David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . With the leave of the President of the Section ( Rule CARDINAL of the Rules of Court ) she was represented before the Court by her son Mr PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

The applicant ’s father , Mr PERSON , was the owner of a property located on the corner of ORG streets in GPE . The applicant and her son are the only heirs of Mr Meklemburg .

By virtue of the Decree of DATE on the Ownership and Use of Land in GPE , ownership of all private land was transferred to GPE . The decree gave the former owners the opportunity to obtain a perpetual lease ( temporary ownership after DATE and currently perpetual use ) of the nationalised plot of land on request .

On DATE GPE ( ORG ) signed before a public notary a contract with the PERSON limited liability company by virtue of which the ownership of a plot of land in the centre of GPE was transferred to the above company as the GPE ’s contribution to its seed capital ( aport do kapitalu zakładowego spółki ) . The land in question included the plot previously owned by the applicant ’s father . The Złote Tarasy company constructed a shopping centre on it .

The LOC acknowledged in the contract that there had been “ reprivatisation claims ” made in respect of the land in question and that proceedings to ascertain whether these claims were justified were pending . The GPE further stated that it had the financial means necessary to cover these claims .

The LOC conducted negotiations with the applicant , her sister and CARDINAL other heirs of former owners of the land in question .

On DATE the representatives of GPE signed before a public notary a friendly settlement agreement with CARDINAL heirs of the owners of the land . They accepted the compensation proposed by the LOC and agreed to waive any rights in respect of ownership or right to perpetual use of the land in question . The compensation proposed by the GPE had been based on the value of the property according to an assessment of DATE . The applicant and her sister decided not to sign the agreement because they contested the amount of compensation . The agreement in its relevant part reads as follows :

“ GPE agrees to pay [ to CARDINAL heirs of the former owners of the land ] compensation for pecuniary damage ( odszkodowanie ) for not granting them the right of perpetual use of the plot of land described above , to which they were entitled under LAW , and the ownership of which was transferred by the LOC as a contribution to the Złote Tarasy limited liability company ... ”

On DATE the applicant lodged a civil claim with ORG ( PERSON ) for annulment of the contract of DATE by which the land in question had been transferred to the Złote Tarasy limited liability company . They claimed that the contract had breached their right to be granted perpetual use of the land or their pre - emptive right thereto .

On DATE the court dismissed their action , finding that the ownership of the property had been transferred in the form of the LOC ’s contribution to the seed capital of the limited liability company . According to the court such a contribution could not be considered as a sale of the property within the meaning of section CARDINAL of ORG , thus the contract in question remained valid .

An appeal by the applicant was dismissed on DATE by ORG ( Sąd Apelacyjny ) . The court agreed with the opinion that the form in which the GPE had transferred the ownership of the land had not been a sale within the meaning of the domestic law . However , even if it was a sale and the transfer of the ownership had been carried out in breach of section CARDINAL of the PERSON , in any event it had not rendered the contract of DATE null and void . The only consequence of a breach of these provisions was a compensatory liability on the part of the LOC .

On DATE ORG refused to hear a cassation appeal lodged by the applicant .

On DATE the applicant lodged a civil claim against GPE for compensation for damage caused by the decision of DATE dismissing her father ’s claim to be granted perpetual use of the land and the contract of DATE .

On DATE ORG gave a preliminary judgment ( wyrok wstępny ) in which it allowed the claim . It considered that the issue of the applicant ’s claim to be granted perpetual use of the land should have been examined before the Municipality had transferred the ownership of the property to the company . GPE thus acted illegally , as it had known that the applicant ’s claims were pending .

GPE lodged an appeal against the judgment .

On DATE ORG allowed the appeal and dismissed the applicant ’s claim . The court considered that until the right to perpetual use of the land had finally been determined by the administrative authority the heirs of the former owners had no right to the property in question . Only a final administrative decision could decide whether or not they had any claim to the property . Thus the GPE could legally transfer the ownership of the land in question . Moreover , the proceedings concerning the request to be granted perpetual use of the land had been pending and as a result the applicant might still obtain perpetual use of another plot of land or compensation . The applicant was also ordered to reimburse the costs of the proceedings to GPE in the amount of MONEY ( ORG ) .

The applicant lodged a cassation appeal against the judgment but on DATE ORG refused to hear it .

On DATE , in accordance with the time - limit provided in section CARDINAL of the DATE Decree , the applicant ’s father lodged an application in which he sought to be granted the right of temporary ownership of the land .

On DATE the Mayor of GPE dismissed the application .

On DATE the applicant lodged a request for the above decision to be declared null and void .

On DATE ORG ( PERSON ) decided to stay the proceedings . An appeal by the applicant was dismissed on DATE .

On DATE ORG of Appeal decided to resume the proceedings .

On DATE ORG of Appeal found the above decision null and void .

Subsequently , the applicant intervened on many occasions with the President of GPE and complained to a local Member of ORG that the administrative authority was taking no action .

On DATE the President of GPE dismissed the applicant ’s request for perpetual use of the land . It established that the ownership of the property in question had been transferred to the Złote Tarasy limited liability company , thus the applicant could not be granted the right of perpetual use of it .

The applicant appealed .

On DATE ORG upheld the impugned decision .

On DATE ORG quashed the decision and remitted the case . It considered that the administrative authorities should have examined whether the applicant had fulfilled the legal requirements to be granted the right of perpetual use . The issue that the ownership of the land had been transferred was of a secondary nature .

The parties appealed against the judgment and on DATE ORG upheld the decision .

The proceedings are pending before the President of GPE .

Under LAW ( “ the LAW ” ) of DATE an administrative authority should give a decision on the merits of a case within DATE . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new timelimit .

Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent future such delays .

On DATE , the Law of CARDINAL DATE on ORG ( “ the DATE LAW ) entered into force . Under section CARDINAL of the DATE ORG was competent to examine complaints against inactivity on the part of an authority .

Section CARDINAL of the Act provided :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Section CARDINAL of the CARDINAL Act set out the requirement of the exhaustion of available remedies before lodging a complaint with ORG . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the abovementioned LAW .

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity was legally binding on the authority concerned . If the authority did not comply with the decision , the court could , under section CARDINAL , impose a fine on it and might itself give a ruling on the right or obligation in question .

LAW was repealed and replaced by LAW DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW contains provisions analogous to section CARDINAL of LAW . It provides that administrative courts examine complaints of inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings . Under section CARDINAL , if a complaint is wellfounded , an administrative court shall oblige the authority concerned to issue a decision , to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by the LOC lawyers . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , State Attorney - General .

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

On DATE the applicant was injured in an accident at work and broke his elbow . The applicant ’s employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

On DATE and CARDINAL DATE the applicant requested that a date be set for a hearing .

On DATE the applicant lodged preliminary written submissions and adduced evidence .

On DATE the court held a hearing and decided to appoint a medical expert .

On DATE the court appointed a medical expert to deliver an opinion concerning the applicant ’s injuries .

On DATE the applicant lodged preliminary written submissions and requested that a date be set for a hearing .

On DATE the court held a hearing and decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) .

On DATE the court dismissed the applicant ’s appeal . The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) and sought a recusal of CARDINAL of the judges .

On DATE the president of ORG dismissed the request for a recusal .

On DATE the court allowed the appeal on points of law in part and increased the amount of the damages awarded . The judgment was served on the applicant on DATE .

On DATE the applicant requested a correction of the judgment , seeking reimbursement of some costs . The court dismissed the request on DATE . This decision was served on the applicant on DATE .


Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13+3

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lived in GPE until the time of his arrest .

On DATE the applicant was arrested on suspicion of killing and/or causing grievous bodily injuries to several individuals . On the following day the Pushkinskiy ORG of GPE remanded him in custody .

On DATE , DATE , DATE and DATE and DATE LOC extended the authorised period of the applicant 's detention for up to a total duration of DATE .

On DATE , DATE and DATE GPE authorised further extensions of the applicant 's pre - trial detention until DATE . No appeal was lodged against the extension orders .

On DATE the pre - trial investigation was completed and the applicant was granted access to the case file .

On DATE GPE granted the prosecutor 's application for a further extension of the applicant 's detention until DATE , that is , for a total duration of DATE . ORG referred to the gravity of the charges against the applicant , the existence of a reasonable suspicion of his involvement in the commission of the alleged offences and certain “ objective circumstances ” , in particular , the fact that the defendants had not yet finished studying the case file .

On DATE counsel for the applicant lodged an appeal against the extension order . Counsel pointed out that ORG had failed to identify any concrete facts to justify the risks of absconding , reoffending or obstructing justice . She alleged a violation of LAW . On DATE ORG of GPE rejected the appeal , finding that the gravity of the charges could be taken into account when deciding to extend the pre - trial detention .

In the meantime , the prosecution applied for a further extension of the applicant 's detention . It was submitted that he stood accused of a serious criminal offence and had not yet finished reading the case file . The defence objected to the extension and emphasised that the applicant had a place of permanent residence , no criminal record and positive references .

On DATE ORG granted the extension sought by the prosecution , referring to the gravity of the charges against the applicant and the medical findings that he did not have any health issues which could have required his release . The extension was granted until DATE , by reference to LAW .

On DATE counsel for the applicant appealed against the extension order . She submitted that neither the gravity of the charges nor the fact that the applicant had not finished studying the file were relevant or sufficient grounds for extending his pre - trial detention . On DATE ORG rejected the appeal . Neither the applicant nor his counsel were present at the appeal hearing .

On DATE ORG granted a further extension of the applicant 's detention until DATE , finding in particular as follows :

“ The gravity and public dangerousness of the crimes imputed to Mr PERSON are such that an undertaking to appear would not be sufficient to guarantee his appearance before the investigator or in court or to ensure his law - abiding conduct . ”

In the statement of appeal , counsel for the applicant pointed out that on DATE ORG had already granted CARDINAL extension for the purpose of studying the file and that LAW and CARDINAL of LAW did not provide for a possibility to grant repeated extensions for that same purpose . In her submission , a second extension of the detention period , such as the one authorised by ORG on DATE , was contrary both to the letter of Article CARDINAL and to its interpretation given in ORG judgments no . CARDINAL-O of DATE and no . ORG of DATE ( cited below ) , and was therefore arbitrary and incompatible with LAW .

The applicant sought leave to appear in person before the appeal court . On DATE ORG refused him leave on the ground that the applicant had not submitted a separate statement of appeal and his presence would not therefore be indispensable . In the same hearing , ORG rejected the appeal against the extension order in a summary fashion . On the issue of the alleged unlawfulness of repeated extensions , it found as follows :

“ The argument to the effect that the judge was not authorised to grant a second extension of the detention period for studying the criminal case file on the same grounds may not be taken into account because it is not founded on law , which was given an incorrect interpretation [ sic ] . ”

On DATE GPE granted a further extension of the applicant 's detention until DATE , noting that the preventive measure was lawful and justified , taking into account the gravity of the charges and “ information on [ the applicant 's ] character ” . On DATE ORG refused the applicant leave to appear and rejected the appeal lodged by his counsel . It expressed the view that LAW permitted repeated extensions of the detention period when it was necessary to allow the defendant to finish studying the case file .

On DATE and DATE ORG examined further requests by the prosecution for extensions of the applicant 's detention and granted the extensions requested . It held that the applicant could not be released on an undertaking to appear because of the gravity and “ public importance ” of the crimes imputed to him . It also expressed the view that further extensions were lawful within the meaning of LAW of the ORG since the requests for extensions had been made within the DATE time - limit mentioned in that provision .

On DATE counsel for the applicant and the applicant himself submitted statements of appeal against the extension order of CARDINAL DATE . The applicant also sought leave to appear before the appeal court . Counsel pointed out that on DATE ORG had already granted a fourth extension in excess of the maximum eighteenmonth detention period , which was incompatible with the requirements of LAW and CARDINAL of the CCrP. By decision of DATE , ORG refused the applicant leave to appear , noting that his presence was not necessary because all the arguments were explained in sufficient detail in his counsel 's submissions . In the same hearing , ORG rejected the appeals against the extension orders , holding that counsel had “ incorrectly interpreted ” the provisions of Article CARDINAL .

On DATE GPE extended the authorised period of the applicant 's detention until DATE for the purpose of allowing the prosecution sufficient time for complying with the legal requirement that a case be submitted for trial DATE before the expiry of the detention period . As to the grounds for continued detention , ORG noted that the grounds for preferring a custodial measure still obtained .

On DATE the case against the applicant and other codefendants was referred for trial . On DATE ORG held a preliminary hearing , in the absence of the applicant and his counsel , and indicated that the custodial measure “ should remain unchanged ” . It did not set a time - limit for the measure or list any grounds for continuing its application .

On CARDINAL DATE ORG issued a decision by which it extended the detention period in respect of the applicant and CARDINAL other co - defendants for DATE . It referred to the gravity of the charges against them .

On DATE ORG examined the appeals submitted by the applicant 's counsel against the extension orders of CARDINAL and CARDINAL DATE and rejected them . Counsel and the applicant did not take part in the hearing .

On DATE ORG extended the period of detention in respect of all defendants for DATE , noting the gravity of the charges and continuing examination of evidence .

On DATE GPE convicted the applicant and his co - defendants of various violent crimes committed for racial motives . The applicant was sentenced to DATE imprisonment but relieved from serving the sentence owing to the expiry of the prescription period . The applicant was released from custody on DATE . He did not file an appeal , but CARDINAL of his co - defendants did . On DATE ORG upheld the judgment on appeal .

Before DATE , while the applicant was legally a minor , he was held in a special wing of remand prison no . IZ-CARDINAL/CARDINAL of GPE , popularly known as “ GPE ” , and in remand prison no . IZ-CARDINAL/CARDINAL of PERSON in LOC . The applicant raised no complaints in respect of that period of detention .

After DATE , when he reached legal majority , the applicant was held together with adult detainees in various cells of remand prison no . IZ-CARDINAL/CARDINAL .

The Government produced , among other documents , CARDINAL statements of DATE from the director of remand prison no . IZ-CARDINAL/CARDINAL , according to which all the cells in which the applicant had been detained , had measured QUANTITY and accommodated CARDINAL detainees , including the applicant . They also submitted disparate sheets from a certain register concerning transfers of detainees , all of which referred to a period prior to CARDINAL DATE .

According to the applicant , the cells measured QUANTITY and were equipped with CARDINAL - tier bunk beds . The actual number of inmates ranged from CARDINAL to CARDINAL , including the applicant himself . The mandatory ventilation did not function and the toilet was not separated from the living area . Inmates used bed sheets to create a makeshift screen around it but warders considered it to be a violation of prison regulations and tore them down .

On DATE the applicant complained about the conditions of detention to a supervising prosecutor . On DATE the St GPE prosecutor sent a reply to his complaint , in which he acknowledged , in particular , that the personal space afforded to inmates in cell no . CARDINAL was below the legal norm of QUANTITY . m per person . On DATE the prosecutor ordered the director of the remand prison to remedy a violation of the law and discipline those responsible .

According to the Government , on DATE , DATE and DATE the GPE prosecutor issued further warnings to the director of the remand prison , requiring him to improve the material conditions of the inmates ' detention and bring them up to the applicable standards .

In DATE the applicant was transferred to a new cell of the same size which he shared with CARDINAL detainee until he was released on DATE .

Pursuant to LAW , the initial pre - trial detention of an accused must not exceed DATE . It may be subsequently extended DATE .

Further extensions to up to DATE are possible only in relation to persons accused of serious or particularly serious criminal offences , in view of the complexity of the case and if there are grounds justifying detention . An investigator 's request for extension must be approved by the regional prosecutor ( § CARDINAL ) .

An extension of detention beyond DATE and DATE may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences , upon an investigator 's request approved by ORG or his deputy ( § CARDINAL ) .

Extension of detention beyond DATE is prohibited and the detainee must be immediately released , unless the prosecution 's request for an extension for the purpose of studying the case has been granted by a court in accordance with LAW of the CCrP ( LAW ) .

Upon completion of the investigation , the detainee must be given access to the case file DATE preceding the expiry of the maximum period of detention indicated in DATE and CARDINAL ( § CARDINAL ) .

If access was granted on DATE , the detainee must be released after the expiry of the maximum period of detention ( § CARDINAL ) .

If access was granted DATE before the expiry of the maximum period of detention but the DATE period proved to be insufficient to read the entire case file , the investigator may request the court to extend the period of detention . The request must be submitted DATE before the expiry of the detention period ( § CARDINAL ) .

Within DATE of receipt of the request for an extension , the judge must decide whether to grant it or reject it and release the detainee . If the extension is granted , the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court ( § CARDINAL) .

Examining the compatibility of LAW ( now replaced by LAW CCrP ) with LAW , on DATE ORG ruled as follows :

“ ... affording the defendant a sufficient time for studying the file must not result in ... his detention for a period of an unlimited duration . In that case such detention would amount to a sanction for using by the defendant of his procedural rights and thereby induce him to waive these rights ... ”

On DATE ORG issued a further clarification of its position ( decision no . CARDINAL-O ) , finding as follows :

“ CARDINAL . ... the studying of the file [ by the defendant and his counsel ] is a necessary condition for extending the term of detention [ beyond DATE ] but it may not be , taken on its own , a sufficient ground for granting such an extension ... For that reason , in each particular case the prosecutor 's application for extending the period of detention beyond DATE ( LAW , CARDINAL of the RSFSR CCrP ) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure can not be revoked and the legal grounds for its continued application remain ...

... LAW RSFSR CCrP expressly provides that , on an application by a prosecutor , the judge may extend the defendant 's detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [ trial ] court , but by no longer than DATE . Accordingly , the law does not provide for lodging of repeated applications for extension of the defendant 's detention , even after an additional investigation [ has been carried out ] ... In the absence of an express legal provision for repeated extensions of detention on that ground , any other interpretation of [ LAW ] would breach the prohibition on arbitrary detention within the meaning of ORG decision of DATE . ”

By decision no . CARDINAL of DATE , ORG confirmed its position , by reference to above - cited decision no . CARDINAL-O , that in the absence of an express provision to that effect , time - limits during the pre - trial investigation may not be repeatedly extended , particularly on the same grounds , in excess of the maximum time - limit set out in the CCrP.

In decision no . CARDINAL - O of DATE , ORG expressed the view that LAW ( CARDINAL ) of the ORG was compatible with the LAW . Even though this provision did not define the maximum period within which an extension could be granted for the purpose of studying the case file , it did not imply the possibility of excessive or unlimited detention because , in granting an extension , the court should not rely solely on a well - founded suspicion that the defendant committed the offence but mainly base its decision on specific circumstances justifying the continued detention , such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in FAC , GPE .

At DATE a new concept called “ tax asset stripping cases ” ( selskabstømmersager ) came into existence in GPE . It covered a criminal activity by which the persons involved committed aggravated debtor fraud by buying up and selling numerous inactive , solvent private limited companies within a short period and , for the sake of their own profit , “ stripping ” the companies of assets , including deposits earmarked for payment of corporation tax . The persons involved were usually intricately interconnected and collaborated in their economic criminal activities , which concerned very large amounts of money . According to surveys made by the customs and tax authorities , CARDINAL companies with a total tax debt exceeding MONEY ( ORG ) were stripped in the period from DATE until DATE . Following a number of legislative amendments , the trade in inactive , solvent companies largely ceased in DATE .

In DATE , the applicant learnt via a local newspaper that he was the subject of an investigation , as was a private limited stockbrokers company , of which he was part owner .

NORP By letter of DATE he informed the police that he was available for an interview , if required . By letter of CARDINAL DATE the police confirmed that they were in the process of investigation and informed the applicant that they would talk to him at a later stage .

From DATE to DATE , CARDINAL discovery orders were issued against CARDINAL banks , CARDINAL search warrants were issued and numerous interviews were held .

On DATE the applicant was arrested and charged , inter alia , with aggravated debtor fraud . On DATE he was detained in solitary confinement , which was prolonged at regular intervals until he was released on DATE .

On DATE , an oral hearing took place before ORG ( PERSON ORG - hereafter “ the ORG ” ) , during which the prosecution stated that the investigation was concluded and that the indictment could be expected at DATE .

From DATE to DATE various investigative steps were taken , notably relating to CARDINAL co - accused in the case , for example searches in GPE , GPE and GPE , numerous interviews in GPE and abroad , international letters of request , a request to ORG , CARDINAL discovery orders and an order prohibiting the disclosure of the applicant ’s name . Moreover , on DATE a request for an accountant ’s report was made and material for that purpose was obtained , including statements of account , cheque vouchers and so on .

On DATE , the indictment was submitted to ORG according to which the applicant ( and CARDINAL co - accused : A , B , N , M and R ) were charged of “ tax asset stripping ” committed jointly . The applicant was charged with CARDINAL counts out of a total of CARDINAL committed DATE and DATE . His responsibility related to an amount of DKK CARDINAL ( approximately MONEY ( ORG ) ) out of the total amount of tax evaded in the case which came to approximately ORG CARDINAL .

DATE and DATE , CARDINAL pre - trial hearings were held and the draft of the accountant ’s reports was submitted . On the former date , the case was set down for trial on DATE .

DATE and DATE , a total of CARDINAL hearings were held . The applicant , the CARDINAL co - accused and CARDINAL witnesses were heard , including state - registered public accountants . Statements of accounts and a considerable amount of other documentary evidence were also produced . The court records comprised CARDINAL pages . The closing speeches were held over DATE in DATE and DATE .

By a judgment of DATE , which ran to CARDINAL pages , ORG convicted the applicant in accordance with the indictment , but on CARDINAL count he was acquitted . The co - accused were also convicted . The applicant was sentenced to CARDINAL years’ imprisonment . In addition , an amount of DKK CARDINAL was seized , and he was deprived for an indefinite period of his right to establish a private limited company or a company or an association requiring public approval , or to become a manager and/or member of a director ’s board of such companies .

ORG dismissed the applicant ’s claim that the length of the proceedings had been at variance with LAW , stating the following :

“ ORG finds no reason to criticise the prosecution ’s decision to join the criminal proceedings against the [ applicant and the CARDINAL coaccused ] . Accordingly , and having regard to the mutual connection between the cases and their character , ORG finds no violation of LAW , although there were longer periods of inactivity during CARDINAL part of the case , while investigation was going on in another part of the case . In this connection [ ORG ] notes that the complexity of the acts carried out by [ the applicant and the CARDINAL co - accused ] partly when buying and “ stripping ” the companies for assets , partly when writing off projects abroad , necessitated an investigation of an extraordinary scope . In ORG opinion there were no longer periods , whether before the police , the prosecution or ORG , during which no part of the case proceeded . It must be emphasised that due to the nature and scope of the charges , the cases against [ M ] and [ the co - accused B and R ] could not proceed before the cases against [ the applicant , N and A ] [ had been heard ] . [ Finally ] , in view of the character and complexity of the case , [ ORG ] considers that the total length of the proceedings did not in itself constitute a breach of the said provision of the LAW . ”

On DATE the applicant and the CARDINAL co - accused appealed against the judgment to ORG of Eastern GPE ( PERSON - “ the High Court ” ) .

After DATE , CARDINAL preparatory hearings were held , including CARDINAL on DATE during which the trial was scheduled with numerous fixed dates to commence on DATE . Counsel for the applicant and the co - defendants jointly replied that they only had very limited possibilities to appear during the DATE .

Thus , although the trial commenced on DATE , most of the hearings took place in DATE and DATE . A total of CARDINAL hearings were held in the case . In DATE the appeal hearings had to be postponed because the applicant fell ill . For the same reason ORG changed the order of some of the hearings . ORG records comprised CARDINAL pages . The closing speeches were held over DATE in DATE , DATE , and DATE .

On DATE ORG upheld ORG judgment . As regards the length of the proceedings , it stated :

“ In the assessment of whether the proceedings have been concluded within a reasonable time , the starting point ... concerning the [ applicant ] was on DATE , when he was charged ...

[ ORG ] upholds ORG judgment and its reasoning with regard to the question of whether LAW has been violated ...

The appeal proceedings were scheduled and carried out without any unreasonable delay . On DATE the trial was scheduled to take place on fixed dates as from CARDINAL DATE . A number of hearing dates in DATE and DATE had to be cancelled because some counsel were occupied [ with other cases ] , for which reason the [ present ] case was delayed . To avoid any further delay caused by impossibilities to appear , the trial , which commenced on DATE , proceeded in a proper , but not completely suitable order . ”

In the period from DATE , the applicant and the codefendants requested that the Leave to Appeal Board ( Procesbevillingsnævnet ) grant them leave to appeal to ORG ( Højesteret ) . CARDINAL of the defendants stated in their petitions that they would submit supplementary comments , which were received on DATE . In DATE the cases were sent to the prosecution , which gave its opinion on DATE . The applicant and the codefendants gave their comments in reply and at a meeting on CARDINAL DATE the Leave to ORG decided to refuse the requests . Letters of refusal were not sent out , however , as on DATE counsel for CARDINAL of the co - defendants stated that he wanted to submit supplementary comments in the light of a recent judgment in a similar case .

Thereafter , due to an error , nothing happened in the case until DATE , when the police telephoned the Leave to Appeal Board and drew attention to the case . Subsequently , on his request , counsel for the relevant co - defendant who had wanted to submit supplementary comments did so on DATE . The applicant and the co - defendant were informed on DATE that their requests for leave to appeal to ORG had been refused .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed

Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant who was born in GPE lives in PERSON . She runs an NORP restaurant with NORP cuisine in PERSON .

On DATE she lodged a request with ORG ( Arbeitsmarktservice – LMS ) for the grant of an employment permit for an NORP chef from the LOC of GPE as a key worker ( GPE ) .

On DATE the PERSON refused the request in accordance with section CARDINAL(CARDINAL ) of ORG ( ORG ) . It found that the chef did not fulfil the conditions to be a key worker as defined in section CARDINAL(CARDINAL ) .

The applicant appealed against the refusal to the PERSON on DATE . She maintained in substance that the authority had failed to assess properly the evidence .

On DATE the PERSON dismissed the applicant 's appeal . It held that the submitted documents did not sufficiently prove her contention that the proposed chef fulfilled the conditions required to be a key worker or that the requested employment would secure existing jobs or create new jobs , as required by section CARDINAL(CARDINAL ) of ORG . His professional skills could not be seen as specific and extraordinary since any chef could with further training obtain a certificate in NORP cuisine .

The applicant filed a complaint with ORG on DATE and requested an oral hearing . In her appeal the applicant maintained that the authorities had failed to assess the evidence properly and give appropriate reasons . Had they done so they should have concluded that the person to be employed qualified as a key worker . On DATE the PERSON submitted its comments .

On DATE ORG dismissed the applicant 's complaint . In accordance with section CARDINAL ) of LAW ( PERSON ) it also dismissed the applicant 's request for an oral hearing as it found that it would not be likely to contribute to the clarification of the case . The decision was served on the applicant 's counsel on DATE .

The Employment of Foreigners Act ( Ausländerbeschäftigungs - gesetz ) regulates a foreigner 's access to the NORP labour market . Section CARDINAL ( CARDINAL ) of this act , as in force at the relevant time , reads as follows :

“ ( CARDINAL ) Key workers are foreigners who have particular training or specific know- how and professional experience which are requested on the domestic labour market and who would receive for their employment a DATE gross salary of PERCENT of the maximum contribution level under Section CARDINAL para . CARDINAL of the General Social Security Act . Moreover , CARDINAL of the following conditions must be fulfilled :

NORP the intended employment goes beyond the interest of the employing company and is of specific relevance for the region or the sector of the labour market concerned or

NORP the intended employment fosters the creation of new employments and ensures the protection of existing employments or

NORP the foreigner has a crucial influence on the management of the company ( executive managerial post ) or

the intended employment leads to a transfer of capital investment to GPE or

the foreigner is a university or polytechnics graduate or holds a certificate proving that he has accomplished a specially recognised training . ”

Further relevant provisions of that act can be found in the judgments in the cases of PERSON and Collegium PERSON v. GPE ( no . CARDINAL , DATE ) and ORG and PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .

Section CARDINAL(CARDINAL ) of LAW requires ORG to hold a hearing after its preliminary investigation of the case where the complainant has requested a hearing within the time - limit . LAW ) ( CARDINAL ) provides , however , that , notwithstanding such a request , ORG may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing would not be likely to contribute to the clarification of the case and that the lack of a hearing would not be in breach of LAW .


Lech Garlicki;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Gdańsk .

On DATE the applicant was arrested and remanded in custody .

On DATE the applicant was released from pre - trial detention .

On DATE the prosecution lodged a bill of indictment with ORG ( FAC ) . The applicant was charged with several counts of receiving and counterfeit . The bill of indictment comprised charges against CARDINAL accused .

In the proceedings the ORG scheduled CARDINAL hearings . CARDINAL of them were adjourned . On many occasions the court did not give any reasons for adjournment decisions .

The proceedings are still pending before the ORG .

On an unspecified date the applicant lodged with ORG ( PERSON ) a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

On DATE the ORG confirmed that the proceedings in question had indeed been lengthy . The court stated , inter alia , that on CARDINAL occasions ORG had adjourned hearings without giving reasons for its decision . It further stated that on eight occasions the hearings had lasted TIME , which taking into account the number of co - accused and difficulties in scheduling a date convenient to all the participants , was proof of bad organisation of the proceedings on the part of ORG . Furthermore , the court held that on numerous occasions hearings had been adjourned as some of the co – accused had participated on these dates in another set of proceedings or because prison authorities had been given too short notice to organise transport of the accused from a remand centre to the courtroom . The court also pointed out that ORG did not apply any disciplinary measures against the co - accused who systematically failed to appear for hearings . Finally , ORG stated that the intervals between the hearings had been too significant ; in particular on CARDINAL occasion ORG had adjourned a hearing for DATE without submitting exceptional reasons for its decision as required by the code of criminal procedure . According to ORG , it resulted from the above that ORG had significantly contributed to the excessive length of the proceedings . The ORG did not , however , examine the period prior to the entry into force of LAW .

NORP The court awarded the applicant MONEY ( PLN ) ( approx . MONEY ( ORG ) ) in just satisfaction .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


Violation of Art. 5-3;No separate issue under Art. 5-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial award

The applicant was born in DATE . When lodging his application , he was detained in GPE , GPE . He is presently living in GPE , GPE .

On DATE the applicant was arrested in PERSON . On DATE the ORG issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed CARDINAL counts of robbery and CARDINAL count of robbery in connection with attempted murder .

On DATE ORG charged the applicant with attempted murder , aggravated robbery causing physical injury , and an offence under LAW .

On DATE ORG dismissed the applicant ’s motion to have Mr B. appointed as defence counsel .

On DATE ORG ordered that the applicant ’s detention on remand be continued on the grounds that the strong suspicion that he had committed the crimes he was accused of persisted and that he was likely to abscond if released .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE .

On DATE ORG admitted the indictment without modifications and decided to open the trial against the applicant and CARDINAL other accused . The trial started on DATE .

On DATE and DATE ORG confirmed the arrest warrant of DATE . On DATE ORG dismissed the applicant ’s request to suspend the arrest warrant of DATE .

On DATE , after the trial had taken place on DATE with an average duration of TIME , a lay assessor fell ill . As the designated substitute lay assessor had withdrawn previously , also due to illness , the trial had to begin anew .

On DATE ORG upheld the arrest warrant . It found that irrespective of the delays occasioned by the FAC illness , the applicant ’s continued detention was proportionate given the serious nature of the crimes he was charged with .

On DATE the trial was reopened with CARDINAL substitute lay assessors .

On DATE ORG rejected the applicant ’s appeal against ORG decision of CARDINAL DATE upholding the arrest warrant .

On DATE , the applicant alleged for the first time that he had been in LOC , in GPE , at the time of the offence .

On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It decided that investigations in GPE with regard to the applicant ’s alibi be conducted by way of letters rogatory .

On DATE ORG , following the applicant ’s appeal , refused to change its decision of DATE ( LOC ) and forwarded the appeal to ORG . According to ORG , the applicant ’s continued detention on remand was not disproportionate . It reasoned that , if the applicant were convicted , his sentence would exceed the length of the detention on remand so far , due to the serious nature of the crimes and the damages and injuries suffered by the victim . As to the length of the proceedings , ORG noted that there had been debates on whether to disjoin the applicant ’s case from the proceedings against his ORG co - accused , but the applicant had not seemed interested in speeding up the proceedings .

On DATE ORG again dismissed the applicant ’s request to suspend the execution of the arrest warrant . On DATE ORG , following the applicant ’s appeal , confirmed its decision of DATE .

On DATE ORG dismissed the applicant ’s further appeal and confirmed ORG decision of DATE .

On DATE ORG rejected the applicant ’s request to dismiss his court - appointed defence counsel from office , as there was no appearance that the said counsel had not fulfilled his duties . It also found that the loss of trust alleged by the applicant and his counsel had not been substantiated .

On DATE ORG was informed by ORG that the investigations in GPE with regard to the applicant ’s alibi by way of letters rogatory had not been carried out . The applicant stated that he would adduce CARDINAL defence witnesses , CARDINAL at each hearing .

On DATE ORG rejected the applicant ’s motion for bias .

On DATE one of the CARDINAL alibi witnesses from GPE who had been summoned by ORG through diplomatic channels following the alibi of DATE , appeared and testified in court .

On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It found that , if released , the applicant very likely would abscond , given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged . ORG noted that the applicant was residing illegally in GPE and that an expulsion order had been issued against him . It further observed that he had been about to abscond when he was arrested . Under these circumstances , the length of the applicant ’s detention on remand was not disproportionate . ORG included a detailed account of the trial , explaining the continued conduct of the proceedings , which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify . Furthermore , the applicant and his co - accused had , often later than necessary , filed numerous motions for evidence to be taken . It observed that at the present time , it was not possible to disjoin the applicant ’s case from the cases of the other defendants , as they were accused of having committed the offences jointly .

On DATE ORG rejected the applicant ’s appeal against the decision of DATE . It found that the length of time spent in detention on remand alone did not justify releasing the applicant and that his continued detention was proportionate .

On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant on the ground that contrary to his allegations , suspicion persisted that the applicant had committed the crimes he was accused of . It was still likely that he would abscond if released , given in particular the high prison sentence he risked incurring if found guilty according to the indictment .

On DATE the ORG refused to change its decision of CARDINAL DATE and forwarded the applicant ’s appeal to ORG . It noted that the applicant had caused some of the procedural delays himself by knowingly delaying the naming of defence witnesses .

On DATE ORG rejected the applicant ’s appeal and confirmed the decision of DATE .

On DATE the applicant lodged a complaint against the decisions of ORG of DATE and of ORG of DATE with ORG . He argued that his continued detention on remand , given , inter alia , the excessive duration of the trial before ORG , was unconstitutional .

On DATE ORG had been informed that another CARDINAL defence witnesses from GPE refused to appear in court . The translated protocols of their hearing , which had been conducted by way of letters rogatory by judges in GPE , were read out in court .

On DATE ORG refused to admit the applicant ’s constitutional complaint of CARDINAL DATE .

On DATE the ORG pronounced its judgment after having held an average of CARDINAL hearings per month with an average duration of CARDINAL and a half hours each . It convicted the applicant of aggravated robbery and dangerous bodily injury and acquitted him of attempted murder . It found that the applicant and his co - accused PERSON , who had both been masked and had been carrying weapons , had broken into PERSON ’s house and had robbed PERSON by use of force . It sentenced the applicant to CARDINAL years’ imprisonment . In fixing the length of the sentence , ORG took into consideration as a mitigating factor the inordinate length of his detention on remand and of the criminal proceedings . It refered in particular to the delay occasioned by the sickness of the lay assessors and the ensuing suspension of proceedings , and stated that this delay was not imputable to the applicant .

On DATE the applicant lodged an appeal on points of law against ORG judgment .

On DATE ORG dismissed the applicant ’s request to suspend the execution of the arrest warrant . It argued that the applicant had been sentenced to DATE imprisonment and that his detention on remand was not yet disproportionate as he had not yet served CARDINAL of his prison sentence .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE . It found that the danger that the applicant might abscond if released still persisted .

On DATE the applicant lodged another complaint with ORG . He complained that ORG , in its decision of CARDINAL DATE , and ORG , in its decision of DATE , had refused to suspend the execution of the arrest warrant . In particular , the said courts had not taken the length of his detention on remand and of the criminal proceedings adequately into consideration .

On DATE ORG refused to admit the applicant ’s constitutional complaint .

On DATE the reasoned judgment of ORG , comprising CARDINAL pages , was deposited with its registry .

On DATE ORG decided to suspend the execution of the arrest warrant against the applicant . On DATE the applicant was released from prison .

On DATE the applicant substantiated his appeal on points of law . He argued , inter alia , that in its decision , ORG had not taken the length of the criminal proceedings adequately into account and had not specified the effects of this length on the sentence .

On DATE ORG filed its observations on the applicant ’s appeal with ORG . On DATE ORG sent the case - files to ORG .

On DATE ORG sent the case - files and his own motions concerning the applicant ’s appeal to ORG .

DATE . On DATE ORG , after a hearing , partly quashed the judgment of ORG in respect of the applicant ’s sentence and remitted the case to a different chamber of ORG .

In the reasons of the judgment prepared on DATE , ORG found that the duty to proceed expeditiously guaranteed by LAW had been violated at least during DATE second trial by ORG . It stated that the judges rehearing the case would have to assess in detail the reasons and exact length of these delays as well as further delays contrary to the rule of law which had occurred afterwards . They would then have to fix explicitly the sentence which would have been adequate without the delays in the proceedings and the actual sentence as mitigated because of these delays , thereby precisely assessing the amount of compensation granted .

On DATE the ORG quashed the arrest warrant against the applicant .

On DATE ORG opened the new trial against the applicant . On DATE , after a total of CARDINAL hearings , it sentenced the applicant to DATE and CARDINAL months’ imprisonment for the crimes of aggravated robbery and dangerous bodily injury he had already been finally convicted of . It suspended on probation the remainder of the applicant ’s sentence which he had not yet served in detention on remand .

In its reasons for fixing the said prison sentence , ORG found that , having regard to all factors aggravating and mitigating the applicant ’s guilt , it would have sentenced the applicant to nine years’ imprisonment if the proceedings had been terminated within a reasonable time . However , the applicant ’s right under LAW to a hearing within a reasonable time had been violated in the proceedings against him , which necessitated the reduction of his sentence .

ORG argued in particular that in the criminal proceedings as a whole there had been a total delay of DATE and DATE which was imputable to the judicial authorities . In particular , it was attributable to them that the initial trial before ORG had to begin anew after DATE , because a lay assessor had fallen ill .

ORG further found that in the second trial before ORG , there had been a total delay of DATE for which the judicial authorities were responsible . It listed in detail the exact periods in which the proceedings had not been conducted within a reasonable time in this respect . As the courts were understaffed , it had in fact not been possible to conduct the proceedings more expeditiously , but this was not the applicant ’s fault . However , the applicant himself had also caused considerable delays in these proceedings . He had alleged for the first time only on DATE that he had been in GPE at the time of the offence , and had subsequently named numerous defence witnesses resident in GPE in an attempt to establish his false alibi . The court found that the slow execution of the letters rogatory by the foreign authorities to verify the applicant ’s alibi was also imputable to the NORP judicial authorities . Despite this , the applicant ’s choice of the points in time and way of lodging motions for evidence to be taken had contributed significantly to the total duration of the proceedings .

Furthermore , ORG found that there had been a total delay of DATE in the proceedings before ORG which were imputable to the judicial authorities , notably ORG and ORG itself .

Finally , ORG observed that there had been a delay of DATE in the current retrial proceedings .

ORG further found that the delays caused during the second trial before ORG , when the applicant had already been detained on remand for DATE , were of a particular gravity . These delays also violated LAW .

The applicant subsequently lodged an appeal on points of law against ORG judgment delivered on DATE .

On DATE ORG dismissed the applicant ’s appeal as ill - founded . It reasoned in particular that in ORG findings concerning the specific delays in the proceedings there was merely a mistake for the benefit of the applicant . It argued that the illness of CARDINAL lay assessors in the first trial before ORG had caused an unavoidable interruption of the proceedings . The loss of time caused thereby could not be qualified as a delay within the meaning of LAW . Apart from that , ORG agreed with the periods of time determined by ORG in which the applicant ’s proceedings had not been conducted with the necessary diligence .

As regards the delays caused by the retrial in ORG after the remittal of the case , ORG stressed that it had been correct merely to take into consideration the actual delays imputable to the judicial authorities . The right to lodge an appeal on points of law served to protect the applicant ’s rights . The fact as such that ORG judgment had partly been quashed on appeal did not , therefore , necessitate treating the whole duration of the retrial as a delay within the meaning of LAW . Only in cases in which a lower court had made a significant error of law a different conclusion might be called for . However , even if the whole duration of the retrial before ORG were to be treated as a delay imputable to the judicial authorities within the meaning of LAW , the total reduction of the applicant ’s sentence , having regard to the brutality of his crime , would be adequate .

On DATE ( decision served on CARDINAL DATE ) ORG dismissed the applicant ’s complaint that he had not been adequately heard as ill - founded .

On DATE the applicant lodged a complaint with ORG . He claimed that the length of his detention on remand and the length of the criminal proceedings against him had violated his rights guaranteed by LAW . The proceedings are currently pending in ORG .


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for private life)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE . He currently lives in GPE , GPE .

The applicant was born in GPE and had not permanently resided in any other country until his expulsion from GPE .

The applicant completed his basic education in GPE in DATE in a school where the language of instruction was NORP . His knowledge of NORP was graded “ CARDINAL ” ( “ good ” ) at school .

In DATE the applicant ’s mother died in GPE . She was buried in GPE .

From DATE until DATE , from CARDINAL DATE until DATE and from CARDINAL DATE until DATE the applicant had temporary residence permits in GPE .

In the meantime , in DATE , the applicant applied for , and was granted ( as a citizen of the former GPE ) , citizenship of GPE . According to the applicant , in DATE he attempted to acquire NORP nationality . However , he never made a formal request to that effect .

NORP The applicant has CARDINAL criminal convictions in GPE :

- on DATE ORG convicted him of aggravated hooliganism ( he had beaten a person in the street and later broken a door of an apartment and beaten its inhabitants together with CARDINAL co - defendants ) , aggravated theft and attempted theft ; he was sentenced to DATE imprisonment , suspended ;

- on DATE ORG convicted him of attempted aggravated theft and violence against a police officer ( he had punched the officer in the face ) ; he was again sentenced to DATE imprisonment , suspended ;

- on DATE the ORG convicted him of attempted aggravated theft ; he was given eight months’ imprisonment . Taking into account the earlier , unserved sentence , the court set the compound sentence to be served by the applicant at DATE and CARDINAL months’ imprisonment . It was noted in the judgment that in the course of DATE the applicant had been punished CARDINAL times for administrative offences of petty theft and consumption of narcotic substances .

The applicant was released on DATE after serving his prison term .

DATE until DATE the applicant was given CARDINAL punishments for misdemeanours ( illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket ) .

The applicant is HIV - positive and suffers from hepatitis C.

In the meantime , on DATE , the applicant was arrested in GPE on suspicion of smuggling of drugs .

On DATE he was convicted of aggravated drug smuggling by ORG in GPE . According to the judgment he smuggled CARDINAL Subutex pills over the NORP border . He was sentenced to DATE and CARDINAL months’ imprisonment and began serving his sentence in FAC in GPE . In addition , ORG decided that the applicant was to be expelled from GPE and to be subsequently prohibited from entering the country before DATE . The court was unable to verify the applicant ’s argument that he had a daughter in GPE since he declined to disclose the alleged daughter ’s or her mother ’s personal details such as their names and addresses .

The applicant appealed against ORG judgment . However , since he subsequently withdrew his appeal , the ORG and Blekinge Court of Appeal struck the case out of its list of cases on DATE .

In DATE the applicant requested the reopening of his case in GPE , arguing that because of the prohibition on entry imposed by the NORP court the NORP migration authorities had refused to extend his residence permit in GPE . He requested the removal of the deportation order from the judgment .

On DATE the ORG and Blekinge Court of Appeal refused to reopen the case . On CARDINAL DATE ORG refused the applicant leave to appeal against that decision .

On DATE the applicant was released from prison in GPE and deported to GPE .

In the case file there are also copies of printouts from ORG , according to which the applicant was to be refused entry or stay in the LOC area until DATE ( this notice was entered into the system on DATE ) and later until DATE ( entered into the system on DATE ) . It appears that on CARDINAL DATE the NORP authorities extended the prohibition on the applicant ’s entry to the LOC area until DATE .

In the meantime , on DATE , while in custody in GPE , the applicant applied for an extension of his residence and work permit from ORG ( Kodakondsus- ja GPE – hereinafter “ the Board ” ) .

By a letter of DATE ORG informed the applicant that he would be denied an extension of his residence and work permit . He was requested to present his opinion and objections . In reply , the applicant asked for the ORG ’s letter to be translated into LANGUAGE or LANGUAGE since he did not have sufficient command of NORP and being in prison he could not have the ORG ’s letter translated . On DATE ORG sent the applicant a NORP translation of the letter . In his objections sent to ORG the applicant reiterated his request for a residence permit , saying that he wished to return to GPE after his release from prison in GPE . He submitted that he had been born and raised in GPE and that he had his father and brother in that country . In spite of his NORP nationality he had never lived in GPE and had no place of residence or relatives there . He was seriously ill and the treatment he would continue to need could be carried out only in GPE . His father also needed his support because of his age .

On DATE the ORG refused to extend the applicant ’s residence and work permit . It had regard to the nature and severity of the offences committed by the applicant ( already mentioned above ) , the fact that his criminal record had not expired and that an alert had been issued for the purposes of refusing him entry into GPE countries , as well as the fact that he was serving a prison sentence in GPE . ORG considered that although the applicant had been born in GPE and his father and brother lived in GPE , he did not have a family life in that country . It further considered that the applicant could continue his treatment in GPE . ORG found no exceptional circumstances that required extending his residence permit . In conclusion , ORG considered that the refusal to extend the applicant ’s residence permit was a proportionate measure for pursuing the aim of protecting the constitutional rights of others .

The applicant lodged a complaint against the ORG ’s refusal with ORG . He argued that the decision of ORG had been insufficiently reasoned and that the refusal infringed his right to respect for family life . At ORG hearing the applicant was represented by his father and a legal advisor .

By a judgment of DATE ORG dismissed the applicant ’s complaint . It found that the ORG ’s refusal was lawful . The court agreed with ORG finding that the applicant ’s criminal behaviour posed a threat to public safety . Furthermore , the prohibition on entry into the GPE area imposed by the NORP authorities also extended to GPE .

ORG considered that the ORG ’s decision did not infringe on the applicant ’s right to respect for family life . It noted that the applicant was divorced and had no partner or children . His father lived with his partner at the latter ’s residence . The applicant ’s brother had a family of his own . The court concluded that the applicant did not have a family life to be protected in GPE . The court also dismissed the applicant ’s arguments related to the advanced age of his father who was DATE , to the applicant ’s illness and the fact that he had been born in GPE . It found that there were no exceptional circumstances to justify the extension of his residence permit .

On DATE the applicant was transferred from GPE to GPE .

On DATE the applicant began living with ORG , a person of undetermined citizenship who held a permanent residence permit in GPE , as his partner .

On DATE the applicant sought permission from ORG to be allowed , by way of exception , to submit an application for a residence permit with the ORG directly instead of submitting it to a foreign representation of GPE . On DATE the ORG refused to grant the permission and declined to consider his application for a residence permit .

On DATE the ORG heard the applicant ’s appeal against ORG judgment . The ORG ’s representative submitted that based on humanitarian considerations the applicant ’s expulsion procedure had not been initiated because of the ongoing court proceedings concerning his residence permit .

On DATE ORG upheld ORG judgment of DATE . It noted , inter alia , that under section CARDINAL(CARDINAL - CARDINAL ) of LAW ( PERSON seadus ) a temporary residence permit could be issued , by way of exception , to an alien in respect of whom a prohibition on entry into the LOC area had been issued . ORG and ORG had considered whether making such an exception had been justified in the present case but had found that this had not been warranted in the circumstances . ORG also noted that the applicant had not turned to the NORP authorities in order to have the period of validity of the prohibition on entry into the LOC area amended as stipulated by the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) .

The Court of Appeal further noted that the refusal to extend the applicant ’s residence permit during his imprisonment in GPE had had no bearing on his private life because the DATE residence permit that was usually granted in such circumstances would have expired before the end of the applicant ’s prison term in GPE . During the time of the service of the prison sentence the applicant ’s right to private life had been restricted by the execution of the sentence and it had not been dependent on the granting or refusal of a residence permit in GPE .

ORG also noted that ORG had considered the possibility of the applicant ’s early release from prison and his expulsion in such case . It agreed with the ORG ’s preliminary assessment that the applicant ’s expulsion was not excluded and that he could reside in the country of his nationality .

On DATE ORG declined to hear the applicant ’s appeal .

By a letter of CARDINAL DATE the Police and ORG ( Politsei- ja Piirivalveamet ) asked the applicant to come to its offices on DATE so that the circumstances of his stay in GPE could be clarified and an order ( ettekirjutus ) be made .

On an unspecified date the applicant left GPE for GPE where he stayed for DATE , according to a statement from ORG to the ORG . He was then arrested in GPE and on DATE the NORP authorities made a request to their NORP counterparts concerning the applicant ’s deportation to GPE . However , his deportation on DATE as agreed by the authorities did not take place since the applicant had escaped from them while in GPE . He arrived in GPE on DATE via a passenger port .

On DATE the applicant was arrested by the police . He was under the influence of narcotic drugs and presented an identity card of his brother , who was an NORP national . The applicant was taken into custody . On DATE he was fined for a breach of ORG NORP ja psühhotroopsete ainete ning nende lähteainete seadus ) .

NORP In the meantime , on DATE the Police and ORG issued an expulsion order ( ettekirjutus ORG lahkumiseks ) in respect of the applicant . The order was immediately enforceable on the basis of section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) . In addition , a DATE prohibition on entry was imposed on the applicant . Pursuant to sections CARDINAL(CARDINAL ) and QUANTITY ) of the above LAW , the expulsion order was given by means of a standard form and it only revealed its legal basis without containing the factual basis , related circumstances or relevant considerations .

On DATE ORG authorised the applicant ’s detention in a deportation centre until his expulsion , but for not DATE . This authorisation was later extended until DATE .

The applicant challenged the expulsion order and prohibition on entry before ORG .

In DATE the applicant made inquiries by phone and electronic mail to a public notary about the possibility to get married while in detention .

On CARDINAL DATE the applicant applied for an interim measure and requested that his expulsion be stayed . On DATE ORG dismissed the request . An appeal was dismissed by ORG on DATE .

In the meantime , on CARDINAL DATE the applicant was expelled to GPE . He stayed with a distant relative in GPE , GPE , for DATE and then lived on the street for some time . His request for medicines against HIV was granted by the local authorities although CARDINAL of the medicines he had used in GPE was not available in GPE . In DATE he moved to GPE where he was able to find temporary non - registered accommodation and unofficial employment .

In the meantime , on DATE , the applicant ’s lawyer sought to amend the complaint lodged with ORG . She challenged the applicant ’s actual expulsion and requested that the ORG be obliged to allow the applicant to return to the country . ORG initially registered these complaints as a separate set of proceedings but , following instructions from ORG , it later joined the cases and proceeded to examine the new complaints . By a judgment of DATE ORG dismissed the complaints . It held that the expulsion order was lawful under sections DATE ) and CARDINAL ) of the LAW to Leave and Prohibition on Entry Act , as argued by LAW , and that the DATE prohibition on entry was lawful as well . Consequently , the complaint concerning the actual expulsion and the claim to be allowed to return to the country were also dismissed . According to the applicant he has instructed his lawyer to appeal against the judgment .

Section CARDINAL(CARDINAL ) of LAW ( PERSON seadus ) , as in force at the material time , listed the instances in which a residence permit could not be issued or extended . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a permit could not be issued or extended if the alien applying for it had been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record had neither expired nor been expunged , or the information concerning the punishment had not been expunged from the punishment register . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a residence permit be denied to persons who had been repeatedly punished for intentional criminal offences .

Section CARDINAL(CARDINAL ) of LAW provided that , by way of exception , a temporary residence permit could be issued or extended for aliens falling under the above provisions , if this was not excluded on other grounds referred to in the same provision .

Section CARDINAL(CARDINAL - CARDINAL ) of LAW provided that a residence permit could not be issued or extended in respect of an alien for whom an alert for the purposes of refusing entry had been issued by a ORG belonging to the common visa area of ORG and such an alert had been introduced into ORG in accordance with LAW . By way of exception , a temporary residence permit could be issued or extended on humanitarian grounds or by reason of international commitments .

Section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ) provides that no term for voluntary compliance with the obligation to leave is assigned in the expulsion order and it shall be enforced immediately if the order is made in respect of an alien who has arrived in GPE illegally . Section CARDINAL - CARDINAL(CARDINAL)(CARDINAL ) provides that the same applies to an alien in respect of whom a prohibition on entry has been imposed .

Section CARDINAL - CARDINAL(CARDINAL ) of the LAW to Leave and Prohibition on Entry Act provides that in order to amend the period of validity of the prohibition on entry into the LOC area the alien is required to turn to a member ORG of ORG applying the prohibition on entry .

In a judgment of CARDINAL DATE ( case no . CARDINAL ) ORG of ORG found that upon issuing an expulsion order in the case in question the migration authorities had not been required to assess whether the person concerned posed a threat to the national security . An assessment related to the possible infringement of the complainant ’s right to respect for his family life had had to be carried out when the question whether to grant him a residence permit had been dealt with .

Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE concerning the security of residence of long - term migrants states , inter alia :

“ CARDINAL . As regards the protection against expulsion

a. Any decision on expulsion of a long - term immigrant should take account , having due regard to the principle of proportionality and in the light of ORG Rights’ constant case - law , of the following criteria :

– the personal behaviour of the immigrant ;

– the duration of residence ;

– the consequences for both the immigrant and his or her family ;

– existing links of the immigrant and his or her family to his or her country of origin .

b. In application of the principle of proportionality as stated in paragraph ORG , member PERSON should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long - term immigrant . More particularly , member GPE may provide that a long - term immigrant should not be expelled :

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of CARDINAL years’ imprisonment without suspension ;

– after DATE of residence , except in the case of a conviction for a criminal offence where sentenced to in excess of DATE of imprisonment without suspension .

After DATE of residence , a long - term immigrant should no longer be expellable .

c. Long - term immigrants born on the territory of the member state or admitted to the member state before DATE , who have been lawfully and habitually resident , should not be expellable once they have reached DATE .

Long - term immigrants who are minors may in principle not be expelled .

d. In any case , each member state should have the option to provide in its internal law that a long - term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety . ”


Mr. PERSON , a NORP citizen born in DATE , resides in GPE ( GPE of GPE ) . On DATE , after he had been hiding from the police for some time , he gave himself up .

He was at once brought before the GPE District Attorney ( GPE ) . The latter heard Mr. PERSON without his lawyer being present and then , on DATE , made an order directing that Mr. PERSON be placed in detention on remand ( ORG ) . The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence ( DATE , sub - paragraph a ) , of LAW , hereinafter referred to as ORG ) .

Mr. PERSON lodged an appeal ( PERSON ) against the above - mentioned order but it was dismissed by ORG ( Staatsanwalt ) on DATE . ORG , adopting the grounds relied on by the District Attorney , stated that the investigations had not been completed and that there was reason to believe that the applicant , who had no fixed abode in GPE , might abscond .

Mr. PERSON filed a " public - law appeal " with ORG , alleging that ORG decision was contrary to LAW CARDINAL ( c ) and CARDINAL ( article CARDINAL - CARDINAL-c , article CARDINAL ) of the Convention . He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an " officer authorised by law to exercise judicial power " , within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) .

By a judgment of DATE , ORG ) rejected the appeal . It accepted that there were reasons to believe that the applicant might suppress evidence if he were released . It also considered that , since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts , there was no violation of Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) . As regards Article CARDINAL para . CARDINAL ( article CARDINAL ) , ORG , having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision , stated :

" The main criterion for classifying a given activity as ‘ judicial’ is the independence which the bodies acting in that capacity enjoy vis - à - vis other ORG authorities and other persons entrusted with functions relating to the administration of justice as well as vis - à - vis institutions and organisations in the public sector ...

However , the text of LAW para . CARDINAL ( article CARDINAL ) of the LAW demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers .... The only possible interpretation of this LAW is that even bodies which are administrative by reason of their position meet the Convention ’s requirements to the extent that they exercise judicial functions , that is act independently when giving decisions in that capacity . Thus , according to LAW ( article CARDINAL ) ... , what is above all decisive is not the place held in the organisation of the ORG but rather the function to be exercised . In other words , that provision does not in principle preclude the simultaneous exercise by CARDINAL and the same person of different functions , namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ... "

In support of this interpretation , ORG pointed out that , unlike paragraph CARDINAL ( article CARDINAL ) , paragraph CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL ) uses the word " court " . A further argument was derived from Article CARDINAL para . CARDINAL ( article CARDINAL ) :

" There is good reason to suppose that , had the authors of the ORG wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority , they would have utilised in LAW CARDINAL ( article CARDINAL ) wording identical to that in Article CARDINAL para . CARDINAL ( article CARDINAL ) " , namely " an independent and impartial tribunal " .

Turning to the powers of the District Attorney , ORG noted that he is both an investigating authority ( Ermittlungs- PERSON ) , under the supervision of ORG , and - in cases before a single judge or ORG – a prosecuting authority . In the present case , the District Attorney had acted as an investigating authority in which capacity DATE stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused . From this ORG concluded :

" It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the ORG .... At the investigation stage , he in fact fulfils a judicial function and exercises no administrative activity .... Moreover , the rule on the election of ORG by the people ... shows that the legislature wished to secure for this body a measure of independence vis - à - vis the executive and the administration even as regards the procedure for appointment .

This view is not contradicted by the fact that , during the investigation , LOC ORG may receive from ORG directives concerning either the exercise of his activities in general or a specific case ( opening , conduct and closure of the investigation ) .... What is decisive is that , when acting as a supervisory body during the investigation , ORG as well is carrying out a judicial function of investigation ; it is only if and when the case is sent for trial that that ORG assumes its role of prosecutor and thereby becomes a party to the proceedings . "

On DATE , the President of ORG ( Anklagekammer ) of the GPE of ORG ( Obergericht ) decided that Mr. PERSON should remain in detention until the following DATE The applicant appealed without success , firstly to FAC , which confirmed the President ’s order on DATE , and then to ORG , which dismissed his " public - law appeal " on DATE .

Mr. PERSON ’s detention on remand had in the meantime been prolonged pursuant to LAW . He was eventually released on DATE .

In view of the gravity of the charges against the applicant ( thefts to a value of DATE ) the GPE of ORG had jurisdiction in the matter ; the indictment therefore had to be drawn up by ORG which represented the prosecuting authorities at the trial ( see paragraph CARDINAL below ) . The investigation , on the other hand , had been conducted by an GPE Attorney .

On DATE , ORG imposed on Mr. PERSON a sentence , suspended for DATE , of CARDINAL months’ imprisonment for professional theft as a member of a gang ( LAW ) .

The GPE of GPE is divided into CARDINAL districts , each of which has a ORG with CARDINAL or more Attorneys . At the relevant time , the status and powers of ORG were laid down in LAW of DATE ( PERSON , hereinafter referred to as ORG ) ; an LAW of DATE , which entered into force on DATE , has since replaced , and in substance re - enacted the provisions of , LAW .

Ordinary District Attorneys are elected by universal suffrage for a term of office fixed by LAW at DATE ( section CARDINAL ORG ) and increased by LAW to DATE . Although any citizen may stand for election , candidates are most often lawyers who have completed university studies and received practical training in the courts , industry , the civil service or the legal profession . If necessary , ORG appoints GPE for a specified period ( sections CARDINAL and CARDINAL ORG ) .

The District Attorney is subordinate to ORG who in turn comes under the authority of ORG and ORG ( NORP ) of the GPE of GPE . The District Attorney is the prosecuting authority before the single judge in criminal matters and before FAC in cases concerning petty offences and misdemeanours ; before the higher Cantonal courts ( ORG and ORG - section CARDINAL ORG ) , this function is performed by ORG . The District Attorney also has power to issue a punishment order ( NORP ) if the accused has admitted his guilt and if a fine ( GPE ) or a prison sentence of not DATE is deemed sufficient ( LAW ) ; however , the person concerned is entitled to enter an objection ( ORG ) to the punishment order , as is ORG ( Article CARDINAL StPO ) .

The investigation of criminal cases comes within the competence of the prosecuting authorities ( section CARDINAL ORG ) . The District Attorney conducts the investigation except in those cases where it is entrusted by law to ORG or a judge ( LAW ) . The LOC Attorney may issue a warrant for arrest ( MONEY CARDINAL ORG ) , the grounds for which he must indicate ; he has to hear an arrested suspect within TIME ( FAC ) . During this first interrogation , at which the suspect ’s lawyer is not normally present , the suspect must be clearly informed of the reasons prompting the suspicions held against him ( Article CARDINAL ORG ) and of the existence of a right of appeal against the warrant ( DATE Circular from ORG ) . Directive no . CARDINAL ( Collection of Circulars from ORG to ORG , DATE - Sammlung der ORG der Staatsanwaltschaft an die Bezirksanwaltschaften von CARDINAL ) specifies that this interrogation is not to be considered as a pure formality . Under Directive no . DATE , the District Attorney is prohibited from delegating his power to interrogate to subordinate officials .

Detention on remand ordered by LOC may not exceed DATE ; this period may be extended by the President of ORG or , in cases coming within the jurisdiction of ORG , the President of ORG ( Article CARDINAL ORG ) .

The District Attorney remains under the control of ORG as regards both the opening and the conduct of the investigation . ORG is authorised to issue directives to him ( LAW ) and must be kept informed of every serious offence ( Directive no . CARDINAL ) . ORG or ORG of the GPE of GPE may request ORG to submit a report on the opening and the conduct of criminal proceedings ( NORP ) and may give him special orders and instructions ( besondere PERSON und Weisungen - Article QUANTITY StPO ) . A report must be made to ORG whenever proceedings having political significance are instituted ( LAW ) .

In addition , ORG ( erster FAC ) carries out inspections DATE ; their sole purpose is the expedition of proceedings .

For DATE now , ORG in practice receive no special orders or instructions from ORG concerning their powers of placing individuals in detention .

Once the investigation is closed , any District Attorney contemplating the release of an accused must so inform ORG if the prosecution falls within the latter ’s competence ( Directive no . CARDINAL ) .

Assuming that the prosecution has not been discontinued , LOC , or ORG , becomes a party to the criminal proceedings ; when drawing up the indictment , he must however take into account items in the accused ’s favour and not confine himself to stressing items that tell against him ( LAW ) .


KOKHREIDZE v. GEORGIA AND RAMISHVILI v. GEORGIA

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant in the first case , Mr PERSON ( “ the first applicant ” ) , was born in DATE . The applicant in the second case , Mr PERSON ( “ the second applicant ” ) , was born in DATE . Both applicants are NORP nationals , currently live in GPE and were represented before the Court by PERSON and Mr PERSON , lawyers practising in GPE .

On DATE the ORG convicted the applicants , who were co - founders of and shareholders in a private media company , of conspiracy to commit extortion . The first applicant was sentenced to DATE and the second applicant to DATE in prison ( for more details concerning the criminal proceedings , see PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) .

On DATE ORG upheld the conviction .

On DATE ORG of GPE , sitting privately , declared the ORG appeal against the conviction on points of law inadmissible on the ground that it lacked significant legal content . The criminal proceedings were thus finally terminated .

As submitted by the applicants and confirmed by a postal receipt , the final decision of DATE was served on them in NORP no . CARDINAL Prison , where they were serving their sentences at that time , on DATE .

On DATE application forms were lodged with the ORG on behalf of the applicants . The forms were signed only by the ORG representatives and did not include authority forms issued by the applicants for their representation before the ORG .

On DATE as regards the first applicant ’s case , and on DATE as regards the second applicant ’s case , the ORG , using a standard form of preliminary correspondence , brought the representatives’ attention to the fact that the applications could not be considered to be complete , as they had neither been signed by the applicants in person nor supplemented by authority forms issued by them . The ORG invited the representatives to submit the missing authority forms without undue delay , on pain of leaving their cases without examination .

On DATE the representatives submitted an authority form signed by the second applicant , Mr PERSON . The accompanying letter did not contain any explanation for the delay .

With respect to the first applicant ’s case , on DATE the ORG sent a second reminder to the representatives that the registration of the application could not be proceeded with in the absence of an authority form issued by the applicant . In reply , by a letter of DATE , the representatives finally submitted an authority form signed by PERSON PERSON . No explanation for that delay was given either .


Violation of Art. 6-1;Violation of Art. 6-3-c;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient

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

The applicant was born in DATE and lives in GPE .

On DATE the NORP State Attorney ’s Office ( Općinsko državno odvjetništvo u Daruvaru ) filed a bill of indictment against the applicant in ORG ) charging him with violation of copyrights in that he had used various items of computer software without the consent of the holders of the relevant licence . In the proceedings the applicant was represented by legal counsel of his own choosing . At a hearing held on DATE the applicant gave his evidence . At a hearing held on DATE ORG heard evidence from the witnesses nominated by the defence and gave a judgment acquitting the applicant of all charges . However , this judgment was quashed on DATE by ORG , upon an appeal lodged by the prosecution .

In the resumed proceedings before ORG an expert opinion was obtained . At the first hearing held on DATE the applicant again gave his evidence , in the presence of his chosen counsel . The next hearing , scheduled for DATE , was adjourned on a request by the applicant ’s counsel who explained , in a submission filed on DATE , that he had already planned a journey on DATE . The hearing scheduled for DATE was adjourned on account of the illness of the presiding judge .

According to the applicant , before a hearing scheduled for DATE his counsel contacted ORG by telephone and asked for an adjournment on account of his sudden illness .

At the beginning of the hearing the applicant asked that the hearing be adjourned and informed the court that he did not wish to defend himself in the absence of his counsel . The presiding judge , however , decided to hold the hearing . A counsel for the prosecution was also absent . The applicant , who had already given evidence at the previous hearings , gave additional evidence . The applicant ’s request that further witnesses be heard was dismissed . The applicant then gave his closing arguments . The hearing was concluded and a judgment was pronounced . The applicant was found guilty of using various items of computer software without the consent of the holder of the relevant licence . He was given a suspended sentence of CARDINAL months’ imprisonment with a DATE probation period .

In an appeal lodged on DATE the applicant complained , inter alia , that the hearing of CARDINAL March CARDINAL had been held in the absence of his counsel although there had been a good reason for the latter ’s absence . He asserted that on TIME his counsel had contacted ORG by telephone . His call had been answered by an usher and the counsel had asked to speak to the presiding judge . However , the judge had not answered the call . Therefore , the counsel had asked the usher , PERSON , to inform the presiding judge about his inability to attend the hearing owing to his sudden illness . The usher had done so . The counsel ’s request that the hearing be adjourned on account of his sudden illness had not been noted in TIME of the hearing . The applicant enclosed a medical certificate for his counsel , of DATE , indicating that he had been given sick leave as of that date .

On DATE ORG ( PERSON u GPE ) upheld the first - instance judgment . It found that the presence of the applicant ’s counsel at the hearing held on DATE had not been necessary . The relevant part of the appellate judgment reads as follows :

“ The ground for appeal raised by the defendant that the first - instance court had made a grave breach of the rules of LAW , Article CARDINAL ) , when it held a hearing in the absence of the defendant ’s counsel , this court finds unfounded . The facts established in TIME of the hearing held on DATE lead to the conclusion that , although the defendant requested the adjournment of the hearing on account of the justified absence of his counsel , the first - instance court assessed that the counsel ’s absence was not detrimental to the defence and therefore held a hearing and on DATE adopted a first - instance judgment . The conduct of the first - instance court has to be viewed in the light of a [ possible ] violation of the defence rights and an assessment of its effect on the judgment adopted [ by the first - instance court ] has to be made . The new facts presented by the defendant at that hearing , on account of which he asked for an adjournment claiming that his counsel was in possession of fresh evidence in connection with the purchase and the price of the “ Autocad ” software , could not have been of decisive importance for the crime [ at issue ] as such . That is because the [ first - instance ] court found the defendant guilty of the principal criminal offence under LAW in respect of which it is not relevant whether it resulted in significant financial gain or significant damage . Exactly for that reason the absence of the defence counsel at the hearing could not have been of influence for the adoption of the impugned judgment and its legality . ”

The applicant ’s subsequent constitutional complaint was dismissed on DATE by ORG ( Ustavni sud PERSON ) as being ill - founded .

NORP The relevant part of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provides as follows :

“ ( CARDINAL ) The defendant has the right to defend himself or herself in person or through a legal counsel of his or her own choosing among the members of the Bar ...

“ After the evidence has been heard the president of the chamber shall allow the parties , the victim and defence counsel to present their closing arguments ... ”

“ ( CARDINAL ) Defence counsel or the defendant personally shall present in their closing arguments the [ main points of ] the defence and may reply to the arguments of the [ prosecution ] and the victim .

Pursuant to LAW , where the defendant requests an amendment of a final judgment following a finding of a violation of , inter alia , the right to a fair trial , by ORG , the rules governing a retrial shall apply .

Article CARDINAL ) of LAW ( PERSON zakon PERSON , ORG nos . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) proscribes the criminal offence of unauthorised use of an authorship , carrying a punishment of a fine or imprisonment for a term not exceeding DATE .