No violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was brought before ORG ( Prokurator Wojewódzki ) , charged with fraud and forgery and detained on remand . Since the applicant reported to the prosecutor that he was suffering from various ailments – in particular , depression – the authorities ordered that he be examined by a doctor . After the examination , which was carried out DATE , the applicant was found fit to be detained in prison . He was placed in FAC ) .

Later , on an unspecified date , the applicant appealed against the detention order . On DATE ORG ( Sąd Wojewódzki ) dismissed his appeal , finding that there were strong indications that he had committed the offences with which he had been charged . Referring to the results of his medical examination , the court found no circumstances which would justify his release on health grounds .

From DATE to DATE the applicant filed CARDINAL applications for release and appeals against decisions refusing to release him .

In the meantime , in DATE , the applicant had attempted to commit suicide in prison . From CARDINAL DATE he went on hunger strike for an unspecified period .

NORP In DATE the authorities ordered that the applicant be examined by doctors . The relevant report was made by experts of ORG of ORG on DATE . The doctors considered that the applicant was not fit to be detained in an ordinary prison and recommended that , if his detention was to be continued , he should be confined in the psychiatric ward of a prison hospital . The applicant was subsequently taken to ORG , where he was placed in a ward for internal diseases and given treatment for his mental condition . The applicant stayed in the hospital for an unknown period . He was then transferred back to FAC .

On DATE and DATE the applicant was examined by specialists in forensic medicine . They considered that he needed psychiatric treatment in prison but that it was not necessary to place him in the psychiatric ward of a prison hospital .

On DATE a bill of indictment against the applicant was lodged with ORG . In all , CARDINAL charges were brought against him and his CARDINAL co - defendants . The case file comprised CARDINAL volumes . The prosecution requested the court to hear evidence from CARDINAL witnesses .

On DATE , at the court ’s request , doctors from ORG and ORG of ORG reported on the applicant ’s psychological state . Their report stated , inter alia :

“ The patient shows persistent suicidal tendencies . Following the medical examination , we find that he is suffering from a deep syndrome of depression accompanied by thoughts of suicide . In the light of the intensity of the suicidal thoughts and of the fact that he has already attempted to commit suicide , he should receive psychiatric treatment . His detention seriously endangers his life ( a grave risk of a further suicide attempt ) ... ”

On DATE ORG quashed the detention order .

On DATE , DATE and DATE and on DATE and DATE the court held hearings in the applicant ’s case . A hearing listed for DATE was cancelled because the applicant failed to appear . His lawyer submitted a certificate to the effect that the applicant was on CARDINAL days’ sick - leave ; however , the court ordered that the applicant should , within DATE , submit a medical certificate issued by a forensic expert , “ failing which preventive measures [ środki zapobiegawcze ] to ensure his presence at the trial [ will ] be imposed on him ” . The applicant did not submit the required certificate but , on DATE , informed the court that he was undergoing climatic treatment in Świnoujście and was to stay there until DATE . On DATE , since the applicant had not informed the court of the address at which summonses could be served on him , the court ordered that a “ wanted ” notice be issued with a view to locating and redetaining him on the ground that he had failed to attend hearings . The next hearing scheduled for DATE was cancelled due to the applicant ’s absence .

NORP The detention order of DATE had not been enforced by DATE , when the applicant was arrested by the police in connection with a traffic offence . He was placed in FAC .

ORG listed hearings for DATE and DATE but cancelled all of them because the applicant ’s mental state ( in particular , his difficulties in concentrating ) did not allow him to participate properly in the trial . In a prison doctor ’s note made on DATE his state was described as follows :

“ Is able to take part in DATE ’s proceedings ( with limited active participation on account of [ illegible words ] difficulty in concentrating ) . ”

According to a further expert report ( obtained by the court at DATE ) the applicant was “ not suffering from mental illness ” at that time and his mental state was “ not an obstacle to keeping him in detention ” .

Meanwhile , on DATE , the applicant ’s lawyer had unsuccessfully appealed against the detention order , arguing that the applicant , after his release on DATE , had received continuous treatment for his severe depression and that his failure to appear before the trial court had been due to his psychological state .

DATE and DATE the applicant made CARDINAL further unsuccessful applications for release and appealed , likewise unsuccessfully , against each refusal .

On CARDINAL , DATE and DATE the court held hearings . Hearings scheduled for DATE were cancelled as , on DATE , the applicant had attempted to commit suicide by taking an overdose ( see paragraphs QUANTITY below ) .

The trial continued on CARDINAL , DATE and DATE . The hearings listed for DATE were cancelled because the presiding judge was ill . Subsequent hearings took place on CARDINAL , DATE and DATE . In the meantime the applicant had undergone psychiatric observation in FAC ( see paragraph CARDINAL below ) .

The next hearing took place on DATE . The hearings listed for CARDINAL and DATE were cancelled because the applicant had withdrawn the power of attorney granted to his defence counsel . The trial continued on DATE and DATE , DATE and DATE , and DATE and DATE . The hearings listed for CARDINAL , DATE and DATE were cancelled because CARDINAL of the applicant ’s co - defendants was admitted to hospital at that time .

In the meantime , on CARDINAL DATE , the applicant had complained to the President of ORG about the length of his detention and the conduct of the proceedings in his case . He complained , in particular , that all of his CARDINAL co - defendants had been released , whereas he was still being detained despite the fact that the overall length of his detention had now exceeded DATE . He asserted that TIME of the hearings had not reflected witnesses’ testimony , that the court had failed to enter in the record his and his lawyer ’s submissions and had not allowed him to express his version of the facts of the case freely . The criminal proceedings against him , which had to date lasted DATE , were , to use his term , a “ nightmare ” .

On DATE the applicant complained to the court about his psychiatric treatment in prison . The presiding judge asked the prison authorities for explanations . They informed him of the number of medical examinations undergone by the applicant , gave details of them and produced copies of the relevant medical records .

At about the same time , the applicant again requested the court to release him on health grounds . He also referred to his family situation , maintaining that his lengthy detention was putting a severe strain on his family . On DATE ORG dismissed the application .

On DATE , on an appeal by the applicant , ORG ( Sąd Apelacyjny ) upheld ORG decision and held that his detention should continue in view of the reasonable suspicion that he had committed the offences in question and the fact that he had been detained on the ground of the risk that he would abscond . The court also found that the situation of the applicant ’s family , although difficult , was not a circumstance that could militate in favour of his release .

On DATE the applicant ’s lawyer applied to ORG to have the detention order quashed and the applicant released under police supervision . He stressed that on DATE the applicant had again tried to commit suicide in prison , by attempting to hang himself ( see paragraphs CARDINAL - CARDINAL below ) . This event , taken together with his chronic depression , had been a clear warning that continuing detention could jeopardise his life . He further pointed out that the applicant had been redetained only because of his absence from hearings . That ground could not warrant his detention any longer because evidence against him had already been heard and keeping the applicant in detention did not serve the purpose of ensuring the proper conduct of the trial .

On DATE ORG dismissed that application . It held that , according to a report from the prison authorities , the applicant ’s suicide attempt had been of an attention - seeking nature and that the original grounds for his detention were still valid . The relevant report , dated DATE , reads :

“ Further to the [ Regional ] ORG ’s request regarding the accused , we confirm that PERSON , who remains at your disposal , ... at TIME on DATE , attempted suicide in order to attract attention to his case .

On the basis of information from , and the conclusions of , the duty doctor , psychiatrist and psychologist , it was established that the prisoner suffered from personality disorders manifesting themselves as reactive depression . The result of the prisoner ’s action was a slight abrasion of the skin on his neck in the form of a stripe made by the rope after hanging ; no neurological changes were observed .

The prisoner carried out this demonstration as he considers that the criminal proceedings are taking a very long time and because he is distancing himself from the charges laid against him .

Despite his emotional problems , he is in control of the situation and is putting pressure on the [ prison authorities ] .

By decision of the Governor , he did not receive disciplinary punishment for his behaviour . Psycho - corrective discussions [ were held with him ] , aimed at explaining the real threats to the prisoner ’s health and life arising from his behaviour .

In a subsequent psychiatric consultation ( carried out after the suicide attempt ) a regression of the symptoms of reactive depression was noted .

He continues to be held in a cell with others because of the possibility of his self - destructive behaviour arising from a subjective feeling of suffering . He is classed as a difficult prisoner and therefore remains under constant observation and under the control of the prison security and medical staff .

[ Stamp and signature illegible ] ”

On DATE the applicant ’s lawyer appealed against ORG decision , submitting that the applicant ’s mental health had significantly deteriorated and that he was constantly suffering from depression . He requested the court to appoint psychiatric and other medical experts to assess the applicant ’s state of health , instead of relying on the assessment made by the prison authorities . He also maintained that the length of the proceedings was inordinate and stressed that the applicant had already spent DATE and DATE in detention .

On DATE ORG dismissed the appeal . The court considered that it was not necessary to call medical experts and that the applicant ’s detention should continue in order to ensure the proper conduct of the proceedings . Later , DATE and DATE , the applicant made CARDINAL further unsuccessful applications for release and lodged similarly ineffective appeals against decisions to keep him in detention .

On DATE , DATE and DATE , CARDINAL , DATE and DATE , and CARDINAL , DATE , DATE and CARDINAL DATE ORG held hearings and heard evidence from witnesses . Certain witnesses , who had previously failed to appear , were brought to the court by the police .

On DATE ORG convicted the applicant of fraud and forgery and sentenced him to DATE imprisonment and a fine of MONEY ( ORG ) . On DATE both the applicant and his lawyer filed a notice of appeal .

On DATE the applicant complained to the Minister of ORG that the trial court had not prepared the statement of reasons for its judgment within the statutory time - limit of DATE . He submitted that the delay had already amounted to DATE .

At DATE the applicant requested to be released , arguing that his prolonged detention had had very harmful effects on his health and on the well - being of his family . On DATE ORG dismissed his application . On DATE , on an appeal by the applicant , ORG upheld that decision and observed that his detention was warranted by the severity of the sentence imposed .

On another unspecified date the applicant complained to the Minister of ORG about the length of the proceedings in his case , pointing out that ORG had failed to provide him with the statement of reasons for its judgment within the statutory time - limit . That had significantly prolonged the appellate proceedings . On DATE the Head of ORG , in reply to that complaint , informed him that it was likely that the statement of reasons for the judgment would exceed CARDINAL pages and that the failure to comply with the statutory time - limit was due to the fact that the judge rapporteur had been on leave .

On DATE , at ORG request , the applicant was examined by forensic psychiatrists from the Collegium ORG of ORG in GPE . The relevant part of their report reads :

“ ... As can be seen in the file , and in accordance with the findings of the medical experts , the defendant underwent observation in the psychiatric ward of ORG . In the course of the hospital observation , attempts at suicide and lengthy , vague losses of consciousness were observed . The comprehensive conclusions ... of the report by the psychiatric experts in ORG showed that the defendant exhibited personality disorders and a predisposition to situational reactions , which do not militate decisively against him being in prison , provided there is guaranteed outpatient psychiatric care .

[ The applicant ] explained that he was still in the remand centre and felt very ill , he had a permanent headache located in the apex , radiating to the nape . He very often became breathless and had difficulty breathing , particularly at TIME . On those occasions he asked the officers for help and they took him to the medical ward . On most occasions the doctor prescribed PERSON [ diazepam ] , which did not relieve his suffering . He claimed that he continued to take ORG at doses of DATE at TIME and QUANTITY mg during DATE . This medicine ‘ organised him’ , as he said , and he could not function without it . He felt constantly tired , did not sleep at TIME and was annoyed by his continued stay in prison . He considered this preposterous , as he had already ‘ overserved’ any sentence he could be given . During a conversation with the defendant , it was observed that he had an abrasion of the epidermis at the base of the neck . When his shirt collar was opened , it was found to be a linear abrasion of the epidermis around the front section of the neck , corresponding to the furrows found on a hanging victim . The defendant explained that ... he had tried to hang himself with a sheet , but had been resuscitated . This was his second attempt at suicide and he could not explain why he behaved in this way . He maintained that he had moments when he felt as if his consciousness was interrupted and that at these times he tried to take his own life , mainly by hanging but also by taking drugs and slashing himself with a razor . He claimed that there was also an occasion when he left home after a family dispute and woke up DATE in a boarding house in Świnoujście . He did not understand how he came to be there or what had happened to him during DATE .

The person under examination is currently making good verbal contact , is oriented , his mood is somewhat subdued , he is tense , irritable and experiences a strong sense of injustice . He states that he is being treated inappropriately . He receives some medicines which do not improve his state of mind and he considers that this treatment only ‘ subjects him to psychotropic ORG .

After the psychiatric examination , the defendant was sent to the ORG department to undergo a specialist examination .

The results of that examination are attached to the report .

Report

The examination of the defendant PERSON , male , DATE , and the analysis of the results of previous examinations and medical and psychological observations performed during hospitalisation lasting DATE show that his current mental state is the result of his personality disorders and predisposition to decompensation in difficult situations . These disorders are not psychotic in nature but further suicide attempts will prove to be a real threat to his health . For this reason , we also consider that if the legal proceedings require that the defendant spend a further period in prison , he should be sent to a hospital ward and be supervised by specialist staff . He should also be guaranteed access to a psychiatrist and a psychologist .

Expert Expert

PERSON Dr PERSON ”

On DATE the applicant received the statement of the reasons for the judgment and , at some date thereafter , lodged an appeal . The case file was transferred to ORG on DATE .

On DATE ORG quashed the conviction and ordered a retrial on the ground that the trial court had been incorrectly constituted and that there had been numerous breaches of procedural provisions . During the appellate hearing the applicant ’s lawyer had asked the court to quash the detention order , but without success .

On DATE the case file was sent to ORG . ORG subsequently made a severance order and thereafter the applicant was tried separately from several other defendants .

On DATE the applicant requested that the preventive measure imposed on him be lifted or varied . On DATE ORG gave a decision in which it stated , inter alia :

“ ... At the present stage of the case , proper conduct of the proceedings can be ensured by imposing preventive measures other than detention . ... The ORG therefore quashes the detention order on condition that the applicant puts up bail of PLN MONEY within DATE from the date on which this decision is served on him . ... ”

The applicant appealed against that decision and requested that the bail be reduced and set in the light of his financial circumstances or , alternatively , that the court secure proper conduct of the trial by ordering him to submit to police supervision .

On DATE the trial court received a report from a psychiatric expert it had appointed . The expert found that the applicant was in a state of chronic depression accompanied by suicidal thoughts . He considered that the applicant was able to participate in hearings but that continuing detention could jeopardise his life because of the likelihood that he would attempt to commit suicide .

On DATE ORG dismissed the applicant ’s appeal against the decision of CARDINAL DATE , holding that the sum set for bail was not excessive , given the cost of the damage resulting from the commission of the offences with which he had been charged and the serious nature of those offences . The court attached considerable importance to the fact that after the first order for his detention had been quashed in DATE , the applicant had absconded and had been redetained on that ground . Bail , the court added , was designed to secure his presence at the trial and to prevent him from committing any further acts aimed at obstructing the proper course of the proceedings . Having regard to all the circumstances of his case , bail had therefore been set at an appropriate level .

Shortly afterwards , the applicant complained to the ORG ( PERSON ) that the overall length of his detention had now exceeded DATE . The complaint was referred to the President of ORG , who on DATE sent a letter to the applicant . The relevant part of that letter reads :

“ ... You were indicted for fraud and forgery on DATE . The bill of indictment concerned CARDINAL co - defendants and evidence from CARDINAL witnesses was to be obtained . The proceedings were delayed because you had been in hiding until your subsequent detention in DATE . You have also made numerous applications for release . ... The delay in the proceedings between the date of the trial court ’s judgment and the date on which the case file was sent to ORG was justified by the size of your case file and the length of the statement of reasons for the judgment ( CARDINAL volumes and CARDINAL pages respectively ) . ... The statement of reasons was ready before DATE and was sent out on DATE because the judge rapporteur was on leave . The only delay occurred in respect of handling your application for release of DATE [ ; ] it was examined on CARDINAL DATE since from DATE to CARDINAL DATE there had been a public holiday . ... ”

Meanwhile , the applicant had again applied to ORG to release him under police supervision or to reduce the bail set by the court on DATE . On DATE the court refused the application . The applicant ’s lawyer appealed against that decision and argued that in the light of the psychiatric report of CARDINAL DATE the applicant should be released because his life was in danger .

On DATE ORG dismissed the appeal , pointing out that the danger to the applicant ’s life was “ not absolute ” because he could obtain psychiatric treatment in prison . The court considered that , given the applicant ’s behaviour after his release in DATE , his detention should continue in order to secure the proper course of the trial unless he put up bail of PLN CARDINAL .

On DATE the applicant again requested ORG to reduce the amount of security or to release him under police supervision . He submitted that he did not have sufficient financial resources to pay such a substantial sum of money . On DATE the court dismissed his application as manifestly ill - founded . It observed that the applicant ’s arguments concerning the question of bail had been an “ unjustified dispute with the institutions of justice ” and that bail could be put up not only by the applicant himself but also by third parties .

Later , the applicant requested ORG to release him so that he could provide the required security . On DATE the court dismissed this request , holding , inter alia :

“ ... It is logical that [ the applicant ] should be released after bail is paid . The accused ’s request to reverse the sequence of events is against the rules of procedure and common sense and must therefore be dismissed . ... ”

The retrial was to start on DATE but was postponed because CARDINAL of the applicant ’s co - defendants had meanwhile been detained in connection with other criminal proceedings against him .

On DATE ORG quashed the detention order after the applicant ’s family had paid bail of PLN CARDINAL,CARDINAL to the court .

The next CARDINAL hearings were listed for DATE and DATE but the trial was again postponed as another co - defendant was ill . Subsequent hearing dates were set for CARDINAL , DATE and DATE . ORG later listed hearings for the following dates in DATE : DATE , DATE , DATE , CARDINAL and DATE , CARDINAL , DATE and DATE , CARDINAL DATE , DATE , CARDINAL and DATE , and CARDINAL and DATE . On DATE the court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .

He appealed on DATE . On DATE ORG varied the trial court ’s judgment and reduced the applicant ’s sentence to DATE imprisonment .

Subsequently the applicant lodged a cassation appeal ( kasacja ) . On DATE ORG , having found that the applicant had complied with the relevant formal requirements for such appeals , forwarded his appeal to ORG ( Sąd Najwyższy ) . The proceedings in ORG are still pending .

The applicant was held at FAC from DATE to CARDINAL DATE , with CARDINAL interruption : on DATE he was transferred to ORG where , until DATE , he underwent psychiatric observation ordered in other criminal proceedings against him .

The medical register shows that the applicant was examined by a doctor shortly after being detained . On DATE the applicant asked to be examined by a psychiatrist . The examination took place on DATE . The applicant was diagnosed as suffering from reactio situatione ( situational reaction ) . He had been examined by or had consulted a prison doctor on CARDINAL previous occasions .

NORP In DATE the applicant was examined by prison doctors CARDINAL times . It was recorded that he was suffering from chronic insomnia and lack of appetite and , subsequently , from recurring headaches , dizziness and difficulty in concentrating .

On DATE the applicant was examined by a psychiatrist . He was diagnosed as suffering from personality disorder and depressive reaction . During DATE , on CARDINAL further occasions , he consulted or was examined by doctors in the prison outpatient ward . He complained of insomnia and requested a change of medicine . On DATE a doctor recommended that he be examined by a psychiatrist .

On DATE the applicant started to complain about darkness in front of his eyes and headaches .

On DATE the applicant attempted suicide by taking an overdose . The doctor on duty made the following entry :

“ Patient unconscious , no verbal contact . ... From the report given by [ his cell - mates ] it transpires that DATE he took TIME dose of medication ... nobody saw him taking any other medication .

Diagnosis : intoxicatio medicamentosa acuta per os susp . [ suspected acute drug poisoning by mouth ] .

Medical recommendations : hospital observation and urgent psychiatric treatment . ”

The applicant was admitted to the prison hospital and stayed there from CARDINAL to CARDINAL DATE , the diagnosis being “ status post intoxicationem medicamentosam ” . He underwent several medical tests ( blood - cell morphology , toxicological examination of urine , electrocardiography ) .

On DATE the applicant was examined by a psychiatrist and diagnosed as suffering from neurotic disorder .

From CARDINAL DATE ( DATE of his return from ORG ) to DATE the applicant consulted the prison outpatient doctors on CARDINAL occasions . He complained mainly about difficulty in getting to sleep and recurring headaches lasting DATE but also about cold and skin ailments . In DATE he asked several times for an appointment with a psychiatrist . He was examined by a psychiatrist on DATE and diagnosed as having neurotic disorder .

In the meantime , on DATE , the prison doctor on duty had asked for a further appointment with a psychiatrist for the applicant . The psychiatrist examined the applicant on DATE and confirmed his previous diagnosis . The register records that the applicant complained about dizziness and sleep disorder .

DATE . On DATE the doctor on duty requested a follow - up appointment with a psychiatrist for the applicant . On CARDINAL and DATE the doctor noted that the applicant had not reported back to him . On DATE the applicant was given an unspecified medicine .

On DATE the applicant attempted to commit suicide by hanging himself . On DATE doctors made CARDINAL notes in the medical register . The relevant part of the first note , written by the doctor on duty , reads :

“ At TIME he made a conspicuous attempt to commit suicide by hanging himself on a sanitary appliance on the wall . Blood pressure CARDINAL/CARDINAL ... In the left nostril was a small amount of foaming blood . Abrasions of the epidermis were found on the neck consistent with the scars of a hanging victim . ... He does not want to communicate orally . ...

Diagnosis : conspicuous attempt to commit suicide by hanging .

Medical recommendations : psychiatric test ... ”

The second note , made by a specialist in internal medicine , reads as follows :

“ General condition good . ... Able to communicate logically . He stated that this had not been his first attempt at suicide .

Diagnosis : condition following attempted suicide .

Medical recommendations : psychiatric test . Admission to hospital for treatment not required . ”

On DATE the applicant was examined by a psychiatrist , who made the following report :

“ Good verbal communication , emotions satisfactory . ... He was in the psychiatric ward of ORG ... to DATE . Attempted suicide : ‘ I ca n’t take any more.’ He is anxious . Disturbed sleep , loss of appetite , nausea , vomiting . The case has lasted DATE without a judgment , he had no previous convictions . He was frightened by his actions : ‘ I do n’t know what came over me.’

Diagnosis : condition following attempted suicide by hanging . Situational depressive reaction . ”

On DATE the applicant was again examined by a psychiatrist . The doctor ’s note reads :

“ Good contact . Full orientation , balanced mood . No psychotic symptoms . Complains : ‘ I feel unwell , I have had enough of this , I do not sleep well , I will hang myself.’

Diagnosis : personality disorder ; auto - aggressive reaction . ”

In DATE the applicant was examined by doctors CARDINAL times . CARDINAL of those examinations were carried out by psychiatrists . The relevant part of a medical certificate issued after the first examination reads :

“ GPE , DATE

Medical Certificate

As to the state of health of the prisoner

Prisoner ’s complaints , previous illnesses and operations : He is currently submitting the following complaint : difficulty concentrating , psychomotor agitation , feelings of inner tension , recurring pain in the epigastric region . Medical history shows frequent attempts at suicide , including by hanging and drug overdose . He is under regular psychiatric supervision . ...

Psychiatric consultation DATE . Situational reaction with depressive features . Fit to take part in court proceedings . ... ”

After the second examination , carried out on DATE , a doctor noted :

“ Good contact , full orientation , dysphoric mood . Complaints – tension ... sleep disorder , difficulty in concentrating .

Diagnosis : neurotic disorder . ”

From DATE to DATE the applicant , either at his own request or at the request of prison doctors , was examined by psychiatrists at least once DATE . Apart from that , he received treatment for other ailments . As regards the applicant ’s mental state , it appears from the medical register that he repeatedly complained of depression , sleep disturbances , tension , difficulty in concentrating , irritation and lack of improvement of his condition .

In the period from DATE to DATE the applicant was examined by doctors on CARDINAL occasions ; CARDINAL examinations were carried out by psychiatrists .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( Kodeks postępowania karnego ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

DATE . The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

Article CARDINAL set out the general grounds justifying imposition of the preventive measures . This provision read :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .

On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL provided :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”

The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the PERSON of DATE on LAW to LAW and Other Criminal Statutes .

Finally , Article CARDINAL stipulated :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”

Under NORP law “ release on bail ” does not mean release on condition that a detainee undertakes to pay a specified sum to the court if he fails to appear before it , but release on condition that the required security is paid to the court by either the detainee himself or sureties before the detainee is released .

DATE Code dealt with medical treatment of an accused during detention on remand . It provided the following :

“ If the state of health of an accused requires treatment in a medical establishment , he can not be further detained except in such an establishment . ”

Article CARDINAL of the Code of Criminal Procedure provided that an accused could at any time lodge an application for release . It read :

“ An accused may at any time apply to have a preventive measure lifted or varied .

Such an application shall be decided by the prosecutor or , after the bill of indictment has been lodged , by the court competent to deal with the case , within a period not exceeding DATE . ”

Article CARDINAL § CARDINAL of the Code laid down a time - limit for preparing the statement of reasons for the judgment of the trial court where an appeal had been brought . The relevant provision read :

“ The statement of the reasons for the judgment shall be prepared within DATE from the date on which a notice of appeal has been lodged ; in a complex case , when it is impossible to prepare it within the prescribed time , the president of the court may extend that time for a specified period ... ”

The Code set out CARDINAL principal appellate remedies , called “ appellate measures ” : an appeal , which , under Articles CARDINAL et seq . , could be brought solely against judgments and an interlocutory appeal which , under Articles CARDINAL et seq . , could be brought against decisions other than judgments and against orders for preventive measures . There was ( and still is ) no specific provision expressly providing for remedies against inactivity on the part of the judiciary in the course of criminal proceedings .


The applicant is a GPE national , born in DATE and , as far as the ORG is aware , living in GPE ( GPE ) . He is represented before the ORG by Ms PERSON , a lawyer practising in GPE ( GPE ) , and PERSON , a lawyer practising in GPE .

A.

Background to the case

On DATE an ORG car belonging to CARDINAL PERSON was searched by the police . Inside it were found a sum of money , mostly in foreign currency , to an amount equivalent to MONEY NLG ( GPE guilders ) , a baseball cap , a forged driving license bearing the applicant 's picture but another person 's name , an unopened letter addressed to the applicant , some keys and a mobile telephone .

In DATE , the exact date is not known , an informant whose identity was never disclosed stated to a police officer called PERSON , head of the GPE section of ORG ( NORP Criminele Inlichtingen ORG , “ RCID ” ) , that the applicant was using a house located at FAC in GPE to store firearms . A consignment of weapons had recently been delivered there by a CARDINAL - wheel - drive off - road vehicle in which the applicant had been a passenger and another person the driver .

The Newtonstraat house was inhabited by CARDINAL PERSON , a close friend of the applicant from childhood ; the applicant had at CARDINAL time lived there too . At another period of his life he had lived in the house next door and his mother still lived there .

On DATE the police raided the Newtonstraat house . According to the official report of the event later drawn up , they found QUANTITY of cocaine , CARDINAL sub - machine guns , a gun silencer , CARDINAL bayonets , QUANTITY live hand grenades , QUANTITY of NORP high explosive , CARDINAL bolt - action rifles , CARDINAL automatic pistols , CARDINAL revolvers , CARDINAL sawn - off shotguns and CARDINAL rounds of live ammunition . These items were packaged in sports bags and in dustbin liners wrapped with adhesive tape . A second mobile telephone was also found .

It appears from a police report dated DATE that CARDINAL of the keys found in the Audi car fitted the door of the Newtonstraat house . Another fitted the door of the applicant 's residence .

The applicant was arrested on DATE in an GPE coffee shop . According to the official police report later drawn up of this event , he was carrying a pistol loaded with CARDINAL rounds of live ammunition .

In the case against PERSON , which had begun before the applicant 's case , a hearing was held before ORG on DATE . Police Officer PERSON was heard as a witness with regard to the character and reliability of the anonymous informant . He stated that the informant was considered very reliable , having provided reliable information in the past , but refused to give any other information at DATE not even the precise date on which the weapons were delivered – so as not to place the informant 's life in danger . The date of delivery was given as “ after DATE ” . The official record of this hearing , including Police Officer PERSON 's statement , made its way into the file of the applicant 's case .

On DATE CARDINAL PERSON 's father was questioned by the NORP police ( GPE ) . He stated that he had been tricked by his son into unwittingly overseeing the transport by air of QUANTITY of cocaine from GPE to GPE , from there to GPE and on to GPE . The cocaine had been intercepted at GPE ( GPE ) FAC on DATE .

On DATE police officers drew up a telephone metering report from which it appeared that the mobile telephone found in the ORG car had been used on several occasions to call the telephone found in the Newtonstraat house , most recently shortly before the Audi car was searched . Other information , such as the mention ( in an address list belonging to another person ) of the applicant 's first name next to the number of the telephone found in the ORG car and a statement of a ( named ) informant that the applicant had used that car , suggested that the telephone found in the car had been used by the applicant .

Criminal proceedings against the applicant

Proceedings in ORG

On DATE , DATE following his arrest , the applicant was taken into police custody ( inverzekeringstelling ) on charges of taking part in a criminal organisation , possession of the QUANTITY of cocaine and the arms , ammunition and high explosive found in the ORG , and possession of the pistol and ammunition he had been carrying at the time of his arrest .

On DATE the Investigating Judge ( rechter - commissaris ) ordered the applicant taken into initial detention on remand ( inbewaringstelling ) .

On DATE , after a hearing in camera , ORG ( Arrondissementsrechtbank ) of GPE ordered the applicant taken into extended detention on remand ( gevangenhouding ) .

The applicant appealed against the decision of ORG . On DATE , after a hearing in camera , ORG of PERSON ( ORG ) of GPE overturned the decision of ORG and ordered the applicant 's release .

The trial hearing opened on DATE . The applicant denied all charges .

The occupant of ORG , PERSON , was heard as a witness . He stated that it was incorrect that the applicant had delivered weapons to his house using a ORG Land Cruiser . The applicant had nothing to do with the weapons . CARDINAL other individuals , whom he refused to name ( being himself accused in connection with these dealings ) , had delivered the weapons , using a delivery van ( bestelbus ) . The applicant had visited the house to retrieve some diving equipment , which he had left there , before going on holiday ; it was possible that he might have touched some other items in the process , leaving his fingerprints .

The owner of the ORG car , PERSON , was also heard as a witness . He stated that his wife owned a ORG Land Cruiser , registered in her name since DATE , and denied that it had been lent to anyone after that date . He denied knowing the applicant and denied having seen him in the aeroplane on the way to GPE .

At the request of ORG drew up a separate record of the statements of PERSON and PERSON to support a possible later prosecution on perjury charges . The ORG has not been informed of any further proceedings in this matter .

Also at the request of ORG ordered the applicant arrested in court and detained on remand . The reasons given were that it appeared from information which had come to light since DATE , when ORG ordered his release , that there was a prima facie case against the applicant , that he was likely to abscond and that he might reoffend .

ORG then referred the case back to the Investigating Judge in order to have the anonymous informant heard as a witness .

On DATE ORG lodged an application to the Investigating Judge to interrogate a threatened witness and keep his / her identity concealed . A copy of this document , which refers in general terms to ORG – CARDINALf of LAW ( PERSON ) but does not give any indication concerning the witness him / herself , was made available to the defence .

On DATE the Investigating Judge , Judge PERSON , heard the applicant and ORG before coming to a decision . The applicant 's counsel was invited to be heard but did not turn up . The applicant himself submitted a handwritten statement . He denied that there was any threat to the witness , stating that he had not threatened anyone and that he had never been convicted of any crimes involving violence .

The same day Investigating Judge PERSON ordered that the witness 's identity remain concealed . Her finding that the witness was in fact threatened was phrased as follows :

“ Considering that in view of the statements made by the witness to [ the police ] , as related to the Investigating Judge by [ Police Officer ] ORG , and the statement made by the witness to the Investigating Judge , as related in my ... official record of my findings ( proces - verbaal van bevindingen ) , it is not unlikely that the witness has reason to fear for the life , the health or the safety of the witness or his / her immediate surroundings ; ”

Investigating Judge PERSON 's official record of her findings , referred to in her decision , includes the following :

“ I informed this person of the matters on which I wished to interrogate him / her and asked him / her why he / she wished to remain anonymous .

The person answered that he / she has heard stories about the accused [ i.e. the applicant ] and his circle of friends , from which it would appear that the accused and his circle of friends are involved in shady business ( duistere praktijken ) . The accused reportedly moves in criminal circles . These things which the person has heard , in combination with what he / she has seen and will make a statement about , namely persons including the accused carrying a large number of large firearms , puts the person in great fear . In addition , the person also gave an explanation of his / her situation , in which he / she feels vulnerable . The person is afraid of a drastic interference with his / her personal life if his / her identity becomes known to the accused and his circle of friends .

The person informed me that he / she definitely did not want to testify under his / her own name .

I , Investigating Judge , have discussed with the person whether he / she has a criminal record ( strafrechtelijke antecedenten ) and whether there was any relationship between the person and the accused , and also the person 's reputation and family situation .

The person made a reliable and balanced impression on me , Investigating Judge . When asked , the registrar expressed the same opinion .

After my conversation with the above - mentioned person [ police officer ] ORG ... informed me of the above - mentioned person 's situation . What I was told by PERSON corresponds to what the person told me him / herself and confirmed the vulnerability of the person 's situation . ”

The applicant 's counsel appealed against the Investigating Judge 's decision on DATE , as did the applicant himself DATE .

Also on DATE Investigating Judge PERSON wrote to the applicant 's counsel informing him of her intention to interrogate the anonymous witness on DATE . The actual interrogation would be held in a room in which the registrar and Police Officer PERSON would be present in addition to the witness and herself ; Police Officer PERSON would be able to help her decide which questions to prevent in the interest of the witness 's safety .

On DATE the applicant 's counsel wrote to the Investigating Judge objecting against the presence of Police Officer PERSON in the same room as the anonymous witness and asked her not to allow any other person into the presence of the witness , the registrar and herself .

A CARDINAL - judge chamber of ORG held a hearing in camera on DATE . The applicant was present in person , assisted by his counsel . He asked for an adjournment , as he had only been informed of the date of the hearing DATE and had had no time to discuss matters with his counsel . This was denied on the ground that the applicant had had the time since lodging his appeal , DATE before , to consult his counsel ; the hearing then proceeded .

The same day ORG dismissed the appeal . Its reasoning included the following :

“ Counsel argued in camera that , contrary to decisions in similar cases of ORG and ORG of GPE , not only the reasonableness , but also the merits of the decision of the Investigating Judge should be examined ( niet alleen marginaal , doch ook inhoudelijk dient te worden getoetst ) .

In the present case ORG does not consider it necessary to go into the merits of the decision of the Investigating Judge . In the opinion of ORG the Investigating Judge has sufficiently checked the reasons for granting the witness anonymity . ORG considers in this regard that it appears from ORG official report of her findings that the witness 's situation is one of vulnerability , a circumstance for which ORG has accounted by obtaining information from [ Police Officer ] ORG . Counsel 's request will therefore be refused .

ORG considers it credible ( aannemelijk ) on the basis of ORG official report of her findings , the content of the statement of ORG made at the public hearing of ORG of GPE on DATE , and the nature and importance of the crimes with which the accused is charged , that the witness has reason to fear for the life , health and safety of the witness him / herself and his / her direct surroundings .

The witness has therefore rightly been granted the status of threatened witness , which means that the appeal against the decision of the Investigating Judge must be dismissed . ”

The interrogation of the anonymous witness took place DATE . The witness was sworn in . It appears from ORG official record of the occasion that , in addition to ORG , the registrar , a police officer called GPE ( operating the sound link ) and another police officer , called ORG ( as listener - in , toehoorder ) , were present in the same room as the witness . ORG , the applicant 's counsel , a police officer operating the sound link and the Procurator General of ORG as listener - in were in another room . The sound link involved voice distortion . The witness 's answers were first heard by the Investigating Judge with the sound link switched off , then , if the Investigating Judge found that the answer did not jeopardise the witness 's safety , repeated through the sound link so that the persons in the other room could hear .

The Investigating Judge 's official record includes the following :

“ I , Investigating Judge , have spoken with the witness both within the framework of the proceedings under LAW § CARDINAL of LAW and prior to the interrogation , the registrar , PERSON , being present . On these occasions the reasons why the witness wished to make a statement were discussed . On the first occasion the witness appeared worried about the risk of his / heir identity being disclosed . Prior to the interrogation the witness appeared reassured about the measures taken to prevent this from happening .

The witness made on us , Investigating Judge and registrar , a direct , frank and sober impression .

In view of the witness 's answers during the CARDINAL above - mentioned conversations , the way the witness behaved and the way the subsequent interrogation went , we , Investigating Judge and PERSON , come to the conclusion that the witness gives us an impression of reliability . ”

The applicant 's counsel had previously submitted CARDINAL questions by fax . ORG official record lists the questions which were not allowed , giving the reasons why not ( mostly irrelevance or concern for the witness 's safety ) .

The witness described the applicant as “ a tall man , with fair , slightly curly hair , thin , DATE , normal hair , slightly balding above the temples ( een beetje inhammen ) , no spectacles or moustache ” . He / she had positively recognised the applicant when he was unloading weapons wrapped in dustbin liners , sports bags and a heavy box . The question whether the witness knew the applicant , put by the prosecution , was not allowed in the interests of ensuring the witness 's safety . The question , put by the defence , on what DATE the witness saw the applicant unload the weapons was not allowed either , for the same reason . The interrogation took from TIME until TIME During the interrogation the witness made an outline drawing of the vehicle used to transport the weapons , which was transmitted by fax to the room where the applicant 's counsel and the prosecutor were . The vehicle was a delivery van with an outline apparently different from that of a ORG Land Cruiser : it had a sloping front instead of a protruding bonnet , and no spare wheel at the back .

On DATE PERSON 's counsel wrote to the applicant 's counsel stating that the anonymous witness , when interrogated by the police in the presence of the Procurator General and ORG in addition to himself , had specified the date on which the weapons were delivered as “ DATE ] ” . He / she had given this information after it had been pointed out that , according to the calendar , “ DATE ” in DATE was from CARDINAL until DATE .

On DATE the applicant 's counsel wrote to ORG asking for further witnesses to be brought forward . These included the wife of PERSON , who was the owner of the ORG Land Cruiser allegedly used to transport the weapons , and Investigating Judge PERSON . The applicant 's counsel made it clear that it was intended to determine with greater precision the date on which the delivery had taken place so as to establish the applicant 's alibi .

The hearing before ORG resumed on DATE . Investigating Judge PERSON was heard as a witness . She persisted in her refusal to mention the date on which the weapons were stated by the anonymous witness to have been delivered ( LAW Code of Criminal Procedure – Wetboek van Strafvordering ) . This was accepted by ORG on the ground that it was in the nature of things that only the Investigating Judge could decide whether such a refusal was necessary .

PERSON was heard as a witness about the vehicle used for the delivery , which he stated to have been a ORG Land Cruiser . It had come into his wife 's possession no earlier than DATE .

Police Officer PERSON was heard as a witness . He stated that he was aware that the anonymous witness had stated before the Investigating Judge that the weapons were delivered at DATE , but that the anonymous witness was mistaken as to the date . The President of ORG blocked a question relating to DATE on which the weapons were delivered . The registration number of the vehicle used was given by the anonymous witness to an unidentified RCID police officer , who gave it to Police Officer PERSON ; Police Officer PERSON refused to say who this police officer was , and was dispensed from so doing by the President of ORG .

ORG viewed a video tape compiled from several tapes found in the house of PERSON . These showed a group of persons on various locations in the GPE , in the south of GPE and on a trip to GPE to attend the football world championship . Weapons were occasionally shown . Members of the group were frequently shown brandishing a pistol . The applicant appeared in some of the scenes wearing a baseball cap ; he was shown in the company of PERSON on the trip to GPE , and PERSON was at CARDINAL point shown laughing at a remark made by the applicant .

The applicant stated , inter alia , that he had been in GPE at DATE , but had returned to the GPE by CARDINAL or DATE . He further admitted that he had been carrying a pistol and ammunition when he was arrested on DATE . However , he denied having had anything to do with the delivery of weapons at the Newtonstraat house . He had left some diving equipment with PERSON , which he had gone to pick up in DATE before going on holiday ; this explained the presence of his fingerprints on dustbin liners . He denied knowing PERSON .

Witnesses were heard about the ORG Land Cruiser .

Addressing ORG in the applicant 's defence , the applicant 's counsel stated that the only real indication that the anonymous witness was reliable was the statement of Police Officer PERSON and the subjective assessment of the Investigating Judge . He also protested against the refusal to allow the anonymous witness to give the date on which the weapons were delivered , which made it impossible to verify the applicants 's alibi . Much was made of the applicant 's alibi ; of the ORG Land Cruiser , which in counsel 's submission could not have been the vehicle used for delivering the weapons ; and of the description of the appearance of the man identified by the anonymous witness as the applicant – the description , counsel said , did not fit because the applicant was in fact quite bald . It was also denied that the applicant had anything to do with the cocaine or with the large sum of money found in the Audi .

On DATE ORG gave judgment finding the applicant guilty of all the crimes charged . It sentenced him to DATE imprisonment . The pistol and ammunition found in his possession when he was arrested was withdrawn from circulation ( onttrokken aan het verkeer ) and the money found in the Audi car was declared forfeit ( verbeurd ) .

Proceedings in ORG

The applicant appealed to ORG of GPE .

On DATE Dr PERSON , professor of experimental psychology ( psychologische functieleer ) at the university of GPE , transmitted to the applicant 's counsel a report which he had prepared after studying the video tape . He came to the conclusion that the interactions between the applicant and PERSON , as recorded , suggested that they might have known each other by sight ; however , it was also possible that they might have had no lasting memory of each other as the applicant claimed .

The hearing of ORG opened on DATE . The used - car dealer who had sold the ORG Land Cruiser to PERSON 's wife was heard as a witness : he gave a date for its sale ( DATE ) . The applicant again denied having known PERSON before the trial . He also denied having had anything to do with the delivery of the weapons and the cocaine : on DATE he had visited PERSON 's house in the Newtonstraat to retrieve his diving equipment , after which he had gone on holiday . Police Officer PERSON , heard as a witness , confirmed the statement he had made earlier . When the defence protested against the absence from the case - file of the fingerprint report of the ORG Land Cruiser , the Procurator General stated that no usable fingerprints had been found . Parts of the compilation video tape were shown in open court . The defence also asked for inter alios Investigating Judge PERSON to be heard as a witness . ORG so ordered , adjourning the hearing until DATE .

ORG ordered the applicant 's release , overturning the decision of ORG of DATE , on the ground that the new information relied on by ORG was not such as to justify the second order for his detention on remand .

The hearing , having been adjourned , resumed on DATE . Investigating Judge PERSON did not appear . An ORG explosives expert was heard as a technical witness . A police officer , who had been present when the cocaine and the weapons were seized at the Newtonstraat house on DATE , showed some of the dustbin liners . These , according to the official record of the hearing as dictated by the President of ORG , were made of grey plastic . CARDINAL of them had borne the applicant 's fingerprints . Some still bore traces of adhesive tape . The police expert stated that the dustbin liners had all been wrapped around firearms , and that all objects that might have carried fingerprints had been checked for them . Diving equipment had also been found .

The hearing was continued on DATE . Investigating Judge PERSON gave evidence . Her statement , as taken down in the official record of the hearing , included the following :

“ You ask me how I came to the finding that this anonymous witness was reliable , as I indicated in the official record of the interrogation on DATE .

I spoke with the witness at some length . The way in which the witness reacted showed integrity . I asked some control questions to check reliability .

I noted during the interrogation that there is a certain amount of discrepancy between a delivery van and an “ all - terrain vehicle ” but this has not caused me to doubt the reliability of the witness . After all , I do not know in what terms a witness describes things .

I reply as follows to questions put by counsel for the accused :

At the beginning of the interrogation session the witness did not know exactly when the delivery had taken place . DATE he / she was able to indicate that it had been during the period from DATE until DATE . On DATE the interrogations took place first in the case of the co - accused PERSON and then in the case of the present accused [ i.e. the applicant ] . I can not now remember exactly all the differences in nuance between the CARDINAL interrogations . Later that day the witness remembered a number of things more distinctly .

Things happened the way I described them in the official record . I have tried to take everything down with as much precision as possible .

The witness was in my opinion reasonably positive on the date of the delivery . I can not remember having heard the date . The date has not been taken down in my handwritten notes ( klad ) .

The reliability of the witness was assessed before the beginning of the interrogation .

You now ask me why I stopped the question of [ the applicant 's counsel ] as to the date of the delivery for reasons of protecting the source . I decline to answer that question .

In their final address , counsel for the applicant referred in general terms to all the submissions made in the course of the first - instance proceedings . More specifically , they contested the veracity and accuracy of the statements made by the anonymous witness to the police and before the Investigating Judge . Reference was made to what the defence argued were inconsistencies , such as that between the vehicle described by the anonymous witness as a delivery van and the ORG Land Cruiser identified as the vehicle used , and that between the physical appearance of the applicant as described by the anonymous witness and the applicant 's actual physical appearance . Inconsistencies such as these ought , in the submission of the defence , to have inspired the Investigating Judge to greater caution when expressing herself on the subject of the witness 's reliability . Moreover , one of a set of photographs taken in the Newtonstraat house showed a gun - shaped object wrapped in blue dustbin liners – the grey ones shown in open court were not shown in the photographs at all . ORG was invited to express itself on these points . The defence also protested against the decision of the Investigating Judge to block certain questions , for example , that concerning DATE on which the anonymous witness had allegedly witnessed the events in question , which prevented the applicant from establishing his alibi .

Although admittedly the applicant 's fingerprints had been found on some of the dustbin liners , they were , in the submission of the defence , capable of another explanation than the applicant 's involvement in the crimes charged : the applicant and PERSON were friends from childhood ; the applicant had lived in the same house with PERSON , his mother lived next door ; and he was still a frequent visitor there , so that his fingerprints were to be found all over the place ; the applicant had at some point had to shift some bags to get at some diving equipment ; the weapons could have been repackaged in different dustbin liners DATE and DATE .

It was denied that the applicant had had anything to do with the items found in the ORG car on DATE . The letters addressed to the applicant had been unopened and had not yet been seen by the applicant . The mobile telephone found in the car was not traceable to the applicant : it had been used by PERSON .

Finally , the video showing both PERSON and the applicant did not admit of the conclusion that these CARDINAL knew each other at all well .

ORG gave judgment on DATE . It overturned the judgment of ORG on the formal ground that the defence had wrongly been prevented from putting any questions to Investigating Judge PERSON . It then found the applicant guilty as charged . The evidence relied on included , inter alia , the statement of the anonymous witness ; the findings of Investigating Judge PERSON as to the witness 's reliability ; the statement made on DATE by Police Officer PERSON ; the applicant 's fingerprints on the dustbin liners ; the fact that keys found in the Audi car fitted the doors of both the Newtonstraat house and the applicant 's residence ; metering reports from which it appeared that the mobile telephone had been used to make a call to the Newtonstraat house ; and the official police reports from which it appeared that the mobile telephone in question had been used by the applicant . The applicant 's statement that he did not know PERSON was dismissed as a transparent lie , in view of the video tape which showed PERSON laughing at a remark made by the applicant , and as such was considered corroborative of his guilt .

With regard to the reliability of the anonymous witness , ORG considerations included the following :

“ Counsel for the accused has argued that [ Investigating Judge PERSON ] , on the occasion of the interrogation of the anonymous witness , has insufficiently discharged her duty as laid down by Article PERSON of LAW to check the reliability of the threatened witness interrogated by her , so that this statement can not be used in evidence that the accused has committed the acts charged DATE , CARDINAL and DATE .

ORG does not share this opinion of counsel , in view of what the Investigating Judge has recorded in her official record of the interrogation of CARDINAL DATE and the statement she made at the appeal hearing on DATE .

In so far as counsel may have meant to argue that ORG is competent to judge whether the anonymous witness was properly granted the status of threatened witness , this argument must be rejected . In accordance with the procedure provided for in ORG and following of LAW the anonymous witness was considered to be a threatened witness and interrogated . Any renewed investigation by the trial court in light of the preconditions for granting the status of threatened witness is contrary to the procedure laid down by law and the closed system of legal remedies .

ORG finds that the statement of the anonymous / threatened witness , which does not support the conviction to a decisive extent ( in overwegende mate ) and which ORG has used with due caution , is reliable and credible . The information of the witness as rendered by the [ police ] only differs on nonessential details from the statement made by the witness on oath DATE before the Investigating Judge , on which occasion the witness affirmed the accuracy of the statement made before the [ police ] . On that occasion also , the witness was interrogated by counsel for the accused . The statement is detailed and consistent and in accordance with what was found , based on the information supplied , in the house situated at Newtonstraat no . CARDINAL in GPE . ORG bases this finding also on the statements of ORG referred to [ above ] . This finding is not affected by the fact that the anonymous witness was dispensed from answering certain questions put by the defence , nor by the fact that the Investigating Judge , when heard as a witness , did not answer certain questions . The failure to answer these questions was , after all , legally permissible ( rechtens geoorloofd ) in each case and connected with , in particular , ensuring that the identity of the threatened witness was kept concealed .

In so far as , during the interrogation before the Investigating Judge on CARDINAL DATE , the threatened witness did not answer certain questions , ORG finds that the answers to the questions concerned could disclose the identity of the threatened witness . The Investigating Judge therefore acted properly in blocking these questions .

In so far as the witness [ Investigating Judge PERSON ] failed to answer certain questions at the hearing before ORG on DATE , she stated her reasons for so doing and relied on her right to excuse herself from so doing . The defence has argued that she did not have such a right to excuse herself , but wrongly so . After all , the Investigating Judge has a right to excuse herself from answering questions under Article CARDINALa , taken together with LAW of LAW . It is in principle for the person claiming such a right to decide whether or not to excuse herself in this respect . From the nature of the questions in respect of which this witness excused herself it appears incontrovertibly that the questions relate to the subject matter – the identity of the threatened witness – in relation to which the right to excuse herself from answering was provided for . ORG is of the opinion that the Investigating Judge , when appearing as a witness at the hearing of DATE , properly relied on her right to excuse herself .

In so far as the Investigating Judge , at the interrogation of the threatened witness , blocked certain questions because the answers were irrelevant to the case , ORG finds that these questions were in fact irrelevant to the case in which the witness was being interrogated . The Investigating Judge therefore acted properly in blocking these questions .

ORG further finds that the statement of the anonymous / threatened witness may be used as evidence that the accused has committed the acts charged DATE , CARDINAL and DATE , since it concerns the statement of a witness with respect to whom a court has ordered that on the occasion of his / her interrogation his / her identity shall remain concealed and the witness has been interrogated as such by the Investigating Judge in the way provided for by ORG CARDINALc – CARDINALf of LAW , the facts charged and held proven concerning crimes as referred to in LAW § CARDINAL of the Code of Criminal Procedure which , given their nature and the organised context in which they were committed , constitute a serious violation of the legal order . ... ”

ORG sentenced the applicant to , inter alia , a term of imprisonment of DATE and DATE , withdrew the pistol and ammunition found in the applicant 's possession when he was arrested from circulation and declared the money found in the Audi car forfeit . It did not , however , order the applicant arrested and detained there and then .

Proceedings in ORG

The applicant lodged an appeal on points of law to ORG ( PERSON ) , submitting an extensive statement of grounds of appeal .

ORG gave judgment on DATE . It dismissed the appeal in its entirety . Its reasoning , in so far as relevant to the case before ORG , was as follows .

In response to a complaint that ORG had failed itself to evaluate the alleged risk to the anonymous witness , ORG referred to the Explanatory Memorandum ( PERSON ) to the PERSON enacting the relevant provisions of LAW ( see below ) , from which it appeared that it had been the intention of the legislature to remove this responsibility from the trial court ; ORG had therefore properly refused to go into this question anew . It was noted obiter dictum that no circumstances were apparent in the present case from which it would follow that the fairness of the proceedings had been adversely affected .

In response to a complaint that the defence had had insufficient opportunity adequately to question the witness and assess his / her reliability , it was noted that not only the defence but also ORG had been in a different room when the witness was interrogated ; that the Investigating Judge had based the interrogation on , amongst other things , a list of questions submitted beforehand by the defence ; that the applicant 's counsel had asked additional questions and that questions had been blocked only in order to ensure the anonymity of the witness or because of irrelevance ; and that the witness was apparently ( kennelijk ) not a police officer .

In response to a complaint that the applicant 's conviction was based “ to a decisive extent ” on the results of the interrogation of the anonymous witness , ORG held that in view of the alternative evidence this was not the case .

In response to a complaint that the Investigating Judge had wrongly blocked certain questions asked by the defence , ORG held that the Investigating Judge had been entitled to do so in order to prevent the witness 's identity from being disclosed or to prevent the asking of questions that were irrelevant to establishing the truth of the matter or the propriety of the criminal investigation .

In response to a complaint that police officers had been present in the same room as the Investigating Judge and the anonymous witness , it was held that although it must be assumed that it was generally not permissible for police officers to be present ( except in so far as their presence was required for the purpose of technical assistance ) , no defence of this nature had been put forward before ORG . The latter court had therefore not been required to go into this question .

CARDINAL complaints , including CARDINAL to the effect that ORG ought not to have held what it considered the applicant 's apparent lie that he did not know PERSON to be per se corroborative of his guilt and another relating to the difference in colour between the dustbin liners shown in court and that appearing on the photograph , were dismissed collectively on the following summary reasoning :

“ These points of appeal do not provide ground to overturn the judgment of ORG ( kunnen niet tot cassatie leiden ) . In light of Article PERSON of ORG ( Wet op de rechterlijke organisatie ) , no further reasoning is called for , since these points of appeal do not require answers to questions of law in the interests of the unity or development of the law . ”

However , as the mere possession ( as distinct from carrying ) of bayonets had in the meanwhile been decriminalised , ORG reduced the applicant 's prison sentence by DATE , to DATE .

PERSON Relevant domestic law and practice

The Code of Criminal Procedure

The relevant provisions of LAW were enacted by LAW of DATE , ORG , no . CARDINAL , which entered into force on DATE . They provide as follows :

Article CARDINALa

A witness who has been involved in his official or professional capacity in the interrogation of a threatened witness or an earlier interrogation of that witness during the preparatory investigation may decline to answer a question put to him in so far as such is necessary in order to keep the identity of the threatened witness concealed .

Article CARDINALa

The Investigating Judge shall , either of his own motion or on the application of ORG or at the request of the accused or his counsel or of the witness , order that on the occasion of the interrogation of that witness his identity shall remain concealed , if :

( a ) the witness or another person may , in view of the statement to be made by the witness , consider himself under such threat that it must in reason be assumed that there is legitimate reason to fear for the life , the health or the safety of the witness or other person , or to fear disruption of his family life or socio - economic existence ; and

( b ) the witness has made it clear that due to this threat he is unwilling to make a statement . If these requirements are not met he shall reject the application or the request .

ORG , the accused and his counsel , and the witness shall be offered the opportunity to be heard in this regard .

The Investigating Judge shall not proceed to the interrogation of the witness as long as an appeal lies against his decision and , if an appeal has been lodged , as long as it has not been withdrawn or decided on , unless the interests involved in the investigation do not admit of any delay . In that case the Investigating Judge shall retain the official record of the interrogation of the witness until the appeal has been decided on .

Article CARDINALb

The decision given by ORG under Article PERSON , first paragraph , shall be reasoned , dated and signed and shall promptly be communicated in writing to ORG and notified to the accused and the witness , setting out the time - limit and the way in which the legal remedy available against the decision should be used .

An appeal lies to the trial court ( gerecht in feitelijke aanleg ) before which the case is being prosecuted , for ORG , within DATE from DATE of the decision , and for the accused and the witness , within DATE after the notification thereof .

The trial court shall decide as soon as possible . If the appeal against a decision given under Article ORG , first paragraph , is held to be well - founded and ORG has already interrogated the witness having due regard to Articles CARDINAL , the Investigating Judge shall see to it that the official record of the interrogation is destroyed . The Investigating Judge shall make an official record of this event . Article CARDINALf shall apply by analogy .

No appeal on points of law ( cassatie ) shall be permitted against the trial court 's decision .

If a final decision has been given on appeal that the witness is a threatened witness , the judges of the trial court shall not , on pain of nullity , take part in the public hearing of the case . LAW paragraph , shall not apply .

Article CARDINALc

Before proceeding to interrogate a threatened witness , the Investigating Judge shall verify his identity and mention in the official record that he has done so .

The witness shall be put on oath or affirmed as provided for in LAW .

The Investigating Judge shall interrogate the threatened witness in such a way that his identity remains concealed .

Article ORG

If this is necessary in the interests of keeping the identity of the threatened witness concealed , the Investigating Judge can decide that the accused or his counsel or both shall not be allowed to attend the interrogation of the threatened witness . In that case the Public Prosecutor shall not be allowed to attend either .

As soon as possible the Investigating Judge shall make known to ORG , the accused or his counsel , if he has not attended the interrogation of the witness , the content of the statement made by the witness , offering him the opportunity to submit by means of telecommunication or , if the interest of keeping the identity of the threatened witness concealed does not admit of this , in writing , the questions he wishes to have asked . Questions may be submitted already before the start of the interrogation unless the interests of the investigation do not allow the interrogation to be delayed .

If the Investigating Judge prevents an answer given by the threatened witness from coming to the knowledge of ORG , the accused or his counsel , the Investigating Judge shall have it noted in the official record that the question asked was answered by the threatened witness .

Article PERSON

During the interrogation the Investigating Judge shall investigate the reliability of the threatened witness and report his findings in the official record .

Article CARDINALf

The Investigating Judge shall take , in consultation with ORG as far as possible , the measures reasonably required to keep concealed the identity of the threatened witness and also of any witness regarding whom an application or a request as referred to in Article PERSON , first paragraph , has been made as long as no final decision has been taken in this respect .

He is empowered for that purpose to leave unmentioned in documents contained in the case - file ( processtukken ) information concerning the identity of the witness or to anonymise such documents .

Anonymisations shall be signed or certified by ORG and the registrar .

Article CARDINAL