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

The applicant ’s firm had constructed chalk stabilisation machines for a construction firm P .. Concerning the first machine , they agreed that the costs CARDINAL NORP Marks ( ORG ; corresponding to MONEY ( ORG ) ) were to be financed by the latter . No formal agreements were entered into for the subsequent machines .

Allegedly on DATE the applicant and PERSON , a managing director of a company PERSON , which is a subsidiary company of P. , concluded a rental agreement for the machines to be used in PERSON ’s construction business in GPE . CARDINAL of the machines was rented to M .. On DATE and DATE paid the applicant rent amounting to CARDINAL and MONEY ( SEK ) , respectively .

On DATE the applicant allegedly removed CARDINAL of the machines from the construction site , without returning it to P .. The following day PERSON filed a criminal complaint with the police of PERSON , accusing the applicant , as the responsible partner of his firm , of having stolen it .

On DATE the applicant ’s firm , P. and PERSON agreed that the civil dispute as to the ownership and the right of possession of the machines were to be resolved before ORG ( raastuvanoikeus , rådstuvurätten ) of GPE .

On DATE the police in GPE interrogated PERSON on suspicion of embezzlement ( concerning the rental agreements ) . However , on CARDINAL DATE the NORP prosecutor decided not to lodge charges against him since there was insufficient evidence . At the time the applicant was not a suspect .

On DATE the police of PERSON discontinued the pre - trial investigations concerning the applicant , finding the case to be a civil dispute .

It appears that meanwhile a civil dispute between ORG and the applicant was pending before ORG of Helsinki , which decided on DATE that the machines ( and apparently also other similar machines ) belonged to P .. It ordered the applicant to return the machines to P ..

In an another civil dispute , the then ORG ( kihlakunnanoikeus , häradsrätten ) of GPE on DATE ordered H. to reimburse to ORG the rental costs of the machine amounting to LOC .

According to the applicant , on DATE a demand for an investigation ( tutkintapyyntö , begäran om förundersökning ) to be opened against him was made to the police of PERSON . Another demand for an investigation was made to the police of Hämeenlinna on DATE . Following this , on DATE an offence by the applicant was reported to the police . He was suspected of aggravated embezzlement relating to the non - delivery of the constructed machine to P. ( “ first embezzlement ” ) . On DATE the pre - trial investigation was assigned to the economic crime investigation group of the province of GPE . At that time PERSON was a suspect as well . It is unclear when the applicant was interrogated by the police .

Apparently criminal investigations against the applicant and H. relating to an alleged embezzlement committed in GPE concerning the rental agreement ( “ second embezzlement ” ) were opened in GPE in DATE .

The applicant was arrested and detained DATE and DATE . On DATE the provisional indictment was served on him .

On DATE the pre - trial investigation was concluded . Charges were lodged in DATE . Following the request by the NORP public prosecutor , he was also charged with the alleged embezzlement committed there .

On DATE the criminal proceedings before ORG ( käräjäoikeus , tingsrätt ) of Hämeenlinna began . On DATE ORG issued its judgment , acquitting the applicant and other defendants . The court further ordered PERSON pay the GPE legal costs .

The prosecutor , the complainants , the applicant and co - defendants appealed to ORG ( hovioikeus , hovrätt ) of GPE . In CARDINAL of the CARDINAL oral hearings before the appellate court the applicant , among others , requested the court to dismiss the charges alleging that the proceedings had been excessively lengthy . On DATE ORG issued its judgment , upholding by CARDINAL votes to one , the judgment of ORG concerning the alleged first embezzlement , but quashing the judgment concerning the second embezzlement . It convicted the applicant of aggravated embezzlement in this respect . The court admitted that the period from the lodging of criminal complaint until ORG proceedings , i.e. DATE , had exceeded the period at issue in cases before ORG , relied on by the applicant ’s company . The court nevertheless rejected the request to dismiss the charges ruling , inter alia , that :

“ These proceedings were already pending in DATE . The handling of the case at issue began on DATE . The proceedings before ORG took DATE and DATE and the proceedings before ORG will have taken DATE , i.e DATE in all . As from the reporting of the offence until the end of the proceedings before ORG the time elapsed has been DATE . ... The interests at stake are exceptionally wide , including , inter alia , the civil proceedings . ... ORG notes that the court proceedings have not been excessively lengthy taking into account the nature and extent of the case ... However , the pre - trial proceedings have been lengthier than on average . ... ORG concludes that ... the proceedings have not exceeded the reasonable length – requirement as provided in LAW .

Conclusion

The request to rule inadmissible or dismiss the charges is rejected . ”

The appellate ORG took the long time which had elapsed since the incriminated conduct into account when imposing the sentence . Instead of an unconditional term of imprisonment , the applicant was sentenced to a suspended sentence of DATE and DATE . He was further ordered to pay ORG CARDINAL by way of supplementary fines and , jointly with ORG , the other defendant , PERSON ’s legal costs . The appellate court ruled , inter alia , that :

“ The sentences for [ the applicant ] and [ H. ] have to be severe taking into account the amount of embezzled property and the premeditation of the offences ... [ thus ] the reprehensible conduct warrants that [ the applicant ] and [ H. ] be sentenced to imprisonment . For the same reason , the general obedience to the law would require that the sentences be ones of imprisonment . [ The complainants ] became aware of the offences committed by [ the applicant ] and [ H. ] on DATE . The effective criminal investigation began , however , on DATE in respect of [ the applicant ] ... The proceedings before ORG began on DATE . The lapse of time since the acts were committed until the initiating of the criminal proceedings was not caused by the [ applicant ] and [ H. ] covering up the acts . The fairly lengthy period which elapsed before the courts was not to any major extent caused by [ the applicant ] or [ H. ] . Taking into account the exceptionally long pre - trial period and the proceedings ... the punishment shall be a suspended sentence ... ”

The applicant and the other defendants applied for leave to appeal from ORG ( korkein oikeus , högsta domstolen ) , which was rejected on DATE .

Section CARDINAL , subsection CARDINAL of LAW ( esitutkintalaki , förundersökningslag ; DATE ) provides that the police or another investigation authority shall carry out a pre - trial investigation where , on the basis of a report made to it or otherwise , there is a reason to suspect that an offence has been committed .

Section CARDINAL of the said LAW provides that a pre - trial investigation shall be carried out without undue delay .

Section CARDINAL of the LAW of Finland ( perustuslaki , grundlagen GPE ) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority . This section is equivalent to section CARDINAL of the repealed LAW of DATE ( PERSON , ORG ) , as in force at the relevant time .

LAW , section CARDINAL of LAW ( rikoslaki , strafflagen ) prescribes a maximum penalty of DATE imprisonment for aggravated embezzlement .


Violation of Art. 10;Non-pecuniary damage - award

David Scicluna;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicants were born in DATE , DATE and DATE respectively and live in GPE . When the facts that gave rise to the complaint occurred , the first applicant was the editor of the newspaper “ The ORG of Malta ” , the second applicant was a court reporter for the said newspaper and the third applicant was the registered newspaper ’s printer .

On DATE a bigamy case , in which the accused was represented by PERSON , was to be heard before ORG . PERSON was called a number of times but he failed to appear . The accused explained that there had been trouble between them in view of requests for excessive fees which he was unable to pay . According to the second applicant , the presiding magistrate repeatedly expressed his intention in open court to find PERSON in contempt of court . Indeed , in the chaotic atmosphere in the courtroom , the second applicant heard the magistrate find PERSON to be in contempt of court . According to the second applicant , she subsequently attempted to verify this fact through the records of the proceedings , but both the magistrate and the court deputy registrar had already left their chambers . She therefore verified what she had heard with another reporter present in the courtroom . He confirmed her version .

A decision of DATE in the relevant bigamy proceedings referred to the fact that PERSON client ’s request to replace his lawyer at that stage of the proceedings verged on contempt of court . However , in view of the circumstances as explained to the court , the case was adjourned .

On DATE , the ORG of GPE newspaper published a report entitled ‘ Lawyer found in Contempt of ORG . It reported , inter alia , that PERSON had been found guilty of contempt of court for failing to appear before a magistrate hearing the final stages of a bigamy case .

On DATE called the second applicant and protested vigorously about the article . Subsequently , the second applicant proceeded to verify the information by checking the record of the proceedings . However , the relevant information was not registered therein . In consequence on DATE the newspaper published a report entitled ‘ Lawyer Not Found in Contempt of Court’ which reproduced the relevant record of the proceedings and stated that “ any inconvenience caused to PERSON is regretted ” .

Nonetheless , on DATE , PERSON brought civil proceedings for defamation under Part III of LAW ( actions arising from press offences ) . The applicants pleaded , inter alia , that the publication was privileged under LAW ( d ) of LAW ( see Relevant domestic law below ) , that it was not libellous , that mitigation in accordance with LAW ( CARDINAL ) of LAW should be applied in view of the apology published on DATE and that the third applicant had not read the report prior to its publication ( see Relevant domestic law ) .

By a decision of DATE , the court , while acknowledging that the record of the case did not cover the entire proceedings , allowed the applicants to present evidence . On DATE , in his testimony , the prosecutor in the bigamy case explained that PERSON had not appeared at the hearing . The prosecutor related that he had tried to keep the magistrate calm and was nearly found guilty of contempt himself because he was playing defence lawyer . The prosecutor stated that , at that moment , the magistrate dictated a minute , which he thought was directed towards him , that if he opened his mouth he would himself be found in contempt of court . He had also understood , at that moment , that the magistrate found PERSON to be in contempt of court because he did not appear . The prosecutor reiterated that , at that moment , the magistrate was very angry and that he understood that he had found PERSON guilty of contempt . When asked whether the impugned article reflected what really went on in the court room , the prosecutor replied “ effectively it reflects what happened in court in short ” . He continued to say that while much more was said in the court room , at that time , the phrase in the article “ the magistrate found PERSON to be in contempt of court ” reflected the impression he had had as to what effectively happened at that moment in time .

On DATE ORG found against the applicants . It rejected the ORG first CARDINAL above - mentioned defence pleas . In its presentation of the facts the court recalled the above mentioned evidence . It , however , found that the article did not coincide properly with what had happened , in particular in its heading , since , as appeared clearly from TIME of the hearing , it was not true that the plaintiff was found guilty of contempt of court . Thus , the publication was not a fair report of the proceedings . Consequently , it could not be considered privileged . The court went on to note that the defendants tried to diminish their blame for their incorrect reporting by proving that the hearing had been chaotic . It was for this reason that the journalist misunderstood what had happened . The defendants had further shown that the prosecutor too had misunderstood what had happened , as he had also understood that the plaintiff had been found guilty of contempt . In the court ’s view , however , this merely highlighted the need for the reporter to verify her information . The reporter ’s interest in publishing information was legitimate . However , it could not be more important than someone ’s reputation . The statement that PERSON had been found to be in contempt of court surely harmed his reputation as it incited the supposition that he had not fulfilled his duties as a lawyer . Thus , it found the statement in question to be defamatory and taking account of the fact that they had published an apology and that the printer had not read the report at issue , it ordered the applicants to pay , in solidum , MONEY ( MTL – approximately QUANTITY ( ORG ) ) in damages with interest and costs , but limiting the third applicant ’s responsibility to MTL CARDINAL ( approximately FAC ) plus interest .

The applicants appealed and PERSON appealed .

On DATE ORG rejected both appeals , reiterating that the statement had not reflected the truth and adding that when the statement was in itself injurious , mischievous intent ( “ animus injurandi ” ) was presumed .

On DATE the applicants brought constitutional redress proceedings , claiming that they had published a faithful version of what went on in the courtroom and that the above - mentioned judgments breached their right to freedom of expression . Despite the applicants’ opposition , Dr A. was allowed to intervene in the proceedings .

On DATE ORG ( FAC ) found against the applicants .

While extensively reiterating the principles derived from the ORG ’s case - law , ORG noted that during the defamation proceedings it was established that the fact reported had not been true , and that the applicants had a duty to verify the relevant information . Upon examination of the record of the defamation proceedings , ORG in its constitutional jurisdiction concluded that the domestic courts’ conclusions had not been unreasonable . The fact that the applicants had published an apology was of little relevance , if any , if the information published in the first place was false . In such circumstances it was not unreasonable for the courts to protect PERSON reputation and limit the applicants’ right to freedom of expression .

On DATE the applicants appealed . On DATE ORG rejected the ORG appeal . It held that a journalist had to assume responsibility for what he or she decided to publish . If an item was presented as fact then the journalist must be able to prove it . Even if acting in good faith , the press may only publish facts and not what appears to it to be fact . Had the second applicant verified the record of the proceedings she could have avoided misinforming the public . Citing the ORG ’s case - law , ORG held that , while it was not for them to establish the veracity of the facts at issue , the domestic courts’ judgments in favour of PERSON had not infringed the applicants’ rights under LAW . The public had a duty to be informed of true and verified facts , in good faith , as was to be expected from professional journalism .

Section CARDINAL of LAW , LAW , relates to damages for defamatory libel . LAW , in so far as relevant , reads as follows :

“ In any case to which this article applies , the defendant may , in mitigation of damages , prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages or , as soon afterwards as he had an opportunity of doing so where the action commenced before there was an opportunity of making or offering such apology :

Provided that the defendant shall not be allowed to adduce such proof in mitigation of damages if he has raised a plea of justification in terms of section CARDINAL . ”

According to section CARDINAL ( d ) of LAW , in so far as relevant , the following are privileged publications , in that no action shall lie in respect of them :

“ Publications of reports of any proceedings in a court of justice in GPE provided such reports are fair reports of the proceedings and the publication of such reports or proceedings is not prohibited by law or by the court ... ”

Article CARDINAL of LAW , LAW , reads as follows :

“ The acts and documents of the courts of criminal justice shall not be open to inspection , nor shall copies thereof be given , without the special permission of the court , except by or to the Attorney General , by or to the parties concerned or by or to any advocate or legal procurator authorised by such parties ; but any act , which is pronounced in open court , shall be open to inspection by any person , and copies thereof may be given on payment of the usual fee :

Provided that a procès - verbal and any depositions and documents filed therewith shall be open to inspection , and copies thereof shall be given , only at the discretion of the Attorney General and on payment of such fees as may be prescribed by the Minister responsible for justice .... ”


The applicants , Mr PERSON and Mr PERSON are NORP nationals and live in the municipality of Riihimäki . They are owners of CARDINAL private driving schools . The third applicant , PERSON , is a driving school company in Riihimäki . They are represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , Mr PERSON , Director in ORG .

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

On DATE ORG ( lääninhallitus , länssyrelsen ) of ORG granted ORG of ORG ( PERSON ammattioppilaitoksen kuntayhtymä , yrkesinstitutens samkommunen ) a driving school licence to teach their students to drive . The licence was valid from DATE until DATE , with the name “ LOC ” . Mr PERSON was approved as its director .

The applicants appealed against the decision to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of PERSON , claiming that the decision be annulled as , inter alia , PERSON did not meet the criteria for a director as required in the Decree on Driving PERSON ( ajokorttiasetus , körkortsförordningen ; GPE , amend . CARDINAL ) . They further alleged that operating a driving school did not belong to the functions of a municipality or a federation of municipalities . In any case , the name of the licence - holder , “ QUANTITY ” should have been deleted and the number of training vehicles limited to CARDINAL motor vans and CARDINAL passenger cars . They contended that the establishment of a new driving school affected their rights as it would reduce their incomes and thus they had a right to appeal pursuant to section CARDINAL of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; ORG ) .

On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) of Hämeenlinna held an oral hearing , in which it heard ORG , ORG and the applicants . It further obtained written opinions from the parties .

On DATE ORG annulled the decision of ORG on the ground that PERSON was not competent to act as a director , and thus ORG should not have granted a driving school licence to ORG .

ORG appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , reiterating that PERSON fulfilled the criteria . ORG , ORG ( liikenneministeriö , kommunikations- ministeriet ) and the applicants submitted opinions to the court and ORG gave its observations .

On DATE ORG annulled the decision of ORG and declared the applicants’ application to ORG inadmissible without considering its merits . It held that the issue was whether the applicants had a right of appeal against the decision of ORG . It emphasised that pursuant to LAW ( tieliikennelaki , vägtrafiklagen ; CARDINAL , amend . CARDINAL ) and the Decree on Driving Licences the licence for a driving school had to be granted if the applicant fulfilled certain criteria . The appropriateness of a new licence was not relevant to the decision - making . Therefore , when deciding on the new licence it was irrelevant whether the new licence affected the status of already existing driving schools . The court concluded that the owners of other driving schools were not directly affected by the decision and had no right to appeal under LAW . The decision became a precedent ( KHO:CARDINAL:CARDINAL ) .

Section CARDINAL of the LAW of Finland ( perustuslaki , grundlagen ; GPE ) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority , as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice .

Section CARDINAL , subsection CARDINAL of the Administrative Judicial Procedure Act provides that any person to whom a decision is addressed or whose right , obligation or interest is directly affected by a decision may appeal against a decision .

Section CARDINAL of LAW ( CARDINAL , as in force until DATE ) provided that a driving school licence was required for operating a driving school . ORG might grant a licence , if the applicant was deemed to fulfil the criteria for operating a driving school and the establishment of the school was considered necessary and appropriate in accordance with the general instructions issued by the then ORG .

According to the said section , as amended by LAW ) , a licence to operate a driving school is granted by the relevant ORG . A driving school licence shall be granted if , having regarded his or her skills , reliability , solvency and other qualifications , the applicant is deemed suitable for operating a driving school . If the applicant is a legal person , the director responsible for the teaching at the driving school must , in light of his or her skills , reliability , solvency and other qualifications , be suitable to operate a driving school .

Section CARDINAL , subsection CARDINAL of the said LAW provides that a licence shall be granted for a certain period of time . It may also include preconditions and restrictions . According to subsection DATE , a licence is not required if teaching takes place in NORP vocational training , which is supervised by ORG , or in an institute training driving instructors .

LAW , section CARDINAL of the Decree on Driving Licences sets the criteria for the licence of driving schools . A licence shall be granted if the applicant , or , where the applicant is a legal person , its director responsible for the teaching , has , inter alia , a driving instruction permit and has during DATE worked for DATE as a full - time teacher in a driving school or in a vocational institution giving class C driver instruction .

In its precedent ( ORG CARDINAL-A-CARDINAL ) ORG found that a decision of ORG to suspend a charter transport licence for a determined period of time did not affect the rights of a competing charter transport carrier within the meaning of section CARDINAL , subsection CARDINAL , of the ORG . Thus the competing carrier had no right to appeal against the ORG ’s decision .

According to ORG precedent ( PERSON CARDINAL-A-CARDINAL ) , in a case where the Government had decided at the same time several applications for compensation to be paid with discretionary funds included in the state budget , a person had a right to appeal against the ORG ’s decision only to the extent the decision concerned his / her own application .

In DATE ORG issued a precedent ( ORG CARDINAL-A-CARDINAL ) concerning a driving school licence . In that case ORG had granted A a right to establish a driving school and allowed him to take responsibility for the teaching even though he had at the same time the same responsibility in another driving school . ORG annulled the decision of ORG , by which it had declared inadmissible an application lodged by CARDINAL other driving school owners , and found that ORG decision concerned rights of the applicants , who had the right to appeal .

In its decision no . CARDINAL of DATE ORG ruled that the housing corporation located in the neighbourhood of a restaurant did not have a right to appeal against a decision by which a restaurant was granted a licence to serve alcohol both indoors and in the outdoor area of the restaurant .

ORG further found in its decision no . CARDINAL of DATE that a person operating a pharmacy in the neighbouring municipality did not have a right to appeal against a decision of ORG by which it issued a licence for the storing of medicines , as the applicant in question had not applied for the licence and as the granting of a licence to him ( being a pharmacist in another municipality ) did not affect his rights and obligations within the meaning of section CARDINAL of LAW .


CASE OF HENRYK URBAN AND RYSZARD URBAN v. POLAND

Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

Both applicants were charged with the administrative offence ( wykroczenie ) of refusing to disclose their identity to the police . ORG ( “ the first applicant ” ) was also charged with using offensive language in a public place .

On DATE the Lesko ORG , in summary proceedings , convicted the applicants as charged . They lodged an objection to the ruling . Consequently , their case was examined by ORG in ordinary proceedings .

On CARDINAL occasions the applicants requested the court to admit a certain GPE to the proceedings as a representative of a civil society organisation and/or their counsel . ORG refused their requests as inadmissible in law . The second applicant was represented by legal - aid counsel .

On DATE the first applicant filed a request for the withdrawal of all judges and “ assessors ” ( junior judges ) of ORG on the ground that he had lost faith in them . On DATE ORG decided to exclude CARDINAL ORG judges , PERSON and PERSON , from examining the first applicant 's case as they had been victims and witnesses in an earlier criminal case against the first applicant . In respect of the other judges and assessors of ORG , the applicant 's request was dismissed . ORG held that the general dissatisfaction of the first applicant with the decisions given by ORG in his cases had not undermined the impartiality of those judges and assessors .

On DATE ORG decided to examine the CARDINAL applicants ' cases jointly .

On DATE the first applicant requested that the assessor ( asesor sądowy ) PERSON withdraw from the case on the ground that she had not accepted a medical certificate excusing his mother from attending a hearing . On DATE ORG , sitting as a single judge , dismissed the first applicant 's request as ill - founded and prompted only by his subjective assessment of the assessor .

On DATE ORG , sitting as an assessor , gave judgment . Both applicants were convicted of failing to disclose their identity to the police and sentenced to a fine of PLN CARDINAL . The first applicant was acquitted of the other charge .

The applicants appealed . They objected , inter alia , to the fact that their case had been decided by an assessor , alleging that she was not a judge . They referred to ORG judgment of CARDINAL DATE and submitted that the assessor could not exercise judicial powers because she did not offer sufficient guarantees of independence .

On DATE ORG upheld ORG judgment . It considered the applicants ' objections to the composition of the first - instance court , based on ORG judgment , unfounded . No further appeal lay against ORG judgment .

According to the Government , the applicants did not question the ability of an assessor to give judgments , but they alleged that the particular assessor who had judged them had not been impartial . The applicants referred to the assessor as an institution only after ORG judgment , in the supplement to their appeal .

The LAW was adopted by ORG on DATE and entered into force on DATE .

LAW reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

Article CARDINAL of the LAW , regarding the effects of judgments of ORG , provides , in so far as relevant :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such a time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given , shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”

The Law of DATE ( as amended ) on ORG ( Prawo o ustroju sądów powszechnych ; hereinafter “ the DATE LAW ) sets out comprehensively all matters related to the organisation and administration of courts of general jurisdiction , the status of judges and their self - governing bodies , and the position of assessors and trainee judges , court employees and officers and lay judges .

The DATE Act stipulates the requirements that have to be fulfilled to assume the office of a district court judge . A candidate for such office is required , among other conditions , to complete a judge 's or prosecutor 's training ( aplikacja ) and then pass the relevant examination . Subsequently , he or she has to work a minimum of DATE as an assessor in a district court .

Sections CARDINAL - CARDINAL of the DATE Act regulate the position of assessors . They provide , in so far as relevant :

Section CARDINAL

“ § CARDINAL . NORP The Minister of Justice may appoint as an assessor a person who has completed a judge 's or prosecutor 's training and passed the judge 's or prosecutor 's examination and who meets the requirements specified in section CARDINAL § CARDINAL ( DATE ) .

§ CARDINAL . NORP The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board ( of judges ) of a regional court . ”

Section CARDINAL

“ § CARDINAL . NORP The Minister of Justice may , subject to approval by the board ( of judges ) of a regional court , authorise an assessor to exercise judicial powers in a district court for a specified period of time , not exceeding four years . [ ... ]

§ CARDINAL . While adjudicating , assessors shall be independent and subject only to the LAW and statutes .

§ CARDINAL . During the period in which an assessor exercises judicial powers he or she remains under the supervision of a judge designated to carry out the function of a consulting judge .

In this decision , following the filing of CARDINAL constitutional complaints challenging the constitutionality of the status of assessors , ORG decided to draw the attention of the PERSON ( the lower ORG ) to the need to consider a bill on the system of appointing persons who exercise judicial powers . It noted that both ORG and the ORG had shared the main arguments of the claimants as to the unconstitutionality . ORG noted that the possible finding of unconstitutionality in respect of the provisions governing the status of assessors could have far - reaching consequences for the whole system of the administration of justice , having regard to the number of assessors adjudicating in the district courts .

The proceedings before ORG were initiated by CARDINAL constitutional complaints . The first of them was made by PERSON , who complained that his detention had been imposed by an assessor . The second complaint was lodged by a company , ORG , which complained that a prosecutor 's decision discontinuing a criminal investigation had been reviewed by an assessor . Both complainants alleged that various provisions of the DATE Act which govern the position of assessors were incompatible , inter alia , with LAW , providing for the right to have one 's case examined by an impartial and independent court .

The Constitutional Court heard the case as a full court ( CARDINAL judges ) . In the first part of the operative part it held that :

“ Section CARDINAL § CARDINAL of the Law of DATE on ORG was incompatible with LAW . ”

It found that the vesting of judicial powers in assessors by the Minister of ORG ( representing the executive ) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges . As a preliminary point ORG considered that the constitutional requirements of independence were equally relevant for all courts , regardless of their level and scope of jurisdiction . It noted that the lack of independence of the first - instance court would amount to a breach of LAW even when the second - instance court examining an appeal complied with the requirements of independence .

The Constitutional Court gave , inter alia , the following reasons :

“ CARDINAL . ( ... ) Since DATE LAW explicitly refers to the content of LAW , being one of the sources of international law binding on our ORG , it should be added that ORG does not interpret the concept of “ a tribunal ” used in the LAW in the formalistic manner and accepts that “ a tribunal may be composed fully or partly of persons who are not professional judges ” ( ORG GPE , judgment of DATE , no . CARDINAL , and PERSON and Others v. the GPE , judgment of DATE ) . ( ... )

In accordance with the text of the statute , while adjudicating an assessor shall be independent and subject only to the LAW and statutes ( section CARDINAL § CARDINAL ) . However , ... , such regulation of itself is only a declaration , not ensuring the real and effective independence required by the LAW , unless the independence is supplemented by concrete guarantees , namely particular legal regulations related to effective securing of the observance of the particular elements of the concept of independence . ( ... )

The issue of independence from the Minister of ORG should be seen from the angle of the assessor 's appointment , the vesting of judicial powers in an assessor and his or her dismissal . In respect of the appointment , and in particular the vesting of judicial powers , the statute does not precisely specify the time frame in which such appointment should be made . Considered from the functional point of view , independence does not have to mean appointment for life or appointment until retirement age , but it must mean a certain level of stability in employment and in the exercise of judicial powers . It should be indicated here that the GPE case - law underlines precisely that if judges or persons exercising judicial powers are not appointed for life , they could be appointed for a certain term of office , and that they must benefit from a certain stability and must not be dependent on any authority ( judgment of the ORG of DATE in the case of ORG v. the GPE , no . CARDINAL ) . It may be indicated here that in attempting to define more closely a certain minimum period which would guarantee professional stability ORG found DATE to be sufficient ( judgment of the ORG of DATE in the case of ORG and Fell v. the GPE , ORG . CARDINAL/CARDINAL and DATE , and the judgment of the ORG of CARDINAL DATE in the case of Sramek v. GPE , no . CARDINAL ) . The regulation of the assessor 's status does not contain such guarantees , since there is no minimum period for which such a person is employed and no minimum period for which an assessor is vested with judicial powers . It is undoubtedly a situation which gives rise to significant misgivings as to its compliance with the principle of independence . In this respect the situation would have looked unambiguous if the statute had expressly determined the period for which an assessor was appointed and the period for which the judicial powers were vested . The existing regulation , implying discretion of the minister and the board of judges of the regional court ( ... ) thus amounts to CARDINAL - sided dependence of the assessor 's professional status on those organs .

NORP The principal argument indicative of the unconstitutionality of the vesting of judicial powers in an assessor is the admissibility of his or her dismissal , including even during the period in which an assessor exercises judicial powers . Even assuming the constitutional admissibility of the institution of temporarily vesting those powers in an assessor within the jurisdictional and temporal limits specified by a statute , then a rudimentary aspect of the principle of independence which must be adhered to also in this case requires that it should be possible to remove an assessor from office only in the same way as judges may be so removed or even only in some of those cases . The existing regulation , firstly , does not contain a proviso that the dismissal of an assessor ( CARDINAL who has been vested with judicial powers ) is allowed only as an exception to the rule . Secondly , the statute does not precisely set out the factual circumstances serving as justification for dismissal from the office . Thirdly , a decision on dismissal is taken by the Minister of ORG and not by a court . It follows that , regardless of whether dismissal from the office of assessor may be reviewed by a court , the essential requirements of independence from non - judicial authorities stemming from LAW are not met . The obligation [ to secure ] the approval of the board of judges of a regional court is not a pertinent circumstance , since this body is not a court but an organ of court administration , and moreover its approval is also of a discretionary character as there are no specific legal norms which indicate whether or not a dismissal is justified in a given situation . Consequently , there are no substantive guarantees and no adequate procedural guarantees which would indicate that the assessor 's dismissal on the ground of the content of his / her rulings is excluded . ( ... ) ”

ORG also found that :

“ CARDINAL . The protection of the arbiter 's internal independence from outside , including political , pressures is particularly difficult when – as in the case of assessors – it is the Minister of ORG – a political appointee and a member of the executive – who has influence over their promotion and career . ( ... ) ”

Furthermore , ORG found that an assessor was also dependent on a board of judges of the regional court since that body was competent to approve the vesting of judicial powers in him or her and to dismiss him or her . It also played a consultative role in the procedure for an assessor 's nomination for the position of district court judge . In addition , LAW did not prohibit assessors from being members of political parties .

In the second part of the operative part of the judgment ORG held as follows :

“ CARDINAL . The provision mentioned in the first part of the operative part of the judgment ( section CARDINAL § CARDINAL of the CARDINAL Act ) will lose its binding force DATE after the promulgation of the judgment in ORG .

The acts of the assessors referred to in section CARDINAL § CARDINAL of the DATE Act shall not be subject to a challenge on the basis of LAW . ”

ORG ordered that the unconstitutional provision should be repealed DATE after the promulgation of the judgment . Its decision was motivated by the fact that assessors constituted PERCENT of the judicial personnel in the district courts and that their immediate removal would seriously undermine the administration of justice . During the DATE period it was constitutionally admissible for the assessors to continue adjudicating . That period was also necessary for ORG to enact new legislation dealing with the matter .

ORG , having regard to the constitutional importance of the finality of rulings , considered the consequences of its judgment for the validity of rulings given in the past by the assessors . It held that there was no possibility of reopening the proceedings in respect of such rulings under LAW .

In respect of the consequences of its judgment , ORG observed , inter alia , as follows :

“ CARDINAL . Ruling on the unconstitutionality of CARDINAL of LAW , ORG did not exclude the possibility of the existence of assessors as an institution . However , it questioned its normative framework , having regard to the vesting of judicial powers in assessors ( by the Minister of ORG , a representative of the executive ) to carry out the constitutional function of the administration of justice without also [ securing ] the constitutionally required guarantees of independence which judges enjoy . Nor should the judgment of ORG be understood as ruling out , in principle , the possibility to allow adjudication by persons other than judges within the meaning of LAW . In this respect also international standards binding on GPE indicate many possible types of solutions [ which are ] compatible with the rule of law . Those standards should be used by the legislator when considering a solution [ to the problem ] . In any case solutions to be considered should be such as to guarantee real separation between the judiciary and the other powers ( LAW ) , to loosen the bond between the assessors and the Minister of Justice [ and ] to ensure the influence of ORG on the professional career of a judge in spe . Without prejudging the future normative regulation of the institution of assessors , the present judgment of ORG should be understood as a negative constitutional assessment of the currently existing normative model of this institution . ( ... )

CARDINAL In the present judgment the unconstitutionality concerns the institutional provisions [ who may exercise judicial powers ] . ( ... ) Thus , the question arises as to the relationship between the unconstitutionality of the said institutional provisions and the validity of the judgments given by the assessors . It should be underlined that the judgments DATE given [ by assessors ] during the period in which , in the light of the thenexisting constitutional standard , the vesting of judicial powers in the assessors was not challenged – can not be questioned . In particular , it would be an error to look for any analogy with a situation in which a ruling was given by a body which was incompetent or ( ... ) incorrectly composed . It was only the ruling of ORG which , ratione imperii , rebutted the presumption of constitutionality of the impugned norm [ section CARDINAL § CARDINAL ] . And in order to remove any doubts as to the legal significance of the rulings given so far by the assessors , ORG included in the operative part a suitable finding ( part II ( CARDINAL ) of the operative part ) . ( ... )

CARDINAL The finality of rulings is itself a constitutional value . ( ... ) Thus , in every case the undermining of the finality of rulings has to be subject to the careful balancing of the values . This means that the judgments given by assessors in the period when the constitutionality of vesting judicial powers in them was not challenged can not be automatically questioned . ( ... ) On the one hand the duly implemented right to a court rules out staffing the independent court with judges who do not possess the guarantees of independence , which is determinative of the finding of unconstitutionality in the present case ; on the other hand , were it allowed to challenge the final judgments given by assessors in the period when the possibility of vesting judicial powers in them was not questioned , this would lead to the weakening of the right to a court and undermine the stability of the law and legal certainty . ( ... ) The protection of the finality of rulings is constitutionally embedded in LAW , which talks about the functioning of the public authorities ( courts in this case ) on the basis of , and within the limits of , the law . Thus , the final rulings are backed by the constitutional presumption stemming from this provision . It may be rebutted – when the ruling itself departs from the constitutional standard ( the unconstitutionality concerning substantive law or procedure applied in concreto when giving a final ruling ) . However , it would be disproportionate to undermine final rulings on the basis of the finding of pro futuro unconstitutionality which concerns the composition of a body giving those rulings , which acted in accordance with LAW at the time of giving them .

CARDINAL In the present case the unconstitutionality concerns the institutional provisions , and thus a relationship between a concrete ruling and the unconstitutional norm is much more tenuous than in the case of unconstitutionality of a substantive or procedural provision applied in an individual case . ( ... )

In ORG view it is not , however , possible that the relationship between the unconstitutional institutional provision ( as in the present case ) and the final ruling justifies the reopening of an individual ruling pursuant to LAW . The unconstitutionality of the rule determining who may be vested with the exercise of judicial powers does not have to mean that the content of the ruling or the procedure applied in reaching it is unconstitutional . ( ... ) ”

On DATE ORG enacted the PERSON on ORG and ORG ( LAW Szkole Sądownictwa i GPE ) , which entered into force on DATE . The law establishes a comprehensive and centralised institution responsible for training judges and prosecutors .

In response to ORG judgment of CARDINAL DATE the PERSON on ORG abolished the institution of judicial assessors as provided for by LAW DATE on ORG ( section CARDINAL ( CARDINAL ) ) . Furthermore , it specifically provided that as from CARDINAL DATE assessors ceased to be authorised to exercise judicial powers ( section DATE ( CARDINAL ) ) .

In the above judgment ORG considered the relationship between its jurisdiction and the jurisdiction of the ORG . It observed as follows :

“ CARDINAL . ( ... ) , ORG draws attention to the fact that the control exercised by ORG ) does not as such relate to the assessment of norms of the legal system of a State where the events considered as breaches of human rights occurred . [ Its control ] concerns concrete facts of breaches of human rights in the activities of public authorities in respect of concrete persons . In principle it is not a control of the provisions ( norms ) which constitute the legal order of the ORG , but an examination of a situation concerning potential individual breaches of human rights and freedoms laid down in the LAW . The control exercised in an individual case may occasionally indicate that the domestic legal order also contains norms which , as applied , led in concreto to a breach of human rights in the case examined by the ORG . This does not automatically amount to the disqualification of a norm in so far as its constitutionality is concerned .

The jurisdiction of ORG in the constitutional complaint proceedings extends to controlling the constitutionality of legal norms in accordance with the principle adopted in LAW : “ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or other normative act on the basis of which a court or administrative authority has issued a final decision on his freedoms or rights or his obligations as specified in LAW . ”

The duty to consider the effects of a relevant judgment of the ORG in the activities of the domestic authorities of the ORG obliges ORG to take into account – in the framework of its control of the constitutionality of norms – the standards elaborated by the ORG , with a view to eliminating possible conflicts between them . However , ORG does not examine whether the impugned provisions were correctly applied in individual cases , as this comes within the jurisdiction of the ordinary and administrative courts . Nor does [ ORG ] , in the proceedings initiated by a constitutional complaint , examine the compatibility of the reviewed norms with the international agreements . ( ... ) ”

LAW provides for the possibility of reopening the proceedings following a judgment of ORG . It reads as follows :

“ The proceedings shall be reopened for the benefit of the accused when such a need results from a decision ( rozstrzygnięcie ) of an international body acting on the basis of an international agreement ratified by GPE . ”

The applicants argued that the assessor who had heard their case in the first - instance court had not been “ an independent tribunal ” within the meaning of LAW . LAW reads , in so far as relevant :

“ In the determination of ... any criminal charge against him , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law . ”

The ORG notes that this complaint is not manifestly ill - founded within the meaning of LAW of the Convention . It further notes that it is not inadmissible on any other grounds . It must therefore be declared admissible .

The applicants argued that they had been deprived of a fair trial on account of the lack of independence of the trial court . They contended that the relevant legislation on the status of assessors had not met the standard of “ independent tribunal ” required under LAW . They supported this contention by the findings of ORG in its judgment of DATE and the case - law of the ORG .

Firstly , persons exercising judicial powers had to benefit from certain stability and could not be dependent on any authority , while the regulation concerning assessors fell short of those guarantees . Secondly , the DATE Act was deficient as regards the possibility of an assessor 's dismissal . The guarantee of an “ independent tribunal ” required that an assessor should be able to be removed from office only in the same way as judges . However , the legislation provided for decisions concerning the dismissal of assessors to be taken by the Minister of ORG and not by a court . Thus , an assessor was not protected against the influence of the executive . Thirdly , as regards the perception of an assessor 's independence , the applicants asserted that the administration of justice had to be carried out in an independent and impartial manner . They underlined in this connection that their own negative perception of the assessor 's independence was of importance . This had been reinforced by the mistakes made by the assessor in the proceedings against the applicants . Lastly , the applicants submitted that the appellate court had not cured the lack of independence of the trial court . The appellate court , referring to ORG judgment , had simply held that the applicants ' misgivings about the trial court 's composition had been unfounded .

The Government underlined the importance of the principle of subsidiarity . They observed that ORG in its judgment of CARDINAL DATE had ruled that section CARDINAL § CARDINAL of the CARDINAL Act was not in conformity with LAW . Subsequently , the ORG amended the relevant law and as of CARDINAL DATE the office of assessor ceased to exist in the NORP legal system . The ORG argued that since the source of the alleged violation had already been identified in ORG judgment , there was no need for the ORG to deal with the problem of the independence of assessors .

The Government commented on the comparison of the level of protection of judicial independence in the ORG and LAW . They maintained that up until DATE the ORG and ORG had interpreted the requirements of independence and impartiality in a similar manner . In that period , ORG had to a large extent been inspired by the ORG 's decisions and , in consequence , the NORP standard had in principle reflected the Convention standard .

However , ORG judgment of CARDINAL DATE brought about a fundamental change in this area . It set the constitutional guarantees on a level significantly higher than that existing and accepted before . The ORG argued that it seemed virtually impossible for anyone but a professional judge to meet those standards , even though ORG had not excluded the possibility of justice being administered by “ persons with a status similar to that of judges , officially provided with guarantees of independence in adjudicating ” . In reaction to the judgment , ORG abolished the institution of assessors and decided against introducing any other , similar institution , being aware that in the light of the new standards the task would be virtually impossible .

They emphasised that prior to ORG judgment , assessors had been universally considered as an institution that fulfilled the constitutional criteria of independence and impartiality . The situation had changed significantly only after ORG “ signal decision ” ( postanowienie sygnalizacyjne ) in which it indicated the need to remedy a legal deficiency in connection with the examination of case no . ORG DATE . Thus , ORG judgment of CARDINAL DATE should be assessed in this context as introducing a key modification of the manner of construing previously accepted institutions of the legal system .

In addition , the ORG argued that there were further reasons which rendered ORG judgment irrelevant to the outcome of the present case . Firstly , the ORG laid down a certain minimum standard to be met , while LAW , as the supreme act of domestic law , set out not a minimum but a maximum standard . In consequence , it could be possible for a measure that satisfied the Convention standard to be inconsistent with the constitutional standard . Secondly , ORG review concerned a single , coherent legal system rather that CARDINAL of different systems , so it was possible to develop the standard further . ORG , on the other hand , had to take into account differences between various NORP legal systems and could not set too detailed and far - reaching directives in its judgments . Thirdly , ORG review was a formal review of the conformity of lower ranking provisions with the LAW and , in principle , its jurisdiction did not extend to the issue of the application of a given provision in concreto . In contrast , the subject - matter of the ORG 's review was not the legal provision itself but the substantive content of the regulation and the effects it produced in an individual case . In conclusion , the ORG noted that the constitutional standard of independence as laid down in ORG judgment was stricter than that enshrined in LAW . Furthermore , ORG judgment did not determine that a court in which an assessor adjudicated lacked independence within the meaning of LAW .

The Government submitted that the office of an assessor differed from that of a judge . The former had been primarily devised as an intermediate stage between the judicial traineeship and the office of a judge . This resulted in a natural differentiation regarding the appointment procedure , tenure , possibility of dismissal and remuneration , yet the key element was to establish whether the level of safeguards provided for assessors was sufficient under LAW .

The Government claimed that if the independence of an assessor were to be considered from CARDINAL perspectives , namely the positive one ( the assessor 's subordination in administering justice only to legal norms and their own beliefs ) and the negative one ( third parties ' inability to persuade them to decide the case in a given way ) then it could be considered that in reality assessors were independent in respect of their adjudicatory role , even though they were not equipped with all the constitutional guarantees . In addition , there were many arguments related to the case - law of the ORG which required that the independence of an assessor be assessed in a different way than that expressed in ORG judgment .

The Government analysed in detail the provisions of the DATE Act regulating the status of assessors and , in particular , those related to the exercise of judicial powers by them . In their view , those regulations , which in many respects extended rules applicable to judges to assessors , fulfilled the standard of judicial independence defined in LAW .

They emphasised that the constitutional guarantees of independence of the courts and professional judges ( Articles CARDINAL - CARDINAL of the LAW ) had materially influenced the status of assessors . An assessor vested with judicial powers was a member of the community of judges and , following the common practice , was treated accordingly . In consequence , any attempt to undermine the actual independence of assessors had to be interpreted in the context of the guarantees enjoyed by judges . In practice , it meant that assessors had been required to comply with those very standards . The judicial community , particularly interested in maintaining the constitutional guarantees of independence and impartiality , had always exerted an extremely strong influence on assessors . The ORG further referred to the fact that both society and the legal community had considered assessors independent and equal to professional judges . They also pointed to the existence of institutions similar to that of the assessor in a number of NORP countries ( GPE , GPE , GPE , GPE , GPE , and GPE ) .

As regards the possibility of dismissing an assessor provided for in section CARDINAL § CARDINAL of the DATE Act , the ORG argued that this power of the Minister of ORG had not been unrestrained since the necessary condition for dismissal was the prior consent of the board of ORG . That mechanism effectively protected an assessor against the threat of unjustified dismissal by the executive , thereby eliminating the possibility of pressure being brought by the Minister . The Government , basing themselves on the official statistics , emphasised that the Minister of ORG had never exercised the power to dismiss an assessor . Accordingly , the above arrangement had been in compliance with LAW .

The Government asserted that in the present case there had been no reason to consider that the assessor who had adjudicated in the case had not been objective . The applicants had tried from the outset of the proceedings to exclude all the judges , and they had subsequently done the same in respect of the assessor , using ORG judgment as a pretext . The Government claimed that in their appeal the applicants had not challenged the fact that their case had been decided by an assessor , but they had alleged a lack of impartiality on her part . This had been motivated by the negative outcome of the trial . The applicants had referred to the “ assessor ” as an institution rather than to the particular assessor only after the delivery of ORG judgment on the sideline of their appeal . Above all , the applicants had been unable to show that the assessor had not been independent .

The Government lastly drew the ORG 's attention to the fact that if all decisions issued by assessors were to be generally challenged by the ORG , it would undoubtedly cause legal chaos . Assessors constituted PERCENT of the judges adjudicating in ORG and in DATE alone CARDINAL cases were brought before those courts . Were the Court to find a violation in this and other similar cases , it would affect CARDINAL of judicial decisions given in DATE . Such a finding would create a breach of the principle of protection of the citizens ' trust in the ORG and its law . It would further undermine the need to protect the stability of the national legal system , as well as the Convention rights of other participants in those proceedings . Assessors had decided the majority of civil and criminal cases heard in the first instance before ORG . In most of the cases the effects of the decision made could not be reversed , for example where time spent in detention on remand had been credited towards the sentence , an inheritance had been accepted and disposed of , and so on .

Independently of the above arguments , the Government highlighted the negative effect a judgment finding a violation of the Convention in the present case would have . In their view , ORG judgment constituted a pretext for submitting the application to the ORG as , prior to its delivery , the independence of assessors had not been called into question . The finding of a violation by the ORG would create a chilling effect , discouraging ORG from further elevating any constitutional standard . The ORG should not suffer any negative consequences for elevating the standards of protection of individual rights . The chilling effect would probably affect not only ORG but also similar judicial authorities in other NORP countries .

The Government , referring to the ORG 's case - law , submitted that objections regarding the independence and impartiality of the first - instance court could not be upheld where the case had been examined by the court of second instance fully satisfying , as in the present case , the requirements of LAW . They acknowledged that the right to an independent and impartial court guaranteed in the LAW was of a substantive nature . Accordingly , since the assessment was carried out in respect of the result , the legal test was whether a final decision in the proceedings had been rendered by a court satisfying the requirements of independence .

In conclusion , the ORG submitted that the first - instance court , composed of an assessor , which dealt with the applicants ' case had been independent as required by LAW .

The ORG recalls that in determining whether a body can be considered as “ independent DATE notably of the executive and of the parties to the case – regard must be had , inter alia , to the manner of appointment of its members and the duration of their term of office , the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence ( see ORG and PERSON v. GPE , DATE , § DATE , Series A no . CARDINAL ; PERSON GPE , DATE , § DATE , Reports of Judgments and Decisions DATE ; GPE v. GPE , DATE , § CARDINAL , Reports CARDINALIV ; PERSON and Others v. GPE , no . CARDINAL , § CARDINAL , ORG CARDINALII ; and PERSON v. GPE , no . CARDINAL , § DATE , DATE ) . Furthermore , the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of LAW ( see ORG and Fell , cited above , § DATE ) . What is at stake is the confidence which the courts in a democratic society must inspire in the public ( see , amongst many other authorities , GPE v. GPE , DATE , § CARDINAL , Series A no . CARDINAL , and PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR DATE ... ) . ORG further recalls that the requisite guarantees of independence NORP apply not only to a “ tribunal ” within the meaning of LAW , but also extend to LOC “ the judge or other officer authorised by law to exercise judicial NORP power ” referred to in LAW ( see PERSON v. the GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINALX ) .

Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the ORG 's case - law ( see GPE v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-IV ) , neither LAW nor any other provision of LAW to comply with any theoretical constitutional concepts regarding the permissible limits of the powers ' interaction ( see GPE and Others v. the GPE [ ORG ] , ORG . ORG , ORG , CARDINAL and CARDINAL , § CARDINAL , ECHR CARDINALVI , and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALXIII ) . The question is always whether , in a given case , the requirements of the Convention are met and in the present case the ORG has to determine whether the assessor B.R .- G. who tried the applicants in the first - instance court had the required “ appearance ” of independence ( see ORG v. GPE , no . CARDINAL , § DATE , ORG CARDINALII ) .

Assessors were appointed by the Minister of ORG provided that they met a number of specific conditions stipulated in the CARDINAL Act ( section CARDINAL § CARDINAL ) . The Minister could confer on an assessor the authority to exercise judicial power in a district court , subject to approval by the board of judges of a regional court and for a period not exceeding four years ( section CARDINAL § CARDINAL ) . Under section CARDINAL § CARDINAL of the DATE Act the Minister could remove an assessor , including those who were vested with judicial powers . However , the Minister had no unfettered discretion as to removal since he had to secure the approval of the board of judges of a regional court .

ORG considered the status of assessors in its leading judgment of DATE . It held that section CARDINAL § CARDINAL of the CARDINAL Act , providing that the Minister of ORG could confer the exercise of judicial powers on assessors , fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence , notably vis - à - vis the Minister . The ORG notes that in its analysis of the question of the independence of assessors ORG referred to the GPE case - law and observed that LAW was modelled on LAW ( see paragraph CARDINAL above ) .

The ORG reiterates that appointment of judges by the executive is permissible , provided that appointees are free from influence or pressure when carrying out their adjudicatory role ( see PERSON and Fell , cited above , § DATE , and LOC v. GPE ( no . CARDINAL ) , no . CARDINAL , § DATE , DATE ) . It notes that the principal reason for ORG finding was related to the Minister 's power to remove an assessor who exercised judicial powers , and the lack of adequate substantive and procedural safeguards against the discretionary exercise of that power ( see paragraph CARDINAL above , point CARDINAL of the judgment ) . LAW did not specify what factual grounds could serve as the basis for removal of an assessor and provided for the decision on removal to be taken by the Minister and not by a court . The lack of the requisite guarantees prompted ORG to note that the removal of an assessor based on the content of his rulings was not excluded .

Furthermore , ORG found , contrary to what was asserted by the Government , that the requirement to secure the approval of the board of judges was not a sufficient safeguard . The ORG 's statistics indicating that the Minister of ORG never exercised the power to remove an assessor do not , in the ORG 's view , invalidate the reasons for the finding of unconstitutionality . In addition , ORG was critical of the fact that LAW did not contain sufficient guarantees as regards the assessors ' term of office . The regulation did not specify a minimum period for which an assessor was employed and for which he was vested with judicial powers .

The ORG reiterates that it is in the first place for the domestic authorities , notably the courts , to interpret and apply the domestic law and to decide on issues of constitutionality ( see , among many other authorities , Former King of GPE and Others v. GPE [ ORG ] , no . CARDINAL , § DATE , ECHR CARDINALXII , and PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL , CARDINAL/CARDINAL and CARDINAL , § DATE , ORG CARDINALVI ) . The ORG notes that ORG findings were made in the context of an abstract review of the constitutionality of statutory provisions but , mindful of the principle of subsidiarity , considers that they may be applied to the facts of the present case , having regard to the similarity between the constitutional and the Convention requirements in so far as judicial independence is concerned and the reliance of ORG on the relevant jurisprudence of the ORG . The ORG argued that ORG judgment did not determine that an assessor lacked independence within the meaning of LAW . However , the ORG observes that in constitutional complaint proceedings ORG has no jurisdiction to review the compatibility of legislation with international agreements , including LAW ( see paragraph CARDINAL above ) . The important consideration for this Court is that ORG found that the manner in which GPE had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under LAW , guarantees which are substantively identical to those under LAW . It would be justified for the ORG to reach a contrary conclusion only if it was satisfied that the national court had misinterpreted or misapplied the LAW provision or the ORG 's jurisprudence under that provision or reached a conclusion which was manifestly unreasonable ( see PERSON and Others v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL in fine , ORG DATE ... ) . The ORG observes that in some earlier cases it had due regard to rulings of ORG in which the latter declared domestic legislation unconstitutional and/or incompatible with LAW see , inter alia , in respect of the Bug river claims , PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ; rent - control legislation and LAW No . CARDINAL , ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVIII ; overcrowding of detention facilities and LAW , PERSON v. GPE , no . CARDINAL , § CARDINAL , ECHR DATE ... ( extracts ) ; and regulation of prisoners ' visiting rights and LAW , no . CARDINAL/CARDINAL , § DATE , DATE ) .

The ORG underlines that ORG set aside the regulatory framework governing the institution of assessors as laid down in LAW . It further stresses that ORG did not exclude the possibility that assessors or similar officers could exercise judicial powers provided they had the requisite guarantees of independence ( see paragraph CARDINAL above , point CARDINAL of the judgment ) . ORG , referring to international standards , pointed to the variety of possible solutions for allowing adjudication by persons other than judges . In this connection , the ORG notes that its task in the present case is not to rule in abstracto on the compatibility with LAW institution of assessors or other similar officers which exist in certain Member States of ORG , but to examine the manner in which GPE regulated the status of assessors .

Having regard to the foregoing , the ORG considers that the assessor B.R .- G. lacked the independence required by LAW , the reason being that she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister ( see , by contrast , PERSON v. GPE , no . ORG decision of DATE , in which the relevant NORP regulation provided that dismissal of probationary judges was susceptible to judicial review ) . It is not necessary to consider other aspects of the status of assessors since their removability by the executive is sufficient to vitiate the independence of ORG which was composed of the assessor PERSON

It remains to be determined whether the failing in question was rectified on appeal by ORG . This court was composed of a professional judge with tenure and was thus “ an independent tribunal ” as required LAW CARDINAL § CARDINAL of the Convention . The possibility certainly exists that a higher or the highest court might , in some circumstances , make reparation for defects that took place in the first - instance proceedings ( see FAC , cited above , § DATE , and GPE v. GPE [ ORG ] , no . ORG , ORG CARDINAL , ORG CARDINALXIII ) . In this connection the ORG notes that ORG considered that review by the second - instance court could not remedy the initial defect as regards the lack of independence . In the present case , ORG did not have the power to quash the judgment on the ground that ORG had been composed of the assessor since the assessors vested with judicial powers were – in accordance with the DATE LAW authorised to hear cases in firstinstance courts . In any event , the applicants raised the issue of the lack of independence of the assessor in their appeal . However , ORG dismissed their objections as unfounded . The ORG observes that for the purposes of ORG judgment , any appeal based on the unconstitutional status of assessors was bound to fail as the impugned provisions of the DATE Act remained legally binding for DATE following the promulgation of the judgment . In those circumstances the ORG finds that ORG did not remedy the defect in question ( see , PERSON , cited above , § DATE , and PERSON v. the GPE , DATE , § DATE , Reports of Judgments and Decisions DATE ) .

In the light of the foregoing , the ORG finds that ORG was not independent within the meaning of LAW . There has accordingly been a violation of this provision .

The ORG notes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court ( see paragraph CARDINAL above ) . However , in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in ORG judgment and its own case - law ( see paragraphs CARDINAL below ) , the ORG considers that in the present case there are no grounds which would require it to direct the reopening of the applicants ' case ( see , mutatis mutandis , ORG v. GPE ( dec . ) , no . CARDINAL , DATE ) . The ORG would not exclude that it might take a different approach in a case where , for example , the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings .

The applicants also complained under LAW ( c ) of the LAW about the ORG refusal to admit a representative of a civil society organisation to the proceedings . Relying on LAW , they alleged that their conviction amounted to discrimination on the ground of their social origin .

However , in the light of all the material in its possession , and in so far as the matters complained of are within its competence , the ORG finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the ORG or its Protocols . It follows that this part of the application is manifestly ill - founded and must be rejected in accordance with LAW and CARDINAL of the Convention .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicants claimed CARDINAL ( ORG ) each in respect of nonpecuniary damage . They submitted , inter alia , that their case had been examined by an assessor and not by a judge .

The Government argued that the claim was grossly excessive .

The ORG considers that in the particular circumstances of the instant case the finding of a violation constitutes in itself sufficient just satisfaction for any nonpecuniary damage which may have been sustained by the applicants . It refers in this connection to its conclusions set out in paragraph CARDINAL above regarding reopening .

The ORG recalls that in the specific context of cases against GPE concerning the independence and impartiality of the national security courts , the ORG has indicated in certain judgments that , in principle , the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requested ( see , among other authorities , Gençel v. GPE , no . CARDINAL , § DATE , DATE ) . ORG adopted a similar stance in cases against other Contracting Parties where the finding of a breach of LAW was related to the lack of independence or impartiality of the domestic courts ( see , PERSON Club v. GPE , no . GPE , § DATE , ORG CARDINALIX , and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) . ORG has endorsed the general approach adopted in those cases ( see , GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINALIV ) and has extended it to cases where a conviction followed proceedings that entailed breaches of the requirements of LAW ( see , PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALII ) .

NORP However , it is only exceptionally that a violation , by its very nature , does not leave any real choice as to the measures required to remedy it ( see , PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALII ) . In the present case , the ORG notes that the judgment of ORG identified a structural dysfunction and called for a legislative response . Such response was given by the ORG which removed the structural dysfunction as of DATE ( see paragraph CARDINAL above ) . The ORG is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent ORG 's obligation to reopen all proceedings in which assessors participated at the first - instance level . In this regard , the ORG notes that ORG devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings . In particular , it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned . Further , it emphasised that the finding of unconstitutionality concerned institutional provisions , that is , provisions regulating the composition of the bodies which gave final rulings . ORG considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it ( see paragraph CARDINAL above in fine ) . Consequently , ORG held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors ( or with their participation ) . This ruling was even extended to CARDINAL claimants who successfully challenged the provisions regulating the status of assessors before ORG , thus depriving them of the so - called “ right of privilege ” ( przywilej korzyści ) .

In this context , the ORG recalls its case - law according to which the principle of legal certainty , which is necessarily inherent in the law of the LAW , may dispense GPE from questioning legal acts or situations that antedate judgments of the ORG declaring domestic legislation incompatible with the LAW . The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional ( see ORG v. GPE , DATE , § DATE , Series A no . DATE ) . Moreover , it has also been accepted , in view of the principle of legal certainty , that a constitutional court may set a time - limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period ( see GPE v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . Referring to ORG decision not to allow the reopening of the cases decided in the past by assessors on the ground that it would undermine the principle of legal certainty , the ORG does not consider this interpretation to have been arbitrary or manifestly unreasonable . Indeed , the ORG in its jurisprudence has underlined the significance of the principle of legal certainty in the context of final judicial rulings ( see , mutatis mutandis , ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVII ) .

The ORG observes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the ORG ( see paragraph CARDINAL above ) . However , having regard to the foregoing , the ORG reiterates its conclusion that in the instant case the reopening of the applicants ' case is not called for ( see paragraph CARDINAL above ) .

The ORG would further observe that in the view of ORG the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with LAW , but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases . To that end FAC ruled that the unconstitutional provision should be repealed DATE after the promulgation of its judgment . It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities – which decided to abolish the office of assessor altogether – within the time - frame allotted by ORG ( see paragraph CARDINAL above ) . Having regard to the above , it may be noted that the authorities of the respondent ORG took the requisite remedial measures in order to address and remedy the deficiency underlying the present case .

DATE . The applicants also claimed ORG CARDINAL in legal costs . Their representative claimed to have worked TIME on the case with an TIME rate of LAW . No receipts or invoices were provided in support of the sum claimed .

The Government submitted that any award should be limited to those costs which were actually and necessarily incurred and were reasonable .

The ORG notes that the applicant received EUR CARDINAL by way of legal aid from ORG . According to the ORG 's case - law , an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum . In the absence of any evidence to support the applicants ' claim as to costs and expenses , no award is made under this head . The ORG observes that in light of the reasons underlying the finding of a violation in the present case and the fact that the authorities took adequate measures to address the deficiency at issue , the ORG considers that there is no justification for awarding legal costs under LAW .


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

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

The applicant was the chairman of several limited liability companies registered under NORP law . In DATE ORG commenced , without the applicant ’s knowledge at that time , a preliminary investigation against him on suspicion of fraud and breach of trust ( PERSON ) in connection with the establishment of a closed property fund ( geschlossener PERSON ) . On DATE ORG requested ORG to authorise the search of the ORG premises and the seizure of all relevant documents . On CARDINAL DATE the court issued an according order .

On DATE the police searched the premises of the above - mentioned companies and seized computers and numerous documents .

On DATE , DATE and CARDINAL DATE the applicant ’s defence counsel asked ORG for a progress report .

On DATE the ORG also authorised the search of the local branch of a bank .

On DATE the police department issued an intermediary report on the search of the branch of the bank and the questioning of numerous witnesses .

On DATE the police rendered its final report on its investigation . Subsequently the investigating prosecutor changed .

On DATE the applicant ’s defence counsel consulted ORG file .

On DATE the applicant ’s defence counsel submitted his first observations . Until DATE the representatives of several affected investors of the closed property fund consulted ORG file .

On DATE the applicant ’s defence counsel submitted his further observations .

On DATE the defence counsel met with the investigating prosecutor and announced that he would submit further observations until DATE . Until CARDINAL DATE representatives of further affected investors consulted the file .

On DATE the applicant ’s defence counsel asked for a progress report .

On DATE a further charge was brought against the applicant .

On DATE the defence counsel again asked for a progress report . The investigating prosecutor then changed . The new investigating prosecutor informed the applicant ’s defence counsel that he would have to familiarise himself with the files first .

On DATE further charges were brought against the applicant .

On DATE the applicant inquired as to which information was needed by ORG .

On DATE ORG requested information as to the flow of certain funds from another bank .

On DATE ORG requested the police department to examine the information provided by the bank .

On DATE the applicant ’s defence counsel announced further observations , which were submitted on DATE .

On DATE the applicant ’s defence counsel asked for another progress report .

On DATE ORG requested the police department to assess the applicant ’s submissions .

On DATE the police department issued its final report on its further investigation .

On DATE the applicant ’s defence counsel submitted further observations .

On DATE the applicant ’s defence counsel again asked for a progress report .

On DATE ORG sent a request for mutual assistance ( PERSON ) to ORG in GPE asking for the questioning of an employee of a company that was suspected to be involved in the case . Subsequently the investigating prosecutor changed .

On DATE the Government of GPE replied to the request stating that the afore - mentioned company had objected to the questioning . It invited ORG to comment on this issue .

On DATE ORG submitted its observations .

On DATE the applicant ’s legal counsel addressed letters to ORG asking for a progress report and requesting the discontinuation of the proceedings for lack of evidence .

On DATE and DATE the Government of GPE reminded ORG of the request of mutual assistance .

On DATE the Government of GPE informed ORG that ORG would now examine the request for mutual assistance , but that it was impossible to foresee when the proceedings would be terminated . Subsequently the investigating prosecutor changed .

On DATE ORG issued the bill of indictment . The applicant was accused of CARDINAL counts of fraud , CARDINAL counts of fraudulent breach of trust and CARDINAL count of incitement to fraudulent breach of trust . The applicant was suspected of having caused financial damage amounting to MONEY ( ORG ) .

On DATE the ORG convicted the applicant of CARDINAL counts of fraudulent breach of trust and sentenced him to CARDINAL months’ imprisonment . In respect of the remaining charges the proceedings were discontinued , because the prosecution had become time - barred ( PERSON ) .

On DATE the applicant appealed against that decision . He did not contest the length of proceedings in his appeal .

On DATE the applicant ’s defence counsel requested reinstatement of the proceedings insofar as he had failed to observe the time - limit for lodging the appeal .

On DATE ORG rejected the appeal as inadmissible .

On DATE the defence counsel requested ORG to render a decision on the applicant ’s appeal and again requested reinstatement of the proceedings .

On DATE the defence counsel lodged a complaint against the decision of ORG of DATE .

On DATE the ORG quashed the decision of the ORG of DATE and granted the applicant reinstatement of the proceedings .

On DATE ORG inquired as to when the hearing would take place .

On DATE the ORG convicted the applicant in a different set of proceedings ( reference no . CARDINAL PERSON ) of fraudulent preference of creditors ( PERSON ) and sentenced him to a prison sentence of DATE .

On DATE the ORG scheduled the hearing for CARDINAL and DATE .

On DATE the applicant challenged the sitting judge for bias and the hearing was suspended .

On DATE ORG rejected the applicant ’s motion for bias as ill - founded .

On DATE the applicant ’s defence counsel lodged a complaint against that decision .

On DATE ORG rejected the applicant ’s complaint as inadmissible .

On DATE the presiding judge at ORG suggested vis - à - vis ORG examining whether the proceedings might be discontinued in accordance with sections CARDINAL § QUANTITY a § CARDINAL of LAW .

On DATE ORG refused to consent to the discontinuation in view of the sentence imposed by the court of first instance .

On DATE ORG asked ORG for a progress report .

On DATE the applicant ’s defence counsel submitted further observations to ORG concluding by suggesting that the proceedings should be discontinued in view of the length of proceedings .

On DATE ORG scheduled the next hearing for DATE . During the hearing on DATE ORG announced that it would submit a new offer of proof ( Beweisantrag ) . The hearing was then suspended .

On DATE ORG requested an expert opinion on the question whether the applicant ’s actions had actually caused any damage and furthermore requested the summons of the affected investors as witnesses .

On DATE the applicant ’s defence counsel announced that he would submit observations on ORG motions .

On DATE the presiding judge inquired as to when the defence counsel would render his observations .

On DATE he repeated his request .

On DATE the Regional court received the observations .

On DATE the presiding judge asked ORG again to consent to the discontinuation of the proceedings .

On DATE ORG again refused to consent to it .

On DATE the applicant lodged a hierarchical complaint ( PERSON ) with ORG ( Genral - staatsanwalt ) complaining inter alia about the length of the preliminary investigations .

On DATE the sitting judge in the parallel proceedings ( reference no . CARDINAL DsF CARDINAL Js CARDINAL/CARDINAL see below under CARDINAL ) proposed a deal with the view of terminating all pending proceedings , but the negotiations broke down .

On DATE ORG rejected the applicant ’s complaint stating that the preliminary investigations had already been terminated on DATE with issuing the bill of indictment . ORG found that in any event there was no indication that the preliminary investigations had been avoidably delayed .

On DATE ORG scheduled the next hearing for DATE .

On DATE the applicant ’s defence counsel informed the court that the applicant had had a heart attack . He suggested that the proceedings be discontinued according to section CARDINAL of LAW and requested the cancellation of the hearing .

On DATE ORG cancelled the hearing .

On DATE ORG again refused to consent to the discontinuation of the proceedings .

On DATE ORG telephoned the presiding judge and announced that ORG would file a motion for discontinuation of the proceedings according to section CARDINAL § CARDINAL of LAW in view of the length of the proceedings .

On DATE ORG filed a motion for the discontinuation of the proceedings in view of the applicant ’s conviction of CARDINAL DATE in the parallel set of proceedings .

Following the applicant ’s consent ORG closed the proceedings preliminarily according to section CARDINAL § CARDINAL of LAW on DATE . The court held that the expected possible sentence would not carry weight compared to the applicant ’s afore - mentioned conviction of CARDINAL DATE in a parallel set of proceedings .

On DATE ORG opened a preliminary investigation against the applicant on suspicion of inter alia tax evasion in respect of a tax amount of CARDINAL ORG .

On DATE the applicant ’s home was searched by agents of ORG and documents were seized .

On DATE the ORG confirmed the legality of the seizure .

Upon the applicant ’s complaint the ORG ordered that CARDINAL of the seized items had to be returned to the applicant .

DATE and DATE the tax fraud office ( PERSON ) heard numerous witnesses .

On DATE the applicant ’s defence counsel filed a remonstrance ( Gegenvorstellung ) with ORG .

DATE and DATE the applicant and the tax fraud office were involved in a dispute as to whether certain seized items had already been returned to him .

On DATE the tax fraud office addressed a request for mutual assistance to ORG .

On DATE the preliminary investigation was extended to several other tax offences .

On DATE the tax fraud office submitted its files to ORG .

On DATE ORG addressed a request for mutual assistance to the NORP authorities requesting the search of a branch of a bank .

DATE and DATE several witness were questioned by ORG .

On DATE several banks were asked to provide information as to the flow of certain funds .

On DATE the NORP authorities supplied the requested information .

On DATE the files were submitted to ORG .

On DATE the applicant ’s defence counsel consulted ORG file .

On DATE ORG issued the bill of indictment accusing the applicant of tax evasion .

On DATE the applicant ’s defence counsel withdrew from the case .

On DATE the applicant himself announced that he would name additional witnesses and would submit further offers of proof .

On DATE the ORG set a time - limit for the applicant ’s submissions until DATE . On DATE the applicant ’s new defence counsel informed ORG that he would represent the applicant and requested an extension of the time - limit to CARDINAL October CARDINAL .

On DATE ORG scheduled a hearing for DATE .

On DATE the court scheduled the next hearings for CARDINAL and CARDINAL DATE .

On DATE ORG requested to postpone the hearing .

On DATE and DATE ORG asked the court for a progress report .

On DATE the sitting judge proposed a deal to ORG with the view of terminating all pending proceedings , but the negotiations broke down ( see above ) .

On DATE the next hearing was scheduled for DATE .

On DATE the applicant ’s defence counsel informed the court that the applicant had had a heart attack and requested to cancel the hearing .

Upon the suggestion by ORG consented to the discontinuation of the proceedings . Following the applicant ’s consent ORG then closed the proceedings preliminarily according to section CARDINAL § CARDINAL of ORG ( see “ Relevant domestic law ” below ) on DATE . It referred to the aforementioned previous conviction by the ORG of DATE .

LAW of LAW ) in conjunction with the principle of the rule of law ( ORG ) guarantees the right to expeditious proceedings . According to the settled case - law of ORG the courts and the prosecuting authorities ( GPE ) are called upon to draw the consequences of the length of proceedings at any stage of the proceedings . Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections FAC and CARDINALa of the Criminal Procedure Code , the limitation of the proceedings according to sections CARDINAL and CARDINALa of LAW or a reduction of the sentence ( see , among others , the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) ; the decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq . ; the decision of DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , DATE and DATE ) . In cases of an exceptional length of proceedings creating particular hardship in respect of which the possibilities under LAW do not suffice , the courts may discontinue the proceedings on account of a procedural bar to the proceedings ( NORP ) derived from LAW ( see the decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , Reports of ORG ( BVerfGK ) no . CARDINAL , pp . CARDINAL et seq .

“ ( CARDINAL ) If a misdemeanour ( PERSON ) is the subject of the proceedings , ORG may dispense with the prosecution upon the consent by the criminal court competent for the opening of the main proceedings , if the perpetrator ’s guilt is considered to be minor and if there is no public interest in the prosecution . ...

( CARDINAL ) Has the bill of indictment already been issued , the court may discontinue the proceedings at any stage upon the consent of ORG and the accused . ... ”

“ Upon the consent by the criminal court competent for the opening of the main proceedings and the accused , ORG may dispense with issuing a bill of indictment and impose conditions and instructions upon the accused , if those are adequate for resolving the public interest of prosecution and are not in conflict with the severity of the guilt . ... ”

“ ( CARDINAL ) ORG may dispense with the prosecution ,

if the sentence or the measure of reform and prevention ( LOC ) to which the prosecution might lead would not carry weight compared to another sentence or measure of reform and prevention already imposed or expected to be imposed ,

if a judgment can not be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed or expected seems sufficient to impress the accused and protect the legal order .

( CARDINAL ) Has the bill of indictment already been issued , the court may discontinue the proceedings preliminarily at any stage upon a motion by ORG . ... ”

“ ( CARDINAL ) If certain parts of CARDINAL act ( LOC ) or several of multiple infractions committed though the same act , do not carry weight

NORP compared to the expected sentence or measure of reform and prevention , or

NORP next to a sentence or measure of reform and prevention already imposed upon the accused or to be expected for another act ,

The prosecution may be limited to the remaining parts of the act or infractions . Section CARDINAL § CARDINAL no . CARDINAL applies accordingly . ...

( CARDINAL ) Has the bill of indictment already been issued , the court may at any stage and upon the consent by ORG undertake the limitation . ... ”