The applicant , a senior police officer , was at the time of his arrest Deputy Director of ORG ( ORG ) for GPE , in GPE . In the same city , he had previously been Head of ORG , Head of ORG ( NORP ) and ORG Secretary to ORG ( PERSON ) .

Mr PERSON was detained on DATE at FAC under a warrant issued DATE by the investigating judge ( Giudice per le indagini preliminari ) attached to ORG , at the request of the public prosecutor ’s office . He was accused of involvement in a mafia - type organisation ( concorso in associazione de stampo mafioso DATE contrary to ORG CARDINAL , CARDINAL and CARDINAL bis of LAW ) on the basis of statements of several pentiti DATE former members of the ORG who have decided to cooperate with the authorities – during questioning in the course of various investigations into ORG offences . All the pentiti had themselves been charged with or convicted of involvement in a mafia - type organisation and , in some cases , other offences , such as drug trafficking or murder .

On DATE Mr PERSON was suspended from duty .

The first CARDINAL statements which led to the applicant ’s arrest may be summarised as follows :

( a ) PERSON asserted that PERSON , head of the ORG clan of which he had been a “ member ” since DATE , had told him in DATE that the applicant was at the service of key ORG leaders for whom he had done a number of unspecified “ favours ” . PERSON had also told him that CARDINAL ORG , a property developer with ORG connections , had provided the applicant with a flat and that in DATE the ORG had spent MONEY on a DATE present of a car for one of the applicant ’s mistresses .

As the ORG had decided in DATE to eliminate the applicant and CARDINAL other high - ranking officials , and had instructed PERSON and himself to shadow the applicant , PERSON had asked PERSON why the applicant was still alive . PERSON had replied that PERSON was “ at the disposal ” ( of the ORG ) . That same pentito had previously accused the public prosecutor in charge of his case , CARDINAL of the judges who had convicted him in ORG and ORG and the former President of ORG of collusion with the ORG .

( b ) T. Buscetta , who gave evidence in DATE , said that PERSON had advised him to return to GPE and had assured him that the police would not look for him . PERSON had subsequently informed PERSON ( a member of the ORG belonging to a different clan ) of the tenor of his conversation with PERSON . PERSON had then drawn ORG ’s attention to the fact that PERSON was passing information to the police and , in particular , the applicant .

As a result of those statements , an investigation was started into PERSON PERSON ’s activities , but was discontinued .

On DATE , PERSON repeated the statement he had made in DATE , but added that he did not have first - hand knowledge of the facts .

( c ) R. Spatola accused the applicant of having helped GPE , CARDINAL of the most powerful ORG leaders , to escape during a police operation in DATE . He asserted that the applicant was a PERSON and had contacts with the ORG leaders , also PERSON . He also described how a police operation to arrest another mafioso , PERSON ORG , had been foiled by a telephone call alerting him .

( d ) PERSON stated on DATE that in DATE , after returning from a meeting with senior ORG leaders , his uncle had instructed him to alert PERSON to the fact that he had been informed by the applicant that the police had found out where GPE lived and were preparing to search his home . GPE had as a result left that address and hidden elsewhere . During questioning on DATE , however , PERSON had said that T. Riina had left home to ensure his safety owing to clashes between rival ORG clans .

NORP In making his order of DATE the investigating judge held that the statements referred to above had to be considered reliable and to have been made voluntarily . They could therefore constitute serious evidence of guilt ( gravi indizi di colpevolezza ) , which is a prerequisite under NORP law for a suspect to be detained . The judge also considered that the statements were corroborated by objective evidence confirming their credibility .

The applicant was subsequently implicated in DATE and DATE by CARDINAL other pentiti . Their statements may be summarised as follows :

( a ) PERSON referred to the applicant during questioning on DATE , stating that the applicant was a friend of PERSON , also had contacts with PERSON and had been given the use of a flat by ORG

( b ) S. Cancemi said that PERSON had accelerated PERSON application for a licence to carry firearms and had also intervened to secure the return of PERSON driving licence , which had been withdrawn as a preventive measure .

( c ) PERSON claimed to have seen the applicant in DATE in a flat in GPE in the company of a member of the ORG . He alleged that PERSON had been involved in a valuation by a NORP art expert of an amphora which PERSON had brought to the premises and had , he asserted , been intended for the deputy police commissioner . PERSON had convictions for armed robbery , drug trafficking and calumny .

( d ) PERSON , a member of the PERSON , a NORP mafia - type organisation , said that a member of the ORG , PERSON , had told him that Mr PERSON was “ useful ” to the ORG as he provided it with information about police raids .

Lastly , on DATE NORP Spatola stated that while in a restaurant with CARDINAL other members of the ORG , the PERSON brothers , they had drawn his attention to the fact that PERSON was there with the applicant in a small room that had been reserved in the restaurant .

Mr PERSON was questioned by the investigating judge shortly after his arrest , on DATE .

On DATE he was questioned , at his request , by the public prosecutor and , on an unspecified date , transferred to ORG .

Subsequently , the investigating judge committed him for trial and ordered that the trial should start on DATE ( see paragraph CARDINAL below ) .

On DATE the applicant filed an application with ORG for release on the grounds that , firstly , the order of DATE did not state what the “ serious evidence of guilt ” against him was and , secondly , in any event , the statements of the first CARDINAL pentiti , which referred to events in the distant past most of which had been related to them by third parties , could under no circumstances constitute serious evidence of guilt . In that connection , he referred in particular to ORG case - law under which a statement implicating another person did not constitute serious evidence of guilt within the meaning of Article CARDINAL of the Code of Criminal Procedure ( “ ORG ” – see paragraph CARDINAL below ) unless it was supported by objective evidence . He said that PERSON ORG and NORP Spatola had never said what the favours he had allegedly done for the ORG leaders were and that , furthermore , it was impossible to check the truth of the information provided by PERSON , PERSON and PERSON , as the persons from whom it had been obtained had all died in the meantime . He also observed that the investigation into like allegations made by PERSON in DATE had been discontinued in DATE for want of material corroborating evidence . Lastly , the applicant submitted that none of the conditions laid down in LAW ORG ( see paragraph CARDINAL below ) could justify detention in his case .

On DATE ORG dismissed his appeal on the ground that the investigating judge had given logical and sufficient reasons for his decision . The court noted that the judge had found that the pentiti statements were to be considered reliable , as they had been made by persons who had occupied senior positions within the ORG and who had in the past enabled the investigators to establish the structure of that organisation . ORG said in that regard that hearsay evidence could be admissible if it emanated from a reliable witness . The evidence had also to be considered “ serious ” , as the judge had referred to objective corroborative evidence . Emphasising that the statements in question had been made by different people and concerned different events so that their credibility was strengthened , ORG concluded that the evidence assembled by the investigating judge pointed to the likelihood that the applicant was guilty of the offences with which he had been charged . Furthermore , under LAW ORG , the seriousness of those offences raised a rebuttable presumption that a risk existed that the applicant would tamper with evidence , abscond or reoffend .

On DATE the applicant made a further application for release from detention to the investigating judge and at the same time applied for the charges to be dropped on the grounds that the offence had not been made out . He said in particular that the investigation up to that point had already provided the investigators with substantial evidence of his innocence . He referred to the active role he had played in a number of investigations into the ORG , as a result of which he had even received death threats , and argued that he had opposed granting PERSON day - release from prison , fearing , as proved to be the case , that PERSON would take advantage of it to escape and resume his activities . He maintained that he had never met PERSON or been a PERSON .

The applicant submitted that there was no real and current risk justifying his detention , given , in particular , that he would never be able to tamper with the evidence , since in the course of the lengthy investigation into the allegations against him all the evidence had already been obtained . Nor was there any risk of his absconding , since he had been aware of the pentiti statements before being arrested . In view of his career and the role he had played in investigating the ORG , any risk that he might continue assisting the ORG ’s activities should also be ruled out .

The investigating judge who had ordered the applicant ’s arrest dismissed that application on DATE . He held that the pentiti statements , far from being refuted , had subsequently been successively confirmed by :

( i ) further detailed statements by NORP Spatola confirming that the applicant knew PERSON ;

( ii ) the fact that the applicant had , after a search at the home of a member of the ORG , allegedly asked another police officer to “ ease up ” ; and

( iii ) the fact that the applicant had tipped off PERSON , who was suspected of having ORG links , that an arrest warrant had been issued against him , thereby enabling him to get away .

The judge also considered that the pentiti ’s decision to cooperate with the judicial authorities could not have been motivated by a grudge against the applicant , given the genuineness of their cooperation with the authorities . Lastly , in view of the fact that the applicant occupied a senior official position , there was a real risk – assuming the charges against him were founded – of evidence being tampered with and of his absconding .

Mr PERSON appealed against that order to ORG , which had appellate jurisdiction on applications for release . As regards the further statements by PERSON ( see paragraph CARDINAL above ) in which he had said that the applicant knew PERSON well , the applicant submitted that it was DATE before the applicant ’s arrest that Spatola had started making allegations about him to the judicial authorities . Although NORP Spatola had been cooperating with the judicial authorities since DATE he was , apparently , unaware that the applicant had left the Anti - Mafia High Commission in DATE . No more reliable , in the applicant ’s submission , was LOC claim that he had seen the applicant with PERSON in a well - known GPE restaurant ( see paragraph CARDINAL above ) for , at the time , GPE had been the scene of a ruthless power struggle between the various ORG clans and ORG had no interest in showing himself in public . As to his instruction to a colleague to “ ease up ” , his intention had not been to protect members of the ORG , but to bring a junior police officer in line following a search in which he had ill - treated the sons and wife of a mafioso wanted by the police .

On DATE ORG dismissed the appeal on the ground that it concerned points which had already been rejected and that new facts emerging from the investigation appeared to confirm the strength of the case against him . The court observed , inter alia , that the junior police officer had confirmed his statement regarding the pressure exerted on him by PERSON . Even if no account could be taken of the statements by PERSON in GPE , as they had been related verbally by the judges and had not been recorded in any document , all the other evidence against the applicant justified keeping him in detention pending trial . The court therefore upheld the order of DATE , while declaring that the statements concerning PERSON evidence were inadmissible . Lastly , the court stressed once again the risk of evidence being tampered with given the network of contacts on which the applicant could rely , as had been demonstrated in particular by the fact that the applicant had voluntarily reported to the public prosecutor ’s office on DATE , when the investigation should still have been secret . That circumstance confirmed that he had been aware , not only of the existence of an investigation against him , but also of the tenor of the accusations made by PERSON .

The applicant appealed to ORG , but his appeal was dismissed on DATE . While acknowledging that the reasoning of the courts below regarding the threat posed by the applicant had been somewhat concise , ORG considered , among other things , that it was nevertheless neither manifestly illogical nor unlawful .

On DATE , noting that checks were still being carried out at banks and requests for documents from ORG and the police authorities were still in hand , the GPE public prosecutor ’s office applied for the applicant ’s detention pending trial to be continued after the expiration of the statutory limit of DATE on DATE . On DATE the applicant opposed that application .

On DATE the investigating judge , relying in particular on the complexity of the investigation ( involving , among other things , an outstanding request for judicial assistance , transcripts of tapped telephone conversations and an analysis of data relating to mobile telephones used by PERSON ) and the risk of the applicant tampering with evidence ( whether to hand , or to be obtained ) , absconding and committing further offences , ordered that the period of detention pending trial be extended by DATE .

On DATE the applicant appealed . He submitted , inter alia , that the investigative measures that had allegedly necessitated his continued detention could easily have been completed earlier and certainly before DATE and that any delay should be attributed solely to the judicial authorities .

On DATE ORG dismissed the applicant ’s appeal . It held that even if the data relating to the mobile telephones could have been requested and analysed DATE it had not been requested until DATE although the applicant had been in detention since DATE – the prosecution could not be criticised in relation to the other investigative measures justifying the applicant ’s continued detention . They had either been put in hand very early on or had been particularly complex , and the prosecution enjoyed a certain margin of appreciation in that regard . Furthermore , even if the risk of absconding could be discounted , the court considered that there was still a real risk that the applicant would reoffend or that evidence would be tampered with , given the extremely sensitive official position he had occupied . The court noted on that point that , after a DATE ’s wait , the prosecution had still not obtained the files on , among other things , work done by the applicant for ORG . Account also had to be taken of the fact that it would be very difficult for the applicant to extricate himself from the ORG ’s criminal network .

Mr PERSON appealed to ORG on DATE , but his appeal was dismissed on CARDINAL DATE . ORG held , in particular , that there was a danger that the applicant might use his contacts to tamper with the evidence .

On DATE , following his committal and the start of his trial ( see paragraph CARDINAL above ) , the applicant made a further application for release . ORG dismissed his application on DATE , holding once again that , as the investigation was complex , the applicant ’s release might interfere with its progress . The applicant could have used his many contacts and connections – made while working at his former highly sensitive posts – to tamper with evidence or to exert pressure on witnesses . As to the risk of reoffending , the court emphasised that criminal links with the ORG were generally long - lived , particularly bearing in mind the ORG ’s hallmark of subjugating its members .

On DATE ORG granted the prosecution ’s application of DATE for an order pursuant to Article CARDINAL § CARDINAL CCP ( see paragraph CARDINAL below ) extending the maximum periods of detention pending trial for the duration of the trial and deliberations at first instance , owing to the complexity of the proceedings . The court held that , given the number of hearings , witnesses’ depositions and statements from the applicant , the prosecution ’s request appeared justified . As regards the applicant ’s submission that the proceedings would have been completed earlier if the hearings had been held at more frequent intervals , the court considered that it had to take into account the court ’s excessive workload and the fact that it had also had to deal with other cases involving accused detained pending trial .

On DATE Mr PERSON appealed against that order , submitting in particular that the provision for extension of the maximum periods of detention pending trial had been adopted in order to meet the requirements of trials of a very large number of defendants ( maxi - processi ) . In his case , however , it had not been possible to complete the trial within the maximum period permitted for detention pending trial for reasons other than the complexity of the proceedings .

ORG dismissed the applicant ’s appeal in an order of CARDINAL DATE , ruling that all the conditions laid down in LAW CCP ( see paragraph CARDINAL below ) were satisfied in his case : that is to say , in particular , the complexity of the proceedings ( exacerbated by the court ’s excessive workload ) and the continuing applicability of the conditions laid down in LAW ORG ( see paragraph CARDINAL below ) . The applicant did not appeal to ORG against that order .

On DATE PERSON made a further application to LOC for release , arguing that his detention was no longer necessary for the investigation and that his health was suffering , as attested by a psychiatrists’ report .

The court granted the application ( which was , moreover , supported by the prosecution ) and the applicant ’s release was finally ordered on DATE . The court held in particular that :

( i ) at that stage of the trial , as the oral hearings had been completed , all the prosecution and defence witnesses heard , the documentary evidence obtained and various confrontations necessary for the investigation held , there was no longer any risk that the evidence would be tampered with or witnesses procured to give false evidence ;

( ii ) the risk of absconding could also be ruled out owing to the applicant ’s state of health – he was suffering from a sufficiently acute form of DATE , the long period he had spent in detention and the fact that it was far from certain that a final conviction , which would necessitate precautions being taken to ensure that he served his sentence , would be secured ; and

( iii ) any risk of the applicant committing further offences could also be ruled out , owing to his state of health , the long period he had spent in detention pending trial and , lastly , the fact that since his arrest he had no longer been in his post .

In a note of CARDINAL DATE , appended to the ORG ’s observations , the public prosecutor attached to ORG admitted , with regard to the question of whether there had been a need to keep the applicant in detention pending trial , that there was an apparent contradiction between the decision of DATE to extend the maximum period and the fact that the conditions justifying keeping the applicant in detention under LAW ORG had ceased to exist shortly afterwards , which showed that an overall view of the trial had been lacking .

The trial progressed at an average rate of CARDINAL hearings DATE . Additionally , a report by the President of the court dated DATE shows that , after the maximum period of detention pending trial in the proceedings had been extended for the duration of the trial , the court proposed holding CARDINAL hearings a week instead of CARDINAL , but the applicant ’s lawyers refused . It appears from the case file that the proceedings involved CARDINAL hearings at the investigative stage and the examination of CARDINAL witnesses or persons accused of offences connected with those with which the applicant was charged . There were also CARDINAL confrontations ; moreover , CARDINAL hearings were necessary merely to examine the applicant , CARDINAL of which were held in succession DATE and DATE . CARDINAL witnesses called by the parties gave evidence at the trial . A large number of documents were lodged on the case file . The hearings between DATE and CARDINAL DATE were devoted to the hearing of witnesses . CARDINAL pentiti were , for security reasons , questioned in the GPE and GPE prisons where they were detained . The public prosecutor made his submissions over the course of CARDINAL hearings held between DATE and DATE . DATE and DATE , over CARDINAL hearings , the applicant ’s lawyer made his submissions for the defence .

In a judgment of DATE , which was filed with the court registry on DATE , ORG sentenced the applicant to CARDINAL years’ imprisonment for aiding and abetting from the outside ( concorso esterno ) a mafia - type organisation ( Articles CARDINAL bis and CARDINAL of LAW ) .

In the reasons for its decision it said :

“ The court considers that the complex and extensive investigation carried out at the trial , at which the parties were able to put forward their respective arguments , enables the conclusion to be reached with total certainty that the accused was completely guilty . That finding is based on the accusations , all of which are consistent , made against him by people who have cooperated with the prosecution and which the court finds to be credible taken as a whole , whether individually or jointly with other items of evidence subsequently corroborated by a very large number of statements and documents from other sources , the accusatory content of which is unequivocal and the evidential value indisputable . ”

The applicant has appealed . The hearing of his appeal before ORG began on DATE . At the end of a subsequent hearing on DATE the appeal was adjourned to CARDINAL DATE .

Article CARDINAL bis of LAW provides , inter alia :

“ A person who is a member of a mafia - type organisation of CARDINAL or more persons shall be liable to imprisonment ...

An organisation is of a mafia type if its members use the intimidatory power of the bonds of membership and the resulting vows of obedience and silence in order to commit an offence , to acquire ( directly or indirectly ) the management , or other form of control , of economic activities , licences , permits , public contracts or services or to gain unfair advantages or profits for its members or other persons , or to prevent or hinder the free exercise of the right to vote , or to secure votes for members or other persons in elections .

NORP Moreover , LAW provides that where several persons are accomplices in the commission of an offence , they shall each be individually liable to the punishment laid down for that offence .

The case - law has applied the concept of aiding and abetting in cases concerning criminal organisations DATE and , more particularly , a mafia - type organisation DATE and has accepted that the offence of aiding and abetting a mafia - type organisation may be committed from the outside . The latter concept applies to a person who is not a member of the organisation and has confined himself to doing CARDINAL or more acts likely to further that criminal organisation ’s aims and motivated by an independent intention – limited in aim , duration and effectiveness DATE to commit a crime ( see , among other authorities , ORG judgment no . CARDINAL/CARDINAL ) .

That interpretation has , however , given rise to controversy among ORG judges themselves . Thus , in its judgment no . CARDINAL of DATE , ORG held as follows :

“ As regards offences associated with belonging to a criminal organisation , and in particular a mafia - type organisation , the concept of criminal responsibility in the form of ‘ aiding and abetting from the outside’ is unacceptable ; a defendant who undertakes acts which facilitate the organisation ’s aims either specifically intends to contribute to the furtherance of that organisation ’s aims and is therefore indistinguishable from a member of the organisation , or does not have that specific intention , whereupon the conduct which facilitates the organisation ’s aims should be treated differently from the offence of belonging to a criminal organisation ... The impossibility of applying the concept of ‘ aiding and abetting an organisation from the outside’ is confirmed by the fact that the offence of ‘ aiding and abetting the members of a criminal GPE already exists ( LAW ) and that several provisions ... already provide for an offence committed ‘ in order to facilitate’ the activity of ORG or similar organisations ... ”

Article CARDINAL § CARDINAL ORG provides :

“ No one shall be detained pending trial unless there is serious evidence of his guilt . ”

Article CARDINAL ORG provides that a person may be detained pending trial :

“ ( a ) NORP if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must , on pain of nullity , be expressly set out in the decision , which the judicial authority may take of its own motion ... ;

( b ) if the accused has absconded or there is a real danger of his absconding , provided that the court considers that , if convicted , he will be liable to a prison sentence of DATE ;

( c ) where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ... ”

Under LAW ORG , as amended by LAW no . CARDINAL of CARDINAL ( which became Law no . CARDINAL of DATE ) and Legislative Decree no . CARDINAL of DATE ( which became Law no . CARDINAL of DATE ) there is a rebuttable presumption that such a necessity exists with regard to certain particularly serious offences , including the CARDINAL with which the applicant was charged .

Article CARDINAL CCP lays down the maximum permitted periods of detention pending trial depending on the stage reached in the proceedings . As the applicant was prosecuted for the offence laid down in Article CARDINAL bis of LAW , the periods applicable to him during the proceedings at first instance were as follows :

( i ) DATE from the beginning of his detention until the order committing him for trial ;

( ii ) DATE from the beginning of the trial until his conviction at first instance .

Article CARDINAL ORG provides , inter alia , that if the order committing the defendant for trial has not been made or , as the case may be , the defendant has not been convicted at first instance within the relevant period , the detention pending trial shall cease to be lawful and the defendant must be released .

Articles CARDINAL and CARDINAL ORG provide for exceptions to these rules .

In particular , paragraph CARDINAL of Article CARDINAL provides that for certain offences , including the one provided for in Article CARDINAL bis of LAW , the periods laid down in LAW may be extended during the hearings , the deliberations at first instance or the appeal , if the proceedings prove to be particularly complex . Article CARDINAL provides that the length of detention pending trial must not , under any circumstances , exceed CARDINAL of the maximum sentence for the offence with which the defendant is charged or the sentence imposed by the first - instance court .

Paragraph CARDINAL of Article CARDINAL provides :

“ During the preliminary investigation , the public prosecutor may request an extension of a period of detention pending trial that is about to expire , where there is a serious need for precautionary measures which , in particularly complex investigations , make it absolutely necessary to extend the period of detention pending trial . ”

That provision goes on to provide that such an extension may be renewed only once and that , in any event , the periods provided for in LAW can not be exceeded by CARDINAL .

Article CARDINAL ORG provides , inter alia , that where the trial can not be completed at a single sitting , the President shall order it to continue on DATE . Moreover , the court may not adjourn the proceedings other than on grounds of absolute necessity and for a maximum of DATE .

In that connection , ORG has held that the DATE period provided for in LAW ORG is a guideline ( termine di natura ordinatoria ) , non - compliance with which does not render the detention unlawful and can not have any effect on the extension of periods of detention pending trial under LAW ORG . While the court must comply with the time - limits laid down in LAW ORG , especially in cases where the length of the trial affects the length of the detention , the ability to adhere to the time - limits is inevitably dictated by the workload of the court concerned ; if the court has a heavy workload , the trial can not always be conducted within the period provided for in LAW ( see the ORG judgment of CARDINAL DATE ) .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agents , Mrs H. Voelskow - Thies , PERSON , of ORG , at the initial stage of the proceedings , and subsequently by PERSON PERSON , ORG , also of ORG .

Further applications concerning his right of access to his son and related matters are pending before ORG ( No . CARDINAL and No . CARDINAL/CARDINAL ) .

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

The applicant is the father of the child PERSON , born out of wedlock in GPE on DATE . The applicant had been living with PERSON , the child ’s mother , since DATE . They agreed that the child should bear his mother ’s surname , i.e. B. After their separation in DATE , the applicant continued to pay maintenance and he had regular contacts with the child until DATE .

In DATE Ms S. B. married PERSON , who was the father of her daughter , born out of wedlock in DATE and bearing the surname PERSON They chose the husband ’s surname name as their family name and she availed herself of the right to put her surname in front of that .

In DATE the applicant asked ORG of the GPE Municipality whether PERSON had applied for a change of PERSON ’s surname . By letter of DATE he was informed that she had inquired into this possibility , however , no request had been filed yet . In his letter , the competent administrator , acting for ORG as guardian , added that , should such a request be lodged , he would agree as the stepfather had already been living together with Ms. PERSON and the child for DATE and the child fully accepted him .

On DATE Ms B .- K. and PERSON had statements recorded at ORG according to which they gave their family name to PERSON . They also filed a document issued by ORG on DATE according to which , on behalf of the child , it agreed to the change of surname . ORG informed ORG accordingly and the registrar at ORG thereupon added the change of the child ’s surname to the record of his birth .

Following correspondence with ORG , the applicant filed an action with ORG against ORG , complaining that ORG had failed to hear him on the question of the envisaged change of his son ’s surname .

On DATE ORG ruled that it was incompetent to entertain the applicant ’s action and transferred the case to ORG .

On DATE ORG dismissed the applicant ’s claim for rectification of the record of his son ’s birth as far as the entry of the change of surname was concerned . The court found that this entry was correct as the child ’s surname had been changed in accordance with section DATE of LAW and the relevant procedural rules . The ORG further considered that section DATE of LAW did not amount to discrimination and was not in breach of LAW . The ORG observed that the legislator was called upon the ensure that children born out of wedlock had the same opportunities for their physical and spiritual development and their place in society as were enjoyed by children born in wedlock . The legislator had meanwhile enacted legislation to this effect . Even assuming that further measures were necessary , on the whole , section DATE of LAW did not affect the equality between children born out of wedlock and children born in wedlock . Rather , in providing for the possibility of having the same surname , section DATE secured that the child ’s status as a child born out of wedlock was not disclosed to the public .

Moreover , as far as procedural matters were concerned , the proceedings for a change of surname in which the natural father did not participate could not be objected to from a constitutional point of view . In particular there was no breach of the applicant ’s rights as a natural parent as his child had never borne the father ’s surname . The change of surname served the interests of the child . In any event , a mere right of the natural father to be heard in the proceedings , as argued by the applicant , without a possibility to prevent the change of surname would not be effective because the mother and the step - father would eventually decide .

On DATE ORG dismissed the applicant ’s appeal . ORG endorsed the reasoning of ORG and stated in particular that there were no indications that the legal provisions applied in the present case were unconstitutional . The ORG further confirmed that the change of surname served the interest of the child ’s well - being which prevailed over the interests of the natural father .

On DATE ORG dismissed the applicant ’s further appeal . Referring to case - law of ORG , it considered that section DATE of ORG could not be objected to from a constitutional point of view . The applicant could not derive from his rights as a natural father a right to be heard in the proceedings for the change of his child ’s surname , because his rights conflicted with the rights of the mother and in particular of the child whom this provision intended to protect . The child ’s interests are safeguarded in that ORG participates in the proceedings . If the child ’s mother , her husband and the guardian agree upon the change of the child ’s surname , this change is generally in the interest of the child ’s well - being .

In DATE , following problems in having access to his son , the applicant applied to ORG for a decision granting him a right of access to Sinja Johannes . In DATE ORG granted him provisionally access . Subsequently , the child ’s mother no longer fully complied with the decision and prohibited visits as from DATE .

On DATE the applicant instituted proceedings with ORG against PERSON claiming a sum amounting to MONEY ( ORG ) as compensation for damages suffered by him , namely costs for travelling , due to her refusal of access to his son on CARDINAL DATE and CARDINAL DATE .

On DATE ORG , following an oral hearing on DATE , dismissed the applicant ’s action . The court found that there was no legal basis to claim compensation for an alleged refusal of access to his son . In this respect , the court noted that , pursuant to section DATE of LAW , the person having custody and care of a child born out of wedlock determines contact arrangements with the father , and that the father can only claim personal contacts if they are in the child ’s interests . The court also observed that its decision of DATE on provisional visiting arrangements was formulated as granting the child a right to visit the applicant , not as a right of access awarded to the applicant .

On DATE ORG refused to entertain the applicant ’s constitutional complaints against the decisions taken in the above proceedings concerning the change of his son ’s surname and the refusal of his compensation claim , respectively . ORG found that the conditions for admitting these complaints for a decision on their merits were not met .

ORG considered in particular that the applicant ’s complaint about the change of his son ’s surname did not raise any questions of fundamental importance . Referring to its decision of DATE , ORG recalled that fathers of children born out of wedlock enjoyed the right to the care and upbringing of the children under LAW ) even if they were not living with the child ’s mother and were not educating the child together with her . However , the legislator was called upon to enact rules in case of conflict between the parents . In the present case , there was no indication that the courts , in interpreting and applying section DATE of LAW , had disregarded the applicant ’s right as a parent .

As regards ORG decision of DATE , ORG considered that there were no indications that the applicant ’s constitutional right as a parent to have access to his child had to be safeguarded by means of an action in tort .

The decision was served on CARDINAL DATE .

The statutory provisions on family matters are to be found in the NORP Civil Code . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Pursuant to section CARDINAL of LAW , a child born out of wedlock was given the surname which the mother was bearing at the time of the child ’s birth . A change of the mother ’s surname on account of her marriage did not affect the child ’s surname .

Section DATE of the Civil Code provided that the mother of a child born out of wedlock and her husband could declare for the record of a registrar that the child , who was bearing a surname in accordance with section CARDINAL and was not married , should in future bear their family name ; and the father of the child could declare for the record of a registrar that the child should in future bear his surname . The child had agree to the change of surname , and , in case that the father declared that the child should bear his surname , the mother also had to agree . A minor child was represented in these matters by the competent ORG acting as guardian pursuant to sections DATE , DATE of LAW .

As regards children born in wedlock , section CARDINAL of the Civil Code provided that they were given their GPE common family name or , if they have not chosen a family name , the mother ’s or the father ’s surname , as chosen by them . In the absence of a determination by them , the competent court transferred the right to choose the surname to CARDINAL of the parents whose surname would be the child ’s surname in the absence of a decision within DATE . According to section DATE § CARDINAL , a change of the surname of CARDINAL of the parents on account of marriage did not affect the child ’s surname .

A change of surnames of children born in wedlock following divorce and remarriage of the parent having the right to custody was governed by the general rules on the change of surnames under LAW ( Namensänderungsgesetz ) . According to section CARDINAL § CARDINAL , a surname may only be changed if there is an important reason to justify such a change . The relevant circumstances are to be established ex officio , and all persons directly affected by the envisaged change ( unmittelbar Beteiligte ) as well as the local police office and other persons possibly affected by the envisaged change of the surname shall be heard ( section CARDINAL § CARDINAL ) .

The relevant provisions of LAW , as amended , distinguish CARDINAL situations . Children are given the common family name of their parents ( section CARDINAL ) . If there is no common family name and custody is exercised jointly , both parents determine the child ’s surname ( section CARDINAL with special rules in the absence of such common determination ) . If there is no common family name and CARDINAL parent has the sole custody , the child is given that parent ’s surname ( section DATE § CARDINAL ) or , upon the request of the parent exercising custody and in agreement with the other parent , the child can be given the other parent ’s surname ( section CARDINAL § CARDINAL ) .

Section DATE provides in particular that a parent , who has the sole custody for an unmarried child , and this parent ’s spouse who is not a parent of the child , can declare for the record of a registrar that the child shall in future bear their family name . If the child has borne the other parent ’s surname , that other parent has to agree to the change ; the agreement can be replaced by a court decision if necessary in the interest of the child .

Before the entry into force of the amended LAW , the relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Section CARDINAL

“ CARDINAL . The person having custody of the child shall determine the father ’s right of access to the child . Section CARDINAL § CARDINAL , second sentence , applies by analogy .

If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in section CARDINAL § CARDINAL .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Section CARDINAL § CARDINAL reads as follows ( the ORG ’s translation ) :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to section CARDINAL a § CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG authority or an association .

Proceedings in family matters are governed by the LAW on NonContentious Proceedings ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

Persons with a legitimate interest in a case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular case ( section CARDINAL § CARDINAL ) .


CASE OF GEORGIY NIKOLAYEVICH MIKHAYLOV v. RUSSIA

Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

In DATE the applicant was convicted of engaging in an illegal business activity and sentenced to DATE imprisonment . The court also ordered the confiscation of his property , namely an art collection . As part of this collection allegedly disappeared , in DATE the applicant was convicted of fraudulent theft of ORG property .

NORP In DATE both judgments were quashed and the proceedings against the applicant were terminated on the ground that no criminal offence had been committed .

DATE the applicant unsuccessfully tried to recover his art collection .

NORP In DATE the applicant lodged a claim with ORG ( “ the district court ” ) against the local departments of ORG , ORG and GPE Prosecutor 's Office , seeking compensation for the pecuniary and non - pecuniary damage caused by the confiscation of his property .

On DATE the district court scheduled a hearing on DATE .

On DATE the district court held a hearing , acceded to the defendant 's requests and postponed the proceedings until DATE .

On DATE criminal proceedings were instituted against third persons for misappropriation of the applicant 's art collection ; on an unspecified date the applicant was granted victim status in the criminal case .

DATE and DATE the district court postponed hearings on CARDINAL occasions at the defendants ' request .

On DATE the district court granted the applicant 's request to hear CARDINAL witnesses and postponed the hearing until DATE .

On DATE the district court heard CARDINAL witnesses , granted the applicant 's request to summon CARDINAL other witnesses and postponed the hearing until DATE .

On DATE the hearing was postponed because the judge was ill .

On DATE the hearing was postponed because of the applicant 's absence .

On DATE the district court heard CARDINAL witnesses and postponed the hearing until DATE at the applicant 's request .

On DATE the hearing was postponed because the judge was ill ; a new hearing was scheduled on DATE .

DATE and DATE hearings were postponed on CARDINAL occasions at the applicant 's request .

On DATE the hearing was postponed until DATE pending receipt of information from other courts confirming the applicant 's claims .

On DATE the district court granted the applicant 's application to request materials from the criminal case in which the applicant had been granted victim status in substantiation of his pecuniary damage claims ; the hearing was postponed until DATE .

The DATE hearing was postponed until DATE because of the applicant 's absence .

The DATE hearing was postponed because of a defendant 's absence .

On DATE the applicant requested the district court to amend his statement of claims ; the hearing was rescheduled on DATE .

On DATE the hearing was postponed because of a defendant 's absence and the applicant 's failure to submit an additional list of his lost property .

On DATE the applicant provided the district court with an additional list of his lost property ; the hearing was postponed because of the defendants ' absence .

On DATE a hearing was postponed because of the applicant 's and defendants ' absence .

On DATE a hearing was postponed because the defendants had not been notified of it and failed to appear .

On DATE the district court held a hearing and dismissed the applicant 's claim . The court orally delivered only the operative part of the judgment , without providing any reasons .

On DATE the applicant appealed against the judgment of CARDINAL DATE . In his appeal he mentioned that the full text of the judgment had not yet been prepared and that therefore his appeal was preliminary and would be amended .

On DATE the applicant complained to GPE ( “ the city court ” ) that the full text of the judgment of CARDINAL DATE had still not been prepared , whereas LAW ( “ ORG ” ) provided that a reasoned judgment was to be finalised within DATE .

On DATE the city court informed the applicant that Judge PERSON ( the presiding judge in his case ) was on holiday and that the full text of the judgment of CARDINAL DATE would be drafted as soon as possible .

On DATE the district court received the applicant 's appeal .

On DATE the district court dismissed the applicant 's appeal on the ground of his failure to respect the DATE time - limit prescribed by law . It mentioned that the applicant 's appeal had been received on DATE , whereas the judgment had been given on DATE .

On DATE the applicant was informed that the full text of the judgment had been finalised on DATE .

The applicant appealed against the decision of DATE . He claimed that , under LAW ORG , an appeal was to be lodged within DATE of the adoption of a final version of the judgment in issue . In his case , the final version of the judgment had been created on DATE , that is , DATE after his appeal was rejected . He therefore applied for a renewal of the above time - limit .

On DATE the city court rejected the applicant 's appeal against the decision of DATE , having found no reason to quash it on account of a violation of LAW ORG by the district court .

The text of the judgment of CARDINAL DATE bears a court 's stamp confirming that it became final on DATE .

The applicant did not pursue supervisory review proceedings .

A court may restore a procedural term established by a federal law after its expiry if it finds that reasons for failure to comply with such a term were valid ( LAW ) . A request to restore the term after its expiry must be lodged with the court before which the procedural act in question should have been performed , and must be examined at a court hearing . Parties to the proceedings are to be notified of the time and place of the hearing , but their failure to attend it does not preclude the court from deciding upon the issue ( LAW ) . The necessary procedural act in respect of which the procedural term has expired , such as lodging a complaint , or submission of documents , must be performed simultaneously with the lodging of the request for restoration of the term ( LAW ) . The court 's ruling on the restoration of ( or refusal to restore ) the procedural term may be appealed against LAW CARDINAL § CARDINAL as in force at the material time ) .

A judgment must be delivered immediately after the examination of a civil case . The preparation of a reasoned judgment may be postponed for not DATE after the examination of a case ; however , the firstinstance court must pronounce the operative part of the judgment at the same hearing in which the examination of the case is completed ( Article CARDINAL of the ORG ) .

An appeal in a civil case may be lodged within DATE of the delivery of a first - instance judgment in its final form ( LAW .

An appeal statement is to be returned to the appellant where ( i ) a judge 's instructions concerning an appeal statement have not been complied with ; or ( ii ) the term for lodging an appeal has expired , provided that restoration of the term concerned has not been requested ( LAW ORG ) .


Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of unlawful possession of arms and forgery of identity documents . He was taken to police department no . CARDINAL in GPE and interrogated in the office of its deputy head , Mr T.

The applicant stated that PERSON and the subordinate police officers had handcuffed and beaten him , seeking a confession . While he was sitting on a chair with his arms handcuffed behind the chair , the policemen administered electric shocks to his fingers through wires connected to a dynamo . The applicant fell onto the floor and one of the policemen stepped on his back . As the applicant was screaming , the policeman took off the applicant ’s sock and gagged his mouth .

At TIME on DATE the applicant was put in a temporary detention cell . In the cell he pulled out a nail from the window frame and tried to open his veins . His arms swelled up and he asked for a doctor . The warders gave him an antiseptic and allegedly handcuffed him to a bar in the corridor . TIME he was again taken to the police station and beaten . The policemen threatened to torture his wife and sister and insisted that he confess .

On DATE the applicant was questioned by the investigator and he complained to the latter about ill - treatment . The investigator ordered a medical examination . The applicant was immediately escorted to ORG where he was examined by CARDINAL medical experts . It can be seen from the medical report of DATE that he had numerous bruises on his forehead , left shoulder , left shoulder - blade and right leg , which had been caused by the impact of blunt objects . The injuries to his back and leg could have been the result of bumping against protruding objects . The applicant also had abrasions on his forearms , which had been caused by a sharp object , possibly a nail . Lastly the doctors recorded thermoelectrical burns on the applicant ’s fingers . They found that all injures had been inflicted DATE before .

On DATE the police arrested and allegedly beat the applicant ’s wife and sister . They were released on DATE . On DATE the applicant ’s sister was examined by a doctor who reported many bruises on her chest and waist and brain concussion . The applicant ’s wife was diagnosed with post - traumatic perforated otitis .

On DATE the applicant ’s mother - in - law was also arrested and questioned by police officer Mr T. According to her testimony , he was drunk . He hit her several times in the face and verbally abused her . She was released on DATE . It transpires from a medical certificate issued on DATE that she had a bruise on her face .

NORP The applicant stated that he had complained to the prosecutor ’s office about his ill - treatment , but had received no reply . He then signed a power of attorney for his mother who , on DATE , filed a complaint about the applicant ’s ill - treatment with the prosecutor ’s office . The applicant ’s wife , sister and mother - in - law also complained that they had been beaten by Mr T. , a deputy head of police department no . CARDINAL , and the subordinate police officers .

The LOC prosecutor questioned CARDINAL of the police officers of police department no . CARDINAL and he denied beating the applicant . No other investigative measures were taken . On DATE the LOC prosecutor refused to initiate criminal proceedings against the policemen , finding that there was no evidence of ill - treatment . He observed that the applicant had never complained about ill - treatment to the investigator in charge of his criminal case . He also noted that it had been impossible to question Mr T. as he had been on mission in GPE .

The applicant challenged the decision of DATE before ORG .

On DATE the ORG prosecutor set aside the decision of DATE and ordered an additional inquiry . On DATE ORG discontinued the proceedings as the decision of DATE had been annulled .

On DATE the LOC prosecutor for a second time refused to open criminal proceedings .

On DATE the ORG prosecutor set the decision aside and ordered that the LOC prosecutor conduct an additional inquiry , and in particular question the applicant , his wife , mother and sister , his co - defendants , co - detainees , Mr T. and other police officers of police department no . CARDINAL , and obtain a medical examination of the applicant .

In DATE and DATE the LOC prosecutor questioned the applicant ’s mother , sister , wife and mother - in - law , who described the circumstances of the applicant ’s arrest and complained that they had been intimidated and hit by Mr T. He also questioned Mr T. and another police officer , who denied beating the applicant or any of his relatives . On DATE the LOC prosecutor for a third time refused to open criminal proceedings , finding that there was no evidence of ill - treatment . He noted that the applicant had never complained about ill - treatment . All complaints had been lodged by his mother after the criminal case against the applicant had been referred for trial . The mother “ had been motivated by the desire to help her son avoid criminal responsibility for the serious criminal offences committed by him ” .

On DATE the decision was set aside by the prosecutor ’s immediate superior , who ordered an additional inquiry .

On DATE the LOC prosecutor for a fourth time refused to open criminal proceedings . He established on the basis of medical documents that the applicant and his relatives had received injuries . However , given that the policemen denied beating them , it was not possible to establish with certainty that the injuries had been inflicted by the police .

On DATE the decision was set aside by the senior prosecutor , who found that the district prosecutor had not carried out the investigative measures specified in the decision of CARDINAL DATE and ordered additional enquiries .

On DATE the LOC prosecutor again refused to open criminal proceedings , repeating verbatim the decision of DATE .

The applicant ’s mother challenged the decision before a court . On DATE ORG quashed the decision , finding that the prosecutor had never questioned the applicant about the alleged ill - treatment and had failed to identify the police officers who could have been responsible for it .

On DATE the LOC prosecutor questioned the applicant , who provided a detailed account of his ill - treatment and again refused to open criminal proceedings for the same reasons as before .

On DATE the decision was set aside by the superior prosecutor , who found that the inquiry had been incomplete . He ordered that the district prosecutor question the applicant ’s co - defendants and the police officer who had arrested the applicant .

On DATE the LOC prosecutor questioned the arresting officer who denied beating the applicant . He also questioned the applicant ’s co - defendants , who testified that they had seen the policemen beating the applicant or had seen his injuries . On DATE he issued a decision refusing to open criminal proceedings against the policemen for the same reasons as before .

The applicant ’s mother challenged the decision before a court . On DATE ORG found that she had no standing to complain about her son ’s ill - treatment . On DATE the ORG quashed the decision of DATE on appeal , finding that the applicant ’s mother had a power of attorney signed by the applicant and had been officially recognised as his representative . It remitted the case to ORG .

On DATE ORG annulled the prosecutor ’s decision of DATE . It found that the applicant ’s allegations of ill - treatment were corroborated by medical evidence and by witnesses . The prosecutor had given insufficient reasons for the refusal to open criminal proceedings .

On DATE the LOC prosecutor again refused to open criminal proceedings . He found it was not possible to establish with certainty that the applicant ’s and his relatives’ injuries had been inflicted by the police .

The applicant ’s mother challenged the decision before ORG . On DATE ORG set aside the prosecutor ’s decision , finding that the prosecutor had failed to correct the defects pointed out in the judicial decision of DATE . In particular , he had not conducted a further inquiry or given sufficient and convincing reasons for the refusal to open criminal proceedings .

On DATE a deputy Prosecutor of the Volgograd Region referred the case to ORG with a recommendation to carry out an additional inquiry . It was necessary to question the policemen , the applicant ’s co - defendants and his neighbours and conduct other investigative measures .

On DATE ORG of LOC of GPE refused to open criminal proceedings against the policemen , repeating verbatim the decision of CARDINAL DATE . It appears that no additional enquiries were made .

On DATE ORG of LOC of GPE reconsidered its previous decision and decided to open criminal proceedings into the fact of the applicant ’s ill - treatment by unidentified police officers .

On DATE the applicant was granted victim status .

On DATE ORG formally remanded the applicant in custody on charges of unlawful possession of weapons and forgery of identity documents . It found that the applicant did not deny that he unlawfully possessed weapons and that official seals had been found in his apartment . The court referred to the gravity of the charges , the applicant ’s previous criminal record and the fact that he had no dependants , which gave reason to believe that he might abscond or interfere with the investigation .

The trial started on DATE .

On DATE the ORG of Volgograd convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment starting from DATE .

On DATE ORG upheld the judgment on appeal .

On DATE the applicant completed his sentence .

On DATE the applicant was charged with inflicting serious injuries .

On an unspecified date the applicant ’s case was joined with the cases of CARDINAL other persons who had allegedly acted in conspiracy with the applicant .

On DATE the applicant and his co - defendants were charged with organising an armed criminal gang , several counts of aggravated robbery , inflicting serious injuries and CARDINAL counts of murder .

On DATE the investigation was completed and CARDINAL defendants , including the applicant , were committed for trial before ORG .

The defendants asked for a trial by jury .

On DATE the ORG fixed a preliminary hearing for DATE to examine the request .

On DATE ORG ordered that the defendants be tried by jury and fixed the opening date of the trial at DATE .

The hearings of CARDINAL May , DATE and DATE were adjourned as a jury could not been formed .

On DATE the jury was formed and the trial started on DATE .

Until DATE the court scheduled CARDINAL hearings . CARDINAL hearings were held as planned while CARDINAL more hearings started but were interrupted in the middle and adjourned , as prosecution witnesses did not appear . CARDINAL hearings were rescheduled due to a power cut in the court building or to the absence of available courtrooms . CARDINAL hearings were postponed at the request of the defence .

In DATE the court scheduled DATE hearings . QUANTITY hearings were held as scheduled . CARDINAL hearings were postponed as a juror failed to appear and QUANTITY hearings did not go ahead due to the absence of prosecution witnesses . QUANTITY hearings were adjourned at the request of the defence or because counsel for CARDINAL of the defendants did not appear .

In DATE the court scheduled DATE hearings . CARDINAL hearings were held as scheduled . CARDINAL hearings did no go ahead as a juror or prosecution witnesses did not appear . CARDINAL hearings were adjourned due to counsel ’s absence or following a motion for adjournment by the defence team .

In DATE the court scheduled CARDINAL hearings . CARDINAL hearings were held as planned . QUANTITY hearings were adjourned as the judge was ill , was on leave or was drafting judgments in unrelated cases , or because a juror did not appear . CARDINAL hearings were postponed at the request of the defence team .

At DATE the court scheduled CARDINAL hearings . CARDINAL hearings were held as scheduled . CARDINAL hearings were adjourned at the request of the prosecutor . CARDINAL hearings did not go ahead as counsel for the victim was ill . CARDINAL hearings were adjourned because counsel for CARDINAL of the defendants did not appear .

The proceedings are still pending before the trial court .

On DATE the applicant gave an undertaking not to leave the town .

On DATE ORG remanded the applicant in custody . The court referred to the gravity of the charge and the risk of the applicant ’s interfering with the investigation .

On DATE ORG extended the applicant ’s detention until DATE , referring to the gravity of the charge and necessity of further investigation .

On DATE ORG extended the applicant ’s detention until DATE , referring to the gravity of the charge and the complexity of the case . It noted that the applicant had initially been bound by an undertaking not to leave his place of residence , but that that preventive measure had been considered insufficient in view of the gravity of the charges and the risk of his absconding .

On DATE ORG extended the applicant ’s and a co - defendant ’s detention until DATE , referring to the need for an additional investigation , the gravity of the charges and the applicant ’s unemployment . The court found that there was a risk of the defendants’ absconding or re - offending .

On DATE ORG accepted the case for trial and held that all CARDINAL defendants should remain in custody .

On DATE ORG ordered that the defendants remain in custody pending trial .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges .

The applicant appealed , claiming that he resided permanently in GPE and that there was no reason to believe that he would abscond or interfere with the proceedings . On DATE ORG upheld the extension order on appeal . It found that the applicant had been charged with serious and particularly serious criminal offences and that his arguments were not sufficient to warrant the quashing of the extension order .

On DATE ORG extended the GPE detention , referring to the gravity of the charges and the risk of pressure on witnesses and jurors .

In his grounds of appeal the applicant submitted that he had never put pressure on witnesses and that there was no danger of his hampering the court proceedings . On DATE ORG upheld the extension order on appeal . It repeated verbatim its reasoning set out in the decision of DATE .

On DATE ORG extended the defendants’ detention until DATE . ORG found that , in view of the gravity of the charges , it was “ opportune ” to keep the defendants in custody . It rejected their requests to release them under an undertaking not to leave the town , as it could not exclude the risk of pressure on witnesses or jurors . The court found irrelevant the applicant ’s argument that it was not necessary to extend his detention as he was currently serving his sentence under the judgment of DATE and , for that reason , could not tamper with witnesses or threaten jurors . It noted that the purpose of the applicant ’s detention was to ensure that the criminal proceedings were completed in good time . On DATE ORG upheld the extension order on appeal .

On DATE ORG extended the defendants’ detention until DATE . It found that the defendants might interfere with the proceedings , as they were charged with serious criminal offences , including being members of an armed criminal gang , supposedly organised by the applicant . On DATE ORG upheld the extension order on appeal .

DATE . On DATE ORG extended the defendants’ detention until DATE for the same reasons as before .

On DATE ORG extended the defendants’ detention until DATE for the same reasons as before .

In his grounds of appeal the applicant complained that the extension order had been poorly reasoned and the court ’s conclusions that he could abscond or put pressure on witnesses had been hypothetical and had not been supported by relevant facts . On DATE ORG upheld the extension order on appeal . It held that the gravity of the charges was a sufficient reason for the defendant ’s continued detention .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges and the defendants’ “ characters ” . The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding , re - offending or hampering the court proceedings .

The applicant appealed , claiming that ORG had used a stereotyped formula to justify his detention and that its conclusions had been hypothetical . He also complained that he had not been given access to the materials submitted by the prosecution in support of their request for extension .

On DATE ORG upheld the extension order on appeal , finding that it had been lawful , well - reasoned and justified . The defendants were charged with serious criminal offences , therefore they might abscond , re - offend or obstruct the proceedings . The allegedly excessive length of their detention , their poor health and permanent place of residence were not sufficient reasons to warrant release .

On DATE ORG extended the GPE detention until DATE for the same reasons as before .

DATE . On DATE ORG extended the GPE detention until DATE , finding that there was no reason to vary the preventive measure .

In his grounds of appeal the applicant submitted that the length of his detention had exceeded a reasonable time and asked the court to place him under home arrest . On DATE ORG upheld the extension order on appeal , finding that it had been lawful , well - reasoned and justified .

On DATE ORG extended the defendants’ detention until DATE , referring to the gravity of the charges and the risk of his absconding or intimidating the witnesses or jurors .

On DATE ORG rejected the applicant ’s request to be released under an undertaking not to leave his place of residence and extended the GPE detention until DATE . The decision reads as follows :

“ As the trial has not yet been completed , it is necessary to extend the GPE detention .

The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention .

However , in addition to the gravity of the charges DATE namely organisation of an armed gang under [ the applicant ’s ] leadership and commission of assaults on citizens and murders – carrying a sentence of up to twenty years’ imprisonment for each of the defendants , the court also takes into account other factors .

Thus , the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors .

The defendants’ argument that their detention has been excessively long is not in itself sufficient to warrant release .

The defendants have not produced any material showing the existence of factors making impossible [ sic ] their stay in detention facility conditions .

The court is not convinced by the GPE argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension . The court has at its disposal only the materials from the criminal case file which had been studied by the defendants .

The court considers that the grounds for the detention of the defendants charged with serious and particularly serious criminal offences are relevant and sufficient . Their detention serves the interest of the society , as it prevents commission of similar criminal offences and ensures high - quality and effective examination of the present criminal case .

The criminal case file contains sufficient evidence against each defendant to justify an extension of their detention ... ”

On DATE ORG extended the defendants’ detention until DATE , repeating verbatim the decision of DATE .

The applicant appealed , complaining that the decision had been taken in his absence and that the court had relied only on the gravity of the charges against him . On DATE ORG upheld the extension order on appeal , finding that it had been lawful , well - reasoned and justified .

On DATE ORG extended the defendant ’s detention until DATE , repeating verbatim the decision of DATE .

On DATE the investigator impounded the applicant ’s CARDINAL cars as physical evidence in the criminal proceedings against him .

On DATE the ORG of Volgograd ordered that the police return the cars to the applicant . The decision was not appealed against and became enforceable .

On DATE the bailiffs opened enforcement proceedings .

On DATE one of the cars was returned to the applicant ’s mother .

On DATE the other car , a FAC , was also returned to the applicant ’s mother . However , it was immediately impounded again as physical evidence in connection with unrelated criminal proceedings opened at the request of its former owner , who had complained that the car had been stolen from him . It appears that the criminal proceedings are still pending .

On DATE the bailiffs found that the judgment of DATE had been enforced in full and terminated the enforcement proceedings .

Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment ( Article QUANTITY of LAW ) .

ORG LAW of GPE ( Law no . CARDINAL of DATE , the ORG ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual ( Articles CARDINAL and CARDINAL ) . Within DATE , upon receipt of such complaint , the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken . The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( обязательство о явке ) ( Article CARDINAL of CCrP ) .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ during the investigation ” . The period of detention during the investigation may be extended beyond DATE only if the detainee is charged with a serious or particularly serious criminal offence . No extension beyond DATE is possible ( LAW DATE ) . The period of detention “ during the investigation ” is calculated up to the date on which the prosecutor sends the case to the trial court ( LAW ) .

From the date on which the prosecutor refers the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during the trial ” ) . The period of detention “ during the trial ” is calculated up to the date of the judgment . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW CARDINAL and CARDINAL ) .


CASE OF MEZOTUR-TISZAZUGI VIZGAZDALKODASI TARSULAT v. HUNGARY

Violation of Art. 6-1 (length of proceedings);Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant is a water management association founded under LAW no . DATE on ORG , with its seat in GPE , GPE .

On DATE the applicant requested the Szolnok ORG to issue an order for payment against a limited liability company . On DATE the respondent objected to the order and brought a counter - claim against the applicant . The proceedings continued as civil litigation .

ORG held hearings on DATE , DATE and DATE . In the meantime , on DATE ORG imposed a fine on the applicant ’s legal representative for having failed to submit some requested documents .

On DATE ORG appointed an expert architect . The expert submitted his opinion on DATE . The parties submitted their observations on DATE and DATE .

At the hearing of DATE , the applicant ’s legal representative failed to appear . The court imposed a fine on him and invited him to make a statement in writing . He submitted his statement on CARDINAL DATE .

ORG held hearings on DATE and DATE .

On DATE the court heard the parties’ representatives , the expert and some witnesses .

On DATE ORG dismissed the applicant ’s action and partly accepted the respondent ’s counter - claim .

On DATE the GPE Regional Court dismissed the applicant ’s appeal . It filed a petition for review .

On DATE ORG dismissed the petition for review .


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

The applicant was born in DATE and lives in GPE .

The applicant , a professional army officer , took an early retirement in DATE .

On DATE the applicant filed a civil action against ORG , claiming that he had been deprived of adequate medical treatment , to which he was entitled as a retired army officer . He maintained that numerous errors committed by military dentists and their incompetence had led to irreversible bodily harm and damage to his health .

On DATE , on ORG order , the applicant particularised his claim . He sought a finding of the defendant ’s liability , a sum of CARDINAL as compensation , and reimbursement of legal costs . On DATE ORG gave a decision stating its lack of jurisdiction and forwarded the case to ORG .

On DATE the applicant extended his claim and alleged that his heart illness had been caused by the defendant ministry . On DATE the applicant submitted , on the court ’s order , a statement of his financial and family situation . On DATE the court exempted the applicant from the court fees .

On DATE , CARDINAL and DATE , the applicant filed his further objections as to the work and conduct of the dentists concerned . On CARDINAL DATE ORG sent copies of the applicant ’s statement of claim to ORG at ORG and to the court . ORG also declared that the hospital had been authorised to represent ORG in the case . On DATE the defendant ’s counsel filed a reply to the applicant ’s statement of claim with the court and requested it to summon CARDINAL dentists as witnesses .

The applicant submitted his further pleadings on DATE , CARDINAL DATE and CARDINAL DATE . The hearing scheduled for CARDINAL DATE had to be adjourned due to illness of the judge rapporteur . The applicant ’s further pleadings were lodged with the court on DATE , CARDINAL and DATE , CARDINAL and DATE , CARDINAL and DATE , DATE , and CARDINAL , DATE and DATE DATE . On CARDINAL DATE the court held a hearing . It heard the applicant and CARDINAL witness . Subsequently the applicant filed his pleadings on DATE , CARDINAL and DATE .

The second hearing was held by the court on DATE . The court interviewed CARDINAL witness , a dentist who had treated the applicant in the defendant ministry polyclinic . The other witness , summoned for that date , failed to appear . The court accordingly adjourned the hearing .

The applicant filed his pleadings on DATE and DATE . The subsequent hearing was fixed for DATE . It had to be adjourned as the defendant ’s lawyer and the witness failed to comply with the summons . The applicant was told by the judge that the next hearing would be held on DATE , at TIME

On DATE the applicant appeared before the court an hour after the hearing had begun . He complained to the President of ORG that he had not been properly informed about the time fixed for the hearing . He further complained that , after having waited DATE for the trial , he had been denied the opportunity of questioning witnesses and had not been allowed to examine the minutes of the hearing . The President of ORG was of the view that the applicant ’s complaint was unfounded , explaining that the applicant himself bore the blame for having arrived late for the hearing .

On DATE the court decided to appoint professor PERSON as an expert . The applicant filed his further pleadings on DATE , CARDINAL and DATE , DATE and DATE . In DATE the expert opinion reached the court . The applicant filed his pleadings and motions , inter alia as to the expert opinion , on DATE , DATE and DATE , CARDINAL , DATE , DATE and DATE . On DATE the defendant ’s lawyer submitted her observations as to the expert opinion .

The applicant submitted his new pleadings and various motions on DATE , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL , CARDINAL and CARDINAL DATE , CARDINAL May , DATE and DATE . On DATE the applicant submitted CARDINAL sets of questions to the expert , altogether CARDINAL questions . He submitted further pleadings on DATE , and CARDINAL and QUANTITY DATE .

In DATE and DATE hearings were scheduled by ORG on the following dates : DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE and on CARDINAL other unspecified dates . On DATE ORG stated its lack of jurisdiction to entertain the case and the case was subsequently transferred to ORG . As on each occasion the court expert , professor PERSON , failed to attend , the hearings were adjourned .

On DATE ORG sent letters to ORG ’s CARDINAL addresses - to the hospital and to his home address - in order to set a date for the hearing . The court ’s secretary also telephoned to the hospital to inform the expert about the need to achieve some progress in the proceedings , and to reiterate that a date had to be fixed so that he could finally attend the hearing . The expert informed the court that he could be present on CARDINAL , DATE and DATE , at TIME

On DATE , CARDINAL , DATE , DATE , DATE and DATE the applicant filed his further pleadings with ORG . In a letter of CARDINAL DATE , in reply to the applicant ’s earlier letter of complaint to ORG of DATE about the lack of progress in the proceedings , the President of ORG admitted that the proceedings were too slow , but in his opinion the court could not be blamed for it , since the delay had mainly been caused by the persistent failure of the expert PERSON to attend hearings .

During the hearing held on DATE , the court took the oral evidence of the expert PERSON On DATE the applicant filed a list of his further claims with the court . On DATE at a session held in camera the court decided that additional expert opinions should be prepared within DATE . The court subsequently made a few attempts to appoint experts , but they refused to prepare their opinions for various reasons . The experts’ refusals were submitted to the court on DATE , DATE , CARDINAL and DATE . On DATE ORG answered the applicant ’s question of DATE concerning the decision of CARDINAL DATE to take additional evidence .

NORP The applicant filed his new pleadings with the court on DATE , DATE , DATE and DATE . On DATE the court sent to the applicant a list of experts practising in other towns and asked him if he would agree to visit CARDINAL of them at his own expense . On DATE the applicant informed the court that he had chosen the expert ORG living in GPE . The applicant filed his new pleadings on DATE and DATE .

On DATE the court requested ORG to submit her report . On DATE the expert opinion prepared by professor ORG was submitted to the court . On DATE the expert explained that she had not been able to complete her opinion earlier due to serious family problems . She also informed the court that she had summoned the applicant for DATE , at TIME He had not reported for the examination and answered that he could only do so in the TIME . Following that , the applicant formulated a list of questions addressed to the expert and submitted that list to the court . On DATE , CARDINAL and DATE , DATE and DATE the applicant lodged his further pleadings with the court .

On DATE the defendant ’s lawyer submitted her observations on the merits of the case and informed the court that ORG had to be summoned as a party to the proceedings .

On DATE the President of ORG , in reply to the applicant ’s letter of DATE addressed to ORG , informed him once again that difficulties in hearing the evidence , as well as other reasons beyond the court ’s control , had contributed to the excessive length of proceedings . It was true that no hearings had been held since DATE , but this was due to the fact that it was of primary importance for the court to establish which institution had assumed the obligations of ORG at ORG after the reforms of the public system of health services , which had become effective from DATE .

The applicant countered these arguments in CARDINAL letters of complaint written to ORG of CARDINAL and DATE . He complained inter alia that the expert had not managed to take a stand on a number of questions he had asked .

On DATE the court summoned ORG as a party to the proceedings and on the same date it informed the hospital about it . On DATE ORG informed the applicant that the President of ORG in his letter of CARDINAL DATE had given convincing grounds as to why the proceedings were prolonged , but that the case would thereafter be placed under its administrative supervision in order to expedite the proceedings .

On DATE the applicant filed a letter with the Chancellor of ORG in PERSON contesting the expert opinion of DATE . On DATE the university informed the court that the expert ORG had died on DATE .

On DATE the applicant sent a letter of complaint to ORG , stating that he was not satisfied with the vague explanations he had obtained as to the length of the proceedings .

On DATE the defendant filed its reply to the applicant ’s statement of claim . On DATE the university answered the applicant ’s letter of CARDINAL July CARDINAL and informed him that professor ORG had been an expert appointed in the case and the university could not interfere with her opinion . On DATE the defendant ORG ’s lawyer submitted its reply to the statement of claim .

On DATE the court held a hearing in the case . The applicant contested the opinion prepared by ORG On DATE the court informed the NORP Governor that he would be summoned as a co - defendant in the case .

On DATE the applicant was informed by ORG in the Ministry that ORG had been notified of the expert ’s death and that a new expert had been appointed . The proceedings would be resumed as soon as the appropriate expert opinion was submitted .

On DATE a new expert opinion was ordered by the court . On DATE the representative of the NORP Governor stated that it was the Minister of ORG who should be summoned as a defendant in the case . On CARDINAL , DATE and DATE the applicant submitted his further pleadings . On DATE the court received a letter from expert ORG , refusing to prepare his opinion because of his heavy workload . On DATE the expert refused the reiterated request of the court .

The applicant filed his new pleadings on CARDINAL and DATE , CARDINAL DATE , CARDINAL and DATE and DATE . On DATE the court ordered expert PERSON to prepare his opinion in the case . On CARDINAL DATE the expert refused to do so . The court ordered ORG of ORG to appoint an expert in order to prepare an opinion . The expert from the institute likewise refused to prepare a report and stated that the first opinion prepared by the expert PERSON had been a professional and conclusive one . The applicant submitted his further pleadings to the court on DATE , CARDINAL , CARDINAL and DATE .

On DATE ORG answered the applicant ’s letters and informed him that the length of proceedings in the present case was caused by the difficulties in obtaining an expert opinion . Answering the subsequent complaint of the applicant , ORG informed him that the independent court was considering the case and that no measures could be taken by ORG to interfere with the course of the proceedings . On DATE the applicant submitted further pleadings to the court .

The court held a hearing on DATE . On DATE it gave judgment and dismissed the applicant ’s claim . On DATE the applicant requested to be served with the written grounds of the judgment . He was served with these on an unspecified date and in DATE he lodged an appeal against the first - instance judgment .

The proceedings are pending .

Article CARDINAL of the Code of Civil Procedure provides that a court shall impose a fine on an expert who , without reasonable cause , consistently fails to comply with his or her obligation to submit a report to the court , or submits such report with a delay .