Violation of Art. 5-3;Just satisfaction reserved

The object of the request of the ORG and the Application of the Government is that the PERSON case should be referred to the ORG , so that the latter may decide whether or not the facts indicate , on the part of GPE , a violation of the obligations incumbent upon it under LAW ) and ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE , article DATE ) of the Convention .

The facts of the case , as they appear from ORG , the memorials , documents and evidence supplied , and the oral statements of the respective representatives of ORG may be summarised as follows :

Mr. PERSON , an NORP citizen born on DATE , is resident at GPE where he was formerly the owner and director of a large transport firm , ORG " or " ORG " , which employed CARDINAL persons .

On DATE , ORG ) requested ORG ( PERSON für PERSON ) of that city to open a preliminary investigation ( GPE ) , together with their immediate arrest , against CARDINAL persons including PERSON , PERSON and PERSON , and an enquiry ( Vorerhebungen ) concerning PERSON and CARDINAL other persons .

On DATE , ORG of GPE had denounced ( ORG ) the parties in question before LAW ; it suspected some of having defrauded the exchequer by improperly obtaining , DATE , " reimbursement " which was designed to assist exports ( ORG QUANTITY in turnover tax ( ORG ) , the others - PERSON in particular - of having been involved in these transactions as accomplices ( als PERSON ) .

In GPE , an act of this kind constitutes not merely a simple taxation offence but rather fraud ( PERSON ) within the meaning of LAW of LAW . By the terms of LAW , fraud becomes a felony ( PERSON ) if the amount of loss caused for the sum fraudulently obtained exceeds QUANTITY . The punishment incurred is " severe imprisonment " of from DATE if this amount exceeds QUANTITY , if the offender has shown " exceptional audacity or cunning " or if he has made a habit of defrauding . ( Section CARDINAL ) . These CARDINAL amounts have since been altered : they are now QUANTITY respectively .

In conformity with the provisions of NORP law ( ständige PERSON ) the conduct of the investigation and of the enquiry instigated by ORG was automatically assigned , on CARDINAL DATE , to the investigating Judge , Dr. PERSON , who had already , since CARDINAL DATE , been working on another large case involving fraud , the PERSON case .

On DATE , PERSON appeared for the first time as a suspect ( " PERSON " , in the NORP sense of the word ) , before the Investigating Judge . In the course of his interrogation , which lasted for TIME , PERSON became aware of the above - mentioned steps taken by ORG ; he protested his innocence , a position from which , it would seem , he has never since wavered .

At the request of ORG ( DATE ) , the Investigating Judge decided on DATE to open a preliminary investigation concerning PERSON ’s activities and ordered that PERSON be taken into detention on remand ( ORG ) .

In consequence PERSON was , on the following day , placed in detention on remand in connection with the case involving PERSON and associates ( CARDINAL a Vr CARDINAL/CARDINAL ) . At the same time he was notified of his provisional release in a case involving customs frauds ( No . CARDINAL b Vr CARDINAL/CARDINAL ) in respect of which he had been detained for DATE . This other case is not in issue before ORG ; it ended with the acquittal of the CARDINAL accused on CARDINAL DATE before ORG , this judgment being confirmed on DATE by ORG ( Oberster Gerichtshof ) .

During his detention the applicant was interrogated as an accused ( " Beschuldigter " , in the NORP sense of this word ) on DATE , DATE , CARDINAL to DATE and DATE . From the CARDINAL pages of TIME , it appears that the Investigating Judge informed him in detail of the statements concerning him made by several co - accused , including PERSON , PERSON ( former director of the LOC branch at GPE ) , PERSON and PERSON . The last named of these had fled abroad but had written a letter of CARDINAL pages to ORG in which he heavily implicated PERSON . The PERSON explained his conduct in detail ; the interrogation generally took place in the presence of an inspector of taxes ( Finanzoberrevisor ) , Mr. PERSON .

On DATE , PERSON was provisionally released on parole : he gave the solemn undertaking ( NORP ) provided for by LAW of LAW but was not required to deposit security . The Public Prosecution unsuccessfully challenged this decision before ORG ( Oberlandesgericht ) .

After his release , the Applicant resumed his professional activities . In the course of the trial concerning the alleged customs frauds ( CARDINAL b Vr CARDINAL/CARDINAL ) he had been obliged to sell the ORG company , seemingly at an extremely low price - MONEY payable in DATE instalments - but he established a small transport company , the ORG , with CARDINAL employees .

In DATE GPE visited GPE , with the authorisation of the Investigating Judge , for DATE with his wife and their CARDINAL children . At DATE he made a trip to the PERSON for DATE , again with the permission of this Judge . He asserts that throughout the period , which lasted until his second arrest ( DATE ; para . CARDINAL infra ) , he often visited the Investigating Judge of his own free will .

PERSON was arrested at GPE ( GPE ) on DATE and was extradited to GPE on DATE , the Minister of Justice of GPE having acceded to the request of the NORP authorities for PERSON ’s extradition .

In DATE , lengthy interrogations of PERSON were conducted by ORG ( GPE ) , during which the former levelled grave accusations against PERSON .

PERSON informed the Investigating Judge in DATE that he wished to visit GPE again to spend a holiday with his family during DATE . The Investigating Judge raised no objections at that time . He is said later to have warned the Applicant that he would probably be confronted with PERSON in DATE but that it would in no way be necessary for him to give up his plans for DATE abroad .

On CARDINALrd , CARDINALth , CARDINALth and CARDINALth DATE , PERSON was interrogated by ORG in the presence of the inspector of taxes , Mr. PERSON . On being informed of the statements relating to him made by various witnesses and accused , in particular those made by PERSON in DATE , he strenuously contested them . CARDINAL pages of minutes were noted on this occasion .

The confrontation between PERSON and PERSON took place before ORG on DATE . It appears from the CARDINAL pages of TIME that PERSON persisted in his denials .

On TIME , the Investigating Judge informed PERSON that his departure for GPE , planned for DATE , met with the opposition of LAW . When heard as a witness , on DATE , by a ORG of ORG , he gave the following fuller particulars on this point :

" What I am going to say now is rather more difficult for me . My own intuition convinced me that Mr. PERSON would come back from his trip to GPE . Mr. President , members of the Commission , you know that a judge can not let himself be ruled only by intuition ; he must be guided solely by the law . Since no treaty on judicial assistance or extradition exists as such between GPE and GPE , the law obliged me not to yield to my intuition that PERSON would return . I know that I said to Mr. PERSON then : ‘ My feeling tells me that you will come back ; but I can not personally give you permission without the approval of the prosecuting authority’ . This approval was then refused . "

The Applicant , for his part , alleged before ORG that the Investigating Judge had given him permission to go to GPE despite the wish of LAW that he should not .

Be this as it may , on DATE , DATE , at the request of ORG , the Investigating Judge ordered PERSON ’s arrest .

The warrant ( PERSON ) indicated first that PERSON was suspected of having committed , DATE and in consort with PERSON and other suspects , a series of fraudulent transactions which had caused the ORG a loss of QUANTITY . It added that PERSON , being fully aware of the charges assembled against him since his release ( CARDINAL DATE ) , must anticipate a heavy punishment ; that his former employee , PERSON , for whom the results of the investigation had been less heavily incriminating , had nevertheless evaded prosecution by absconding ; that the recent interrogations of the Applicant and his confrontation with PERSON had shown to him beyond any doubt that he would now be obliged to relinquish his attitude of total denial ; that he intended to take his holidays abroad and that the withdrawal of his passport would not have offered an adequate safeguard , the possession of this document no longer being necessary for the crossing of certain frontiers .

From these various circumstances the warrant deduced that there existed , in the case , a danger of flight ( PERSON ) , within the meaning of LAW ( CARDINAL ) ( CARDINAL ) of LAW .

PERSON was arrested on TIME of CARDINAL DATE near to his office . He immediately requested the elder of his daughters , PERSON , to cancel by telegram the tickets which he had booked for the crossing of the LOC . He stated to the police officers who were sent to take him into custody that it had been his intention to visit ORG DATE with a view to seeking authorisation for his departure for GPE on DATE , DATE .

On DATE PERSON appeared for a few moments before the Investigating Judge who informed him that he was being placed in detention on remand ( Section CARDINAL ( CARDINAL ) of LAW ) .

On DATE , the applicant lodged his first appeal against the order of arrest of CARDINAL DATE . PERSON that his firm , his home and his family were in GPE , he stated that there were no grounds for believing in the reality of a danger of flight and that if he had wished to abscond he could easily have done so before .

ORG ( Ratskammer ) of ORG dismissed the appeal on DATE for reasons similar to those set out in the order in dispute . In particular it laid great weight on the statements of PERSON which , in its opinion , had definitely worsened PERSON ’s position .

The Applicant challenged this decision on DATE . He maintained that LAW ( CARDINAL ) ( CARDINAL ) of LAW required a " danger of flight " and not merely a " possibility of flight " , that the presence of such a danger must be determined in the light of concrete facts and that the possibility of a heavy sentence was not a sufficient ground to assume danger of flight . It referred to a judgment of ORG DATE ( ORG of this ORG , DATE , pages CARDINAL - CARDINAL ) .

ORG dismissed the appeal ( Beschwerde ) on DATE . While endorsing the reasoning of ORG , it added that PERSON knew perfectly well that the charges weighing upon him had become more serious after CARDINAL DATE , that he must expect a heavy sentence in view of the enormity of the loss caused , and that according to a police report of CARDINAL DATE he had carried out preparations for a journey abroad and had not abandoned them although the competent Investigating Judge had expressly refused the necessary authorisation . In these circumstances the ORG was of the opinion that a danger of flight must be deemed to exist .

PERSON filed a second request for provisional release on DATE . While once again endeavouring to prove the absence of a danger of flight , he offered for the first time , as a subsidiary request , a bank guarantee of CARDINAL or , at the most , MONEY ( LAW ) .

ORG rejected the request on DATE . Recalling that PERSON faced a punishment of from DATE severe imprisonment ( Section CARDINAL of LAW ) and that he was answerable for a loss of CARDINAL schillings , it took the view that the deposit of security would not be sufficient to dispel the danger of flight and that it was therefore unnecessary to examine the amount of the security proposed .

PERSON challenged this decision on DATE . In addition to the arguments expounded in his request of DATE and in his appeal of CARDINAL DATE , he pointed out :

- that the amount of the loss wrongfully attributed to him in his view , had decreased considerably , from QUANTITY ( DATE ) to QUANTITY CARDINAL DATE ) and was later to fall to MONEY ( decision of DATE ) ;

- that certain persons detained in connection with other more important cases had recovered their freedom against the deposit of security ;

- that he had never sought to abscond , for instance between his release ( CARDINAL DATE ) and his second arrest ( DATE ) , and , more especially , by taking advantage of his stay in GPE ;

- that TIME had elapsed between his appearance before ORG , on TIME CARDINAL DATE and his arrest ;

- that this brief interval of time had not left him any real possibility of annulling the preparations for his journey , preparations which in any case he did not wish to forgo without attempting CARDINAL last approach to LAW ;

- that he had already undergone CARDINAL months’ detention on remand ( DATE and CARDINAL DATE ) , another factor which , in his opinion , argued against the danger of flight ;

- that all his professional and family interests were centred around GPE where , moreover , his wife had just opened a ladies’ ready - made dress shop .

ORG rejected the appeal on DATE . Referring to its decision of DATE , it observed that the situation had not changed in a way favourable to PERSON since then . It was true that the amount of loss attributed to him had diminished , but this sum did not include that for which he might be held responsible in a case concerning the sham export of machines ( GPE der Textilien der PERSON ) . Moreover , it had not decreased to such a point as to be of decisive influence on the sentence which PERSON would have to anticipate in the event of conviction . From this the ORG concluded that the danger of flight remained so great that even the possible supplying of guarantees could not be considered ( indiskutabel ist ) and that such guarantees could in no way eliminate this danger .

DATE , more precisely on DATE , the Investigating Judge had proceeded to another confrontation between PERSON and PERSON who had substantially confirmed their respective statements of CARDINAL and DATE . According to the Applicant the confrontation lasted for CARDINAL of an hour . A page and TIME were taken on this occasion .

On DATE , the same day as that on which he lodged his application with ORG , PERSON filed a third request for provisional release to which he added a supplement on DATE ; he pledged himself to make the solemn undertaking ( NORP ) laid down by LAW of LAW and once again offered to provide , if need be , a bank guarantee of CARDINAL or QUANTITY . While reiterating his earlier arguments , he observed :

- that between his release ( CARDINAL DATE ) and his second arrest ( DATE ) , he had always held himself at the disposition of the Investigating Judge , had presented himself of his own free will before the latter on CARDINAL or six occasions to obtain information concerning the progress of the investigation and had informed him as far back as DATE of his plan to make a journey to GPE ;

- that the NORP railways had authorised him to construct near the GPE east railway station , a warehouse worth CARDINAL schillings , a project which he had been unable to accomplish because of his imprisonment ;

- that since the imprisonment no new charge had been uncovered against him ;

- that PERSON , having made a number of confessions ( PERSON ) , was seeking to improve his own lot by casting his guilt onto others and that his statements were completely uncreditworthy ;

- that after DATE of detention on remand , the assumption of there existing a danger of flight was no longer plausible .

The Investigating Judge rejected the request of DATE . He was of the opinion that the grounds stated in the decisions of DATE , DATE , DATE and CARDINAL DATE retained their relevance and that the documents in the file in substance corroborated PERSON ’s accusations against PERSON .

The latter then lodged with the Judge ’s Chamber of ORG of Vienna , on DATE , an appeal in which he restated many of the arguments summarised above to which he added others , in particular the following :

- considering the size and complexity of the case , the investigation and the subsequent proceedings would seem to be of considerable length with the consequence that the length of the detention on remand , already greater than DATE , was in danger of exceeding that of the possible sentence , if remedial measures were not speedily taken ;

- the Investigating Judge had failed to answer several of PERSON ’s arguments and to specify the documents which seemed to him to support PERSON ’s statements , which were in any case most likely to be withdrawn sooner or later ;

- the same judge had been in error in minimising the importance of the reduction of the loss attributed to PERSON , a reduction which might very well continue in the future ;

- he had not based his decision on facts , but merely on presumptions concerning the effects of PERSON ’s assertions on PERSON ’s state of mind ( Seelenzustand ) .

PERSON further emphasised :

- that he was prepared to deposit with the court his identity papers and his passport ;

- that he had no means whatsoever of supporting his family abroad ;

- that in any case flight would be senseless for a man of his age , all the more so since , in the case of his being extradited , he ran the risk of not benefiting from the period of his detention on remand being calculated as part of his possible sentence ( allusion to LAW ( a ) in fine of LAW ) .

ORG dismissed the appeal on DATE . Referring to the decision which was being attacked and to those which had preceded it , in substance it observed :

- that PERSON ’s statements were confirmed by a number of factors ( originals of letters , accountable receipts , statements of account , ORG testimony , etc . ) ;

- that the confrontation between PERSON and PERSON in DATE had considerably worsened the latter ’s position and that the Investigating Judge was correct in attaching importance to the effects which it could not fail to have upon the morale of the Applicant ;

- that , in these circumstances , the possible supplying of guarantees could not be considered ( indiskutabel ist ) and could in no way eliminate the danger of flight .

On DATE , PERSON lodged an appeal against this decision with ORG . His complaints were substantially the same as those which he had formulated on CARDINAL DATE . He also charged ORG with not having specified the contents of the documents supposed to corroborate PERSON ’s accusations , with having ignored the question of whether he , PERSON , was aware of these documents , and with having overlooked the fact that DATE had passed since the last decision of ORG ( DATE ) . He also pointed out that he could easily have absconded , had he so wished , in the interval between his confrontation with PERSON and his arrest .

ORG was not called upon to decide the question , however : PERSON withdrew his appeal on CARDINAL DATE without giving any reasons for so doing .

On DATE , PERSON ’s elder daughter filed with ORG a petition which sought her father ’s release ; she offered security of MONEY .

ORG addressed to ORG , on CARDINAL DATE , a confidential report from which it appeared that PERSON had unsuccessfully sought to obtain part of that sum from a former client of the LOC and ORG firms .

DATE - on DATE , DATE after the closing of the preliminary investigation ( paragraphs CARDINAL infra ) - Dr. PERSON , attorney , had made , on PERSON ’s behalf , a fourth request for provisional release . In it , he briefly repeated the arguments developed in the preceding requests , emphasised that the period during which the PERSON had been held on remand was already DATE , and suggested a bank guarantee of MONEY .

In the course of the proceedings before the ORG , PERSON stated that this last offer was made against his wishes as he was not , at that time , in a position to raise a guarantee for such a large sum . By a letter of DATE , Dr. PERSON confirmed that in this matter he had acted on his own initiative . Before the Commission , the ORG ’s representatives observed that the offer was binding on PERSON and that the competent courts had no reason to believe that it did not express PERSON ’s own wishes .

The Investigating Judge rejected the request on DATE . Referring to the decisions of CARDINAL DATE , DATE , DATE , CARDINAL DATE and CARDINAL DATE , he held that the Applicant had failed to bring forward any facts or arguments which could justify his release .

PERSON attacked this decision on DATE . He once more denied that any danger of flight existed ; in his view ORG of Vienna and ORG had never evaluated correctly the facts which were relevant to this point , had based themselves on vague presumptions rather than solid proof and had mistakenly attached decisive importance to the enormous loss allegedly caused to the ORG . He complained in particular that ORG had failed , in its decision of DATE , to take into account the length of the detention on remand which he had already undergone . In conclusion , the appeal repeated the offer of a bank guarantee of MONEY .

ORG allowed the appeal on DATE . It recognised that the PERSON ’s arguments carried a certain weight : recalling that PERSON faced a sentence of CARDINAL to ten years’ severe imprisonment , it observed that it was uncertain as to whether he would benefit from the law providing for cases involving extenuating circumstances ( außerordentliches ORG , Section CARDINAL ( a ) of LAW ) but that the length of detention on remand would , in all probability , be deducted from the sentence in the event of a conviction ( LAW ( a ) of LAW ) and that the inducement to flee was thereby considerably lessened ( wesentlich verringert ) . However it considered that a guarantee of MONEY was not sufficient to eliminate the danger of flight . On this point it emphasised that LAW stipulates that the amount of bail depends not only on the circumstances of the detainee and on the financial situation of the person providing the security , but also on the consequences of the offence . For these reasons , ORG ordered PERSON ’s provisional release against security of MONEY ( either in cash or in the form of a bank guarantee ) and the voluntary deposit ( freiwillige GPE ) of his passport with the ORG .

On DATE , Dr. PERSON lodged , on behalf of PERSON , an appeal designed to reduce the amount of security stipulated to MONEY . The substance of his argument was that under LAW , the consequences of an offence should be taken into consideration only after due allowance had been made for the circumstances of the detainee and the financial situation of the guarantor . From this he concluded that in no case should the courts demand a guarantee in excess of the means of ORG ) , with the result that they might , if they so wished , prevent provisional release in a case where the loss was substantial .

The decision in dispute was partially altered by that of CARDINAL DATE . After deciding that the appeal concerned solely the amount of the security required , ORG came to the same conclusion as ORG , to wit that a sum of MONEY was too small , regard being had to the loss entailed by the acts in respect of which PERSON was accused . It added that the PERSON most probably possessed far greater assets than the amount offered as bail , thanks to the profit he had made from these same acts . It also observed that he had not specifically claimed that his means would be exhausted by his having to give bail of MONEY . The ORG stated however that it did not have the necessary documents or information available to enable it to consider the amount of bail fixed by ORG . It therefore remitted the case to ORG emphasising that it was incumbent upon the latter , in the light of a detailed examination of PERSON ’s circumstances and of the financial situation of the guarantors he could name to fix the bail between the limits of CARDINAL and QUANTITY .

In a report dated DATE , drawn up at the request of ORG , ORG expressed the opinion that PERSON was quite unable to obtain QUANTITY . This opinion was based on a number of documents from which it appeared that the PERSON firm was hardly in a healthy financial position and on the fact that PERSON stated that she could procure a guarantee of QUANTITY .

ORG of GPE reached its decision on DATE , that is , DATE after the preferment of the indictment ( paragraphs CARDINAL and CARDINAL infra ) . Besides mentioning the report of ORG , it referred to a letter written by PERSON dated DATE , according to which a person who wished to remain anonymous had agreed to provide security of QUANTITY . After adding together this sum and the QUANTITY offered by PERSON , ORG reduced the amount of security required of the Applicant to CARDINAL schillings .

In an appeal dated DATE , PERSON requested that the sum should be reduced to CARDINAL schillings ; he maintained that the offer made by his daughter was included within that of the guarantor who did not wish to disclose his identity .

ORG dismissed the appeal on DATE . It was of the opinion that ORG had complied with the decision of DATE and that the consequences of the offence were of fundamental importance in the application of LAW .

Meanwhile Judge PERSON had , on CARDINAL DATE , announced the conclusion of the preliminary investigation and had sent the file to LAW CARDINAL of LAW ) . The file consisted of CARDINAL volumes each of CARDINAL pages , as well as a considerable number of other documents . On DATE , LAW had , for its part , completed the indictment ( PERSON ) of which PERSON had been notified on DATE ( Sections CARDINAL and CARDINAL of the Code of Criminal Procedure ) .

In the execution of his task , the Investigating Judge had been aided by ORG , by the taxation department ( Inspector PERSON ) , by the NORP railways and by the postal service administration ; nevertheless , he had still encountered considerable difficulties .

CARDINAL of the principal accused , named PERSON , PERSON , PERSON and PERSON , had fled abroad , the first CARDINAL at the outset of the enquiries and the last - named after being provisionally released on parole . After rather long proceedings , the NORP authorities had obtained PERSON ’s extradition ( DATE ) from GPE , and ORG ( DATE ) from GPE . GPE had , however , refused to grant the extradition of LOC as he possessed NORP , as well as NORP , nationality . PERSON has not , up to the present time , been traced .

To this were added a number of difficulties inherent in the nature , the size and the complexity of the acts complained of . At its outset , the investigation concerned CARDINAL persons and CARDINAL counts . The prosecution was required to prove , among other things , that the documents concerning the purchase of goods had been falsified , that the value of the exports had been overstated with fraudulent intent , that the recipient firms abroad were either non - existent or ignorant of the whole affair and that the exporters had deposited the proceeds of the sales in GPE or GPE . To achieve this aim it had been necessary to reconstruct many business operations which had taken place over a period of DATE , to check the routes followed by CARDINAL railway trucks , to study a large number of ORG files , to hear CARDINAL of witnesses , some of whom had to be examined again after PERSON ’s extradition , etc . Many of the witnesses lived abroad , for example in the GPE , GPE , GPE , GPE , LOC , LOC and LOC . GPE had therefore been obliged to have recourse to the services of ORG or to invoke the accords providing for mutual legal assistance which she had concluded with ORG such as the GPE , GPE , GPE , GPE and GPE . The enquiries conducted in the GPE , GPE and in GPE had in part taken place in the presence of NORP officials and especially , as regards those in GPE , in the presence of Judge PERSON , the Investigating Judge . Delays of from DATE had occurred between the sending of requests for legal assistance and the receipt of the results of the investigations which had taken place in the GPE , GPE , GPE and GPE . At the time of the closing of the investigation the request addressed to GPE remained pending on CARDINAL point , with regard to which no positive result was , in the end , obtained , as the NORP authorities were of the view ( DATE ) that the professional duty of secrecy imposed on the GPE bankers in question conflicted with the disclosure of the information sought . GPE ’s reply was received in GPE only in DATE .

Firms under NORP administration were also involved , especially at the beginning of the investigation : however , it was impossible to obtain documents from ORG through which settlements had been effected .

The course of the investigation seems to have been slowed down by the refusal of CARDINAL of the accused - PERSON to make any statement whatsoever before the Investigating Judge .

On the other hand , the proceedings relating to certain facts or accused had been severed by reason of their secondary importance ( LAW ( CARDINAL ) of LAW ) ; these seem to have been later abandoned ( LAW ( CARDINAL ) of the same code ) . At the time of the closure of the preliminary investigation , the number of accused in the case did not exceed CARDINAL .

After DATE , the date of his last confrontation with PERSON , PERSON was not heard again by ORG who , during the same period , interrogated PERSON CARDINAL times ( CARDINAL pages of TIME ) and CARDINAL other accused CARDINAL times in all ( CARDINAL pages of TIME ) . According to the minutes of the confrontation of CARDINAL DATE , another confrontation was planned . It did not take place , however ; in the Applicant ’s opinion , it was PERSON refusal to participate which prevented this intention being realised .

The indictment of CARDINAL DATE was CARDINAL pages long and concerned CARDINAL persons , in the following order : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ; it was in no way concerned with the " Kreisverkehr der Textilien der Firma Benistex " case which was the object of separate proceedings ( paragraph CARDINAL infra ) .

For his part , PERSON was accused of aggravated fraud ( Sections CARDINAL , CARDINAL , CARDINAL ( a ) and ( d ) and CARDINAL of LAW ) in CARDINAL groups of transactions relating to very different items : toilet soap , tools ( cutters and welding bars ) , ladies’ clothing ( nylon stockings , skirts , blouses , etc . ) , gym shoes , leather and velvet goods , indoor lamps and running gear . The amount of loss for which he was called upon to answer exceeded MONEY . The loss attributed to the PERSON was the fourth highest of the accused , being less than that alleged to be caused by PERSON ( MONEY ) , PERSON ( MONEY ) , and PERSON ( MONEY ) , but more than that caused by PERSON ( CARDINAL schillings ) , PERSON ( CARDINAL schillings ) , PERSON ( CARDINAL schillings ) , PERSON and PERSON ( CARDINAL schillings ) . Some of the dealings did not concern him at all . This was the case , mainly with a large operation involving the export of textiles in which only PERSON , GPE and GPE were implicated ( MONEY , pages CARDINAL of the indictment ) .

The Public Prosecution requested , inter alia , the opening of the trial before ORG of Vienna , the calling of CARDINAL witnesses and the reading of the affidavits of CARDINAL more .

On DATE , ORG informed ORG of ORG that it was provisionally discontinuing the proceedings against PERSON in the " Kreisverkehr der Textilien der Firma Benistex " case , although reserving the right to resume them at DATE ( Section CARDINAL ( CARDINAL ) , paragraph ( CARDINAL ) , of LAW ) . At the time of the laying of the indictment , LAW had prevailed upon the ORG to sever these proceedings which had subsequently been dealt with separately ( CARDINAL PERSON CARDINAL/CARDINAL ) .

On DATE , ORG , stating that the total loss imputed to PERSON had been reduced by CARDINAL , decided to reduce to MONEY - either in cash or in the form of a banker ’s guarantee - the amount of security required for the release of the Applicant .

On DATE , PERSON informed ORG that his daughter , PERSON and another named person were prepared to stand surety for him ( GPE ) , the former putting up QUANTITY and CARDINAL . The persons concerned confirmed this on DATE . After carrying out a check on their solvency ( GPE ) , ORG accepted their offer on DATE . TIME the PERSON made the solemn undertaking provided for by LAW of LAW , deposited his passport with the ORG in conformity with the decision of CARDINAL DATE , which , on this point , was still in force , and was set at liberty .

The various decisions concerning PERSON ’s detention on remand were all reached in accordance with Sections CARDINAL ( CARDINAL ) ( first instance ) and CARDINAL ( CARDINAL ) ( appeal ) of LAW , at the end of a hearing not open to the public in the course of which LAW was heard in the absence of the Applicant and his legal representative ( in nichtöffentlicher FAC nach Anhörung der Staatsanwaltschaft bzw . der PERSON ) .

On DATE , the date for the opening of the trial ( ORG ) was fixed for DATE .

On DATE , after CARDINAL of the hearing , ORG of Vienna , constituted as a mixed lay and legal court ( ORG ) , postponed the completion of the trial indefinitely so that the investigation might be completed . Having received a number of requests from LAW and from some of the accused including PERSON , it gave effect to several of them and ex officio called for certain additional measures of investigation to be taken . PERSON attitude seems to have played a major part in making this supplementary investigation necessary : whereas during the preliminary investigation he had maintained a strict silence , he explained his conduct in detail before the judges ; according to PERSON , GPE ’s statements were favourable to him while highly incriminating as regards PERSON . The ORG nevertheless indicated that , in its opinion , some of the new enquiries and hearings of witnesses ordered by it should have been conducted earlier during the preliminary investigation .

In DATE and DATE , PERSON made the journey to GPE with the permission of ORG , in connection with the application filed by him before ORG . His passport is said to have been restored to him DATE before the second of these journeys .

The additional investigation could not be conducted by Judge PERSON who had appeared before the ORG as a witness , ( LAW of LAW ) : it fell to his permanent substitute . It lasted for DATE and was not therefore completed until after the adoption , on CARDINAL DATE , of ORG . The Investigating Judge examined numerous witnesses including PERSON , the PERSON ’s brother ( DATE ) , had experts’ reports drawn up , had resort to the services of the ORG , ORG , and the police , ORG , ORG , NORP and NORP authorities , etc . The accused do not seem to have been examined again .

On DATE , ORG of GPE informed GPE that a decision of DATE had , in pursuance of LAW of LAW , discontinued ( eingestellt ) the proceedings instituted against him in respect of CARDINAL of the counts . The amount of the loss imputed to the defendant was reduced by MONEY .

The trial was resumed before ORG of GPE on DATE . According to the information supplied to ORG , it should last for DATE .

In his application instituting proceedings of DATE ( No . CARDINAL ) , the text of which was produced by the Commission at the request of the ORG , PERSON claimed :

- that he had been arrested and detained without there being " reasonable suspicion " of his having committed an offence and without there being grounds for it to be " reasonably considered necessary " to prevent his fleeing ( LAW ) of the Convention ) ( article DATE ) ;

- that he had reason to doubt the impartiality of those persons who were competent both to pronounce upon his continued detention and also to conduct the investigation ( LAW ( article DATE ) ;

- that the procedure followed in the examination of his requests for provisional release did not conform with the requirements of Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) and ( CARDINAL ) ( b ) and ( c ) ( article DATE , article DATE , article CARDINAL - CARDINAL-b , article DATE ) ( " equality of arms " ; PERSON ) ;

- that he had been neither brought to trial " within a reasonable time " nor released pending trial . On this point , the Applicant in particular alleged that the Investigating Judge , who was required to deal simultaneously with several important cases , was no longer able to accomplish his task " within a reasonable time " within the meaning of Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) of the Convention .

PERSON complained , inter alia , of the decisions given DATE by ORG of ORG of GPE and by ORG .

In the course of a hearing before the Commission , the PERSON ’s lawyer also invoked LAW ) ( article CARDINAL - CARDINAL ) of the LAW , affirming that his client had not been informed in detail and in writing of the charges against him .

The Commission decided upon the admissibility of the ORG on DATE . It rejected , on the grounds of their being manifestly ill - founded , the complaints based on DATE ( c ) and CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL-c , article LAW ) of the LAW , but declared the ORG admissible in so far as it was based on LAW ) , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE , article DATE ) ( " reasonable time " and " equality of arms " ) ; it did not consider it necessary to pronounce upon the alleged violation of LAW ) ( article CARDINAL ) as the Applicant had not pursued this point .

Following the decision declaring admissible a part of the ORG , a ORG ascertained the facts of the case and unsuccessfully sought a friendly settlement ( Articles CARDINAL and CARDINAL of the Convention ) ( article CARDINAL , article CARDINAL ) .

Invoking LAW ) ( LAW ) , the PERSON maintained before the ORG and ORG that his detention on remand had lasted longer than was reasonable . In support of his contention he repeated many of the arguments he had put forward before ORG , ORG and ORG of GPE ( see above ) . He also claimed that his second detention could be justified neither by the statements made about him by PERSON early in DATE nor by the fact that PERSON had absconded ; in particular he pointed out that PERSON ’s extradition ( on DATE ) had taken place DATE before his own re - arrest ( on DATE ) . According to the Applicant the position seemed in fact to be very much more in his favour at the time he lodged his ORG ( on DATE ) than when he was first released ( on CARDINAL DATE ) , this being due largely to his acquittal on DATE in the ORG fraud case and the substantial reduction in the amount of the loss for which he was said to be responsible in the case against PERSON and others . The competent legal authorities were said to have disregarded this change for the better by prohibiting the PERSON from going to GPE again , by ordering his arrest and by refusing for a long time to release him either on parole , as in DATE , or even against adequate security . PERSON also complained that they had delayed in obtaining information on his means before fixing the amount of bail ; he maintained that LAW ) ( article CARDINAL ) in fine of the LAW precluded the stipulation of such a large amount of bail that the prisoner ’s release became impossible in practice . He further alleged - while protesting his innocence - that the length of his detention was out of proportion to the sentence he could expect if he were convicted : according to him , the sentence could not exceed DATE , or at DATE on the extreme hypothesis that the principal accused , PERSON , received the maximum provided by law . Without disputing the difficulties of the investigation , PERSON remarked that the most complicated part of it concerned a textiles case with which he had nothing whatever to do ; he added that the Investigating Judge had not heard him since DATE . His detention on remand was said to have caused him grave moral harm and material loss and greatly hampered the preparation of his defence .

In his original application in DATE , PERSON affirmed that the Investigating Judge , having to deal simultaneously with several large cases , including that of PERSON , was unable to complete his task within a reasonable time as provided in DATE ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) . PERSON does not appear to have invoked the latter provision subsequently on the point in question .

Lastly , according to the Applicant , the procedure in GPE for considering applications for release pending trial ( Sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ) is not in accordance with the principle of " equality of arms " ( PERSON ) safeguarded by LAW article DATE ) of the LAW . Here PERSON referred to the opinions expressed by the Commission in the PERSON and GPE cases ( Applications CARDINAL/CARDINAL and QUANTITY ) . He also maintained that a judicial organ that followed the procedure in question could not pass for a " court " within the meaning of LAW ) ( article DATE ) .

After the failure of the attempt to arrange a friendly settlement made by ORG , ORG drew up a report as required by LAW article CARDINAL ) of the LAW . The ORG was adopted on CARDINAL DATE and transmitted to ORG DATE . The Commission expressed therein the following opinion which it later confirmed before the ORG :

( a ) by CARDINAL votes against CARDINAL vote : the detention of the Applicant lasted beyond a " reasonable time " , with the consequence that there was , in the case , a violation of LAW ) ( article CARDINAL ) of the Convention ;

( b ) by CARDINAL votes against CARDINAL votes with the President ’s casting vote ( Rule CARDINAL ( CARDINAL ) of LAW ) : PERSON ’s case was not heard " within a reasonable time " within the meaning of LAW ) ( article DATE ) ;

( c ) by CARDINAL votes against CARDINAL votes , with CARDINAL abstentions : the proceedings regarding the PERSON ’s release complied with Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article DATE , article DATE ) .

The ORG contains several individual opinions , some concurring , some dissenting .

Arguments of the ORG and the Government

In the ORG ’s view , LAW ) ( article CARDINAL ) of the LAW secures the right of every person detained in accordance with LAW ) ( article CARDINAL - CARDINAL-c ) either to release pending trial or to trial within a reasonable time . If a person detained on remand is provisionally released , then LAW ) ( article CARDINAL ) is thereby complied with as regards the future ; if he is not released , he must be tried within a reasonable time . The Commission infers that detention must not be prolonged beyond a reasonable period . The most important problem , then , is said to be to interpret the words " reasonable time " . The Commission finds the term vague and lacking in precision ; thus its exact significance can be judged only in the light of the facts of the case , not " in abstracto " .

In order to facilitate such evaluation , the ORG believes that it is in general necessary to examine an individual case according to the following seven " criteria " , " factors " or " elements " :

( i ) The actual length of detention . The Commission does not mean by this to set an " absolute time - limit " to the length of detention . Neither is it a question of measuring the length of detention by itself ; it is simply a matter of using it as one of the criteria for determining whether that length is reasonable or unreasonable .

( ii ) The length of detention in relation to the nature of the offence , the penalty prescribed and to be expected in the event of conviction and national legislation on the deduction of the period of detention from any sentence passed . The Commission points out that the length of detention may vary according to the nature of the offence , the penalty prescribed and the likely penalty . Nevertheless , it considers that , in judging the relationship between the penalty and the length of detention , account must be taken of the principle of presumption of innocence laid down in LAW ) ( article DATE ) of the LAW . If the period of detention were too similar in length to the sentence to be expected in case of conviction , the principle of presumption of innocence would not be entirely observed .

( iii ) The material , moral or other effects of detention upon the detained person beyond what are the normal consequences of detention .

( iv ) The conduct of the accused :

( a ) Did he contribute to the delay or expedition of the investigation or trial ?

( b ) Were proceedings delayed by applications for release pending trial , appeals or other remedies ?

( c ) Did he request release on bail or offer other guarantees to appear for trial ?

On this point the Commission considers that an accused who refuses to co - operate with the investigating organs or who uses the remedies open to him is thereby merely availing himself of his rights and should therefore not be penalised for doing so unless he acts in an abusive spirit or to an exaggerated extent .

With regard to the conduct of the other accused , the ORG hesitates to accept that this can justify any prolongation of an individual ’s detention .

( v ) The difficulties in the investigation of the case ( its complexity in respect of the facts or the number of witnesses or accused , the need to obtain evidence abroad , etc . ) .

( vi ) The manner in which the investigation was conducted :

( a ) the system of investigation applicable ;

( b ) the conduct of the investigation by the authorities ( their diligence in dealing with the case and the manner in which they organised the investigation ) .

( vii ) The conduct of the judicial authorities :

( a ) in dealing with applications for release pending trial ;

( b ) in completing the trial .

The Commission considers that a rational plan of this kind makes it possible to arrive at " a coherent interpretation without any appearance of arbitrariness " . It also remarks that the opinion to be formulated in a particular dispute will be the result of an assessment of all the factors . It may in fact happen that the application of some criteria will tend to lead to the conclusion that a period of detention was reasonable , whereas other criteria will suggest the opposite and still others will not clearly point either way . The overall conclusion is said then to depend on the relative value and importance of the various factors ; this does not rule out the possibility that CARDINAL of them alone may carry decisive weight in some circumstances .

The ORG adds that in the above criteria it has tried to cover all the situations of fact that habitually arise in cases concerning detention on remand , but that the list drawn up by it is by no means exhaustive as exceptional situations may justify the use of other criteria .

In the present case the ORG has applied the CARDINAL criteria in finding the facts and in evaluating them from the legal point of view ; some of the facts seem to it to be relevant in relation to several criteria .

In the ORG ’s view , application of the first criterion points to the conclusion that the length of PERSON ’s detention was excessive .

The Commission considers that the DATE time - limit stipulated in LAW ) in fine of the LAW precludes it from expressing any opinion on whether the length of the Applicant ’s first period of detention - DATE and DATE ( DATE ) - was " reasonable " . On the other hand , it has considered the entire period of DATE and DATE that elapsed DATE , when PERSON was re - arrested , and QUANTITY DATE , when he regained his freedom .

To the Government ’s contention that the only relevant period of detention is that previous to the filing of the ORG ( DATE ) the ORG replies that its work would be defeated if , in a case like this one , where there is a continuing situation , it were not competent to consider new facts subsequent to the filing of an application - which facts could just as easily be favourable to the respondent ORG .

In the ORG ’s view , the second criterion by its very nature relates to the situation facing national authorities at the time of detention ; thus it can not be applied in retrospect , i.e. in the light of the sentence passed by the trial judge .

Attempting to form a " tentative opinion " of the sentence to be expected by the Applicant in case of conviction , the Commission observes that :

- section CARDINAL of LAW provides for a sentence of DATE penal servitude ;

- the parties argued before it whether there was any proportion between the sentences that might be imposed and the damage caused by each of the accused in this case ; but it does not propose to express any opinion on the matter ;

- NORP legislation allows the courts to pass sentences lower than the usual minimum , provided there are extenuating circumstances .

In view more particularly of this last possibility , of which NORP courts are said to make plentiful use in practice , the Commission considers that the length of PERSON ’s detention is close to the likely sentence in case of conviction . It also observes that under LAW ( a ) of LAW , the period of detention is as a rule to be counted as part of the sentence . However , the Commission does not view this as a factor likely to affect the judgment , in the light of the second criterion , as to whether the length of detention is reasonable ; in this connection it stresses the uncertainty in which the prisoner has to live pending judgment .

All in all , therefore , application of the second criterion is thought to indicate that the PERSON ’s detention lasted longer than was reasonable .

The third criterion is said to point the same way , since PERSON suffered professionally and financially to an unusual degree as a result of his detention .

With regard to the fourth criterion , the ORG finds that the Applicant does not appear to have prolonged the investigation unduly by his attitude . Of course he did not help shorten it , either , since he continually protested his innocence , but in doing so he was entirely within his rights . Neither does the ORG consider that the fact that he lodged a series of applications and availed himself of other remedies , in accordance with the law , indicates any intention on his part to delay proceedings abusively . His actions may , to be sure , have interrupted or slowed down the work of the Investigating Judge and LAW by obliging them to forward the case record to the competent courts , but the ORG points out that there are in such cases technical means of ensuring uninterrupted work on the prosecution - for instance by making copies of the necessary documents .

In the ORG ’s view , the case in question was an exceedingly complicated CARDINAL by reason of the nature , range and multiplicity of the transactions in question , their foreign ramifications and the number of accused and witnesses . Thus the fifth criterion would seem to justify a long period of detention . The Commission thinks however that the continued holding of PERSON in detention can not be explained by the difficulties of the preliminary investigation after it had been closed on CARDINAL DATE .

With regard to the sixth criterion , the Commission begins by analysing the provisions of NORP law governing the preliminary investigation , in particular the distribution of cases among examining judges ( Sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of the LAW , LAW of LAW CARDINAL ) of the " Gerichtsverfassungsnovelle " and LAW of the " Geschäftsordnung für die PERSON " ) ; it then examines the course of the investigation of the PERSON ’s case . It does not find that the competent organs neglected their duties or in any other similar way prolonged PERSON ’s detention , but it considers that the working of the system in force caused certain delays , since the Investigating Judge had to deal with several very bulky and complicated cases at the same time . The Commission remarks that it has experienced some difficulty in finding out whether the allocation of cases can under NORP law be changed once the DATE distribution has been established . It points out that , while the Government denies that this can be done , the judge responsible for investigating the PERSON case , which is also pending before the ORG , was temporarily relieved of other cases . However , the ORG does not think it necessary to go further into the question : it is a general principle of international law that a ORG can not invoke its own legislation to justify failure to fulfil its treaty obligations . The Commission therefore sees no reason to investigate whether the delays it has found to have occurred are the result of a legal obstacle or of failure to apply clauses by which they could have been avoided .

In short , consideration of the facts in the light of the sixth criterion is said to suggest that the length of GPE ’s detention was excessive . It is true that , at the hearing in DATE , the ORG ’s representatives gave the ORG further details of the steps taken to relieve the burden on the Investigating Judge ( cf . infra ) . The Commission ’s answer is that those details would have caused it to amplify its Report somewhat if it had had them then ; but that they are not of such a nature as to upset its conclusion .

The Commission considers that the conduct of the judicial authorities in connection with PERSON ’s applications for release pending trial ( first part of the seventh criterion ) is open to differing evaluations . It therefore finds it hard to state with certainty whether or not an examination of this factor leads to the conclusion that the length of detention exceeded reasonable bounds .

The ORG does not in any case accept the ORG ’s argument ( cf . infra ) that PERSON forfeited his right to " trial within a reasonable time " on DATE the Judge ’s Chamber of ORG of Vienna first agreed in principle to release him on bail ( DATE ) . It asserts that the second sentence of LAW ) ( article CARDINAL ) of the Convention affords GPE a middle way between continuing detention and outright release , but it does not consider that resort to that solution gives a Government an excuse for keeping in detention indefinitely a person who refuses to provide the security demanded , especially if he is in no position to do so : otherwise a Government could easily evade its obligations by requiring excessive guarantees .

The ORG adds that the second part of the seventh criterion ( the conduct of the judicial authorities in completing the trial ) is inapplicable here in connection with LAW ) ( article CARDINAL ) , since PERSON was released before the trial opened .

In the light of an overall evaluation of these various factors , the Commission concludes , by CARDINAL votes to CARDINAL , that LAW ) ( article CARDINAL ) has been violated . It does not state the exact date on which it considers the violation to have begun : it thinks that its task was solely to give an opinion on whether or not the period of PERSON ’s detention was reasonable .

In the ORG ’s view , the problem of the " time " stipulated in LAW is different from the problem under LAW ) ( article CARDINAL ) , for the relevance of the former Article does not depend on the fact of detention .

In a criminal case the period in question is thought by the ORG to date from the day on which the suspicion against a person begins to have substantial repercussions on his situation . In the present case , the ORG , by CARDINAL votes to CARDINAL , has taken this to be DATE of PERSON ’s first interrogation by ORG ( DATE ) - not , for instance , the date on which the charge was preferred ( CARDINAL DATE ) .

The ORG furthermore considers , by CARDINAL votes to CARDINAL , that the " time " referred to in DATE ( article CARDINAL ) does not end with the opening of the trial or the hearing of the accused by the trial court ( cf . the words " entendue " and " hearing " ) but , at the very least , with the " determination " by the court of first instance " of any criminal charge against him " ( " ... décidera ... du bien - fondé de toute accusation " ) - which has not yet come about in this case . The Commission does not think it necessary in the present instance to consider here whether this " time " would also include appeal proceedings , if any .

For the purpose of determining whether a period of time is " reasonable " the Commission considers that several of the criteria it applies in connection with LAW ) ( article CARDINAL ) ( the first , fourth , fifth , sixth and both parts of the seventh ) also have a bearing , mutatis mutandis , on LAW ( article DATE ) .

The ORG holds , in short , by CARDINAL votes - including its President ’s casting vote - to CARDINAL , that PERSON was not heard within a reasonable time and that LAW ( article DATE ) has thus not been observed in this respect . It does not attach great weight to the fact that PERSON hardly complained at all on this score : it believes that it is competent to consider any point of law that seems to it to arise from the facts of an application , and if necessary to do so in relation to an article of the Convention not expressly invoked by the PERSON ; this is said to be borne out by its previous practice and by Rule CARDINAL ( CARDINAL ) ( d ) of its Rules of Procedure .

In the Commission ’s view , the procedure in GPE for considering applications for release pending trial lies outside the scope of LAW ) ( article DATE ) of the LAW , for it is concerned with the determination neither of a " criminal charge " ( unanimous vote ) nor of " civil rights and obligations " ( CARDINAL votes to CARDINAL ) . Unlike the Government ( see below ) , the Commission does not think that LAW ) leaves it to the municipal law of each ORG to define the words quoted above . However , it does not feel able to interpret them broadly enough to cover the procedure in question . With the intention of explaining its views on the autonomous concept of " civil rights and obligations " , it refers in particular to the " travaux préparatoires " on the LAW and its own earlier rulings .

The Commission thinks it can be maintained that LAW ) ( article DATE ) of the LAW , in stipulating that the lawfulness of detention shall be decided by a court , demands respect for certain fundamental principles . However , it does not find the procedure laid down in LAW and CARDINAL of LAW to be contrary to that requirement ( CARDINAL votes to CARDINAL ) .

The Commission concludes , by CARDINAL votes to CARDINAL with CARDINAL abstentions , that the proceedings on PERSON ’s release involved no violation of either LAW ) ( LAW ) or LAW ( article DATE ) .

The Commission draws the ORG ’s attention to the individual opinions - some concurring and some dissenting - expressed in its Report by certain of its members with regard to the various questions that arise in this case .

At the hearing of CARDINAL DATE , ORG made the following submissions :

" DATE it please the ORG :

To decide :

( CARDINAL ) Whether or not LAW ) ( article CARDINAL ) of the LAW has been violated by the detention of PERSON from DATE to DATE .

( CARDINAL ) Whether or not LAW ) ( article DATE ) of the LAW has been violated by the non - completion of the criminal proceedings instituted against PERSON as from DATE when he was first heard by the Investigating Judge as being suspected of the criminal offences concerned , or from any later date .

( CARDINAL ) Whether or not LAW ) ( article DATE ) or LAW ) ( article DATE ) , or the CARDINAL provisions combined , have been violated by the procedure followed under LAW and CARDINAL of LAW with respect to appeals lodged by PERSON against his detention pending trial . "

According to ORG opinion , as expressed in its ORG , that GPE has violated Articles CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) in PERSON ’s case is based on faulty fact - finding and an erroneous interpretation of the Convention .

With regard to the interpretation of LAW ) ( article CARDINAL ) and its application to the present case , the Government contests first of all the method adopted by the Commission . The literal meaning of the word " reasonable " ( " raisonnable " ) is said to show clearly that the question whether the length of detention on remand was excessive can on the basis of a set of preconceived " criteria " , " elements " or " factors " . It is maintained that this opinion is in accordance with the ORG ’s previous practice and the intentions of the drafters of LAW ) ( article CARDINAL ) . The Government moreover thinks that the system of criminal procedure of the ORG concerned is of great importance in this context . In its view , the authors of the Convention were convinced that the CARDINAL systems of criminal procedure - the NORP - American and the NORP - in force in the member ORG were entirely in harmony with the LAW , despite the profound differences between them . The Government deduces that LAW ) ( article CARDINAL ) is not to be considered from the angle of just CARDINAL given legal system . It is said to follow that an examination of whether or not the length of a detention pending trial was " reasonable " must never ignore the " common standard " of that legal system to which ORG concerned belongs . According to the Government , a decision that the LAW was not respected in PERSON ’s case would mean indirectly that the NORP law of criminal procedure is not in accordance with the principles of the ORG , whereas in fact it is very similar to that of most other countries on the continent of LOC .

The Government also complains that the ORG ’s fact - finding was carried out in the light of the criteria chosen by itself . It maintains that the ORG , starting from a preconceived legal position , based its opinion not on all the facts of the case but only on those facts which it needed to answer certain questions on which it considered the solution to the legal problem to depend . In so doing it failed to establish or evaluate several important facts .

The Government also set against the Commission ’s reasoning the following considerations , which are said to demonstrate the absence of any violation of LAW ) ( article CARDINAL ) .

To the first of the CARDINAL " criteria " , namely the actual length of detention , the Government raises objections of principle . In its opinion , this " criterion " tends to bring into the ORG an absolute limit on the length of detention on remand , which is precisely what the Contracting Parties sought to avoid by using the words " reasonable time " . Moreover , on closer examination , it is not a true criterion , for it prejudges the conclusion to which the other criteria are supposed to lead . In any case , the ORG did not adopt it in its previous decisions .

The Government furthermore considers that the ORG is concerned only with the period spent by PERSON in detention before he lodged his ORG ( DATE ) . By taking into account the period of time up to his release pending trial ( DATE ) the Commission is said to have exceeded the competence conferred upon it by Articles DATE of the Convention ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) .

As a subsidiary argument the ORG submits that the period subsequent to CARDINAL DATE , when ORG for the first time agreed in principle to release PERSON on bail , can not be taken into consideration . In its view such an offer of release meets the requirements of LAW ) ( article CARDINAL ) . If an individual , either because he does not agree to provide , or is unable to provide , the guarantee demanded , does not avail himself of the offer , then , in the ORG ’s view , he forfeits the right to trial within a reasonable time . Besides , LAW ) ( article CARDINAL ) contains no express provision against demanding " excessive " guarantees from detainees ; it follows that the drafters of the Convention did not intend to place any obligation on GPE in this respect .

Neither does the Government share the opinion expressed by the Commission with regard to the second criterion . In applying it the ORG is said to have engaged in speculation on the sentence likely to be passed on the Applicant - unavoidably , since he has not yet been convicted . This speculation , it is argued , is based both on an erroneous evaluation of those facts that are considered established and also on faulty fact - finding . Thus the assumption that an NORP court has the option of passing a sentence below the legal minimum where there are extenuating circumstances is inaccurate in the unconditional form the ORG allegedly gives to it . LAW ( a ) of LAW , which is relevant here , only applies in the exceptional case of a conjunction of very important and predominant extenuating circumstances . In order to establish the facts objectively and completely the Commission should , in the ORG ’s view , have taken into consideration the practice of the NORP courts , which , it is said , are not in the habit of passing sentences appreciably lighter than the legal minimum in cases of damage amounting to CARDINAL schillings . Furthermore the Government points out that LAW also lays down a number of aggravating circumstances in Sections DATE . Lastly , a purely mathematical calculation relating the sentence to the amount of damage for which the accused is responsible would in the ORG ’s view have unacceptable consequences .

The third criterion , too , is said to be ill - suited to consideration of the present case : it introduces differential treatment in the application of the provisions of law relating to release pending trial , a result which is incompatible with the principle of equality before the law enshrined in LAW and LAW .

Moreover , in order to apply the criterion it would be necessary to establish exactly what effect detention had had on PERSON ’s life . The ORG is said to have neglected to do this . It has not put forward any arguments in support of its conclusion that the deterioration in the Applicant ’s financial position was mainly or entirely due to his detention ; in this respect it has merely cited his unsubstantiated statements and an isolated passage from a decision of ORG of ORG of GPE . Similarly , the ORG is said not to have given any details of the difficulties which PERSON claims to have encountered in preparing his defence . More generally , it has lost sight of the fact that any detention necessarily entails hardships for the detained person .

According to the Government , in connection with the fourth criterion , the ORG has presented no more than part of the result of its investigations , without mentioning in particular certain facts of which it was aware and which , properly viewed , would have cast a different light on the Applicant ’s conduct .

The ORG is said to have made the mistake of applying the fourth criterion from a subjective angle , forgetting that the attitude of an accused during proceedings is an objective factor . It is true that PERSON did not try to slow down the proceedings by his appeals . Nevertheless , they did cause delays , since on each occasion the record had to be handed over to the competent authorities . Moreover , PERSON is said to have done nothing to speed up the proceedings . On the contrary , he did not give an accurate account of his part in the transactions in question .

The Government lastly points out that , although the fourth criterion also covers the conduct of other accused persons , the ORG has considered the Applicant ’s behaviour in isolation . The Government holds that if several persons suspected of complicity are prosecuted simultaneously , each must bear the consequences of the others’ actions . It therefore complains that the ORG has considered the prosecution of the Applicant separately from the rest of the case , whereas the Investigating Judge , when giving evidence before it as a witness , stated that the reason why he had not investigated PERSON ’s case separately was that some of the offences with which he was charged were inextricably bound up with the activities of the other accused . According to ORG would , if its fact - finding had been complete and correct and its application of the criterion legally accurate , necessarily have expressed the opinion that the length of detention had been reasonable .

On the fifth criterion , the Government agrees with the ORG ’s conclusion . It considers however that the ORG has not taken sufficiently into consideration the difficulties inherent in the criminal proceedings in question ( statement of the facts , paragraph CARDINAL ) . It recalls that it was necessary to seek judicial assistance abroad and to request the extradition of several accused . Because of the size and complexity of the transactions in dispute the enquiries and interrogations conducted outside GPE took a long time and in some cases required the personal participation of the Investigating Judge . Moreover , in some of the countries approached , especially GPE , the request for legal assistance raised legal problems , the solution of which also caused loss of time . The Commission ’s report is said not to mention these facts , without which neither the complexity of the case nor the obstacles encountered by the Investigating Judge can be properly assessed . The Government lastly regrets that here , too , the Commission has taken into consideration only the number of other accused , not their conduct during the proceedings .

With regard to the sixth criterion the facts found by the ORG are said to be inadequate to justify its conclusion .

In the first place , the ORG is thought to have underestimated the part played by the preliminary investigation in NORP criminal procedure . The Government points out that the object of ORG is to establish the material facts . It follows that in complicated and difficult criminal cases a fairly long preliminary investigation and thus a fairly long detention on remand are often inevitable .

The ORG is also said not to have evaluated the facts of the case properly . It has , it is argued , worked on the assumption that it would have been possible to release the Investigating Judge from all other work so that he could devote himself solely to the investigation of the Applicant ’s case . But under NORP legislation ( LAW ( CARDINAL ) of the LAW , LAW of LAW , LAW ( CARDINAL ) of LAW ( CARDINAL ) of the Rules adopted by ORG for courts of first and second Instance ) the allocation of criminal cases can not be changed in the course of DATE just because CARDINAL judge is overworked . However , the Government points out that the Presiding Judge and ORG ( PERSON ) of ORG , anxious to lighten the burden on the Investigating Judge , on many occasions allotted to other judges cases that normally should have gone to him , taking full advantage of the law in force for that purpose ( DATE , DATE and DATE , DATE and DATE , DATE and DATE and between CARDINAL May and QUANTITY DATE ) . ORG , when heard by the Commission as a witness , in fact stated that if he had not had to deal with several cases at the same time , the investigation of the PERSON case would have been shortened but that the time saved would have been so minimal as to be hardly worth mentioning .

In considering the attitude of the authorities responsible for the investigation the ORG is said to have based its findings on the evidence of the Investigating Judge by itself , without subsequently evaluating it from a legal point of view . In the Government ’s opinion , such an evaluation would have shown that the Judge and his assistants had acted with the necessary care and diligence even although some delay was inevitable , since CARDINAL of the main accused had escaped abroad and it was necessary to issue international " wanted " notices in order to locate them .

In general terms the Government considers that no effort was spared to hasten the investigation . It points out that the prosecutions relating to certain acts or accused were severed or dropped under LAW ( CARDINAL ) and DATE ( CARDINAL ) of LAW . It thinks that nothing more could have been done in this respect than was done . In its view , the various offences in dispute were so closely inter - related that it was not possible to dissociate PERSON ’s case from the cases of the other accused . Moreover , to have done so would have been contrary to the legal principle of connexity ( Section CARDINAL ( CARDINAL ) of LAW ) and would in fact have delayed the proceedings , for ORG would have been obliged to compare the allegations of all the accused in order to check their veracity .

With regard to the seventh criterion the Government states that it is in no position to furnish any critical comment : it complains that the ORG has completely failed to state the conclusions it draws from the facts it considers to have found in its ORG .

In particular , the ORG maintains that the decision of CARDINAL DATE , making the Applicant ’s release subject to guarantees of MONEY was entirely in accordance with LAW ) ( article CARDINAL ) of the LAW , since there was a danger that he would abscond and since he had probably enriched himself considerably as a result of the offences with which he is charged .

According to ORG could not have failed , if it had correctly evaluated the relevant facts , to recognise that the period of detention in dispute was reasonable .

From the foregoing , the Government concludes that , even if the method chosen by the ORG is used , no violation of LAW ) ( article CARDINAL ) can be detected in this case , for the arguments suggesting that the period of detention was reasonable far outweigh those to the contrary . This is said to be particularly true of criteria CARDINAL , CARDINAL and DATE , the decisive ones in this case .

The Government expresses surprise that the ORG has not stated on what date it thinks the length of PERSON ’s detention to have become excessive .

In the ORG ’s view , the ORG has exceeded its competence in considering whether or not PERSON was heard within a " reasonable time " as required by LAW . The Applicant is said to have made no complaint in this respect and the problem in question to have played no part at the hearing in DATE on the admissibility of the ORG .

Moreover , the Government considers that the words " reasonable time " mean the same thing in both ORG in which they appear , namely ORG CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( article CARDINAL , article DATE ) .

The time to be considered in connection with LAW ) ( article DATE ) is said to have begun not with PERSON ’s first interrogation by ORG ( on DATE ) but only when the indictment was preferred ( on CARDINAL DATE ) . The terms " criminal charge " and " accusation " are in fact said to refer , in both the ORG and the NORP systems , to the legal act of requesting the ORG to rule on whether the allegation that an individual has committed a punishable offence is well - founded . The ORG remarks that under LAW , only a person against whom an " Anklage " has been filed is entitled to a hearing before an independent tribunal . In its view adoption of the ORG ’s interpretation of the point would have results incompatible with the aims of the Convention : the effect would be to prevent the cessation of prosecution before the trial was opened , whereas several national legal systems , in particular LAW , CARDINAL and CARDINAL of LAW , allow this . Such an interpretation would also conflict with paragraphs CARDINAL ( a ) and CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL-a , article DATE ) : it is difficult to see how a person against whom a mere enquiry or preliminary investigation ( GPE ) is opened can be informed in detail " of the nature and cause of the accusation against him " ; as for the principle of presumption of innocence , it is said to apply solely to an individual against whom a criminal charge within the meaning of LAW ) ( article DATE ) has been brought - as indeed the Commission itself is affirmed to have acknowledged on many occasions .

Neither does the Government share the opinion expressed by the ORG that the time covered by LAW runs at least up to the determination of the criminal charge by the court of first instance . It maintains that in fact that time comes to an end as soon as the accused receives a " hearing " , i.e. at the beginning of the trial . On this point the Government stresses the contrast between LAW ) and LAW ) ( article DATE , article CARDINAL ) , which contains the word " jugée " ( " trial " in the LANGUAGE text ) . It adds that in the LANGUAGE version of LAW ) ( article DATE ) the drafters of the ORG would have used the words " for the determination " instead of " in the determination " if their intention had really been to require a decision to be reached on each charge within a reasonable time .

Lastly , the Government complains that the ORG merely states that some of the criteria which it applied in relation to LAW ) ( article CARDINAL ) also hold good for DATE ( CARDINAL ) ( article DATE ) , without indicating what facts it considers more particularly relevant in relation to the first or second provision .

On the question of the procedure in GPE for the consideration of applications for release pending trial , the Government mainly refers to the Commission ’s opinion that this procedure does not infringe LAW ( article DATE ) or LAW ) ( article DATE ) . It remarks that it has always agreed with the restrictive interpretation of the words " civil rights " ( " droits de caractère civil " ) apparent in all the Commission ’s decisions . It thinks however , unlike the Commission , that the LAW leaves it to the municipal law of each Contracting ORG to define these terms and that the GPE have no common view on the matter . It asks the ORG for a ruling on this important question .

At the hearing of CARDINAL DATE , the ORG made the following submissions .

" ( DATE it please the ORG to ) declare :

that the measures taken by the NORP authorities , which are the subject of the application lodged by PERSON against GPE and of the Report of ORG DATE , according to LAW , do not conflict with the obligations arising from the said Convention . "


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

On DATE the applicant sued the Government of GPE for monetary benefits on account of serious bodily injuries caused by a terrorist attack during his military service in the government ’s headquarters in GPE .

On DATE the ORG found in the applicant ’s favour and awarded him MONEY ( RUB ) in compensation . On DATE the judgment became final but the respondent authority delayed its enforcement .

On DATE ORG awarded the applicant an additional amount of RUB CARDINAL,CARDINAL.CARDINAL in compensation for the inflation loss resulting from the enforcement delay ( “ indexation ” ) . That judgment became final on DATE .

On DATE the total sum of RUB ORG was credited to the applicant ’s bank account .

On DATE the ORG delivered the Burdov ( no . CARDINAL ) pilot judgment cited above . It ordered the respondent ORG to set up an effective domestic remedy which would secure adequate and sufficient redress for non - enforcement or delayed enforcement of domestic judgments . It also ordered GPE to grant adequate and sufficient redress , within DATE from the date on which the judgment became final , to all victims of non - payment or unreasonably delayed payment by ORG authorities of a judgment debt in their favour who had lodged their applications with the ORG before the delivery of the present judgment and whose applications had been communicated to the Government under Rule CARDINAL § CARDINAL ( b ) of the Rules of the ORG .

The present case was communicated to the Government on DATE . The ORG ’s proceedings in the case were thus adjourned until CARDINAL DATE pending the implementation of the pilot judgment ( see PERSON ( no . CARDINAL ) , cited above , § CARDINAL , and point CARDINAL of the operative part ) . The applicant was informed accordingly .

On DATE the Government confirmed that both court awards had been paid to the applicant on DATE and submitted a unilateral declaration aimed at resolving the issues raised by the application . The authorities acknowledged the excessive duration of the enforcement of the judgment of DATE in the applicant ’s favour and declared that they were ready to pay the applicant ex gratia the sum of MONEY ( ORG ) as just satisfaction .

On DATE the Government informed the ORG that in response to the pilot judgment CARDINAL federal laws had been enacted , introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the ORG . The laws entered into force on DATE ( “ the LAW ” , see part B below ) .

By letter of CARDINAL DATE the applicant considered the ORG ’s remedial offer insufficient and declared his intention to avail himself of the new remedy .

On DATE ORG of GPE granted the applicant ’s claim for compensation under LAW . The court acknowledged a violation of his right to enforcement of the judgment of DATE within a reasonable time and ordered ORG of GPE to pay the applicant RUB MONEY ( ORG CARDINAL ) in compensation . The court took account of the enforcement delay , the nature of the award , its significance for the applicant , his state of health and the efforts made to obtain the payment . The court furthermore noted that the absence of domestic enforcement regulations during the relevant period and the complexity of the ORG ’s budgetary system were not the reasons for denying compensation . At the same time , the court held by reference to the ORG ’s case - law that the period of DATE from DATE during which the applicant ’s case was examined by ORG did not breach his right to a hearing within a reasonable time .

The judgment became final on DATE and the writ of execution was transmitted to the respondent authority on DATE .

By letter of CARDINAL DATE the Government withdrew their unilateral declaration of DATE , considering that the applicant was no longer a victim of the violation due to the latest judgment in his favour .

The court award was credited to the applicant ’s bank account on CARDINAL DATE .

On DATE ORG adopted a ORG , no . CARDINAL-ФЗ , “ On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a ORG within a Reasonable Time ” ( “ LAW ” ) . On DATE the ORG adopted LAW , no . CARDINAL-ФЗ , introducing a number of corresponding changes to the relevant federal laws . Both laws entered into force on DATE .

The Compensation Act entitles a party concerned ( “ an applicant ” ) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the ORG budgets ( LAW , § CARDINAL ) . Such compensation can only be awarded if the alleged violation took place independently of the applicant ’s own actions except those taken in the circumstances of force majeure . A breach of the statutory time - limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time ( Section CARDINAL , § CARDINAL ) . A compensation award is not dependent on the competent authorities’ fault ( Section CARDINAL , § CARDINAL ) .

The compensation is awarded in monetary form ( LAW , § CARDINAL ) . The amount of the compensation should be determined by courts according to the applicant’

Section CARDINAL sets out the rules of jurisdiction and procedure . It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not DATE after the expiry of the statutory time - limit for enforcement and not DATE after the termination of the procedure for enforcement .

A court decision granting compensation is subject to immediate enforcement ( LAW , § CARDINAL ) . It may be appealed against in accordance with the procedural legislation in force ( Section CARDINAL , § CARDINAL ) . The costs of payment of compensation awards are included in the federal budget , in the budgets of federal entities and in local budgets ( Section CARDINAL , § CARDINAL ) .

All individuals who have complained to ORG that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the present Act within DATE of its entry into force , provided ORG has not ruled on the admissibility of the complaint ( LAW CARDINAL ) .


The applicant , Mr PERSON , who is of NORP origin and whose nationality is unknown , was born in DATE and lives in GPE , GPE . He was represented before the Court by Mrs B. GPE , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE ORG ( PERSON u PERSON ) gave judgment ordering company A. ( “ the company ” ) to pay the applicant the amount of MONEY ( “ YUD ” ) together with the pertaining statutory interest and the litigation costs . The judgment became final on DATE when it was upheld by ORG ) .

On DATE the applicant applied to ORG ( PERSON u ORG ) for enforcement of the above judgment .

On DATE ORG issued a writ of execution ( rješenje o izvršenju ) ordering the financial institution operating the company ’s account ( ORG društvenog knjigovodstva , subsequently PERSON and eventually PERSON agencija ) ( “ the ORG ” ) to collect the amount corresponding to the applicant ’s claim , i.e. CARDINAL,CARDINAL.CARDINAL ORG , and transfer it to his account .

On DATE the company filed an objection ( prigovor ) to the writ . The applicant replied on DATE .

On DATE ORG dismissed the company ’s objection and the writ thereby became final . It appears that on DATE the writ was sent to the ORG in order to be carried out .

The Government submitted that the proceedings had ended on DATE . However , since the case - file had been closed and , eventually , destroyed on DATE pursuant to section CARDINAL of the Courts’ Rules ( see below under the Relevant domestic law ) , the Government were unable to specify whether the proceedings had been terminated because the applicant ’s claim had been satisfied or for some other reason .

The applicant submitted that in DATE he had gone to stay with his parents in GPE . He further submitted that due to the escalation of the war in GPE in DATE , he had been unable to return . Thus , he had decided to stay in GPE where he had later on been granted refugee status .

The applicant also submitted that since DATE he had not received any information from ORG concerning his case .

On DATE he wrote to ORG asking it to continue the enforcement proceedings . He received no reply .

On DATE the applicant , through his advocate PERSON , repeated his request . The court replied on DATE informing the applicant ’s advocate that the enforcement proceedings at issue had been discontinued and the case - file destroyed .

On DATE and DATE the applicant again requested ORG to continue the enforcement proceedings .

On DATE he wrote to the President of ORG complaining that he had received no reply to his previous letters . The President replied on CARDINAL DATE informing the applicant that the proceedings had ended on DATE , and the case - file had been destroyed on DATE .

Meanwhile , following the applicant ’s enquiry about the writ of execution , on DATE the ORG – ORG informed him that it had never received the writ from ORG .

The DATE LAW ( Zakon o izvršnom postupku , ORG nos . CARDINAL and DATE ) , in force at the material time , did not provide for a possibility to continue enforcement proceedings that had already ended but only those that had been stayed or postponed ( section CARDINAL ) . Moreover , the LAW provided that a petition for reopening of a case ( prijedlog za ponavljanje postupka ) was not allowed as a remedy in the enforcement proceedings ( section CARDINAL ) .

LAW ( Ovršni zakon , ORG nos . CARDINAL/CARDINAL ) , which entered into force on DATE , contains the same rules on continuation of the proceedings ( sections CARDINAL and CARDINAL ) and reopening of a case ( section CARDINAL ) .

The Courts’ Rules ( ORG poslovnik , ORG nos . CARDINAL/CARDINAL and CARDINAL ) , as in force at the material time , regulated , inter alia , time - limits for keeping case - files in archives of the courts . They provided that the case - files concerning enforcement proceedings had to be kept for DATE following the discontinuation or termination of such proceedings , unless they concerned rights in rem , in which case the files had to be kept for DATE ( section CARDINAL ) . After the expiry of those time - limits the case - files had to either be delivered to the institution keeping historical archives or be destroyed ( section CARDINAL ) .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

ORG ( “ the Government ” ) were represented by their Agent , PERSON , who was succeeded by Agent Mrs. PERSON .

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

On DATE the applicant was remanded in custody , suspected of having committed a number of robberies .

On DATE , before ORG , the applicant pleaded guilty and , in a judgment of CARDINAL DATE , the court convicted the applicant and sentenced him to CARDINAL years’ imprisonment . The applicant submitted an appeal , which he later withdrew . The judgment of the lower court came into force on DATE .

The applicant states that in DATE , when his detention order was adopted , he informed the judge that prior to his arrest he had worked for DATE as a security guard in a private company . He asked to be placed in special detention facilities for former members of law - enforcement institutions . The judge dismissed his request because he was not able to prove that he had been employed by ORG .

After his arrival at FAC , and later in FAC , he informed the prison guards about his former employment .

On DATE his cellmates in FAC found out about his former employment and therefore , after a conflict in the cell , the applicant was transferred to another cell . After other cellmates had found out about the applicant ’s previous employment , and also the fact that , according to informal rules in the prison , he had the lowest “ social status ” ( “ левый ” as stated by the applicant ) during TIME DATE he was ill - treated by them and in the morning he was transferred to another cell . On DATE he was again transferred because his cellmates had refused to share a cell with an inmate of the lowest social status .

On DATE the applicant was transferred to FAC and placed in a common cell with other inmates . He states that during DATE and DATE he wrote several letters to ORG FAC raising doubts about his safety in the prison , but that no measures were taken . In DATE ORG dismissed a request submitted by the applicant ’s mother for him to be transferred to another prison .

At ORG request , ORG provided the following information , supported by copies of letters and decisions .

From DATE to DATE the applicant was held in detention in FAC in GPE . When the final judgment in the applicant ’s criminal case took effect he was transferred to FAC .

NORP On CARDINAL and DATE the applicant and his mother asked ORG to transfer the applicant to a prison in ORG . The requests were motivated by the family situation , namely the mother ’s poor health and the fact that the applicant had little opportunity to see his wife and child . In DATE ORG dismissed the request .

On DATE the applicant complained to ORG about , inter alia , the potential threats he would face if other inmates found out about his former employment with a security company .

On DATE and DATE the applicant and his mother repeatedly asked ORG to transfer the applicant to PERSON or FAC in GPE . In addition to the reasons previously given , they cited the fact that the applicant had worked in a security company and therefore feared that other inmates might find out . The applicant stated , inter alia , that at the moment he was keeping the situation in his cell under control , but he feared that the situation might change after his transfer to a less lenient prison regime where he would have to share the common areas with other inmates .

On DATE ORG asked the security company to provide information about the applicant . On DATE ORG informed the applicant ’s mother that once the details of the applicant ’s previous employment with a security company had been established , the applicant ought to be transferred to specialised detention facilities intended for former members of law - enforcement establishments in ORG .

On DATE the head of ORG of ORG , having analysed the information that from DATE until DATE the applicant had been employed by a security company , decided that for security reasons the applicant should be transferred to ORG in GPE . That decision was put into effect on DATE .

On DATE , following the murder of an inmate at FAC , members of ORG special forces unit began a search of all the cells in FAC . During the search , the inmates were ordered to leave their cells and gather in the prison yard .

According to the applicant , the inmates were ordered to wait in an uncomfortable position for TIME in direct sunlight . All attempts to move resulted in the officers kicking the inmates and beating them with batons . After the search , the applicant returned to his cell , where everything had been turned upside down and some of his belongings were missing .

On DATE he asked ORG administration to explain on what basis special measures were being used against him . He also asked for his missing belongings to be returned .

On DATE the applicant complained about the search to ORG , and asked it to investigate the lawfulness of the measures used by ORG .

On DATE the prosecutor informed the applicant that his complaint had been forwarded to ORG and that he would be informed of the results of the investigation in due course .

According to the applicant the administration of ORG offered to transfer the applicant to another prison in Rīga in exchange for the applicant withdrawing his previous complaints about FAC . In a letter dated DATE the applicant informed ORG that he had settled the matter with ORG administration , which had compensated him for his lost belongings .

On DATE the applicant again complained to ORG about the search on DATE .

On DATE ORG informed the applicant that ORG had not found any violations by members of the special forces unit during the search on DATE .

According to the information ORG and the prosecutor ’s office had provided to ORG , after the search carried out by the special forces unit in ORG , several inmates complained that the special forces had inflicted bodily injuries on them and that the medical unit had failed to provide prompt medical assistance . During the internal investigation launched by ORG it was established that on DATE of the search CARDINAL inmates had asked for medical assistance and DATE inmates had done so . The applicant was not among them .

In his letter of CARDINAL DATE addressed to the prosecutor ’s office ( a copy of which has been provided by the ORG ) the applicant described the situation in ORG during the search . He stated that he had observed from the window of his cell intolerable behaviour by members of the special forces unit and officers of FAC . He also stated that he and his cellmates had voluntarily obeyed the orders given by the special unit but those who had disobeyed had been beaten and kicked . In general the applicant asked ORG to investigate the activities of all those who had participated in the search .

On DATE inmates ( the applicant not being among them ) submitted complaints to the prosecutor ’s office concerning the activities of the special forces unit , and asked for criminal proceedings to be instituted . In DATE the prosecutor ’s office dismissed the complaints but on DATE , at the ORG ’s request , the latter decision was quashed and criminal proceedings were instituted . At the time the Government observations were submitted the investigation was still ongoing .


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

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

DATE until DATE the applicant has been detained in FAC .

The applicant submitted that he was held in a cell which was designed for CARDINAL prisoners and measured CARDINAL m² . The cell was initially furnished with CARDINAL beds , CARDINAL stools , CARDINAL small tables and CARDINAL cupboards . A toilet annex was in the corner of the cell .

From DATE to DATE , the cell was occupied by CARDINAL detainees , including the applicant . From DATE until an unspecified date , it was shared by CARDINAL inmates , including the applicant . A fourth bed was added .

The Government submitted that on an unspecified date , presumably in DATE , the applicant had been placed in a cell in which the statutory minimum standard of CARDINAL m² per person was respected . The applicant did not contest this submission .

The applicant lodged a number of complaints with the ORG authorities and the remand centre ’s administration about the overcrowding .

By letter of DATE the Deputy Governor of ORG informed the applicant that his complaint had been considered illfounded . It was stated that the situation in FAC was no different from that in the rest of the country , since overcrowding was a general problem in NORP detention facilities .

The applicant did not bring a civil action to seek compensation for the infringement of his personal rights .

( See PERSON and CARDINAL other applications v. GPE , no . CARDINAL/CARDINAL ) .