The applicant used to work as a general practitioner in GPE , the GPE .

On DATE preliminary judicial investigations were initiated into allegations of forgery and fraud perpetrated by the applicant .

In the course of these investigations the applicant stated on his own initiative that in DATE he had performed euthanasia on , and at the request of , CARDINAL of his patients . However , he had stated to the municipal coroner ( gemeentelijk lijkschouwer ) that the patient had died from natural causes .

The applicant was summoned to appear before ORG ( Arrondissementsrechtbank ) of GPE on the following charges :

( CARDINAL ) principally : murder ; alternatively : taking another person 's life at that person 's request ;

( CARDINAL ) in his capacity of physician , falsifying a death certificate as regards the cause of a person 's death ;

( CARDINAL ) NORP falsifying prescriptions ;

( CARDINAL ) forging and presenting prescriptions for the acquisition of an opiate .

On DATE the applicant lodged an objection ( bezwaarschrift ) against the summons ( dagvaarding ) with ORG .

Following a hearing in camera on DATE , ORG dismissed the objection .

On DATE a public hearing took place before ORG , during which the case was considered on the merits . Both the applicant and his defence counsel , CARDINAL lawyers from the same law firm in GPE , were present . In their pleadings , counsel for the applicant raised the following points :

( a ) the indictment was invalid ( it being argued that certain points were not set out in sufficient detail ) ;

( b ) the prosecution case was inadmissible ( the argument being that the use of far - reaching measures such as a house search and pre - trial detention was excessive and unlawful ) ;

( c ) the obligation incumbent on physicians to report cases of euthanasia themselves , thus exposing themselves to the risk of criminal punishment , ran counter to LAW ;

( d ) the evidence had been obtained unlawfully ;

( e ) the prescriptions had only been forged in part , not in their entirety ;

( f ) the applicant had confessed to euthanasia , which precluded a conviction of the more serious crime of murder ;

( g ) there was a defence of force majeure in respect of the charges of euthanasia and forging the death certificate ;

( h ) the applicant had not acted culpably ;

( i ) in the event of a conviction , no sentence should be imposed as the applicant had suffered enough already as a result of the proceedings ( which had destroyed his reputation and his practice ) and further punishment would serve no legitimate purpose .

On CARDINAL DATE ORG gave judgment in public and in the presence of the applicant 's defence counsel .

It is a matter of dispute whether the grounds of the judgment were read out in addition to the operative provisions or only the operative provisions . According to the Government , the President of ORG , in accordance with the usual practice , read out the considerations relating to the validity of the summons , the main considerations underlying the dismissal of the defence plea concerning the admissibility of the prosecution , a summary of considerations relating to the evidence , and considerations as to whether the applicant was criminally liable . The applicant submitted , however , that his lawyers only heard the President state that he was acquitted of the principal charge under ( CARDINAL ) and of the charge under ( CARDINAL ) , that the defence in respect of the alternative charge under ( CARDINAL ) was rejected , that the applicant was found guilty of the alternative charge under ( CARDINAL ) and the charges under ( CARDINAL ) and ( CARDINAL ) , and that the seriousness of these offences warranted a suspended term of imprisonment of DATE and a fine of MONEY ( NLG ) .

As to a written copy of the judgment , the ORG submitted that they had ascertained that a signed version of the judgment in abridged form ( kop - staart vonnis ) was available when judgment was pronounced on LAW DATE and that it was the policy of ORG of GPE at the relevant time to provide a copy of the judgment in abridged form if this was requested in writing . According to the applicant , however , his lawyers telephoned ORG registry before the expiry of the period within which an appeal could be filed and were told that no judgment was available . Furthermore , the applicant 's lawyers were not aware that ORG had a policy of issuing copies of judgments only upon a request in writing .

The applicant did not appeal . The public prosecutor lodged an appeal but withdrew it on DATE .

The judgment in abridged form , a copy of which was submitted by the Government , contains , inter alia , ORG considerations as to the validity of the summons and as to the admissibility of the prosecution . As regards the latter , ORG rejected the applicant 's argument that the prosecution in respect of the charges of murder and euthanasia was inadmissible . It considered that since section CARDINAL of the Act on the Disposal of the Dead ( Wet op de Lijkbezorging ) had not yet entered into force at the time of the impugned act , there had not existed a legal obligation for the applicant to report the fact that he had committed an offence .

The judgment in abridged form further lists those offences of which ORG acquitted the applicant and those of which it found him guilty . In respect of the items of evidence on which ORG based its verdict , the judgment in abridged form only states “ TIME ” , for pro memoria , meaning that a detailed enumeration of the items of evidence would be produced at DATE , if necessary . ORG proceeded to deal with , and reject , the applicant 's subsidiary pleadings to the effect that if the prosecution was admissible , then the evidence had been obtained unlawfully . Subsequently , ORG examined the criminal liability of the applicant and determined the sentence to be imposed on him , rejecting the applicant 's claim that he had acted legitimately in a situation of force majeure . The judgment in abridged form concludes with a sentence stating that the judgment was read out in public on CARDINAL DATE .

According to LAW ORG ” ) , a judgment must detail the items of evidence on which a conviction is based . However , since DATE pursuant to LAW CCP – the court has to deliver the judgment within DATE following the closure of the trial , it was not unusual at the relevant time that initially a judgment in abridged form would be drafted in cases where the accused was convicted . Such a judgment did not give an account of the items of evidence on which the conviction was based . A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment . In that case the items of evidence were detailed in the judgment and the case file , including the complete judgment , was transmitted to the appellate court .

Where a judgment in abridged form was prepared , compliance with LAW ORG , which required that a ( full ) judgment be signed within TIME after its delivery by the judges who examined the case , was precluded . However , the judgment in abridged form would be signed in that form and , as soon as this had been done , the accused or his counsel would be able to inspect it , as well as the official records of the hearings , at the registry of the trial court , as was prescribed by LAW CCP for full judgments .

It appears that at the relevant time ORG of GPE had a practice of providing the defence with a copy of the judgment in abridged form only if a request was made in writing .

According to Article CARDINAL taken in conjunction with LAW ( a ) ORG , an appeal against a judgment of the regional court had to be lodged with the court of appeal ( PERSON ) within DATE following DATE on which the judgment was read out in public . Once lodged , the appeal could be withdrawn by the person who instigated it , at the latest just prior to the start of the hearing on appeal ( LAW ) .

ORG ( PERSON ) has held that an appeal filed outside the DATE period is inadmissible even if the accused or his counsel have , through no fault of their own , been unable to inspect the judgment of the regional court within the DATE period ( judgment of DATE , PERSON ( GPE ) DATE , no . CARDINAL ) .

When the court of appeal examines the case , it should have before it a complete version of the judgment of the lower court . If this is not the case , the judgment is null and void and should be quashed ( vernietigd ) by the court of appeal on formal grounds pursuant to LAW and CARDINAL ORG . However , this does not mean that the court of appeal must refer the case back to the regional court : LAW § CARDINAL ORG provides that a case should be referred back to a regional court only if the judgment is quashed and the regional court has not decided on the merits of the case . This provision thus embodies the principle of the right to be tried at CARDINAL levels by courts competent to examine the facts .

NORP The proceedings before the court of appeal offer a full new hearing since most of the provisions of the ORG which apply to the proceedings before the lower court also apply on appeal ( LAW ) . The accused who has lodged the appeal may at his discretion submit his objections and possible additional objections in writing , both before and during the hearing . He may also submit additional objections orally in the course of the hearing until the formal closure of the appeal court 's examination ( Articles CARDINAL and CARDINAL § § DATE ORG ) .

In a case which led to a judgment of ORG on CARDINAL DATE , the accused complained before the court of appeal that the judgment of the first - instance court did not detail the items of evidence . The court of appeal subsequently quashed the judgment because the items of evidence were not detailed but it did not refer the case back to the regional court , since the latter court had already decided on the merits of the case ( see paragraph CARDINAL above ) . In cassation the applicant invoked LAW CARDINAL § CARDINAL of the LAW .

The Advocate - General ( PERSON ) at ORG submitted an advisory opinion ( conclusie ) to the effect that the fact that the judgment of the first - instance court had not detailed the items of evidence did not prevent the accused from conducting his defence on appeal since , firstly , an accused does not have to defend himself against the judgment by which he was convicted but against the accusation levelled against him by the public prosecution department ; and secondly , the court of appeal examines the case independently on the basis of the trial and the summons and not on the basis of the judgment of the first - instance court . ORG eventually dismissed the appeal and , for its reasoning , referred to the advisory opinion of ORG ( GPE DATE , no . CARDINAL ) .

When only the accused has filed an appeal , the court of appeal may impose a sentence heavier than that imposed at first instance if that decision is reached unanimously ( Article CARDINAL § CARDINAL ORG ) . Unanimity is not required if the public prosecutor has also filed an appeal . If it is found that the public prosecutor has filed an appeal with the sole aim of preventing the unanimity requirement in LAW from applying , his appeal may be declared inadmissible ( see the judgments of ORG of DATE , GPE DATE , no . CARDINAL , and DATE , GPE DATE , no . CARDINAL ) .

The practice described in paragraph CARDINAL above was subsequently codified in ORG and CARDINALa ORG , which entered into force on CARDINAL November CARDINAL , after the events complained of . If no appeal is lodged , a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within DATE after delivery of the judgment , unless this request is devoid of reasonable interest ( Article CARDINALc § § CARDINAL and CARDINAL ORG , which also entered into force on DATE ) .


Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE , the applicant was placed in police custody on charges of robbery , and informed that an investigation had been opened against him by the prosecutor attached to ORG . On DATE , the prosecutor committed the applicant for trial before ORG .

ORG acquitted the applicant in a judgment of DATE , upheld , on DATE , by ORG . However , in a final decision of DATE , ORG reversed the judgment , convicted the applicant and sentenced him to DATE and CARDINAL months’ imprisonment . He was detained from DATE to CARDINAL DATE and again from DATE to DATE .

NORP On DATE , the ORG , following the applicant ’s request , lodged an extraordinary appeal with ORG to have the final decision of DATE quashed ( “ recurs în anulare ” ) .

On DATE , ORG allowed the extraordinary appeal . It quashed the final decision of DATE , the decision of CARDINAL DATE and the judgment of DATE and sent the case back to the prosecutor to continue the investigations . It held that the evidence adduced in the case was contradictory and needed further clarification before the case could be tried by the courts .

In a decision of DATE , the prosecutor attached to ORG closed the criminal investigations against the applicant . On DATE , the same prosecutor informed the applicant that he had reversed his previous decision and reopened the criminal investigations in the case .

On DATE the prosecutor again committed the applicant for trial before ORG , which acquitted the applicant in a judgment of DATE .

The prosecutor attached to ORG appealed against this judgment to ORG , where the case is still pending DATE .

NORP In a judgment of DATE , ORG dismissed as premature a civil action lodged by the applicant against the ORG through its ORG , seeking damages for his arrest , which he judged to have been illegal . It appears from the file that the applicant did not appeal against this judgment .


The applicant is a NORP national , born in DATE , and is currently detained in the GPE . He is represented by PERSON , a lawyer practising in GPE .

On DATE , ORG ( ORG ) of GPE informed the GPE customs authorities that the ship named PERSON had left the harbour of GPE ( GPE ) for GPE , where it would arrive on DATE . According to this information , this ship was transporting QUANTITY of cocaine which had been bought by CARDINAL ORG , who had also recruited the ship ’s crew . The CARDINAL Dutchmen , possibly dressed as maintenance engineers , would take the cocaine from the ship in GPE . The information , which the ORG classified PERCENT certain , further contained a physical description of the CARDINAL Dutchmen concerned .

On the basis of this information , the NORP customs authorities , in consultation with ORG ( ORG en Opsporingsdienst - “ ORG ) , decided that ORG ) , on the basis of its general powers of control under ORG ( PERSON inzake Douane en Accijnzen ) , would on DATE place the ship ORG under observation and would carry out an intensified control of the people leaving the ship and their possible vehicles .

On DATE , the ship ORG was moored in the GPE harbour area . Observation of that area revealed that TIME a Peugeot personal car with CARDINAL passengers arrived . These QUANTITY persons , who were not carrying any luggage , shortly visited the ship and , still without luggage , left the ship and drove away in the ORG , which was then followed by customs officers in CARDINAL cars .

When , at some point , a stop signal was given from CARDINAL of the CARDINAL cars which were following the Peugeot , the latter sped away . Shortly after , the CARDINAL passengers of the Peugeot car abandoned the vehicle and were pursued on foot by CARDINAL customs officers . CARDINAL of the QUANTITY persons got away and the other one , the applicant , was involved in a shoot - out with the customs officers . In the course of the shooting , one the customs officers , PERSON , was fatally injured . The applicant was slightly injured . On his arrest , the applicant was found to be wearing CARDINAL jackets , containing in total QUANTITY of cocaine . The person who had escaped had left behind CARDINAL jackets , which contained a similar quantity of cocaine .

By summons of DATE , the applicant was ordered to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE on drug and manslaughter charges .

On DATE , ORG rejected a request by the defence for a reconstruction of the shooting and granted their request an adjournment , as a certain forensic report had only recently been made available to the defence .

On DATE , ORG ordered that evidence be taken by the investigating judge ( rechter - commissaris ) from the experts mentioned in a letter dated DATE from the defence . It adjourned its further examination for a maximum period of DATE and referred the case to the investigating judge .

On DATE , ORG heard the applicant and considered a request by the defence for another adjournment in order to obtain further relevant forensic and other information . Having deliberated , the court partially granted the request by the defence and , consequently , adjourned its examination for a further DATE period and referred the case to the investigating judge . It requested the latter to have the bullet tips RCARDINAL and RCARDINAL examined for deformations , to take evidence from the CARDINAL persons who had seen the bullet tips fall from the clothes of PERSON , and to do whatever he considered useful and necessary in the interest of the examination of the applicant ’s case .

On DATE , ORG resumed its examination and , following a request by the prosecution , adjourned its examination until DATE , when it heard the applicant and the parties’ final pleas .

In its judgment of DATE , ORG convicted the applicant of manslaughter and narcotics offences and sentenced him to DATE imprisonment . As regards the charge of manslaughter , ORG did not find it established that the applicant had acted in self - defence . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

On DATE , ORG took oral evidence from the applicant , the customs officers PERSON , F.d . B. and ORG . NORP involved in the pursuit and shooting of DATE , the experts PERSON and PERSON of ORG concerning the forensic examination of the clothes of ORG and the weapons and ammunition used in the shooting , and from the officers NORP , GPE and GPE of the forensic police ( technische recherche ) involved in the initial technical investigation .

After the hearing of these persons , the defence requested a further forensic examination in GPE , the necessary technical equipment only being available there , in order to examine whether the lead - free ammunition used had been in contact with a human body and the clothes , and a further examination of the traces of the ammunition . ORG rejected this request , holding :

< Translation >

“ … the necessity < of the defence request > has not been established . In this respect the court has taken into consideration that ORG at ORG has extensively examined the clothes and other items , as appears from the report of DATE , in which it is stated , inter alia , that all micro - chemical test reactions for lead and copper at the bullet entry perforations have been positive . It further appears from the statement of the expert PERSON that such an examination can no longer be regarded as useful . The ORG further finds not a single ( factual ) point of departure in the present case - file or in the trial proceedings so far conducted which might support the accused ’s contentions that , firstly , the victim H. would have been hit by a lead - free bullet from a weapon of CARDINAL of his colleagues and , secondly , that a lead - content bullet has ended up in an improper way between the victim ’s clothes where it was < subsequently > found by staff of ORG . ”

On DATE , the prosecution informed ORG that the co - accused C. had been extradited from GPE to the GPE on DATE . The defence did not wish to react to this information . After having heard the parties’ final pleadings , ORG closed its examination .

In its judgment of DATE , ORG quashed the judgment of DATE , convicted the applicant of manslaughter and of having acted contrary to the prohibition under LAW ( PERSON ) , and sentenced him to twenty years’ imprisonment .

ORG rejected the argument by the defence that the principle of proper intentions ( beginsel van zuiver oogmerk ) had been violated by the customs officers and that , on this basis , the prosecution should be declared inadmissible . The defence argued that the customs officers had used their powers for another purpose than that for which they are intended by following the ORG car , whereas the CARDINAL passengers of this car had a different modus operandi from that predicted by the ORG . According to the defence , there had thus not been a reasonable suspicion of guilt within the meaning of LAW ) . The pursuit at issue was only carried out in order to see whether or not the applicant and the other person had taken the cocaine from the ship .

After having considered the evidence before it , ORG concluded that the customs officers involved in the events at issue had acted in accordance with , and had not exceeded , their powers under the relevant statutes , i.e. ORG and LAW .

The defence had further argued that the applicant ’s right to a fair trial within the meaning of LAW had been breached in that ORG had failed to respect the principle of equality of arms when it refused

A. to order a counter - expertise in GPE in order to verify whether only lead - content bullets had been fired at H. ;

B. to take evidence from the persons who , in the ORG hospital , had handled the clothes of H. ;

C. to take further oral evidence from the customs officers PERSON , F.d . B. and ORG . PERSON after their testimony of CARDINAL DATE ; and

D. to order a reconstruction of the events at issue .

On these points , ORG held , inter alia :

< Translation >

“ In the course of the judicial investigation the accused has alleged that the police has committed fraud in its investigation and/or has manipulated the investigation by putting , after the shooting , CARDINAL or more bullets shot by the accused , and which , in contrast to the bullets shot by the custom officers , contained lead , between the victim ’s clothes and/or in the body bag in which his body was placed and transported to ORG and/or by smearing lead on the victim ’s clothes on those places where that clothing was perforated by CARDINAL or more bullet entries . The above contention has been repeated by the accused in his pleadings of DATE .

Taking this into account , the accused ’s requests , as set out under A - D , appear to be based on obtaining a further investigation into the correctness of this contention .

In his pleadings counsel has taken the position that it can not be considered excluded that - what he calls - the fatal shot at the victim H. has been fired by CARDINAL of his colleagues .

Taking this into account , the request by counsel appears to be based on obtaining a further investigation into the correctness of that contention …

The court considers the above requests as follows :

The expert PERSON of ORG has carried out a so - called shot - remains investigation of the coat and jeans of H. , the results being given in the report of DATE , and a further investigation into soiling , spotted on the front side of the left sleeve of the coat , the results of which are stated in the additional report of CARDINAL DATE ( file II ) .

An expert - witness heard during the trial on appeal , the aforementioned PERSON , has stated … that the shot - remains investigation … standard is aimed at searching for ( traces of ) lead - containing ammunition , that the clothes ( coat and jeans ) have not been tested for lead - free ammunition , that such tests can still be carried out , but that it has appeared during the tests already carried out that around the places in the clothes , where it concerned a bullet entry ( by which the court understands the damage caused by shots at the clothing , in respect of which the conclusion in the report is probable bullet entry damage ) , so many traces of lead , characteristic for lead - containing ammunition , were present that these traces , if there would be traces of lead - free ammunition , would mask the latter traces , and further that when one rubs a lead object against another object , thus leaving behind lead traces , these would be friction traces ( veegsporen ) , but the traces of lead found on the clothes of H. were not friction traces .

Further taking into consideration that the aforementioned PERSON has stated to the investigating judge … that the lead - free ammunition of the type Action III used by customs officials “ does not really leave that many traces ” , the court is of the opinion that in all reasonability it is not to be expected that by a ( yet to be ordered ) investigation of < the > coat and/or jeans of H. for possible traces of lead - free ammunition , also if this investigation is to be entrusted to ORG ( ORG ) in GPE > , no facts or circumstances will appear , which ( could ) entail an indication that shots with CARDINAL or more lead - free projectiles have been fired at the victim H.

Consequently , the court finds that the necessity of the investigation to be carried out by the < NORP > ORG , requested by the suspect , has not been established ; so that it will reject this request , in which < decision > the court further considers on the above grounds that such an investigation would not serve a useful purpose ; so that it can not be said that by rejecting this request the suspect ’s right to counter - expertise is violated . … . ”

The applicant filed an appeal in cassation with ORG ( PERSON ) , complaining inter alia that ORG had rejected his argument that the customs officers involved in the events of DATE had exceeded their powers of investigation and that ORG had failed to order a further examination of the clothes of the victim in GPE in order to verify whether or not lead - free bullets had been fired at him .

By judgment of CARDINAL DATE , ORG rejected the applicant ’s appeal in cassation .

Insofar as the applicant argued that the customs officers had exceeded their powers under LAW for the purpose of investigating acts contrary to LAW , ORG held that the existence of “ a reasonable suspicion ” that acts contrary to LAW are committed does not constitute a bar to the exercise by customs officers of their powers of control under LAW provided that the exercise of the latter powers respects the guarantees to which an accused is entitled . ORG concluded that ORG had correctly rejected this argument .

As to the applicant ’s complaint that ORG had rejected a request for a further examination of the victim ’s clothes , ORG held that this complaint could not lead to cassation and that this finding , in view of LAW ( Wet op de Rechterlijke Organisatie ) , required no further reasons as the complaint did not prompt a determination of legal issues in the interests of legal unity and legal development .


CALDAS RAMIREZ DE ARRELLANO v. SPAIN [Extracts]

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

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

In DATE central investigating judge no . CARDINAL in the Audiencia Nacional brought criminal proceedings against the applicant for endangering public health contrary to LAW as in force at the material time ( trafficking in MDMA , an amphetamine - type substance known as “ ecstasy ” , as distinct from ORG , known as the “ love drug ” ) . In a decision given on DATE , after he had completed the investigation , the judge committed the applicant and others for trial before the First Section of the Criminal Division of the Audiencia Nacional , which , in an order of DATE , set the case down for trial . After all the requests to adduce evidence submitted by the parties to the proceedings had been granted , the trial took place on CARDINAL , DATE and DATE . The public prosecutor classified the offence with which the applicant was charged as repeatedly endangering public health , by means of a substance that was seriously damaging to health , acting as part of a gang ( ORG and CARDINAL bis of LAW ) . He sought an DATE custodial sentence and a fine of MONEY . The applicant submitted that the correct classification of the offence was that of endangering public health by means of a substance that was not seriously damaging to health ( LAW ) , which carried CARDINAL years’ imprisonment and a fine of MONEY . In the alternative , should the court accept the public prosecutor ’s submission that the substance was seriously damaging to health , the applicant argued that the applicable sentence would , in any event , be the same since it had to be acknowledged that there had been a reasonable mistake within the meaning of Article CARDINAL bis ( a ) of the Criminal Code regarding the harmfulness of the substance .

In a judgment delivered on DATE , after a public hearing in the presence of both parties , the Audiencia Nacional declared it established that the applicant had been involved in trafficking in PERSON , an amphetamine - type substance listed in Table I of LAW in Narcotic Drugs and Psychotropic Substances . The applicant was convicted of repeatedly trafficking in psychotropic substances not seriously damaging to health and sentenced to DATE imprisonment and a criminal fine of MONEY . He was also temporarily stripped of his civil and political rights . His conviction was based , inter alia , on witness statements , statements by his co - defendants , reports filed by experts instructed during the investigation into the narcotic substance that had been seized and on the fact that the authorities had seized large sums of money in proceeds from the trafficking . In its judgment the Audiencia Nacional stated that the fact that the drug had not been considered as seriously damaging to health made it unnecessary to examine whether there had been a reasonable mistake within the meaning of LAW a ) of LAW .

The public prosecutor appealed to ORG on points of law against the judgment of ORG . He submitted that the substance in which the applicant had been trafficking was seriously damaging to health . The applicant lodged submissions under LAW to the effect that the appeal on points of law was inadmissible ( escrito de impugnación ) . He set out detailed arguments disputing the public prosecutor ’s submissions and requested , in conclusion , that FAC judgment be upheld . He did not , however , repeat the ground of defence based on LAW that he had raised before FAC .

ORG held a public hearing in the case on DATE .

The applicant asserted that at that hearing he had reiterated his defence of reasonable mistake within the meaning of LAW a ) of LAW .

According to the Government , there was nothing in the file to indicate that the applicant had made that submission at the hearing in question .

The record of the hearing contains the following passage :

“ The public prosecutor submitted his observations in support of his appeal and requested the court to give judgment allowing the appeal .

... Defence counsel for PERSON [ the applicant ] disputed the appeal by the public prosecutor . ... ”

In a judgment of CARDINAL DATE ORG allowed the public prosecutor ’s appeal and quashed the judgment of FAC . It gave the following reasons for its judgment :

“ ... Toxic doses of MDMA vary CARDINAL . The drug produces a number of concomitant effects : euphoria , heightened mood , self - confidence , empathy , and can provoke visual hallucinations . Doses of between CARDINAL and QUANTITY milligrams can have acutely toxic effects ... Similarly , doses of QUANTITY can provoke psychotic symptoms , and particularly panic attacks . Other complications can also occur in the event of a severe overdose : delirium , convulsions , secondary cerebral haemorrhaging on account of a rapid increase in blood pressure , muscle cramp , etc .

Although the toxic capacity of ORG is less than that of ORG , deaths associated with the intake of this substance have been recorded , even if current thinking seriously questions whether ORG is directly responsible for the deaths . ...

We can not accept the respondents’ submission that this appeal goes against the facts declared to have been established . The question whether a toxic or narcotic drug or a psychotropic substance is seriously damaging to health is not a matter of fact , but requires an assessment and a reasoned judgment , which therefore lends itself , under LAW , paragraph CARDINAL , of LAW , to an appeal on points of law as a possible error of law regarding an essential element of the offence .

Having regard to the foregoing , it has to be confirmed that ORG is a drug that is seriously damaging to health if consumed in doses of QUANTITY . Consequently , trafficking in this substance falls within the category of aggravating circumstances provided for in LAW . ... ”

In a second judgment of DATE ORG , after endorsing the legal reasoning of the judgment of the Audiencia Nacional – except for the finding that the substance in question was not seriously damaging to health – found the applicant guilty of repeatedly endangering public health by means of substances seriously damaging to health ( ORG and CARDINAL bis ( a ) of LAW ) and sentenced him to a term of imprisonment of DATE and DATE and to a fine of MONEY .

On DATE the applicant lodged an amparo appeal against that judgment with ORG . He complained , firstly , of ORG failure to address the ground of defence based on LAW that he had raised before FAC and submitted to ORG at the public hearing . In his submission , when ORG upheld the appeal by the public prosecutor , finding that the aggravating circumstance of trafficking in a substance seriously damaging to health had been made out , it should have examined the ground of defence based on LAW . In the applicant ’s view , the lack of any reference by ORG to that ground of defence amounted to a failure to give reasons , in breach of LAW . The applicant also alleged that ORG retroactive application of its case - law classifying the drug as a substance seriously damaging to health had violated the principle enshrined in LAW that only a statute can define offences and lay down penalties . The applicant alleged further that there had been a violation of LAW ( principle of equality ) of LAW .

On DATE ORG declared the amparo appeal admissible . DATE and DATE it carried out a number of procedural steps , with no interruptions .

In the meantime , on DATE , it dismissed an application for a stay of execution of ORG judgment .

Ruling on the merits in a judgment of DATE , served on the applicant on DATE , it dismissed the amparo appeal as ill - founded . In respect of the applicant ’s complaint that ORG had not addressed the ground based on LAW , ORG , after reiterating its case - law regarding lack of reasons , ruled as follows :

“ ... In accordance with previous case - law , the admissibility of a complaint of lack of reasons is determined in accordance with CARDINAL main criteria : firstly , the issue must have actually been submitted , and secondly the court must have failed to give reasons for not addressing the submission . An examination of the procedure followed in the instant case shows that the appellant did submit ... to ORG of the Audiencia Nacional that the tribunal of fact should take into consideration his submission that he had lacked the mens rea for the offence if it agreed with the public prosecutor ’s classification of the offence and imposed the sentence corresponding to the aggravating circumstance under LAW . Clearly , once FAC had decided that ‘ PERSON was not a substance deemed to be seriously damaging to health it did not need to address the issue of whether a mistake regarding one of the essential elements of the offence ( error de tipo ) had been made out , whether or not that submission had been made by the appellant . The appellant did not make that submission before ORG , however , despite his emphatic assertions to the contrary in his amparo appeal . His insistence might have misled the public prosecutor , who , in his observations on the amparo appeal , arrived at the mistaken conclusion that the appellant had made that submission before ORG and that the court had not dealt with it .

It is sufficient to read the pleadings filed by the applicant with ORG , in which he submitted that the appeal on points of law was inadmissible , to see , beyond all possible doubt , that his counsel made no submissions concerning a possible mistake regarding one of the essential elements of the offence and that he did not request ORG ( of ORG ) to apply , if appropriate , Article CARDINAL bis ( a ) § QUANTITY of LAW . The observations filed on behalf of the applicant were aimed exclusively at supporting the reasoning of the tribunal of fact ’s judgment and the experts’ reports taken into account in assessing the nature and characteristics of the substance that had been seized , the tribunal of fact having found that it was the amphetamine MDMA and not ORG , whose effects are very different . Moreover , the record of the public hearing does not show that this ground of defence was even reiterated before ORG at that hearing .

The issue of the importance that should be attached to the lack of explicit reasons by a court can not be resolved on the basis of a univocal criterion leading in every case to the conclusion that silence amounts to a violation of a fundamental right . It is always necessary to examine the circumstances surrounding the case in question . However , where the submission has not even been made in ORG despite the fact that it could have been , as was the case here ... , any misgivings as to a possible infringement by the judgment appealed against – on account of failure to give reasons – of the appellant ’s right to effective legal protection are completely dispelled . From a constitutional point of view , a court can not be criticised for having remained silent . There is no scope for examination by a Constitutional Court of a complaint of failure to address a question that has not been asked . ”

Addressing the complaint of an alleged breach of the principle that only a statute can define offences and lay down penalties , ORG observed that a breach of that type occurred when a court ’s application of the law was so unreasonable as to be unforeseeable for persons subject to the jurisdiction of the courts , which had not been the case here . It was not difficult to see that the drug known to the man in the street as “ ecstasy ” was “ seriously damaging to health ” . The fact that at the material time ORG had not yet ruled on the appropriate classification did not mean that there had been a breach of the principle that only a statute can define offences and lay down penalties . In order to establish case - law authority on the subject , ORG had to be able to give a first ruling on the point .

“ Likewise , everyone has the right ... to a public trial without undue delays ... ”

“ Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the ORG , in accordance with the law . ”

“ CARDINAL . Anyone who incurs loss as a result of a judicial error or a malfunctioning in the judicial system shall be compensated by the ORG , other than in cases of force majeure , in accordance with the provisions of this Part .

The alleged loss must in any event have actually occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals . ”

Section CARDINAL )

“ In the event of a judicial error or a malfunctioning of the judicial system , the complainant shall submit his claim for compensation to ORG .

The claim shall be examined in accordance with the provisions governing the ORG ’s financial liability . An appeal shall lie to the administrative courts against the decision of ORG . The right to compensation shall lapse DATE after it could first have been exercised . ”

Title VII : Common procedural provisions

“ Where no provision is made in the present LAW , the provisions of LAW and LAW shall apply regarding appearance in court , DATE , calculation of time - limits , deliberations and votes , time - bars , waivers and withdrawals , official language and keeping order in the court room . ”


Both applicants are NORP nationals and live in GPE . The first applicant , Mr M.A. , was born in DATE and the second applicant , Mr FAC , in DATE .

They are represented before the ORG by Mr S. Foreman of ORG ( whose office is their address for service ) , and by PERSON of ORG .

The facts of the case , as presented by the parties , can be summarised as follows .

On an unspecified date , when the “ PERSON ” was in the port of GPE , the applicants stowed away on it . They were discovered by the crew at TIME on DATE when the ship was putting in to the NORP port of ORG , GPE . Having been informed of the situation by the ship ’s captain , the head of the départemental ORG and ORG in GPE ( PERSON ) instructed the captain to hold the applicants on board while the ship was in port and during “ any other calls at NORP ports ” .

At TIME on CARDINAL DATE the “ PERSON ” left ORG for ORG . It was scheduled to call at ORG on DATE and to leave GPE the same or the following day bound for the GPE .

At TIME on CARDINAL May the applicants lodged an application with the President of ORG under LAW for a provisional stay of execution of the decision to confine them on board the “ PERSON ” . They submitted that their complaint was urgent and , relying inter alia on ORG CARDINAL § DATE and CARDINAL of the LAW , sought an injunction requiring both the Prefect of the Charente - Maritime département and the head of the PERSON to allow them to disembark and to proceed to the waiting zone . On DATE they lodged an application with ORG to have the decision for their confinement quashed and for an order for their admission to the waiting zone .

At TIME on DATE , when the “ PERSON ” was at GPE , the authorities ended the confinement measure . The applicants were refused leave to enter NORP territory and an order was made for their placement in the waiting zone at the port of GPE . That order was renewed by the administrative authorities on DATE and upheld by the Vice - President of the GPE tribunal de grande instance on DATE .

On DATE the Vice - President of ORG made the following order on the application for a provisional stay of execution :

“ … in view of developments , the decision requiring [ the applicants ] to be held on board while the ship was docked at ORG and during ‘ any other calls at NORP ports’ – a decision which , incidentally , was effective only while the ship was at ORG is no longer enforceable . Accordingly , it is no longer necessary to decide either the application for a provisional stay of execution or , for the same reasons , the application for an injunction requiring ORG département to allow the applicants to disembark ; … ”

On DATE , ORG set aside that ruling on the following grounds :

“ DATE of the Ordinance of DATE [ on the conditions of ORG entry into and residence in GPE ] , as amended by LAW CARDINAL of DATE and CARDINAL - CARDINAL of DATE , provides that ‘ an alien who arrives in GPE by rail , sea or air and who ( a ) is refused leave to enter NORP territory or ( b ) applies for asylum may be held in a waiting zone ... for the time strictly necessary to arrange his departure ... ’

Although the authorities maintained that those provisions merely gave them a discretion to place aliens who had been refused leave to enter NORP territory in a waiting zone and that they retained the right to prevent stowaways disembarking provided that their enforced stay on board the vessel did not amount to a greater degree of constraint than that which would arise on their placement in a waiting zone , the provision cited above , as made clear by the preparatory work on the law of DATE , shows firstly that the procedure established by LAW , namely placement in a waiting zone , is the only course of action available to the authorities when they decide , as they are entitled to do by LAW cited above , of their own motion to give effect to a decision , even an implied decision , to refuse leave to enter NORP territory by holding the alien concerned against his will in a specific place , and , secondly , that forced confinement on board ship would in any event amount to a significantly greater degree of constraint than that arising on placement in a waiting zone as , in particular , it deprives the alien concerned of the safeguards laid down in paragraphs PERSON to VI of DATE . Consequently , the ORG submission that the decision of CARDINAL DATE to confine them on board a vessel was unlawful and had to be quashed is founded ... ”

Articles L. CARDINAL and L. CARDINAL of ORG Code provide respectively :

“ … [ The presidents of the administrative courts , presidents of the administrative courts of appeal , the Vice - President of ORG and the presidents of the judicial benches of the administrative courts and the administrative courts of appeal ] may … , by an order made after adversarial process , dismiss an application for a stay . They may , in any event , remit the case before the full court .

On an application to that end and after adversarial process , the president of the administrative court or the president of the ordinary court may make an order staying the execution of the administrative decision concerned for a maximum of DATE if there is a danger that execution will entail irreversible consequences and reasonable grounds are made out in the request .

A provisional stay shall cease to be effective if the decision on the application for a stay is handed down before the period fixed by the judge has expired . ”

In a judgment of CARDINAL DATE ( PERSON de GPE v. tribunal de grande instance de GPE ) ORG ( Tribunal des conflits ) held as follows :

“ … While a vessel was in a NORP port , the NORP immigration authorities decided to refuse CARDINAL passengers of NORP nationality … leave to enter and held them on board the ship . The passengers … challenged their “ confinement ” on board before the urgent - applications judge of the GPE tribunal de grande instance and sought an injunction against the administrative authorities requiring them to allow them to disembark and to proceed to the waiting zone established by DATE of the Ordinance of DATE . Considering that a flagrantly unlawful act ( voie de fait ) had been committed , the urgent - applications judge rejected the GPE Police Commissioner ’s submission that he had no jurisdiction to hear the application .

Furthermore , by LAW : ‘ … in all cases involving deprivation of liberty of the individual , the conflict of jurisdiction can never be dealt with by the administrative authorities and the ordinary courts always have exclusive jurisdiction . The same shall apply to any civil proceedings based on facts amounting to a deprivation of individual liberty ... ’ These provisions , which provide an exception to the rule governing the separation of the powers of the administrative and judicial authorities ... can not be construed as authorising the ordinary courts to obstruct the enforcement of decisions taken by the authorities unless the decision concerned amounts to a flagrantly unlawful act . The power to issue injunctions against the authorities rendering their decisions unenforceable is of the same nature as the power to quash or vary decisions made by the authorities in the exercise of their prerogatives as a public authority ; that power is in the sole province of the administrative authorities except for those domains which , by their nature , are reserved to the judicial authorities . It follows from this that the provisions ... of LAW of LAW can not in the instant case serve as a basis for the giving the urgent - applications judge of the GPE tribunal de grande instance jurisdiction to hear the action brought by [ the applicants ] .

Further , the provisions of LAW DATE show that the legislature has in principle given the administrative authorities the power to enforce deportation orders or orders refusing leave to enter made as part of the immigration - control process . Consequently , even supposing them to be unlawful , the measures taken in the instant case against [ the applicants ] were not manifestly incapable of being within the authorities’ powers . Accordingly , they can not be regarded as amounting to flagrantly unlawful acts .

It follows from the foregoing that it was the administrative courts which had jurisdiction to hear the matter that came before the GPE tribunal de grande instance and that the question of jurisdiction was rightly raised by the GPE Police Commissioner ... ”

The applicants complained that the President of ORG had not ruled on their application for a provisional stay of execution of the decision confining them on board the “ PERSON ” until DATE , despite the fact that it had been lodged at TIME on CARDINAL DATE when the vessel was due to leave GPE on DATE They argued that as a result of the ORG decision in the case of GPE de GPE v. tribunal de grande instance de GPE of CARDINAL DATE , they could not apply to the urgent - applications judge , and so had been victims of a violation of LAW CARDINAL and CARDINAL of the Convention .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently staying in FAC with the family of a cousin . He is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . The respondent Government are represented by PERSON of ORG .

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

On DATE the applicant arrived in the GPE , where , on DATE , he applied for asylum or , alternatively , a residence permit on compelling humanitarian grounds . In support of his claim for asylum he submitted the following :

He belonged to the NORP population group and used to live in GPE , a village situated on LOC . This area was controlled by ORG ( the “ NORP ” ) , a NORP terrorist organisation , engaged in an armed struggle for independence . He had been involved with the ORG since DATE , putting up posters of ORG who had died . In DATE he had been summoned to report at the local ORG camp , where he had been forced to stay . Apart from undergoing military training , his activities had consisted of putting up posters , cooking and digging trenches .

On DATE the Sri NORP army surrounded part of the village and searched QUANTITY houses , including that of the applicant ’s parents . During this search , photographs showing the applicant together with ORG members putting up posters and hoisting the ORG flag were confiscated . The applicant managed to escape from the NORP camp on DATE , taking advantage of the fact that the NORP members in the camp were too preoccupied with the advancing NORP army .

The applicant submitted that he was wanted both by the NORP army , because of his NORP involvement , and by the NORP , because he had escaped from their camp .

The applicant ’s request was rejected by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on DATE as it was held that he had no well - founded reasons to fear persecution , inter alia because the Sri NORP army had recaptured the NORP peninsula already in DATE – it was thus deemed unlikely that the army would only have come to GPE in DATE . Neither was the applicant considered eligible for a residence permit on compelling humanitarian grounds .

The applicant lodged an objection ( bezwaar ) against the Deputy Minister ’s decision , which was dismissed by the latter on DATE . The applicant ’s subsequent appeal to ORG ( arrondissementsrechtbank ) of GPE was rejected on DATE .

Following this decision , an expulsion order was issued to ORG ( vreemdelingendienst ) in the applicant ’s place of residence on DATE . However , the applicant did not leave the country and neither was he forcibly expelled .

On DATE the applicant lodged a new request for asylum . During his interview with the immigration authorities , he stated , inter alia , that his general practitioner had referred him to ORG ( Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “ PERSON ” ) as he was sleeping badly , was suffering from nightmares and was very forgetful .

The Deputy Minister dismissed the second request for asylum on DATE , considering that the applicant did not have well - founded reasons to fear persecution in GPE and that it had not appeared that there existed a real risk of the applicant being subjected to treatment in breach of LAW if he was to return to that country . As regards the applicant ’s alleged psychological problems , it was held that , pursuant to a policy change which had entered into force on DATE , this was an issue which could not be examined in the framework of a request for asylum . The applicant could lodge a request for a residence permit for the purposes of receiving medical treatment if he wished to stay in the GPE for that reason . Also on DATE , the Deputy Minister issued an expulsion order .

In his objection to the Deputy Minister ’s decision , the applicant argued that the fact that he had been referred to the PERSON implied that his psychological problems were serious . For this reason , he requested the Deputy Minister to seek the advice of ORG Medische Advisering ) of ORG . He further submitted that his medical complaints were related to the reasons for his flight and that they ought , therefore , to be examined in the course of his request for asylum . The applicant further requested ORG of The GPE to issue a provisional measure allowing him to await the outcome of the proceedings on his objection in the GPE .

By a decision of DATE , the Acting President of ORG rejected the applicant ’s objection and also refused to issue a provisional measure . No further appeal lay against this decision . Nevertheless , the applicant did not leave the country and neither was he forcibly expelled .

On DATE the applicant ’s lawyer wrote to the Deputy Minister , suggesting that the expulsion of the applicant ought not to be carried out in view of the applicant ’s state of health . The lawyer enclosed a number of letters from medical practitioners , including DATE dated DATE from a PERSON psychiatrist to the applicant ’s general practitioner in which the applicant was diagnosed as suffering from a post - traumatic stress disorder . The applicant was prescribed medication for insomnia . The lawyer also enclosed a letter , dated DATE , from a counsellor in which the latter stated that the applicant had recently told her that his asylum account was not complete . He had been put under pressure by the “ travel agent ” not to tell the true reason for his flight .

By a letter of CARDINAL DATE the Deputy Minister informed the applicant ’s lawyer that , in accordance with LAW DATE ( Vreemdelingenwet DATE ) , he intended to have the medical situation of the applicant examined by ORG in order to see whether his state of health militated against expulsion . The applicant ’s lawyer subsequently wrote to the Deputy Minister , stating that , given the applicant ’s intention to submit a new asylum application , it was assumed DATE if nothing was heard to the contrary – that the examination by ORG would also extend to the applicant ’s eligibility for a residence permit pursuant to the leniency policy for traumatised asylum seekers ( traumatabeleid ) .

The applicant lodged a third request for asylum on DATE . In support of this application he submitted , inter alia , a letter from a PERSON psychiatrist of DATE to his general practitioner . According to the psychiatrist , the applicant was suffering from a post - traumatic stress disorder , combined with symptoms of a reactive depressive nature . In view of these symptoms , which occasionally included the applicant entertaining thoughts of suicide , the psychiatrist had decided that the applicant should receive counselling from the PERSON . The applicant also submitted a letter , dated DATE , from the social - psychiatric nurse who was his counsellor at the PERSON . She wrote that the applicant was suffering from serious complaints of depression involving anxiety , the reliving of experiences and nightmares which affected his life to such an extent that he hardly dared be alone , was no longer able to concentrate , was prone to losing his emotional balance and continually saw pictures in his head of past experiences . He was again diagnosed as suffering from a post - traumatic stress disorder .

On DATE the medical service at the asylum application centre where the applicant had lodged his new request wrote to the immigration authorities at that centre , informing them that the applicant had medical problems and that there was an acute need , which could not be postponed , for further diagnostics and/or therapy .

Also on DATE the applicant was interviewed by an immigration official about the reasons for his request for asylum . He submitted that he had not previously related the following events , because his travel agent had told him that if he mentioned them , he would be returned to GPE and it would also cause problems for his parents .

He had stayed in an NORP camp from DATE until DATE where he had received military training . After this training he had returned home , albeit that he continued doing small jobs for the NORP . In DATE , as he was putting up posters for the ORG with another boy and CARDINAL adults , he was arrested by the Sri NORP army , as were the others . They were taken to an army camp where the CARDINAL adults were severely ill - treated in front of his eyes . After TIME , they were released and the applicant went home . DATE he witnessed GPE soldiers severely ill - treating his neighbours and raping the ORG daughter .

In DATE the ORG billeted him in a library . After DATE , the GPE army surrounded the library and arrested the applicant and the CARDINAL other persons present . They were held for DATE at the army camp during which time the applicant was interrogated and forced to admit that he was a ORG . He was hit with the butt of a rifle , which caused him to faint , and an electric coil was held against his leg . The detainees were made to dig trenches and clean toilets . On DATE he witnessed the adult detainees being tortured . The applicant ’s parents , assisted by the head of the village , eventually managed to obtain his release . Upon his release he returned to the library . Some time later he heard that the army had searched his parent ’s house , ill - treating his parents in the process , and that they had found a picture of the applicant together with other ORG . After hearing this news , all CARDINAL people in the library decided to flee .

The immigration official further asked the applicant whether he had been in touch with his parents after he had left GPE . The applicant replied that , although he had not had any contact with his parents , he had learned that they were living in the GPE , a region in northern GPE .

The Deputy Minister dismissed the new asylum application on DATE . The Deputy Minister had serious doubts as to the veracity of the applicant ’s new account and found no convincing excuse for his failure to inform the immigration authorities earlier about his CARDINAL alleged arrests by the Sri NORP army . Moreover , the applicant ’s statements did not lead to the conclusion that as a result of traumatic experiences it could not reasonably be expected of him to return to his country of origin . As there was no connection between what the applicant had experienced in GPE and his current psychological problems , and bearing in mind that the applicant ’s statements were subject to doubt , the Deputy Minister perceived no cause to seek the advice of ORG . It had been the Deputy Minister ’s intention to seek such advice pursuant to LAW DATE in relation to the question whether the applicant ’s medical situation stood in the way of his expulsion , but now that the applicant had lodged a new request for asylum this no longer applied . In so far as the applicant had claimed that he required medical treatment in the GPE , it was held that this matter could not be examined in the framework of a request for asylum and that the applicant could apply for a residence permit for the purposes of receiving medical treatment .

The applicant lodged an objection against this decision , inter alia expressing his amazement at , and dissatisfaction with , the Deputy Minister ’s refusal to seek advice from ORG . The objection was dismissed on DATE , against which decision the applicant filed an appeal with ORG of The GPE sitting in PERSON . In these proceedings the applicant submitted a letter of DATE to his lawyer from a psychiatrist and a social - psychiatric nurse , in which it was once again stated that the applicant was suffering from a post - traumatic stress disorder . He was described as being troubled by the reliving of traumatic events , sleeping badly and often having nightmares . He suffered from headaches , worried a lot and had difficulties concentrating . In DATE the applicant had attempted to commit suicide . His treatment consisted of medication and therapy . The authors of the letter expressed as their opinion that in view of the nature of the applicant ’s problems , treatment would require a considerable amount of time . The fear and uncertainty about his status in the GPE took a heavy toll on the applicant ’s energy which hindered the therapeutic process .

On DATE ORG rejected the appeal , holding as follows :

“ The court ’s scope for review in the present case is determined by LAW ( PERSON – “ ORG ” ) , ... Pursuant to LAW paragraph CARDINAL ORG , an applicant is obliged to report new facts or altered circumstances if a fresh application is made after a decision dismissing all or part of an application . Pursuant to the second paragraph the administrative authority may ... dismiss the application by referring to its earlier decision , if no such facts or circumstances are reported . ...

If an administrative authority , upon receiving a request to reconsider a decision which has become final and conclusive , reaches the conclusion that there are no grounds for so doing , the lodging of an appeal against the latter decision can not lead to that appeal being examined by the court as if it were directed against the original decision . The appeal lodged by the applicant is therefore limited to the examination whether the Minister was correct in finding that no new facts or altered circumstances , justifying reconsideration , had occurred after the earlier final and conclusive decisions by which the applicant was refused admittance .

... The court is of the opinion that what has been submitted by the applicant in his third request for asylum forms a supplement to the account given by him in the proceedings on his previous requests . The alleged facts and circumstances submitted by the applicant in support of his third request can not be considered “ new facts ” , given that these facts and circumstances were already known , or could have been known , at the time of the first request . The applicant has further claimed that he is traumatised as a result of the ill - treatment to which he was a witness and to which he was subjected during his detentions . The court concludes that although this claim and the supporting documents are new , they are nevertheless not “ new facts ” within the meaning of Article CARDINAL ORG . In this context the court considers that , having qualified the applicant ’s alleged detentions as not constituting “ new facts ” , it must come to the conclusion that trauma resulting from those detentions and supporting medical documents can similarly not be classified as “ new facts ” . It was not unreasonable to require the applicant to make some reference – no matter how summarily – to this trauma , and to its background or causes , in the proceedings on his first request . ...

In so far as the applicant has submitted that special circumstances exist which prompt a derogation from LAW ORG , the court notes that , according to the case - law of ORG of ORG ( Afdeling Bestuursrechtspraak van de Raad van State ) , procedural rules , including Article CARDINAL ORG , which are designed to enable the national authorities to process requests for a residence permit in an orderly manner DATE even in cases of expulsion to a country where there is an alleged risk of ill - treatment contrary to LAW , must be complied with . Only where special facts and circumstances exist , relating to the individual case , there may be cause for not holding these rules against an applicant ( see ORG v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-I ) . In a case of a repeat - application , where it is alleged that there is a risk of treatment in breach of LAW , it is thus not in all circumstances excluded that the judicial examination goes beyond the aforementioned scope of review .

The applicant has , however , not made plausible that such special facts or circumstances exist , given that , for example , no medical information has been submitted from which it appears that the applicant was unable to talk about his detentions and torture at an earlier stage . ... ”


Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . They were represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the first applicant ’s wife and son , and the second applicant ’s mother and brother , died in a road accident .

On DATE the Daruvar State Attorney ’s Office ( Općinsko državno odvjetništvo u Daruvaru ) indicted a certain PERSON for the criminal offence of causing the above road accident .

At the hearing held on DATE ORG ( PERSON u GPE ) heard evidence from PERSON , the first applicant and several other witnesses .

The court subsequently requested an expert opinion , which was obtained on DATE .

On DATE the court held another hearing and adopted a judgment finding PERSON guilty as charged and sentencing him to CARDINAL months’ imprisonment .

Following an appeal by both parties , on DATE ORG ( PERSON u GPE ) quashed the first - instance judgment and remitted the case .

In the resumed proceedings , the court ordered a combined traffic and forensic expert opinion in order to establish the cause of the accident . On DATE the experts submitted their opinion .

On DATE the court held another hearing and adopted a judgment again finding PERSON guilty as charged and sentencing him to CARDINAL months’ imprisonment .

On appeal , on DATE the ORG increased the sentence to CARDINAL GPE imprisonment .

The applicants participated in the proceedings from the beginning as injured parties ( oštećenici ) but never filed a civil ( pecuniary ) claim for damages .

Meanwhile , on DATE the first applicant brought a civil action in ORG ( PERSON ) against the insurance company ORG seeking damages for the death of his son . Shortly afterwards , the second applicant brought an identical action before the same court . On DATE the CARDINAL cases were joined .

On DATE the court stayed the proceedings pending the outcome of the above criminal trial . The parties did not appeal against that decision .

After it had been informed that the criminal proceedings had ended , on DATE the court resumed the civil proceedings .

The ORG held hearings on CARDINAL and DATE , DATE and DATE .

On DATE the court gave judgment accepting the ORG claim in part . The first applicant appealed .

On DATE ORG ( PERSON u GPE ) dismissed the first applicant ’s appeal and upheld the first - instance judgment , which thereby became final .

Meanwhile , on DATE the applicants lodged a constitutional complaint under section CARDINAL of LAW complaining about the length of the above criminal proceedings . They argued , inter alia , that the duration of those proceedings had direct impact on the determination of their claim for damages in the above civil proceedings as they had been stayed pending the outcome of the criminal proceedings complained of .

On DATE ORG ( Ustavni sud PERSON ) declared their complaint inadmissible . It found that the applicants were not defendants in the impugned criminal proceedings and that those proceedings therefore did not concern the determination of a criminal charge against them .

Under NORP law a victim of a criminal offence ( injured party ) may seek damages from the perpetrator either by filing a pecuniary claim in criminal proceedings pursuant to LAW , or by bringing a separate civil action according to LAW .

The relevant part of LAW ( consolidated text ) ( Zakon o kaznenom postupku , ORG no.CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , as in force at the material time , provided as follows :

“ A pecuniary claim arising out of the commission of a criminal offence shall be examined in the criminal proceedings following the request of authorised persons , provided that this does not delay the proceedings considerably .

The pecuniary claim may be asserted in criminal proceedings by a person entitled to do so in civil proceedings .

The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , PERSON and DATE ) reads as follows :

“ In civil proceedings the court is bound by a final judgment given in criminal proceedings finding the accused guilty in so far as it concerns the existence of a criminal offence and the criminal liability of the accused .

... [ T]he court shall stay the proceedings :

When it decided not to rule on a preliminary issue itself .

The court may stay the proceedings if the decision on the merits depends on ... whether a criminal act has been committed ... , who committed it and whether that person may be held liable ... ”

“ If the court has stayed the proceedings for the reasons set out in paragraph CARDINAL ( CARDINAL ) , or paragraph CARDINAL of section CARDINAL , the proceedings shall resume when the [ concurrent ] proceedings before a court or other competent authority end with a final decision , or when the court finds that the reasons for awaiting their outcome no longer exist .

In all other cases stayed proceedings shall be resumed at the request of a party as soon as the reasons for their stay cease to exist . ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”


NORP In DATE ORG ( socialnämnden ) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils , PERSON , a boy born in DATE and thus at the time aged DATE , had been sexually abused by the applicant . On DATE , having carried out an investigation , the ORG reported the matter to the police authority in GPE .

On DATE , TIME and TIME , PERSON was interviewed by the police . The interview was recorded on videotape . PERSON 's parents and representatives of ORG were present in the adjoining room . At that time , the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him .

The interview was conducted by a detective inspector with DATE of service in the police force . Since DATE he had been working exclusively on investigations concerning ill - treatment and sexual abuse of children .

On CARDINAL DATE the applicant was questioned by the police and the public prosecutor . Before the questioning the applicant was notified , in accordance with LAW , section DATE , of LAW ( PERSON ) , of the suspicions against him .

NORP In DATE the applicant received a copy of the report of the preliminary investigation and on DATE defence counsel was appointed for him . The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures . Finding that further information was necessary with regard to , inter alia , the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred , the applicant 's counsel requested that PERSON be interviewed again .

In accordance with counsel 's request , a second interview with PERSON was conducted on DATE , TIME and TIME at the boy 's home , by the same detective inspector . During the interview , which was recorded on audiotape only , PERSON 's parents were present but not the applicant 's counsel . It appears that PERSON 's counsel , who had not been served notice of the interview , was opposed to counsel for CARDINAL of the parties being present at an interview . Finding that it would be unreasonable to cancel the interview , as the police officer was present and PERSON had taken time off from school , the applicant 's counsel agreed that it could be conducted without his being present . The police officer and the applicant 's counsel discussed what aspects of the case needed to be addressed during the interview . In general , counsel for the applicant wished to have a more detailed account of what was alleged to have happened . However , no written list of questions was drawn up . Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape . Finding that the issues raised in his request had been covered , he did not call for a further interview to be held .

On DATE the applicant was indicted for sexual acts with a child ( sexuellt umgänge med barn ) .

ORG ( tingsrätten ) heard the case on DATE . The applicant denied the charges . The videotaped police interview with PERSON was shown during the hearing . The record of the second interview was read out . The court also heard evidence from PERSON 's mother and his schoolteacher as witnesses . No request for PERSON to be heard in person was made .

In a judgment of CARDINAL DATE ORG convicted the applicant and sentenced him to DATE imprisonment . The court , noting that the outcome of the case was entirely dependent on the credibility of PERSON 's statements , found no reason to call into question their veracity . Thus , basing itself on those statements , the court found that the applicant , on a large number of occasions in DATE , had touched PERSON 's penis or masturbated him and induced PERSON to touch the applicant 's penis or masturbate him .

The applicant appealed to ORG ( PERSON hovrätt ) . Subsequently , at the applicant 's request , his defence counsel was replaced . The appellate court held a hearing on DATE , during which it heard the applicant and his new counsel . PERSON 's mother and his schoolteacher gave evidence . The videotape of the first police interview with PERSON and the audiotape of the second interview were played back . Again , the applicant did not request that PERSON give evidence during the hearing .

In a judgment of CARDINAL DATE ORG upheld the applicant 's conviction but reduced the sentence to DATE imprisonment . It considered that , as there was no technical evidence in the case and nobody had witnessed the alleged acts , the credibility of PERSON 's statements was of decisive importance in determining the applicant 's guilt . It went on to state the following :

“ For reasons of legal certainty , the questioning of children during pre - trial investigations must – as explained in detail by ORG [ ORG domstolen ] in ORG DATE p. CARDINAL – meet high standards with regard to both methods and content .

The information given by [ M. ] is , in some parts , vague and uncertain . He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred . It should further be noted that some of the questions put to him have been of a leading nature . Even if these circumstances are taken into account , ORG finds that [ PERSON 's ] statements can not be disregarded .

A fact which strongly indicates that [ M. ] has been subjected to homosexual abuse is his expressed concern that he would become ' gay ' . ORG has had further regard to the following circumstances . The general impression of the video - recording is that [ M. ] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information . This may explain his unwillingness to go into detail about specific incidents . [ M. ] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions . Furthermore , in some respects his statements can be said to contain more personal observations , for example , ' Of course , I did not want to touch his but sometimes I did it without gloves ' and ' First I asked if I would get any ( refers to pastilles ) . He did not have any and then I did it voluntarily but I do not know why ' . It should further be noted that no information has come to hand which could reasonably explain why [ M. ] would make untrue statements about events which he obviously considers to be shameful . Also of importance is the information given by [ PERSON 's ] mother and teacher which describes how [ M. 's ] personality has changed since the alleged injustice . The fact that it was a long time before [ M. ] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him . [ PERSON 's ] accounts do not contain any improbable elements , neither is the information given by him contradicted by other statements . In view of what has now been said , ORG finds that [ M. ] is credible and that his statements should form the basis for ORG assessment of whether [ the applicant ] has behaved towards him in the manner indicated by the public prosecutor in his statement on the charges . ”

ORG found that the information given by PERSON showed that the applicant had induced PERSON to touch the applicant 's penis or masturbate him . However , the statements that the applicant had touched PERSON 's penis or masturbated him were too uncertain and vague and thus did not constitute sufficient evidence .

The applicant appealed to ORG . Relying on LAW CARDINAL ( d ) of the ORG , he complained that his counsel had not been able to put questions to PERSON He noted that there was no technical or other evidence in the case to support PERSON 's statements . He further criticised the manner in which PERSON had been interviewed and stated that PERSON 's statements were vague and contradictory . In these circumstances , the applicant claimed that he had a right to cross - examine M. He maintained that ORG case - law , which allegedly permitted the procedure followed in his case , had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence .

On DATE ORG refused the applicant leave to appeal .

Domestic provisions of relevance in the present case are found in LAW ( “ the Code ” ) and in the Ordinance on Preliminary Investigations ( ORG , DATE “ the Ordinance ” ) . There is also some national case - law of interest .

A preliminary investigation takes place whenever there is reason to believe that a crime has been committed . LAW , LAW , of the LAW includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation . The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself . This right , however , does not manifest itself until a person has been informed of the suspicions against him in accordance with LAW , section DATE , of the Code . As far as other interviews are concerned , counsel for the defence may attend if his attendance will not harm the investigation . It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation . In cases where the suspect or his defence counsel are present during an interview , questions may only be asked in the order determined by the person in charge of the preliminary investigation ( LAW , section CARDINAL , of the Code ) .

When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime , the person in question must be notified of the suspicions against him , pursuant to LAW , section CARDINAL , of the Code . Under the second paragraph of that provision , an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such . If a request for such an investigative measure is not granted , the reasons for the decision must be given . If the suspect makes a complaint , the issue is settled by the court ( LAW , section DATE , of the Code ) .

Interviews with children conducted in the course of a preliminary investigation are subject to special regulations . Thus , according to LAW , section CARDINAL , of the Code , a child 's custodian should be present whenever a child under DATE is questioned if this can be done without any harmful effects on the investigation .

Further and more detailed provisions concerning the questioning of children are found in the LAW , section CARDINAL of which provides that interviews with , inter alia , an injured party under the age of CARDINAL must be conducted in such a manner that there is no danger that the interviewed person might be harmed . It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters . Furthermore , particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require . Questioning should , moreover , according to section CARDINAL of the Ordinance , occur on only CARDINAL occasion unless it is more appropriate to conduct several interviews out of consideration for the child who is being questioned .

Section CARDINAL of the LAW provides that interviews with children must be conducted by persons who are particularly apt to perform the task . In addition , section DATE provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child 's testimony .

Whenever the evidence of a witness below DATE is used in a criminal case , the court must determine , taking account of all relevant circumstances , whether the child should testify ( LAW , section CARDINAL , of the Code ) . There is no corresponding provision applicable to children who are in the position of being the injured party . In practice , however , such evidence is normally presented to the court in the form of a video - recording of the police interview , which is played back during the court 's main hearing . In allowing this to take place , the court applies LAW , section CARDINAL , of the Code , by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed , if the person who has submitted the statement can not be heard before the court or if there are particular reasons for the statement to be relied on , regard being had to the costs or inconveniences that a hearing before the court may entail on the one hand and the advantages of a hearing before the court , the importance of the statement and all other relevant circumstances on the other hand .

As already mentioned , children below DATE do not normally give evidence in person before a court . There are , however , examples where children have been heard in court . Thus , in CARDINAL recent cases before ORG ( PERSON hovrätt ) concerning sexual offences against children ( case no . B CARDINAL - CARDINAL , judgment of CARDINAL DATE , and case no . B DATE , judgment of DATE ) , the injured parties , CARDINAL girls aged DATE , gave evidence in person . Their statements were made before the members of the court , the public prosecutor , the defence counsel and their own counsel but in the absence of the accused , who were able to listen to the statements in an adjoining room . In both cases , the girls were heard at the request of the prosecutor following the acquittal of the accused at first instance . In another case before the same appellate court concerning a sexual offence ( case no . B DATE , judgment of DATE ) , the defence , upon appeal against the conviction of the accused at first instance , requested that the injured party , a CARDINAL-year - old girl , give evidence in person . The prosecutor and the girl 's counsel opposed the request which was subsequently rejected by ORG on account of her age . Instead , the court allowed recordings of her statements during the preliminary investigation to be played back . However , ORG reversed the judgment of ORG and acquitted the accused , finding that the evidence presented did not sufficiently show that he had committed the alleged offence .

The application of LAW , section DATE , of the Code in relation to LAW has been examined by ORG on CARDINAL occasion . In the case in question , published in LOC arkiv ( ( ORG ) DATE , pp . CARDINAL et seq . ) , the court quashed a judgment by a court of appeal and referred the case back to the latter court for re - examination . The reason for this was that the appellate court , as well as the first - instance court , had allowed the prosecutor to use in evidence written records of a police interview with the injured party in a case concerning indictment for robbery . It had not been possible to serve a summons on the injured party to attend the main hearing . The court of appeal had been of the opinion that the information submitted by the injured party to the police had to be given credit and convicted the defendant of robbery . ORG , on the other hand , emphasised that LAW and its application and interpretation was of major importance in respect of the application of LAW , section DATE , of the Code . In the light of the fact that ORG had come to the conclusion that there was a breach of Article CARDINAL when a court relied on statements in support of a conviction by a person who had not been heard by the court and whom the defendant had not had the opportunity to question in some other context , ORG in its turn came to the conclusion that that provision of the LAW should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision . According to ORG , the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention .

Issues concerning the quality and evaluation of evidence have been examined by ORG in CARDINAL published cases ( NJA DATE , pp . DATE et seq . , and DATE , pp . CARDINAL et seq . ) , which are of relevance in this context . The first - mentioned case concerned the alleged sexual abuse of a minor , aged DATE , who could not give evidence in court on account of mental problems . The evidence consisted mainly of information supplied by the injured party to the police . The police interview had been recorded on videotape . ORG came to the conclusion that it was inevitable that the value of such statements as evidence was not the same as the value of statements made during the main hearing . Even so , the evidence in that case , that is the injured party 's testimony together with other evidence , was deemed to be strong enough for a conviction .

In the second case , the injured parties were born in DATE and DATE , respectively . The essential evidence consisted of videotaped interviews with them . The interviews had taken place in the absence of the suspect and his defence counsel . They were given the opportunity to examine the information and to request that additional information be provided prior to indictment . However , defence counsel was of the opinion that further questioning would prove pointless since , in his view , the injured parties would only repeat from memory what they had submitted previously . ORG stated that , bearing in mind that the accused had chosen not to request a further examination , his right to a fair trial could not be seen as having been breached on account of the fact that the videotapes had been used as evidence against him . As far as the evaluation of the evidence was concerned , ORG stressed the fact that the injured parties had only been questioned out of court and that it could not therefore assess their credibility and the trustworthiness of their information by means of impressions conveyed through a direct examination in court . It followed , according to ORG , that the information submitted by the injured parties should be assessed with particular care . The fact that the accused had been prevented from putting questions to the injured parties through his defence counsel and that the court itself had also been prevented from doing so pointed in the same direction . According to ORG this did not mean , however , that the videotaped interviews could not be sufficient to prove the guilt of the accused beyond reasonable doubt . The injured parties ' submissions , combined with other evidence , led ORG to the conclusion that the judgment should be based on , inter alia , the submissions in question .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE the applicant introduced before the GPE CARDINAL ORG ( obvodní soud ) an action seeking the division of matrimonial property . According to the Government , the action was notified to the court on DATE . On DATE the applicant ’s former husband submitted his written comments on CARDINAL pages .

On DATE ORG held a hearing which was adjourned in order to have an expert report drawn up . On DATE an expert was appointed .

On CARDINAL DATE the court invited the parties to an information meeting scheduled for DATE . However , the parties did not attend .

On DATE another hearing was held in the absence of the defendant . On CARDINAL DATE the expert informed the court that due to the defendant ’s failure to cooperate , he was not able to draw up the opinion . On DATE the court ordered the parties to cooperate with the expert .

On DATE the defendant notified the court that due to his illness , he could not submit the relevant documents , which he finally did on DATE . On DATE the case file was sent to the expert who , in the meantime , had been withdrawn . On DATE a new CARDINAL was appointed . The case file was sent to him on DATE . On DATE the expert , having been urged to do so on DATE , sent the case file back to the court stating that due to his workload , he did not have time to prepare the report . On DATE the court appointed another expert and , on DATE , it sent him the case file .

On DATE the expert informed ORG that he did not have necessary documents . On DATE the court met the expert . On DATE it invited the parties to submit a copy of an entry in ORG and a copy of a land map . On DATE the court pressed the expert to prepare his opinion . He replied on DATE that he still did not have the necessary documents . On DATE the court then imposed a procedural fine on the defendant who , on DATE , appealed . On DATE the expert presented his report .

At a hearing held on DATE , the parties expressed their willingness to reach a friendly settlement . Another hearing was held on DATE . The defendant submitted his comments on the expert report on DATE . DATE , the court ordered the expert to amend his report in accordance with the defendant ’s objections , which he did on DATE . At the same time , it appointed an expert to assess the value of movable property . She submitted her expert report on DATE .

On DATE another expert was appointed to assess the value of other items . The expert informed the court , on DATE , that he was not sufficiently qualified for this work . On DATE the court appointed a new expert who , however , repetitively did not take out the case file . The court then appointed another expert , to whom the case file was sent on DATE . The expert report was submitted on DATE .

In a judgment of DATE ORG , having held CARDINAL hearings on DATE , DATE and DATE respectively , delivered a judgment by which it divided the matrimonial property .

On DATE the defendant appealed . On CARDINAL DATE the judge dealing with the case requested the president of the court to withdraw her from the proceedings following the defendant ’s insulting statements about her . She said that she felt biased . On DATE ORG ( městský soud ) granted her request .

On DATE the case was assigned to another judge who , on DATE , invited the defendant to supplement his appeal . He complied on DATE . DATE , the case was sent to ORG which , however , sent it back with a request to supplement it .

On DATE the parties were ordered to pay court fees . On DATE the case was again brought to ORG which , on DATE , quashed the lower court ’s judgment and remitted the case to it for further consideration .

On DATE the applicant was invited to amend her action in accordance with the guidelines of ORG . On DATE she objected that the appellate court ’s decision was incomprehensible . On DATE the court delivered a rectifying resolution . On DATE the applicant supplemented her action . On DATE the defendant was invited to make his comments . Having been urged to do so on DATE and CARDINAL DATE respectively , he complied on DATE .

In a judgment of DATE ORG again decided on the distribution of the matrimonial property . On DATE both parties appealed . On DATE they were invited to supplement their appeals . The defendant complied on DATE , amending his arguments on DATE , after a lawyer had been appointed for him on DATE . The applicant presented her amendment on DATE .

On DATE the court received the defendant ’s comments on the applicant ’s appeal . On DATE the defendant “ rectified ” his appeal . On DATE the case file was sent to ORG . On DATE the defendant asked the court to grant him time to adduce further documentary evidence . On CARDINAL DATE he submitted new comments on the applicant ’s appeal . On DATE the case file was submitted to the appellate court .

On DATE the defendant requested that a public hearing be adjourned .

On DATE ORG appointed an expert to amend the expert report . The expert complied on DATE .

In a decision of CARDINAL DATE the court upheld ORG judgment . On DATE this decision became final .

On DATE the defendant filed an appeal on points of law ( dovolání ) . On CARDINAL DATE the case file was sent to ORG ( PERSON ) which , on DATE , suspended the enforcement of the judgment . It appears that the proceedings are still pending .