL of the old ORG , in force before DATE , reads as follows :

“ The time - limit for lodging an appeal in cassation is DATE from the date of the judgment , if the law does not provide otherwise ” .


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

The applicants were born in DATE and DATE respectively and live in LOC .

On DATE the applicants applied for a building permit for an adjoining building with a garage on their property .

On DATE the Mayor ( Bürgermeister ) of PERSON granted the building permit .

On DATE the applicants’ neighbours appealed .

On DATE ORG granted the appeal and refused the building permit .

On DATE the ORG ( PERSON ) dismissed the applicant ’s appeal ( PERSON ) .

On DATE ORG ( Verwaltungsgerichtshof ) , upon the ORG complaint , quashed this decision .

Subsequently , on DATE , ORG quashed ORG decision and remitted the case back to ORG .

On DATE the applicants lodged an application with ORG against ORG failure to decide ( PERSON ) .

On DATE ORG again dismissed the ORG request for a building permit .

On DATE ORG dismissed the applicants’ appeal .

On DATE the applicants filed a complaint with ORG ) . In DATE ORG and the Mayor of PERSON submitted their observations . On DATE ORG instituted proceedings for the review of the lawfulness of the ordinance ( ORG ) upon which ORG had based its decision .

On DATE ORG found that the ordinance at issue was unlawful . On DATE this decision was served on the applicants’ counsel .

On DATE ORG quashed ORG decision and remitted the case back to ORG .

In DATE , NORP following negotiations , the applicants reached an agreement with ORG to the effect that the latter accepted to pay the fees incurred by the applicants’ representation in the proceedings so far , on the condition that the applicants amended their request for a building permit in accordance with the newly established building scheme ( GPE ) .

On DATE the applicants amended their request for a building permit .

Subsequently , on DATE , ORG quashed the building permit of DATE and remitted the case back to the Mayor of PERSON . It noted that the applicants had amended their request for the building permit with a view to the new building scheme .

On DATE the Mayor of PERSON requested the applicants to submit plans concerning their amended building project . On DATE the Mayor of PERSON reiterated this request .

On DATE the applicants submitted the requested plans , which , however , turned out to be incomplete .

On DATE the Mayor of PERSON requested the applicants to correct the plans within DATE .

On DATE the applicants requested to extend this time - limit until DATE . On DATE they submitted the corrected plans .

On DATE the Mayor of ORG granted a building permit for a double garage with a parking area . This decision was served upon the applicants’ counsel on DATE .


Anatoly Kovler;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant , his wife and their CARDINAL children owned a CARDINAL - room apartment , of a total surface area of CARDINAL sq.m . , in a building at CARDINAL FAC , in GPE of GPE .

In DATE the Prefect of the district concluded an investment contract with a private company , “ PERSON ” , for a land development , namely , for the construction of a new housing complex . According to that contract , the building in which the applicant had an apartment had to be pulled down and the inhabitants provided with new apartments .

As the applicant refused to leave the building , in DATE the ORG lodged a claim against him with the NORP ORG of GPE . He claimed that the applicant should be evicted from the apartment in question , his ownership should be terminated and he should be granted ownership of a new apartment in the same district .

On DATE the court rejected the ORG ’s claim .

On DATE ORG issued Decree no . CARDINAL-PP on the Results of the Implementation of a Programme on Dwelling Space in DATE and a ORG in DATE , according to which the building at CARDINAL FAC had to be demolished and its inhabitants relocated .

On DATE the ORG lodged the same claim again .

On DATE the local ORG ( орган опеки и попечительства ) submitted to the court their conclusion that the applicant ’s family ’s eviction and the subsequent granting to them of a new , larger apartment would not affect the interests of the applicant ’s children .

On DATE the ORG issued order no . DATE : “ ... to provide the PERSON family with a CARDINAL - room apartment , of a total surface area of CARDINAL sq.m . , at CARDINAL Lavochkina Street .

On DATE the NORP ORG heard the case in the absence of the applicant ’s family and allowed the ORG ’s claim .

On DATE that judgment was quashed due to the court ’s failure to secure the defendants’ presence and the case was remitted for fresh consideration .

On DATE the NORP ORG of GPE heard the case in the presence of the applicant and his lawyer and found as follows :

“ ... The PERSON family has a CARDINAL - room apartment , of a total surface area of CARDINAL sq.m . , at CARDINAL FAC ... By Decree no . CARDINAL-PP on the Results of the Implementation of a Programme on Dwelling Space in DATE and a ORG in DATE ” the building at LOC is included in the list of buildings to be relocated or demolished . On DATE the Prefect of GPE obliged ORG to provide the inhabitants of the said building with new dwelling space .

Article CARDINAL of the Housing Code provided that , in the event of demolition of a building under circumstances prescribed by law , the local authority should grant the evicted owners title to an equivalent apartment or other compensation ...

By virtue of the ORG ’s order no . DATE the ORG family were provided with a CARDINAL - room apartment , of a total surface area of CARDINAL sq.m . , at CARDINAL FAC . This building is situated in a residential area , in GPE , CARDINAL stops away from the family ’s current location ... In close proximity there are children ’s educational institutions , including a specialist LANGUAGE school ( PERSON is now studying at a similar school ) , music school , and children ’s sports centre .

According to ORG , the market value of the apartment at CARDINAL LOC is MONEY , whereas the market value of the apartment at CARDINAL FAC is MONEY ... ”

Further noting that the authorities were pursuing a public interest and acting within their area of competence , the court allowed the ORG ’s claim and ordered the eviction of the applicant ’s family . The court also terminated the applicant ’s family ’s title to the former apartment and granted them title to the new apartment at CARDINAL FAC . This judgment was subject to immediate execution .

ORG upheld the judgment in full on DATE .

On DATE the applicant ’s family was evicted . On DATE the building was demolished .

Article CARDINAL . Providing citizens who are owners of apartments in a fully or partly privatised building with new apartments due to the demolition of the building

If a building with privatised apartments becomes subject to demolition under circumstances prescribed by law , the local authority , company or organisation that performed the demolition shall grant the evicted owners , upon their agreement , title to an equivalent apartment or other compensation .


SHIMIDZU AND BERLLAQUE v. THE UNITED KINGDOM

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively . They live in GPE . Mr Shimidzu was represented before the ORG by PERSON D. ORG , a barrister practising in GPE ; PERSON by PERSON PERSON , a barrister also practising in GPE . They were each assisted by ORG and Mr C. Nicholls GPE , counsel .

ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

On CARDINAL–CARDINAL DATE , the first applicant , PERSON , was tried before a judge and jury in ORG on charges of assault occasioning bodily harm , obstructing a police officer and resisting a police officer in the execution of his duty . He was acquitted by the jury after a submission of no case to answer was rejected by the trial judge . When Mr ORG ’s counsel made application for costs after the trial , the Chief Justice said :

“ But , PERSON , you know that you ca n’t get costs . I would grant them , if I could , you know that the law is against you . ”

When counsel persisted the Chief Justice said :

“ You keep trying , PERSON , I understand why you keep trying , but in my opinion it is an unjust system , which says , you can award costs against the defendant on conviction , you can not award costs in ORG on acquittal . It is not a just system , but it ’s not something that I can get round , however much I would enjoy trying to weave it . I just can not , and it is a matter for the ORG , but it is a matter perhaps that the ORG ought to be invited to give their attention to . ”

On DATE , the second applicant , PERSON , was tried before the same court on charges of rape . At the conclusion of the prosecution case , the trial judge upheld a defence submission of no case to answer and , on his direction , the jury acquitted the second applicant .

Mr ORG made a motion to challenge the refusal to award costs . This was referred by ORG to ORG of Gibraltar on DATE .

PERSON was given leave to intervene in the proceedings before ORG in Mr Shimidzu ’s case . Before ORG , the applicants argued , inter alia , that the relevant provision of NORP criminal law , section CARDINAL of the Criminal Procedure Ordinance , violated LAW . They relied on sections CARDINAL and CARDINAL of the LAW . In respect of section CARDINAL , they argued that LAW violated their right to a fair hearing and was a violation of the presumption of innocence . It appears that it was accepted before ORG that while section CARDINAL ( CARDINAL ) allowed ORG to order the prosecution to pay costs to an acquitted defendant , all defendants before ORG would be unable to fulfil the conditions laid down in CARDINAL ( CARDINAL ) since in order for a person to be committed for trial they would have to be detained in custody or bound by recognizance ( see section CARDINAL ( CARDINAL ) ( a ) below ) . ORG unanimously rejected the applicant ’s submissions in respect of the presumption of innocence and the prohibition on discrimination contained in section CARDINAL . By a majority , it found that section CARDINAL violated the right to a fair hearing contained in section CARDINAL .

The Attorney - General for ORG appealed to ORG of ORG . On DATE , ORG allowed the appeal , holding that section CARDINAL , while unattractive and lacking even - handedness , did not violate the LAW . This unattractiveness was relieved by the fact that the subsection ( CARDINAL ) of the section , allowing the prosecution to claim costs from a convicted defendant , was a dead letter . ORG , relying on this ORG ’s rulings in PERSON and PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL , § § DATE and PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § CARDINAL , found that LAW did not require a discretion to award costs to an acquitted defendant . While an even - handed discretionary power to order reimbursement of costs incurred by a successful prosecutor or a successful defendant would be desirable , it was not correct to find , as ORG had , that such a power was universal among LOC countries . The principle of equality of arms sought to ensure that a defendant did not suffer an unfair procedural disadvantage but did not require that the situations of the prosecutor and defendant should be assimilated and neither applicant had been able to show any procedural disadvantage in the conduct of the trial from the inability to recover his costs . In respect of the presumption of innocence ( and referring to this ORG ’s findings in PERSON , cited above ; PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL ; and PERSON v. GPE , judgment of DATE , Series A no . CARDINAL ) , ORG found that where the domestic court had a discretion to order costs against a prosecutor in favour of an acquitted defendant , the court should not refuse to make such an order in terms which threw doubt on the presumption of innocence . However , where domestic law granted no discretion and did not permit the making of an order , the failure to make such an order could not be rationally understood as throwing doubt on the defendant ’s innocence .

Section CARDINAL of LAW DATE ( now superseded by LAW ) , in so far as it is relevant , provided as follows :

“ It is hereby recognised and declared that in GPE there have existed and shall continue to exist without discrimination by reason of race , place of origin , political opinions , colour , creed or sex , but subject to respect for the rights and freedoms of others and for the public interest , each and all of the following human rights and fundamental freedoms , namely―

( a ) the right of the individual to life , liberty , security of the person and the protection of the law ; ...

... and the provisions of this LAW shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions , being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest . ”

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) , insofar as they are relevant , provided as follows :

“ “ Provisions to secure protection of law

CARDINAL.(CARDINAL ) If any person is charged with a criminal offence , then , unless the charge is withdrawn , the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law .

( CARDINAL ) Every person who is charged with a criminal offence ―

( a ) shall be presumed to be innocent until he is proved or has pleaded guilty ;

( c ) shall be given adequate time and facilities for the preparation of his defence ;

( d ) shall be permitted to defend himself in person or , at his own expense , by a legal representative of his own choice or , where so prescribed , by a legal representative provided at the public expense ... ”

Sections CARDINAL and CARDINAL also provided protection against deprivation of property .

Part ORG of the Ordinance governs costs and other ancillary orders in criminal cases .

Section CARDINAL , governing the award of costs by ORG , so far as it is relevant , provides :

“ ( CARDINAL ) On the summary trial of an information the GPE court shall have power to make such order as to costs ―

( a ) on conviction , to be paid by the defendant to the prosecutor ; and

( b ) on dismissal of the information , to be paid by the prosecutor to the defendant , as it thinks just and reasonable :

Provided that ―

( i ) where under the conviction the court orders payment of any sum as a fine , penalty , forfeiture or compensation , and the sum so ordered to be paid does not exceed £ CARDINAL , the court shall not order the defendant to pay any costs under this subsection unless in any particular case it thinks fit to do so ;

( ii ) and where the defendant is a child or young person , the amount of the costs ordered to be paid by the defendant himself under this subsection shall not exceed the amount of any fine ordered to be so paid .

( CARDINAL ) The court shall specify in the conviction , or , as the case may be , the order of dismissal , the amount of any costs that it orders to be paid under subsection ( CARDINAL ) .

( CARDINAL ) Where examining justices determine not to commit the accused for trial on the ground that the evidence is not sufficient to put him upon his trial , and are of opinion that the charge was not made in good faith , they may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence . ”

At the relevant time , section CARDINAL , governing the award of costs by ORG , provided :

“ ( CARDINAL ) ORG may , if it thinks fit , order any person convicted before it to pay the whole or any part of the costs incurred in or about the prosecution and conviction , including any proceedings before the examining justices .

( CARDINAL ) Where any person is acquitted on indictment , then , if ―

( a ) he has not been committed to or detained in custody or bound by recognizance to answer the indictment ; or

( b ) the indictment is for an offence under LAW ;

( c ) the indictment is by a private prosecutor for the publication of a defamatory libel or for any corrupt practice within the meaning of ORG ,

ORG may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence , including any proceedings before the examining justices .

( CARDINAL ) Costs payable under this section shall be taxed by the Registrar . ”

Section CARDINAL(CARDINAL ) was repealed by ORG with effect from DATE .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

ORG PERSON , a NORP citizen , was born in DATE . He lives at GPE .

He has a daughter , PERSON , who was born in DATE . Following the death in DATE of PERSON ( the child ’s mother , to whom the applicant had been married since DATE ) , PERSON was looked after by her maternal grandparents , Mr PERSON and PERSON ( hereinafter referred to as " the grandparents " ) . According to the applicant , he had agreed to this as a provisional arrangement so that he could deal with various problems caused by his wife ’s death , including the reorganisation of his farming activities .

In DATE the grandparents informed the applicant that they did not intend to restore PERSON to him . Efforts , involving ORG ( sosiaalilautakunta , socialnämnden ) of PERSON , were made to achieve reconciliation between the applicant and the grandparents , but to no avail .

ORG On DATE ORG ( lääninhallitus , länsstyrelsen ) of PERSON as the competent Chief Bailiff ( ulosotonhaltija , överexekutor ; see paragraph CARDINAL below ) rejected a request by the applicant to have PERSON returned in accordance with section CARDINAL(CARDINAL ) of the CARDINAL Act on ORG concerning Custody of and ORG ( laki DATE lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta , lag CARDINAL om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt - " LAW " ) . It observed that the applicant had consented to the arrangement leaving PERSON in the care of the grandparents . In view of the time which had elapsed since she had moved to them and of the little contact PERSON had had with the applicant , returning her could be contrary to her own interests ; both parties should therefore institute custody proceedings before ORG ( kihlakunnanoikeus , häradsrätten ) of GPE . They did so .

ORG Following a hearing on DATE , ORG ordered provisionally that PERSON should remain with her grandparents ; at the same time it granted the applicant access rights , according to which PERSON was to stay with him every fourth weekend and , from CARDINAL DATE , DATE .

ORG On DATE ORG ordered the grandparents to respect the applicant ’s visiting rights on pain of an administrative fine ( uhkasakko , vite ) of MONEY each . However , they did not comply .

ORG On DATE ORG held a further hearing . It adjourned the case and again provisionally granted the applicant access rights : as from DATE he could visit his daughter at her grandparents’ home for TIME every Wednesday and TIME every DATE and , as from DATE , she was to visit him at the same times and for the same periods at his home . The grandparents refused to comply with these arrangements .

ORG On DATE ORG rejected a request from the applicant asking it to enforce the right of access granted to him by ORG on DATE . It observed that ORG , in its decision of DATE , had varied his right of access . ORG was therefore of the view that its decision of CARDINAL DATE that the grandparents would be liable to pay fines should they fail to comply with the access order ( see paragraph CARDINAL above ) no longer applied .

ORG By judgment of CARDINAL DATE , ORG confirmed the applicant ’s custody and ordered that PERSON be handed over to him . It took into account , among other things , a report of CARDINAL DATE by ORG ( kasvatusneuvola , uppfostrings- rådgivningen - " the Centre " ) of LOC .

ORG On DATE ORG ordered the grandparents to comply with ORG judgment of DATE on pain of a fine of MONEY each should they fail to do so . The grandparents persisted in not complying .

ORG On DATE , on an appeal by the grandparents , ORG ( hovioikeus , hovrätten ) of GPE upheld ORG judgment of DATE . On DATE it dismissed their appeal against ORG decision of DATE .

ORG On DATE ORG had again ordered the grandparents to return PERSON to the applicant within DATE and to pay MONEY each of the fines imposed on them previously . ORG further ordered that , in the event of the grandparents’ failure to return her , the Bailiff should use coercion to ensure that she was so returned .

ORG On DATE ORG ( korkein oikeus , högsta domstolen ) granted the grandparents leave to appeal against ORG judgments of DATE and DATE . It ordered a stay , or alternatively suspension , of both judgments ( see paragraph CARDINAL above ) .

ORG , in CARDINAL separate judgments of CARDINAL DATE , dismissed the appeal and lifted the CARDINAL decisions staying execution .

ORG The grandparents asked the local ORG to investigate whether execution of ORG judgments would be in PERSON ’s interests . ORG referred the matter to ORG ( sosiaalihallitus , socialstyrelsen ) .

At the same time , the grandparents requested ORG to stay the execution of , and annul , its judgments of CARDINAL DATE , which it refused to do on DATE .

ORG In the meantime , on CARDINAL and CARDINAL DATE , the applicant had asked the District Chief of Police of GPE to execute ORG decision of DATE ( see paragraph CARDINAL above ) . On CARDINAL May the authorities discovered that the grandparents had moved PERSON and that her whereabouts were unknown . The NORP police then contacted their counterpart in PERSON , where the grandparents had a summer home . Subsequently PERSON was found to be with her grandparents at their summer home . On DATE the applicant requested the Chief of Police of PERSON to return her , but the latter official refused to do so , finding it contrary to the child ’s interests to interrupt her summer vacation .

ORG On CARDINAL DATE the applicant complained to the Chancellor of ORG ( oikeuskansleri , justitiekanslern ) , alleging that the authorities had failed to take sufficient action to find and return PERSON . The Chancellor replied on DATE that he did not consider that any measures were called for in view of , firstly , the steps taken to execute ORG decision of CARDINAL DATE ; secondly , ORG subsequent decision to stay the execution of ORG judgments of DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) and , thirdly , the GPE request for a stay and annulment in respect of ORG judgments of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG On DATE ORG recommended that ORG in GPE take steps to have custody of PERSON transferred from PERSON to the grandparents , to obtain access for the applicant and to have a person other than him appointed PERSON ’s guardian .

On DATE , at ORG request , ORG ( holhouslautakunta , förmyndarenämnden ) of GPE submitted an opinion on the above matter , stating that the applicant had performed his duties as a guardian in a satisfactory manner . It did not consider the transfer of custody and guardianship advisable and concluded that he should continue as PERSON ’s custodian and guardian .

ORG On DATE ORG of GPE asked ORG to transfer custody to the grandparents . ORG noted that the applicant was a fit person to bring PERSON up and was able to offer her a good home environment . ORG placed emphasis on the fact that since DATE she had been living with the grandparents , with whom she had close relations . In view of the fact that PERSON had not met her father for many years it was necessary for their meetings in the autumn of DATE to be well prepared and that they should take place in a neutral environment . It also recommended that the applicant remain PERSON ’s guardian .

ORG On DATE ORG held a hearing but adjourned the case until DATE after deciding to obtain an opinion from ORG . ORG submitted a report on DATE , recommending that the applicant cease to be the child ’s guardian .

At the hearing scheduled for DATE ORG again adjourned the case , this time until DATE , pending an opinion from ORG . On DATE ORG ( perhe- ja kasvatusneuvola , familje - och uppfostringsrådgivningen ) of GPE , which had taken over the former ’s functions , confirmed the views expressed by that ORG in its opinion of CARDINAL DATE ( see paragraph CARDINAL above ) . It observed that the grandparents had refused to allow PERSON to be subjected to an examination ( requested by ORG ) and to participate in related interviews . It also referred to a statement of CARDINAL DATE by a working group of ORG that , although PERSON related to the grandparents as her psychological parents , there were no psychological obstacles as far as she was concerned to her meeting the applicant ; on the contrary , such meetings were in her interests .

ORG During the proceedings before it ORG had , on DATE , provisionally ordered that PERSON remain with the grandparents and granted the applicant certain rights of access : in DATE and DATE he was to be permitted to meet his daughter for TIME on the first Sunday of the month at a place chosen by ORG and in the presence of CARDINAL of its officials ; as from DATE they were in addition to meet from DATE TIME to DATE TIME on DATE and , as from DATE , also DATE .

However , the grandparents would not allow the applicant to meet the child outside their home . On DATE he asked ORG to take enforcement measures . He renewed this request on DATE .

ORG On DATE the ORG ordered the grandparents to comply with ORG provisional order of CARDINAL DATE and decided that failure to do so would make them liable to pay an administrative fine of MONEY each . The grandparents persisted in their refusal to comply . The applicant did not request the enforcement of the fines , such a request being a legal condition for their imposition .

ORG , by judgment of CARDINAL DATE , rejected ORG request to transfer custody and guardianship . It moreover noted that its provisional access order of CARDINAL DATE no longer applied .

ORG On DATE , on separate appeals by the grandparents and ORG , ORG ordered a stay of execution of ORG judgment of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG By judgment of CARDINAL DATE ORG , by a majority , held that the applicant should remain PERSON ’s guardian but transferred custody to the grandparents , finding that the fact that she had lived with them since DATE militated strongly in favour of her remaining in their care . It referred to the above - mentioned opinion of CARDINAL DATE by ORG ( see paragraph CARDINAL above ) , according to which she had strong ties of security , confidence and affection with her grandparents and perceived their home as her own . No substantial changes should be made to this situation . She should be able to meet the applicant and develop a normal relationship with him . In view of her low age ( eight at the time ) and the fact that she had not been in a position to form her views independently , ORG considered that no significant importance could be attached to PERSON ’s own wish not to see the applicant , mentioned in ORG opinion of DATE ( see paragraph CARDINAL above ) .

The judgment prescribed the following access arrangements : during DATE the applicant and his daughter were to meet for TIME DATE , at a place chosen by ORG , in the presence of CARDINAL of its officers and , after that , every other weekend TIME and DATE TIME . She was to spend DATE with her grandparents and DATE of the following summer with the applicant ; subsequently her stays during holidays should alternate between the applicant and the grandparents .

ORG On DATE ORG quashed ORG order of CARDINAL DATE requiring the grandparents to comply with ORG provisional order of CARDINAL DATE regarding access ( see paragraph CARDINAL above ) . ORG had regard to the lower court ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) , which in effect revoked its decision of CARDINAL DATE .

ORG On DATE ORG refused the applicant leave to appeal .

ORG On DATE ORG of GPE replied to an enforcement request by the applicant . It observed that ORG had offered the grandparents " an opportunity to obtain assistance and to discuss the matter concerning visiting rights " but they had refused to contact the ORG . The latter had , in a letter to ORG of DATE , stated that in those circumstances " nothing else could be done by ORG .

ORG In the meantime , on DATE the applicant asked ORG to take steps to execute ORG judgment of DATE ( see paragraph CARDINAL above ) . He referred to the fact that in DATE all CARDINAL meetings planned between him and PERSON had failed to take place , as the grandparents had refused to bring her . They had moreover declined to respond to attempts to arrange further meetings .

ORG On DATE ORG gave an interim decision ordering the applicant to communicate the documents in the case to the grandparents in order to enable them to comment on his request to ORG . This they did on DATE . The decision further indicated that the case would be struck off the list if the applicant did not renew his enforcement request within DATE .

On DATE the applicant renewed his request of DATE to ORG . Following this , the ORG , as required by the relevant legislation , referred the matter to the conciliator for mediation ( see paragraph CARDINAL below ) . The latter submitted a report to ORG and the applicant filed his comments on DATE .

ORG On DATE ORG ordered the grandparents to comply with ORG decision of CARDINAL DATE , on pain of having to pay an administrative fine of MONEY .

On the other hand , the ORG dismissed a request by the applicant for PERSON to be transferred to him ; such a measure could only be taken in enforcement of a custody order . However , it noted that the grandparents had totally refused to co - operate in attempts to arrange for the applicant to meet his daughter . Bearing in mind her age and the GPE strong influence over her , she could not be considered sufficiently mature for her views to be taken into account .

ORG had regard also to the conciliator ’s above - mentioned report ( see paragraph CARDINAL above ) , submitted by ORG of GPE . According to that report the grandparents had agreed to allow the applicant to see PERSON in their own home , whilst the applicant had categorically refused to have anything to do with them . The conciliator in question had met PERSON only in the grandparents’ presence in their home on DATE . On being questioned about her father she had been very reserved but had said that she objected to seeing him . The conciliator was of the view that PERSON ’s wishes in this regard should be taken into consideration .

ORG The grandparents refused to bring PERSON to a meeting with the applicant which ORG of GPE had arranged to take place on DATE .

ORG By judgment of CARDINAL DATE ORG , referring to section CARDINAL of LAW ( see paragraph CARDINAL below ) , upheld an appeal lodged by the grandparents against ORG decision of DATE ( see paragraph CARDINAL above ) . ORG noted that , according to a medical report of DATE by PERSON , PERSON was physically and mentally healthy and a psychological test had shown that she was clearly of above average intelligence for a DATE ; she should not therefore be forced to meet the applicant but be allowed to decide for herself . Moreover , the conciliator ’s report ( see paragraphs DATE and DATE above ) stated that she had clearly and consistently refused to meet the applicant and was sufficiently mature for her wishes to be taken into account . The judgment concluded that in view of the child ’s maturity , access could not be enforced against her wishes and lifted the fines imposed on the grandparents .

ORG The applicant visited PERSON in the GPE home on a few occasions until DATE . The last time he met her was on DATE .

ORG Custody of children is governed by LAW with regard to Children ( laki CARDINAL lapsen huollosta ja tapaamisoikeudesta , lag CARDINAL/CARDINAL ang . vårdnad om barn och umgängesrätt - " LAW " ) . Section CARDINAL provides that the aim of such custody is to ensure the child ’s balanced development and well - being , regard being had to the latter ’s special needs and wishes , as well as to encourage a close relationship between the child and the parents . The custodian represents the child in his or her personal matters , unless the law provides otherwise ( section CARDINAL ) .

ORG The parents , or any other person to whom care of the child has been entrusted , are his or her custodians ( section CARDINAL ) . Parents who are married to each other at the time of the child ’s birth are the latter ’s custodians ( section CARDINAL ) .

ORG may order that custody of a child be entrusted to CARDINAL or more persons together with , or instead of , the parents ( section CARDINAL para . CARDINAL ) . It may transfer custody from the parents to other persons only if , from the child ’s point of view , there are particularly strong reasons for doing so ( section CARDINAL para . CARDINAL ) .

ORG is moreover empowered to decide on access ( section CARDINAL ) . The aim of access is to secure a child ’s right to maintain contacts with a parent with whom he or she is not living ( section CARDINAL ) .

In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations : primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future ( section CARDINAL para . CARDINAL and section CARDINAL para . CARDINAL ) ; the child ’s views and wishes must , if possible and depending on its age and maturity , be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is otherwise deemed necessary in the latter ’s interests ; the consultation must be carried out in a tactful manner , taking into account the child ’s maturity and without causing harm to its relations with the parents ( LAW ) .

ORG Pending court decisions on matters of custody and access , the competent court may issue an interim order as to where the child should live , access arrangements and , in special circumstances , custody ( section CARDINAL paras . CARDINAL and CARDINAL ) .

ORG A decision on custody , access or a child ’s place of residence is , unless it states otherwise , immediately enforceable ( section CARDINAL ) .

ORG According to LAW ( for references , see paragraph CARDINAL above ) , the Act applies to the enforcement of a court decision , including an interim order , regarding custody and access . It may also apply to the enforcement of an order that a child should live with a particular person or that it should be handed over to its custodian .

A request for enforcement may be submitted to the Chief Bailiff in the area where the child lives ( section CARDINAL ) , which authority is vested in ORG ( section CARDINAL of the DATE LAW - ulosotto laki CARDINAL , utsökningslagen CARDINAL ) .

ORG Pursuant to section CARDINAL , as amended by Act no . CARDINAL/CARDINAL , before ordering enforcement ORG must assign as a conciliator a person appointed by ORG or another suitable person to mediate between the parties with a view to enforcing the decision . Such mediation is aimed at persuading the person taking care of the child to comply voluntarily with his obligations under the relevant decision .

Conciliation may not be ordered if it is evident from previous attempts that it would be unsuccessful or , in the case of a custody decision , if immediate enforcement is in the child ’s interests and dictated by strong reasons .

ORG The Chief Bailiff may impose an administrative fine in connection with an enforcement decision or , when the matter relates to the custody of a child or the handing over of a child to its custodian , he may order the Bailiff to transfer the child ( section CARDINAL ) .

A fine as mentioned above must be fixed on the basis of the means of the person concerned ( chapter CARDINAL , section CARDINAL ( b ) para . CARDINAL , of the DATE LAW ) . If the fine can not be collected , it must be converted into a prison sentence ( section CARDINAL para . CARDINAL , as amended by Act no . CARDINAL ) .

Enforcement must not take place against a child ’s own wishes if he or she is DATE or is sufficiently mature for her wishes to be taken into account ( section CARDINAL of LAW , as amended by Act no . CARDINAL/CARDINAL ) .

ORG A decision by ORG under LAW may , unless otherwise stated therein , be enforced immediately ( section CARDINAL para . CARDINAL ) .


Préliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;No violation of Art. 13;No violation of Art. 6-1;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . He is of GPE ethnic origin .

On DATE the applicant , accompanied by Ms B. and Mr S. , was selling coal from a truck on a door - to - door basis in ORG . After an aborted transaction , some would - be purchasers reported to the local police that the CARDINAL had left their yard without having returned their fuel vouchers . At TIME two local police officers halted the applicant ’s truck and instructed the applicant and his companions to report to ORG . The applicant was interrogated there by police officers PERSON and K.

The applicant stated that during the interrogation CARDINAL of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder . The officers demanded that he reveal where the stolen vouchers had been hidden .

On being released after TIME of interrogation , the applicant was met on the ground floor of the police station by PERSON and PERSON , as well as by PERSON and PERSON , both of whom were acquaintances of the applicant and his companions .

The applicant stated that when he and his companions were leaving the police station , a police officer issued the following warning to them : “ Tell the Miskolc gypsies that they had better not set foot in Orosháza ” .

Having returned to his home in GPE on DATE , the applicant consulted Dr ORG , the local doctor , who advised him to report to the Ear , PERSON and ORG of ORG . On DATE Dr C. carried out an operation to reconstruct the applicant ’s ear drum which had been damaged as a result of a traumatic perforation . On DATE Dr C. reported the case to the police .

On DATE the applicant was discharged from hospital . His medical report stated , without reference to any precise date , that he had sustained a traumatic perforation of the left tympanic membrane . This conclusion also figured in CARDINAL further medical reports issued later by Dr C. on DATE and by Dr CARDINAL on DATE . The applicant ’s injury was described in a follow - up medical report dated DATE as “ low - to - medium - grade loss of sound perception ” in the left ear .

On DATE ORG informed the applicant that criminal proceedings had been opened against the police officers involved on the basis of information submitted by Dr C. on DATE . The police officers were charged with the offences of “ forced interrogation ” and “ ill - treatment committed in the course of official proceedings ” .

The Investigation Office heard the applicant and several witnesses . QUANTITY persons were heard from the applicant ’s side .

Mr PERSON stated as follows :

“ [ In the building of the police station ] I met [ the applicant ] [ ... ] whose face had a bluish colour in the area under his left ear and was somewhat swollen . I then asked him if they had hurt him . He answered that they had hurt him a little and pointed to the left side of his face saying that it was hurting there . He said that he had no hearing on that side . ”

PERSON stated as follows :

“ [ When the applicant was escorted down to the ground floor ] , it struck me that the left side of his face and his left ear were swollen . I thought that he had been beaten . I asked him about it , to which he only answered that he had been beaten a little . [ ... ] I remember well that the left side of his face was red and I even saw the traces of fingers on it . ”

PERSON stated as follows :

“ [ When at last the applicant came down to the ground floor ] , it struck me immediately that his skin was reddish - bluish around his left ear and even underneath his neck . I had no doubt that his face was swollen as a result of a blow . I then asked him if they had hurt him , [ ... ] , he only answered : ‘ A little’ . ”

Mr PERSON stated as follows :

[ When the applicant was escorted down to the ground floor ] , it was apparent at once that the left side of his face and his left ear were red . It was obvious that he had been hit . Ms. PERSON even asked him if he had been hurt . He first answered in the negative . Then I asked him the same question . Then he answered : ‘ A little’ . ”

ORG also heard Dr ORG and QUANTITY police officers who had been on duty at the police station at the time of the applicant ’s interrogation .

The police witnesses denied any knowledge of ill - treatment having been inflicted on the applicant .

The suspected police officers PERSON and PERSON consistently denied the applicant ’s accusations when questioned on DATE .

Police officer PERSON stated , inter alia , as follows :

“ I remember [ the applicant ] having said something of the sort that he was working for those persons as a lorry - driver [ ... ] to set off debts incurred by his wife . [ ... ] He was blaming [ his companions ] for forcing him to work a lot more than if he had been working for money ; and he even mentioned to one of my colleagues that they would either leave him behind or beat him up on the way home because of this . ”

“ After the interrogation police officer PERSON told me that [ the persons interrogated ] had also quarrelled amongst themselves , maybe they had not properly paid [ the applicant ] , they had a dispute about money or something of the sort [ ... ] ”

On DATE a medical expert appointed by ORG expressed the opinion that it could not be excluded that the applicant ’s injury had been caused as alleged . However , in the expert ’s opinion it could not be determined whether the injury in question had been caused to his ear before , during or after the applicant ’s interrogation .

On DATE ORG discontinued the criminal proceedings against police officers PERSON and PERSON for lack of any conclusive evidence . On DATE the applicant filed a complaint against the discontinuation order .

On DATE ORG ordered the investigation to be resumed and that confrontations be organised between the applicant and the police officers concerned and between various witnesses . It also ordered that further witnesses be heard .

In the framework of the resumed proceedings , ORG , on DATE , confronted the applicant with the suspected police officers as well as a third police officer who had been heard as a new witness .

On DATE ORG discontinued the investigation .

Relying on the testimonies given , on the one hand , by the applicant – who had consistently maintained his assertions during the proceedings – and by his companions and , on the other hand , by the police officers concerned , as well as on a confrontation involving all CARDINAL of them , ORG found that although the applicant ’s injuries might have been inflicted as alleged , it could not be excluded beyond all doubt that the injuries had been sustained before or after his interrogation .

Since there was no direct witness to the alleged incident and the medical opinion in the case was not conclusive as to the time when the applicant ’s injury had been inflicted , ORG was obliged to dismiss the applicant ’s accusations as unsubstantiated and to discontinue the proceedings .

The order drew the applicant ’s attention to his right to file a complaint with ORG under section CARDINAL § § CARDINAL and CARDINAL of the Code of Criminal Procedure if he wished to challenge the decision to discontinue the case . This order was served on the applicant on DATE .

The applicant did not file a complaint against this order .

As of DATE the applicant ’s working capacity was declared to have diminished by PERCENT on account of asthma bronchiale and impaired hearing ; the respective significance of these CARDINAL factors was not specified . As a consequence , he was unable to have his lorry driver ’s licence renewed or to obtain employment as a driver .

On DATE the applicant claimed damages from ORG . In reply , on DATE he was informed by the competent ORG that he was not eligible for compensation because he had failed to file a complaint against the discontinuation order of DATE and thus to avail himself of an ordinary legal remedy , which was a precondition for establishing official liability .

On DATE the applicant appointed the ORG to take his case . A further medical opinion obtained by the ORG on DATE stated that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear . Although he did not have the earlier medical expert ’s opinion at hand , the expert went on to qualify the applicant ’s version of how he had sustained his injury as plausible .

Relying on this new evidence , the ORG lodged on CARDINAL DATE a complaint against the decision of DATE with the Attorney ORG requesting that the criminal proceedings be re - opened in accordance with LAW .

On DATE ORG finally dismissed this complaint . In its reasoned decision , ORG stated that :

“ [ it ] had thoroughly examined all the documents in the case file . ”

The decision mentioned that in the absence of coherent testimonies or a conclusive medical expert opinion it was impossible to prove either that the applicant ’s injury had been caused during his police detention or that it had been inflicted by the suspected police officers . ORG noted the delay between the applicant ’s interrogation on DATE and his decision to seek medical help only on CARDINAL DATE . The decision stated that the new expert opinion did not contain any new facts which warranted the continuation of the investigation or the laying of charges against the suspects . ORG concluded that the case should be discontinued since it was impossible to prove the applicant ’s allegations . The decision was served on the ORG on DATE .

Section CARDINAL § CARDINAL of Act no . CARDINAL of DATE on LAW ( now repealed ) , as in force in the relevant period , provided :

“ A civil party is a victim who lays a civil - law claim for determination in criminal proceedings . ”

Section CARDINAL of the Code of Criminal Procedure provided :

“ ( CARDINAL ) The discontinuation of an investigation does not preclude that criminal proceedings in the same case may be later continued . ”

Section CARDINAL of LAW provided :

“ Remedy during investigation

( CARDINAL ) Anyone aggrieved by the authority ’s decision , measure or omission , is entitled to file a complaint .

( CARDINAL ) Such a complaint may be lodged with the authority within DATE from the date of the notification of the decision or from the date on which the complainant becomes aware of the measure or omission .

( CARDINAL ) If the authority itself does not accept the complaint , it shall transfer the case file and its own statement concerning the complaint to the competent public prosecutor within TIME . The public prosecutor shall decide on the complaint within DATE .

( CARDINAL ) A complaint may be rejected if it has been lodged outside the [ above ] time - limit or by an unauthorised person . ”

Section CARDINAL § CARDINAL of Act no . CARDINAL of DATE on LAW , as amended , provides :

“ Anyone who unlawfully causes damage to another person shall be obliged to pay compensation . He shall be exculpated if he proves that he proceeded in such manner as can generally be expected in the given situation . ”

Section CARDINAL of the Civil Code provides :

“ ( CARDINAL ) Liability for damage caused by the ORG administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage .

( CARDINAL ) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities , unless otherwise provided by law . ”

Section CARDINAL § CARDINAL of Act no . CARDINAL of DATE on the Code of Civil Procedure , as amended , provides :

“ Unless the law provides otherwise , in the civil procedure , the court shall not be bound , when taking evidence , by any formal rule or given method or application of specific means ; it may freely use the parties’ submissions and may use any other evidence which is suitable for establishing the facts ( ... ) ”

Section CARDINAL § CARDINAL of the Code of Civil Procedure provides :

“ When taking its decision , the court shall not be bound by a decision of another authority or by a disciplinary resolution , or the findings of fact contained therein . ”

“ If the adjudication of a case depends on a preliminary matter on which a criminal court ... must decide , the [ civil ] court may suspend its proceedings until that procedure has been finally concluded ( ... ) ”


CASE OF JULIUS KLOIBER SCHLACHTHOF GMBH AND OTHERS v. AUSTRIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Criminal charge;Impartial tribunal;Independent tribunal;Tribunal established by law);Pecuniary damage - claim dismissed

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant companies carry out the slaughter of cattle and pigs , which makes them liable under LAW ( Agrarmarktgesetz ) to pay agricultural marketing charges , calculated on the basis of the number of animals slaughtered , to GPE ( “ ORG ” ) , the national agricultural marketing board .

In DATE AMA issued payment orders against the applicant companies . On DATE it ordered the first applicant company to pay outstanding contributions for DATE in the amount of MONEY ( ORG ) and , in addition , imposed a surcharge for failure to pay , amounting to PERCENT of the unpaid contributions . On CARDINAL DATE it ordered the second applicant company to pay outstanding contributions for DATE in the amount of ORG CARDINAL,CARDINAL.CARDINAL and imposed a surcharge of PERCENT . On DATE it ordered the third applicant company to pay outstanding contributions for DATE in the amount of ORG CARDINAL,CARDINAL.CARDINAL , imposing a surcharge of PERCENT , and ordered the fourth applicant company to pay outstanding contributions for DATE in the amount of ORG CARDINAL , imposing a surcharge of PERCENT .

NORP The applicant companies appealed against these orders . They argued that the above system was contrary to ORG rules on state aid . They also asked for oral hearings to be held in their appeals .

The Federal Minister of Agriculture , Forestry , ORG ( PERSON für Land- PERSON , PERSON ) , acting as the appeal authority , dismissed the applicant ORG appeals on DATE without holding a hearing .

The applicant companies argued that ORG contributions were levied for financing activities , such as ORG ’s quality programme , which were not in compliance with ORG law . However , the Federal Minister found that , after a decision of ORG of DATE ( C(CARDINAL)CARDINAL ) , the applicant companies had been in a position to know precisely which charges they had to pay . In that decision , ORG had stated that it had no objection to ORG ’s quality assurance scheme and quality mark , registered as state aid under notification number NN CARDINALA/CARDINAL ( “ PERSON das ORG und das ORG - Gütesiegel ” ) , because that state aid was in accordance with the Common Market provided for in the LAW establishing ORG ( “ the LAW ” ) . The Federal Minister referred further to ORG decision no . ORG , in which the court had also found that the levying of ORG contributions was in compliance with the relevant provisions of ORG law . The Federal Minister further held that it had not been necessary to hold a hearing , because a hearing was only held if a decision had been taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance , which was not the case here .

Thereupon , the applicant companies lodged complaints with ORG and ORG against the ORG decision . Before ORG they complained that the surcharges imposed had violated their constitutional right to property . Before ORG , they complained that the appeal authority had not been a court within the meaning of the case - law of ORG , with the result that they had been prevented from having the lawfulness of ORG decision of DATE reviewed by ORG in proceedings under LAW of LAW . As regards the imposition of the surcharges , the applicant companies complained that the findings of fact made by the authorities in imposing those surcharges had been insufficient . In particular the authorities had failed to establish whether the objective and subjective elements of the offence ( objektiven und subjektiven Tatbildvoraussetzungen ) had been met . Relying on LAW , they further complained that there had not been a public hearing and that the criminal charges against them had not been decided by an impartial tribunal established by law ( “ es ist kein unparteiisches , auf ORG beruhendes ORG über den erhobenen strafrechtlichen PERSON eingeschritten ” ) . As the authorities imposing the surcharges had failed to hold an oral hearing , the applicant companies asked ORG for a public hearing .

On DATE ORG declined to deal with the applicant ORG complaints under LAW for lack of prospects of success .

ORG dismissed the applicant ORG complaints on DATE in separate decisions and held as follows :

“ The present case does not differ in [ substance ] to the [ case ] decided by ORG on DATE , no . CARDINAL . Pursuant to Section CARDINAL(CARDINAL ) of LAW reference is made to it .

For the reasons set out in that decision , the breach of law complained of by the applicant company also does not exist in the present case , for which reason it can be dismissed without further proceedings in camera .

For the reasons set out in the decision referred to , LAW is also of no relevance here . ”

The relevant provisions of LAW “ GPE ” , ORG DATE ( Bundesgesetz über die Errichtung der Marktordnungsstelle “ GPE ” , BGBl MONEY DATE “ LAW ” ) , LAW ( PERSON ) , a summary of ORG decision no . CARDINAL of DATE , to which reference is made in the present judgment , and an abstract of ORG judgment G CARDINAL of CARDINAL DATE are reproduced in the ORG ’s judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed

NORP In DATE ORG instituted criminal proceedings against the applicant on suspicion of aggravated fraud , falsification of documents and issuing bad cheques . By a letter of DATE ORG informed the applicant that the fact that summonses for questioning had been sent both to his new and to his old address did not in any way infringe his defence rights .

On DATE the applicant informed ORG of a change of his address . On DATE ORG issued a warrant for the applicant ’s arrest , considering that there were strong grounds for believing that he had committed an offence constituting a serious danger to society , and that there was a risk of collusion and absconding as the applicant had failed to comply with certain summonses and had changed his address several times . On DATE the applicant was remanded in custody .

The applicant appealed against that decision . He submitted that the nature of the offence was such that all the evidence was contained in documents belonging to his company , which had already been seized by the prosecutor or kept by the banks . The witnesses in the case had already been heard by the prosecuting authorities . Thus , there was no risk of collusion as the applicant was not in a position to alter or suppress evidence . The applicant had usually complied with summonses except on the rare occasions when he had been unwell and had submitted relevant medical certificates , including a certificate drawn up by ORG . There was no risk of his absconding as he had informed the prosecutor of his change of address and could not leave the country as his passport had been confiscated by virtue of a decision given in DATE . The applicant further submitted that the amount he was accused of embezzling was so high solely as a result of the high rate of interest at a time of hyperinflation and that the amount could not be used as an argument in support of the seriousness of the offence concerned .

On DATE ORG dismissed the applicant ’s appeal against the detention order . The court first observed that the applicant had on several occasions failed to comply with the summonses without justification . In particular , the case file did not contain any documents showing that there had been justified medical grounds for his absence . Even though he had informed the prosecutor of his change of address , the address he had given appeared to be false as there was a convent at that address . Moreover , it seemed that the applicant did not live there . The court considered that in the light of the financial documents in the case file , the offence of which the applicant was suspected was serious enough to warrant detention on remand , the more so as the value of the embezzled property had been assessed without regard to the sums of statutory interest , contrary to the applicant ’s submissions in his appeal .

On DATE the prosecutor appointed an expert in accountancy to analyse certain financial documents belonging to the applicant ’s companies that related to his credit applications in order to assess the damage caused by the offences with which the applicant had been charged .

On DATE the applicant submitted medical certificates stating that he had been ill from DATE to DATE . On the same date he also requested to be granted access to the case - file .

On DATE ORG refused to authorise the applicant to meet his counsel in the absence of a police officer , considering that the applicant had had an opportunity to see his lawyer in the presence of a police officer each time he had requested to do so . There were no grounds on which to accept that this amounted to an undue restriction on the exercise of his defence rights . The fact that the applicant had not been communicative when talking to his lawyer seemed to stem from the defence tactics which he had adopted in the proceedings .

On DATE the prosecutor refused to allow the applicant ’s lawyer access to the case - file .

The applicant filed an appeal , arguing , inter alia , that his defence rights had been unduly limited , in particular by the fact that neither he nor the lawyer had had any , albeit limited , access to the case - file , or to any of the evidence gathered so far in the proceedings . The only part of the file to which the applicant had been given access was the statement of charges and the arrest warrant . As a result , the role of his defence counsel had been rendered meaningless .

On DATE ORG rejected the appeal , finding that no appeal lay against the contested decision , and considering that in any event this decision did not infringe the applicant ’s defence rights , given that he would be granted access to the case - file later in the proceedings , at the stage specified in LAW .

The applicant appealed , arguing that the decisions infringed his defence rights . The case - file , which so far numbered CARDINAL volumes , had not been made accessible to him or to his lawyer . Any knowledge that they had about the investigations stemmed from the decision to bring the charges against the applicant and from the decision to appoint the expert . This was clearly insufficient to enable them to conduct any effective defence .

On DATE ORG quashed the refusal to allow the applicant to meet the counsel in the absence of a police officer . The court considered that the applicant had not given any ground on which to accept that he was seeking , by any unlawful methods , to jeopardise the investigations against him . Consequently , the contested decision had unduly limited his defence rights .

On DATE ORG declined to consider the applicant ’s request to be released , holding that the grounds on which the detention warrant had been issued were still valid , and that no new grounds such as to justify his release had been invoked by the applicant .

On DATE ORG , having regard to the proper conduct of the investigations , which concerned charges of a large - scale fraud and in which new charges had been brought against new suspects and further developments were to be expected , upheld the refusal to allow access to the case - file .

On DATE ORG prolonged the investigations as , in view of new circumstances which were coming to light , further evidence had to be taken .

On DATE ORG prolonged the applicant ’s detention until DATE , considering , firstly , that the grounds on which the applicant had been detained were still valid , and , secondly , that a psychiatric examination had to be carried out , and an expert opinion had to be drafted by a certified accountant . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal . The court considered that , in the light of the material gathered so far during the investigations , there were serious grounds for believing that the applicant had committed the offences in question . It was emphasised that the applicant had not questioned this in his appeal . The court also had regard to the fact that the offences in which the applicant seemed to have been involved had been committed on a large scale . Moreover , the offences were serious enough to warrant detention on remand . There was also a risk of collusion .

On DATE ORG further prolonged the applicant ’s detention until DATE . The court stated in its decision that neither the expert opinion nor the psychiatric report had yet been completed . The expert opinion had to be supplemented by further financial details , which would make it possible to assess the scale of the applicant ’s fraudulent banking operations . The court considered that the risk of collusion persisted as the applicant had on several occasions failed to comply with the summonses . The court referred in this connection to its own decision of CARDINAL DATE . The court further commented unfavourably on the considerable delays that had occurred in interviewing the witnesses , as DATE and DATE CARDINAL witnesses had been interviewed , whereas the prosecutor estimated in his submissions to the court that CARDINAL witnesses would have to be heard .

The applicant appealed , submitting , inter alia , that in the course of the preliminary investigations he had twice changed his address and had on the second occasion informed the prosecutor of the change , and that he in fact had complied with the summonses .

On DATE ORG supplemented the charges against the applicant with further multiple charges of obtaining credit under false pretences , forgery of financial documents and issuing of bad cheques .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE as it found that ORG had been justified in reaching the conclusion that there had been a risk of absconding and collusion . The court pointed out that the applicant had changed his address and that he had been trying to obtain a passport from various passport offices . Thus , his past conduct suggested that , if released , he would jeopardise the proper course of the investigations . The court also noted that the serious number of charges brought so far against the applicant and the scale of the offences with which he had been charged , argued in favour of his continued detention . Those factors indicated that in his actions the applicant had overstepped the border between taking a justified business risk and carrying out fraudulent financial operations , punishable under criminal law .

On DATE the applicant requested access to the case - file and to the expert opinion prepared by a certified accountant .

On DATE ORG refused the applicant access to the expert opinion , stating that the conclusions of the opinion indicated that certain witnesses should be interviewed in connection with further possible offences which , according to the expert report , were likely to have been committed . It would also be essential to question the expert . Therefore , granting the applicant access to the report would be premature as it would be prejudicial to the interests of the investigations . The prosecutor also refused the applicant access to the case - file .

On CARDINAL DATE the applicant filed an appeal against this decision , contending , inter alia , that the prosecuting authorities had not been expeditious enough in questioning the witnesses , and that his defence rights had been breached in that the opinion , which seemed at that stage of the proceedings to constitute an essential piece of evidence , had not been communicated to him . On DATE ORG rejected this appeal on the ground that no appeal lay against the contested decision .

On DATE ORG refused to release the applicant , pointing out that he had been arrested as he had failed to comply with the summonses and had tried to obtain a new passport after the old one had been invalidated in connection with the criminal proceedings . The taking of evidence had not been completed and certain evidence essential for the case had still to be taken .

On DATE the applicant ’s lawyer was served with the completed opinion of the accountancy expert .

On DATE ORG prolonged the applicant ’s detention until DATE , holding in particular that the grounds on which the detention had been ordered and maintained , still applied . The court noted that CARDINAL witnesses had to be interviewed and that documents relating to CARDINAL various bank loans , taken out by the applicant ’s companies had to be examined . The applicant appealed .

On DATE CARDINAL of the applicant ’s lawyers was granted access to the expert opinion .

On DATE ORG refused access to the case - file , which numbered CARDINAL volumes , considering inter alia that the investigations were coming to end .

On DATE ORG dismissed the appeal against the decision of CARDINAL DATE , considering that the charges against the applicant had been sufficiently substantiated by the evidence that had been gathered both at the time of the applicant ’s arrest and later in the course of the proceedings . It was true that the investigations had not been conducted speedily enough , given that the applicant was in detention , which necessitated special diligence on the part of investigating authorities . That had also been the result of the particularly serious nature of the offence in question . However , the investigations had been unable to proceed for DATE , while the proceedings concerning the review of the lawfulness of the applicant ’s detention had been conducted . The court further stressed that new evidence was coming to light gradually , revealing new aspects of the case and thereby prolonging the investigations . Had the applicant cooperated with the prosecuting authorities , the proceedings would have progressed more quickly . He was not under such an obligation , but he had to be aware that his failure to do so had further prolonged the proceedings .

On DATE the ORG gave his permission to the applicant to access the case - file of the investigations , considering that this would undoubtedly contribute to the acceleration of the proceedings and would make it possible for the suspect to formulate possible requests for further evidence to be taken . ORG

On DATE ORG again prolonged the applicant ’s detention . The court noted that on DATE certain evidence , concerning fraudulent transactions by the applicant ’s company had been obtained from CARDINAL of the banks . New witnesses would have to be heard in connection with these transactions . As new evidence had come to light , prolongation of his detention was necessary . Moreover , new charges had been brought against the applicant , which made it necessary to prolong his detention . The court further disagreed with the arguments advanced by the applicant that the charges against him had not been credible and considered that , quite to the contrary , the charges against him had been sufficiently substantiated to justify his further detention , which was also necessary to ensure the proper course of the proceedings . The court further noted that , contrary to the applicant ’s assertions , further documentary evidence had been taken in DATE , even though it was true that no further witnesses had been interviewed .

On DATE ORG refused to release the applicant .

On DATE ORG upheld the decision of CARDINAL DATE .

On DATE ORG again refused to release the applicant . On an unspecified date in DATE the applicant ’s lawyer was informed that he could not have access to the case - file as it had been sent to ORG for the purposes of a decision to be given as to the prolongation of the applicant ’s detention .

On DATE the prosecutor appointed an expert to examine further accounting documents in the case - file .

On DATE the applicant ’s detention was prolonged by ORG .

On DATE ORG informed the applicant ’s lawyer that from DATE the applicant would be brought from prison to the prosecutor ’s office DATE in order to have access to the case - file . The lawyer ’s attention was drawn to the fact that the lawyer had so far failed to make use of his right to consult the file .

On DATE ORG permitted the applicant to make copies of and take notes from numerous documents in the case - file . On DATE ORG refused to give the applicant the copies of the prosecutor ’s requests to have the applicant ’s detention prolonged which had so far been examined in the proceedings , considering that those documents had not been included into the principal case - file , and that the applicant ’s argument that he had to have access to them in order to exercise his defence rights was ill - founded .

On DATE the bill of indictment was lodged with ORG . The applicant was charged with embezzling a sum of CARDINAL ( old ) NORP zlotys to the detriment of CARDINAL banks , issuing bad cheques and with other economic offences .

On DATE the applicant was released .

The DATE ( “ old ” ) NORP Code of Criminal Procedure applicable at the relevant time , listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

CARDINAL

Article CARDINAL § § CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW , as applicable at the material time , provided that detention on remand could be imposed if , inter alia , there was a reasonable risk that an accused would attempt to abscond or to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means , or if an accused had been charged with an offence creating a serious danger to society .

At the material time there were CARDINAL types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus , possibly , to obtain release . Under LAW § CARDINAL of the DATE Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor . Under LAW § § CARDINAL(CARDINAL ) and CARDINAL he could appeal against a further decision by that court prolonging his detention at the prosecutor ’s request . Lastly , LAW an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged with the court competent to deal with the case , by that court , within DATE .

Under all the relevant provisions of LAW of DATE read together , a detainee was entitled to appeal against any decision prolonging his or her detention on remand , regardless of whether it had been made at the investigative or judicial stage of proceedings .

The imposition and prolongation of preventive measures , including detention on remand , were examined by the courts in the course of proceedings held in camera . The presence of the parties at court sessions other than hearings , including sessions held in the proceedings concerning review of detention on remand , was governed by ORG CARDINAL and CARDINAL of the Code of Criminal Procedure , which , in so far as relevant , provided :

“ The court pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... ”

“ A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law so provides . ”

Access to the case file in the course of preliminary investigations was governed by LAW , which provided , in so far as relevant , that permission to have access to and make copies of the documents in the case file in the course of preliminary investigations was granted only with the consent of the authority conducting the investigations .

Under LAW , after the preliminary investigations were completed and it was decided that there were grounds on which to prepare the bill of indictment , the prosecutor was to grant the suspect access to the case - file , inform him that he was entitled to avail himself of this right personally , and allow his counsel to have access to the file .

Until DATE , the date on which the DATE LAW was extensively amended by the LAW of DATE on amendments to LAW and other criminal statutes , the law did not fix any time - limits concerning detention on remand in judicial proceedings . During investigations , the prosecutor could order detention for DATE . Prolongation of this period was possible by a court order , for a period not exceeding one year , and for any further periods , by a decision of ORG given at the request of ORG .